Faqs on the proposed Anti-Terrorism Act of 2020
On Criminal Law
Frequently Asked Questions on the proposed Anti-Terrorism Act of 2020
Know your rights and understand the safeguards in the proposed Anti-Terrorism Act of 2020 or House Bill No. 6875.
Scroll through the list of commonly asked questions about the bill and let us know your thoughts.
What is the status of terrorism in the Philippine?
The Global Terrorism Index of 2019 lists the following countries as the most negatively affected by terrorism: Afghanistan, Iran, Nigeria, Syria, Pakistan, Somalia, India, Yemen, Philippines, and Democratic Republic of the Congo.
The Philippines also experienced the highest negative impact of terrorism among states in the Asia Pacific region. While other states across the globe are starting to see a downtrend in the number of deaths due to terrorism, the Philippines is included in the top 10 countries with the largest increase in deaths from terrorism for 2016-2017.
Who are considered terrorists in the Philippines under the Human Security Act of 2007?
Despite the existence of the Human Security Act in 2007, the Abu Sayyaf Group is the only declared terrorist or outlawed organization in the Philippines.
Its proscription as such occurred in 2015.
How many were convicted due to the violation of the Human Security Act?
Despite the real and present threat presented by terrorist organizations, groups, and individuals to the Filipino people, the Philippines have had only 1 conviction for violation of the law. The Taguig Regional Trial Court Branch 70 convicted Nur Supian for recruiting participants in the 2017 Marawi Siege. His co-accused Marvin Ahmad, Salip Ismael Abdullah, and Issa Ukkang were, meanwhile, acquitted.
It is a reality in the country that when terrorists are captured, they are oftentimes charged with cases for violations of the Revised penal Code, or illegal possession of firearms or some other special laws rather than for terrorism. Even the suspects of the Jolo suicide bombings in 2018 faced multiple murder and frustrated murder charges for the deaths and injuries caused by said bombings when it was clearly a terrorist act.
What was the impact of the marawi siege in 2017?
In the case of the Marawi alone, the government reported the death of 900 Maute-ISIS affiliated fighters, 168 government forces, and 47 civilians. The total damage and lost opportunities cost is estimated by the Philippines' Task Force bangon Marawi at Php 18.23 billion. The said amount does not include the cost of war material and other combat service support operations, which was estimated at more than, Php 6 billion (US$1.38 billion).
Post-war, the government's conservative estimate for the cost of Marawi's rehabilitation is pegged at least Php 72.58 billion (US$1.39 billion).
Is the Anti-Terrorism Bill a call for Martial Law?
This is not martial law. While the measure includes tough provisions against terrorists including foreign ones, even tougher safeguards are in place against abuse.
What is the definition of terrorism under this bill?
Terrorism is committed by any person who, within or outside of the Philippines, regardless of the stage of executions:
A. Engages in any acts intended to cause death or serious injury to any person. or endangers a person's life;
B. Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;
C. Engages in acts intended to cause extensive interference with, damages or destruction to critical infrastructure;
D. Develops, manufactures, possess, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological, or chemical weapon; and
E. Release of dangerous substance, or causing fire, floods, or explosions.
When the purpose of such act is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as the Revised Penal Code".
Thus, in order to be considered as acts of terrorism, the intent and purpose taken together must be established. Performance of the acts enumerated without the underlying purpose as enumerated above may be considered as violations of the Revised Penal Code or other special laws, and not as acts of terrorism.
Does this definition cover valid exercise of Freedom of Speech?
No. Not only is this right constitutionally guaranteed under Article III Section 4 of the 1987 Constitution, Section 4 of the bill further provides in an explicit and unequivocal manner the following:
"Provided, That, terrorism as defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create a serious risk to public safety."
Acts Punishable Under the Bill
Conspiracy to commit Terrorism (Section 7)
As a general rule, conspiracy is not punishable under the provisions of existing law. However, under the Revised Penal Code, the act of penalizing certain conspiracies is not a new concept, particularly when said conspiracies deal with violation of Crimes Against National Security and the Law of nations i.e, Treason and Crimes Against Public Order like Rebellion, Coup d'etat, and Insurrection.
The act being punished here is similar to the Conspiracy being punished under the Revised Penal Code, particularly, Art. 115: Conspiracy and Proposal to Commit Treason, Art. 136: Conspiracy and Proposal to Commit Coup D'etat, Rebellion, Insurrection. Under Human Security Act of 2007, Terrorism is a crime against humanity under the provision of RA 9372..As such, the same with rebellion or treason, mere conspiracy to commit the same should be penalized.
Inciting to Commit Terrorism (Section 9), Recruitment to and Membership in a Terrorist Organization (Section 10), and Providing Material Support to Terrorist (Section 12)
The proposal is based from the EU Directive (EU) 2017/541 of the European Parliament and of the Council, UN Model Legislation on Terrorism provided by the UN Office on Drugs and Crimes (UNODC). UN Security Council Resolution 1624 requires comprehensively addressing underlying factors, including by preventing radicalization to terrorism, stemming recruitment, inhibiting foreign terrorist fighter travel, disrupting financial support to foreign terrorist fighters, countering violent extremism, which can be conducive to terrorism, countering incitement to terrorist acts motivated by extremism or intolerance, promoting political and religious tolerance, economic development and social and cohesion and inclusiveness, ending and resolving armed conflicts, and facilitating reintegration and rehabilitation.
Does providing material support to terrorists automatically make you liable under this bill?
No. In order to be liable under this bill, the person providing material support to any terrorist must have knowledge that such individual, or association, or group of persons is committing or planning to commit acts of terrorism.
What is the Anti-Terrorism Council?
Contrary to claims by those opposing the bill, it is the courts that will determine if one is a terrorist, not the Anti-Terrorism Council (ATC).
The ATC is a body created by the Human Security Act to formulate plans, programs, and counter-measures. Under Sec 53 of the HSA, it does not have power to exercise any judicial or quasi-judicial power or authority.
May the Anti-Terrorism Council, on its own, order law enforcement officials to conduct wiretapping on suspected terrorists?
No. Upon the authority of ATC, law enforcement or military personnel must first file an ex parte application with the Court of Appeals who will determine whether the application should be granted or not. The judicial authorization shall be issued only after the Court of Appeals has examined the applicant and the witnesses he may produce under oath or affirmation and determined that:
(1) there is probable cause to believe based on personal knowledge of facts or circumstances that the crimes defined under this act has been committed, or is being committed or is about to be committed;
(2) there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of terrorist acts will be obtained.
What is the effect of wiretapping without judicial authorization?
The law enforcement or military personnel who conducted such wiretapping shall be penalized with 10 years imprisonment.
In addition, any information from the wiretapping conducted, without the judicial authorization of the Court of Appeals, shall be inadmissible in evidence following the principle of "fruit of the poisonous tree."
How long is the period of surveillance?
The period of judicial authorization shall be specified in the written order of the authorizing division of the Court of Appeals. It cannot exceed a period of 60 days.
The same authorizing division of the Court of Appeals may extend or renew said period to a non-extendible period of 30 days if the former is satisfied that such an extension or renewal is in the public interest.
Who may be proscribed under this bill?
Any group or persons, organization or association, which commits any of the acts defined and penalized under this bill or is organized for the purpose of engaging in terrorism.
May the Anti-Terrorism Council, on its own, proscribe a terrorist individual or organization?
No. Proscription may be done upon application of the DOJ before the Court of Appeals with due notice and opportunity to be heard given to the group of persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the said court.
Is warrantless arrest a new concept?
No. Warrantless arrest has been allowed and is governed by the Rules of Court.
"Rule 113. Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another."
Is the detention period of 14 days unconstitutional considering the provisions on suspension of the privilege of the writ of habeas corpus?
No. As expressly stated by the Constitution of the Philippines, specifically in Article 7, Section 18, Paragraph 5, the suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. As such, we apply the theory of strict construction. It states that we should follow the word of the law to its strictest sense when the technical terms have been used and there shall be no room for interpretation.
May a person be arrested on mere suspicion?
No. The measure does not allow authorities to cite the law to arrest people on mere suspicion. Rule 113 of the Rules of Court on warrantless arrest will apply. Congress does not have the power to determine the manner of arrest.
The bill did not (and never intended) to amend the Rules of Court as it may not do so due to the separation of powers enshrined in the 1987 Constitution. Naturally, Rule 113 must be complied with in effecting warrantless arrest.
What are the safeguards in place for those arrested without warrant under this bill?
1. The arresting officer shall immediately after taking custody of a person suspected of committing terrorism or any member of a group of persons, organization or association proscribed under Section 26 hereof, the law enforcement agent or military personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts:
(a) the time, date, and manner of arrest;
(b) the location or locations of the detained suspect/s and
(c) the physical and mental condition of the detained suspect/s.
2. The law enforcement agent or military personnel shall likewise furnish the ATC and the Commission on Human Rights (CHR) of the written notice given to the judge.
3, The head of the detaining facility shall ensure that the detained suspect is informed of his/her rights as a detainee and shall ensure access to the detainee by his/her council or agencies and entities authorized by law to exercise visitorial powers over detention facilities.
What are the rights of a Person under Custodial Detention?
The person detained shall be informed, by the arresting law enforcement agent or military personnel to whose custody the person concerned is brought, of his or her right:
(a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel or his or her own choice, the law enforcement agent or military personnel concerned shall immediately contact the free legal assistant unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney's Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person/s detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of his/her counsel of choice;
(b) Informed of the cause or causes of his/her detention in the presence of his legal counsel;
(c) allowed to communicate freely with his/her legal counsel and to confer with them at any time without restriction;
(d) allowed to communicate freely and privately without restrictions with the members of his/her family or with his/her nearest relatives and to be visited by them; and,
(e) allowed freely to avail of the service of a physician or physicians of choice.
What happens when law enforcement or military violates these rights?
Aside from administrative charges under Section 15, the penalty of 10 years imprisonments shall be imposed upon them.
Is torture allowed under this act?
No. The use of torture and other cruel, inhumane and degrading treatment or punishment, as defined in Sections 4 and 5 of Republic Act No. 9745 otherwise known as the "Anti-Torture Act of 2009," at any time during the investigation or interrogation of a detained suspected terrorist is absolutely prohibited and shall be penalized under said law.
Any evidence obtained from said detained person resulting from such treatment shall be, in its entirety, inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.
Know your rights and understand the safeguards in the proposed Anti-Terrorism Act of 2020 or House Bill No. 6875.
Scroll through the list of commonly asked questions about the bill and let us know your thoughts.
What is the status of terrorism in the Philippine?
The Global Terrorism Index of 2019 lists the following countries as the most negatively affected by terrorism: Afghanistan, Iran, Nigeria, Syria, Pakistan, Somalia, India, Yemen, Philippines, and Democratic Republic of the Congo.
The Philippines also experienced the highest negative impact of terrorism among states in the Asia Pacific region. While other states across the globe are starting to see a downtrend in the number of deaths due to terrorism, the Philippines is included in the top 10 countries with the largest increase in deaths from terrorism for 2016-2017.
Who are considered terrorists in the Philippines under the Human Security Act of 2007?
Despite the existence of the Human Security Act in 2007, the Abu Sayyaf Group is the only declared terrorist or outlawed organization in the Philippines.
Its proscription as such occurred in 2015.
How many were convicted due to the violation of the Human Security Act?
Despite the real and present threat presented by terrorist organizations, groups, and individuals to the Filipino people, the Philippines have had only 1 conviction for violation of the law. The Taguig Regional Trial Court Branch 70 convicted Nur Supian for recruiting participants in the 2017 Marawi Siege. His co-accused Marvin Ahmad, Salip Ismael Abdullah, and Issa Ukkang were, meanwhile, acquitted.
It is a reality in the country that when terrorists are captured, they are oftentimes charged with cases for violations of the Revised penal Code, or illegal possession of firearms or some other special laws rather than for terrorism. Even the suspects of the Jolo suicide bombings in 2018 faced multiple murder and frustrated murder charges for the deaths and injuries caused by said bombings when it was clearly a terrorist act.
What was the impact of the marawi siege in 2017?
In the case of the Marawi alone, the government reported the death of 900 Maute-ISIS affiliated fighters, 168 government forces, and 47 civilians. The total damage and lost opportunities cost is estimated by the Philippines' Task Force bangon Marawi at Php 18.23 billion. The said amount does not include the cost of war material and other combat service support operations, which was estimated at more than, Php 6 billion (US$1.38 billion).
Post-war, the government's conservative estimate for the cost of Marawi's rehabilitation is pegged at least Php 72.58 billion (US$1.39 billion).
Is the Anti-Terrorism Bill a call for Martial Law?
This is not martial law. While the measure includes tough provisions against terrorists including foreign ones, even tougher safeguards are in place against abuse.
What is the definition of terrorism under this bill?
Terrorism is committed by any person who, within or outside of the Philippines, regardless of the stage of executions:
A. Engages in any acts intended to cause death or serious injury to any person. or endangers a person's life;
B. Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;
C. Engages in acts intended to cause extensive interference with, damages or destruction to critical infrastructure;
D. Develops, manufactures, possess, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological, or chemical weapon; and
E. Release of dangerous substance, or causing fire, floods, or explosions.
When the purpose of such act is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592, otherwise known as the Revised Penal Code".
Thus, in order to be considered as acts of terrorism, the intent and purpose taken together must be established. Performance of the acts enumerated without the underlying purpose as enumerated above may be considered as violations of the Revised Penal Code or other special laws, and not as acts of terrorism.
Does this definition cover valid exercise of Freedom of Speech?
No. Not only is this right constitutionally guaranteed under Article III Section 4 of the 1987 Constitution, Section 4 of the bill further provides in an explicit and unequivocal manner the following:
"Provided, That, terrorism as defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create a serious risk to public safety."
Acts Punishable Under the Bill
Conspiracy to commit Terrorism (Section 7)
As a general rule, conspiracy is not punishable under the provisions of existing law. However, under the Revised Penal Code, the act of penalizing certain conspiracies is not a new concept, particularly when said conspiracies deal with violation of Crimes Against National Security and the Law of nations i.e, Treason and Crimes Against Public Order like Rebellion, Coup d'etat, and Insurrection.
The act being punished here is similar to the Conspiracy being punished under the Revised Penal Code, particularly, Art. 115: Conspiracy and Proposal to Commit Treason, Art. 136: Conspiracy and Proposal to Commit Coup D'etat, Rebellion, Insurrection. Under Human Security Act of 2007, Terrorism is a crime against humanity under the provision of RA 9372..As such, the same with rebellion or treason, mere conspiracy to commit the same should be penalized.
Inciting to Commit Terrorism (Section 9), Recruitment to and Membership in a Terrorist Organization (Section 10), and Providing Material Support to Terrorist (Section 12)
The proposal is based from the EU Directive (EU) 2017/541 of the European Parliament and of the Council, UN Model Legislation on Terrorism provided by the UN Office on Drugs and Crimes (UNODC). UN Security Council Resolution 1624 requires comprehensively addressing underlying factors, including by preventing radicalization to terrorism, stemming recruitment, inhibiting foreign terrorist fighter travel, disrupting financial support to foreign terrorist fighters, countering violent extremism, which can be conducive to terrorism, countering incitement to terrorist acts motivated by extremism or intolerance, promoting political and religious tolerance, economic development and social and cohesion and inclusiveness, ending and resolving armed conflicts, and facilitating reintegration and rehabilitation.
Does providing material support to terrorists automatically make you liable under this bill?
No. In order to be liable under this bill, the person providing material support to any terrorist must have knowledge that such individual, or association, or group of persons is committing or planning to commit acts of terrorism.
What is the Anti-Terrorism Council?
Contrary to claims by those opposing the bill, it is the courts that will determine if one is a terrorist, not the Anti-Terrorism Council (ATC).
The ATC is a body created by the Human Security Act to formulate plans, programs, and counter-measures. Under Sec 53 of the HSA, it does not have power to exercise any judicial or quasi-judicial power or authority.
May the Anti-Terrorism Council, on its own, order law enforcement officials to conduct wiretapping on suspected terrorists?
No. Upon the authority of ATC, law enforcement or military personnel must first file an ex parte application with the Court of Appeals who will determine whether the application should be granted or not. The judicial authorization shall be issued only after the Court of Appeals has examined the applicant and the witnesses he may produce under oath or affirmation and determined that:
(1) there is probable cause to believe based on personal knowledge of facts or circumstances that the crimes defined under this act has been committed, or is being committed or is about to be committed;
(2) there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of terrorist acts will be obtained.
What is the effect of wiretapping without judicial authorization?
The law enforcement or military personnel who conducted such wiretapping shall be penalized with 10 years imprisonment.
In addition, any information from the wiretapping conducted, without the judicial authorization of the Court of Appeals, shall be inadmissible in evidence following the principle of "fruit of the poisonous tree."
How long is the period of surveillance?
The period of judicial authorization shall be specified in the written order of the authorizing division of the Court of Appeals. It cannot exceed a period of 60 days.
The same authorizing division of the Court of Appeals may extend or renew said period to a non-extendible period of 30 days if the former is satisfied that such an extension or renewal is in the public interest.
Who may be proscribed under this bill?
Any group or persons, organization or association, which commits any of the acts defined and penalized under this bill or is organized for the purpose of engaging in terrorism.
May the Anti-Terrorism Council, on its own, proscribe a terrorist individual or organization?
No. Proscription may be done upon application of the DOJ before the Court of Appeals with due notice and opportunity to be heard given to the group of persons, organization or association, be declared as a terrorist and outlawed group of persons, organization or association, by the said court.
Is warrantless arrest a new concept?
No. Warrantless arrest has been allowed and is governed by the Rules of Court.
"Rule 113. Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it;
(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another."
Is the detention period of 14 days unconstitutional considering the provisions on suspension of the privilege of the writ of habeas corpus?
No. As expressly stated by the Constitution of the Philippines, specifically in Article 7, Section 18, Paragraph 5, the suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with invasion. As such, we apply the theory of strict construction. It states that we should follow the word of the law to its strictest sense when the technical terms have been used and there shall be no room for interpretation.
May a person be arrested on mere suspicion?
No. The measure does not allow authorities to cite the law to arrest people on mere suspicion. Rule 113 of the Rules of Court on warrantless arrest will apply. Congress does not have the power to determine the manner of arrest.
The bill did not (and never intended) to amend the Rules of Court as it may not do so due to the separation of powers enshrined in the 1987 Constitution. Naturally, Rule 113 must be complied with in effecting warrantless arrest.
What are the safeguards in place for those arrested without warrant under this bill?
1. The arresting officer shall immediately after taking custody of a person suspected of committing terrorism or any member of a group of persons, organization or association proscribed under Section 26 hereof, the law enforcement agent or military personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts:
(a) the time, date, and manner of arrest;
(b) the location or locations of the detained suspect/s and
(c) the physical and mental condition of the detained suspect/s.
2. The law enforcement agent or military personnel shall likewise furnish the ATC and the Commission on Human Rights (CHR) of the written notice given to the judge.
3, The head of the detaining facility shall ensure that the detained suspect is informed of his/her rights as a detainee and shall ensure access to the detainee by his/her council or agencies and entities authorized by law to exercise visitorial powers over detention facilities.
What are the rights of a Person under Custodial Detention?
The person detained shall be informed, by the arresting law enforcement agent or military personnel to whose custody the person concerned is brought, of his or her right:
(a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel or his or her own choice, the law enforcement agent or military personnel concerned shall immediately contact the free legal assistant unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney's Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person/s detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of his/her counsel of choice;
(b) Informed of the cause or causes of his/her detention in the presence of his legal counsel;
(c) allowed to communicate freely with his/her legal counsel and to confer with them at any time without restriction;
(d) allowed to communicate freely and privately without restrictions with the members of his/her family or with his/her nearest relatives and to be visited by them; and,
(e) allowed freely to avail of the service of a physician or physicians of choice.
What happens when law enforcement or military violates these rights?
Aside from administrative charges under Section 15, the penalty of 10 years imprisonments shall be imposed upon them.
Is torture allowed under this act?
No. The use of torture and other cruel, inhumane and degrading treatment or punishment, as defined in Sections 4 and 5 of Republic Act No. 9745 otherwise known as the "Anti-Torture Act of 2009," at any time during the investigation or interrogation of a detained suspected terrorist is absolutely prohibited and shall be penalized under said law.
Any evidence obtained from said detained person resulting from such treatment shall be, in its entirety, inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.
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Source: @pnagovph via Office of Sen. Panfilo Lacson
Bigwas
Bigwas blog about Criminal law and Procedure, Criminology and Crimes, Philippine Banking and Finance, Insurance and Investment.