“Assuming that the benefit of utilitarian punishment is a net increase in public safety, many do not mind that the cost is excessive punishment… The criminal is perceived as the ‘other.’”
- Paul Butler, Journal of Criminal Law and Criminology
“…a situation in which the emergency becomes the rule, and the very distinction between peace and war (and between foreign and civil war) becomes impossible.”
- Giorgio Agamben, State of Exception
The push for an Anti-Terrorism Bill (ATB), supposedly to improve on the Human Security Act, could not have come at a worst time. The certification by the president of the urgency of the bill and the subsequent rush of lawmakers to have it passed have given citizens pause. After all, the local transmission of COVID-19 has not only been flattened, it seems to continue to rise. What could be more important than beating this virus?
Intended by its authors to curb terrorism, in the wake of the disastrous Marawi Siege, the bill has managed to get under the skin of the public. But the authors forgot that people are now wise to the tendency of this administration to weaponize the law for its own ends. A succession of figures, beginning with Senator Leila de Lima and which included former Supreme Court Chief Justice Ma. Lourdes Sereno and septuagenarian activist-nun Patricia Fox, had been put in their place by clever legal workarounds. De Lima was sent to and is still in prison; Sereno was removed from office; Fox was deported. In a list of Department of Justice proscription, at least 600 activists were listed as terrorists, including indigenous human rights defenders such as the first Filipino UN Special Rapporteur on the Rights of Indigenous Peoples (UNSRIP), Victoria Tauli-Corpuz.
Ordinary citizens were not spared, too. The ink on the Bayanihan to Heal as One Act was barely dry when the police began to crack down on citizens who posted messages of frustration at the government response to the COVID-19 pandemic, on social media. Poor residents and a group of jeepney drivers who staged small innocuous protests were quickly rounded up. Members of an indigenous community who peacefully barricaded to protest the continuing mining operations in their community were forcibly dispersed and their leader arrested.
The government seemed to make time to discipline people and silence dissent.
There is little wonder then that the ATB has been put under the microscope. Certain provisions of the bill are vague, while others are contrary to constitutionally vested rights. The ATB contains, by force of legislative habit, the supposed primacy of fundamental rights. Stripped off its empty allusions to respect constitutional guarantees, however, the ATB has the potential to become basis for the neutralization order for those who oppose the people in power. Three of its mechanisms are given emphasis here:
Inherent Ambiguity in its definition of terrorism
The present Human Security Act (HAS) penalizes crimes already punished under the Revised Penal Code committed for the purpose of sowing fear and widespread panic. The proposed ATB, however, expands this definition under vaguely defined terms. Of particular concern is Section 4(c) which considers as terrorism conduct which causes extensive interference with critical infrastructure if the said conduct is committed for the purpose of destabilizing or destroying the fundamental political, economic or social structure of the country. Critical infrastructure in this context pertains to properties or systems vital to the delivery of essential public services, such as those affecting telecommunications, water and energy supply, emergency services, food security, fuel supply, banking and finance, transportation, radio and television, information systems. The ATB, however, fails to define what constitutes interference that qualifies as terrorism. Moreover, it is irrelevant from a prosecutorial standpoint, whether the conduct indeed produced its intended effect as long as the law enforcement believes that it is meant to destabilize the fundamental political, economic or social structure of the country.
The ambiguity of the language practically grants law enforcement officials the unbridled discretion in labeling the acts that constitute terrorism. By this definition alone, any mass mobilization could be considered as falling under the purview of terrorism. Even simple labor strikes could fall under this defective definition. Of course the ATB contains a colatilla that labor strikes, dissent, mass mobilizations and other proper exercise of civil and political rights are not covered by this definition; in the absence of clear standards, however, this remains a matter of executive discretion. Translated into its practical effects, this provision of the ATB amounts to a regulation of dissent, labor strikes and mass mobilizations, an apparatus for discipline and control where only those concerted actions yielding to government will be permitted.
Worse, the ATB even penalizes preparatory acts of terrorism thereby expanding the mantle of its brutal ambiguity. Among the punishable preparatory acts are the planning, facilitating, possession of objects connected with the preparation for the commission of terrorism, incitement of others to commit terrorism by means of speeches, proclamations, writings, emblems, banners etc. Under these terms, there is nothing that objectively distinguishes legitimate activism from the obscurely termed facilitating terrorism other than the overzealous enforcement of law enforcement elements. Translated into its practical effects, simple social media hashtags expressing personal opinions such as #OustDuterte can now easily be tagged as incitement to terrorism.
Expanded Power of the Anti-Terrorism Council (ATC) and Extended Detention
The Anti-Terrorism Council (ATC) was created under the HSA but the ATB greatly expanded its powers. Among the powers granted to the ATC is the authority to designate as terrorists, individuals, groups, persons, organizations or associations. Using the esoterically crafted definition of acts constituting terrorism, the ATC has been bestowed the power to stigmatize organizations, groups, and persons. This mark of shame carries with it profound implications. Specifically, it subjects the person or entity to the jurisdiction of the Anti-Money Laundering Council (AMLC), which could freeze his or its bank accounts. This also justifies wire-tapping and surveillance of the person or entity concerned.
It is likewise the ATC that authorizes the arrest of a person without the benefit of a warrant. Under Section 29 of the ATB, law enforcers may take custody of a person suspected of committing any of the punishable acts, and detained for twenty (24) days without the benefit of a warrant. Apart from assuming a power constitutionally lodged with the judiciary, the ATB fails to clarify who will craft the rules on how authority to detain will be secured. The ATB does not clearly lay out either whether there would be a hearing during the extended period of detention. The proponents of the ATB, however, claim that the extended period of detention is intended to be used to gather more evidence to ensure conviction.
How exactly would the extended detention period translate into successful prosecution has never been properly explained by the proponents of the bill. On the other hand, there have been reports of abuse. In particular, less than a year after Duterte assumed power, Commission on Human Rights representatives discovered a secret detention cell concealed behind a bookshelf in a police station. The facility housed several detainees in overcrowded and atrocious conditions; the detainees also claimed that the police demanded bribes in exchange for their liberty. If this is any indication, the passage of the ATB will only intensify this pattern of abuse and police brutality under the veil of legality most especially since the ATB removed the HSA’s accountability mechanisms for abuse, such as the penalties for falsely implicating or accusing a person for committing acts under the ATB.
Discipline and Control of Humanitarian Organisations and NGOs
Among the other insidious innovations of the ATB was making it punishable to provide material support for terrorist or terrorist organizations. This, however, should be read together with the Section 14 of the ATB which excuses from criminal liability duly recognized humanitarian organizations. This provision places NGOs and other humanitarian organizations in a precarious situation.
This provision amounts to discipline and control of NGOs, civil society, and their activities. To avoid the dangers of being branded as a terrorist, NGOs and organizations essentially need to seek prior clearance and recognition for their projects. NGOs who fail to do so risk being red-tagged and having their assets frozen by the Anti-Money Laundering Council. Even funding organizations may be held criminally accountable for extending funding to an “unrecognized” NGO. Establishing the direct link between the actual terror conduct that caused widespread fear and panic, and the humanitarian organization is not relevant under the ATBs framework. What matters merely is the ATC’s controlling—and even random—prior branding made on an entity or person, which could be based on tenuous grounds.
Even more sinister is that there is even no obligation on the part of the ATC to verify and make public the list of those persons whom it has labeled as terrorists, thereby practically giving the state free reign and unobstructed power to arrest virtually anyone under the feeble allusion and stretched accusation that a particular act amounted to material support of a terrorist organization. If only to illustrate the overreach of the ATB, the innocuous conduct of a person who gives food to a random individual, or allows him to hitch a ride, and that individual later turns out to have been previously “branded” as a terrorist—not even convicted of terrorism under a court of law—can be prosecuted for providing material support.
If prominent personalities such as the UN Special Rapporteur can be red-tagged and vilified for dissent, for embarrassing the government and for having links with a supposed terrorist organization, how much more for those traditionally marginalized IP communities who are victims of development aggression, and who oppose large-scale projects in order to protect their rights. As it is, the present HSA framework has facilitated red-tagging in these remote areas but the ATB shall greatly enhance this deplorable practice. Given this government’s proclivity for blanket red-tagging of opposition voices—as in fact was the case when the AFP red-tagged random students, some of whom were from schools, which later turned out to not exist, among other red-tagging incidents based on overextended grounds—the ATB would undoubtedly lead to a deluge of arrests and weaponization against dissent.
These has far-reaching implications insofar as NGOs are concerned because only those NGOs which comply the government’s criteria will be recognized while those who do not wish to undergo this process shall be vilified and tagged. The Philippines will see the rise in organizations that merely parrot this administration’s policies. The current proposal seeks to operationally bury dissent under the operational pretext of terrorism. If the ATB is passed into law, the possibility of weaponizing the ATB to dismantle civil society organizations does not seem too far-fetched.
A bill that makes fundamental rights enshrined in the Constitution optional is a poorly crafted bill, at best, and a dangerous one, at worst. The monopoly of violence that the state enjoys is carried much too far in this bill. This bill affords extraordinary and quasi-judicial powers to an administration that has had a penchant for punishing what it considers the Other, from suspected drug users to dissidents, from environmental defenders to defiant women. The bill could pathologize and criminalize those who criticize and oppose some of the government’s policies and actions. But lack of enthusiasm is not a crime, and true democracies are strengthened, not weakened, by differences in view. A concentration of power ineluctably leads to a concentration of abuse.
The ATB is far from being a meaningful policy tool to address terror threats meant to secure convictions. Similar to the timing of the Human Security Act of 2007 (HSA), which was passed when then President Arroyo faced threats to her presidency, the present administration seeks to pass the present proposal under congruent circumstances.
In the context of still unresolved number of EJKs and increasing human rights violations, the passing of the ATB could lead to the exacerbation of current conditions, providing the government the cover for the elimination of dissent justified under the guise of law within a purported landscape of democracy. If at all, this apparatus only institutionalizes the militarization of response and the terrorism discourse, which justifies and bolsters it. What is clear is that it should not be divorced from the contexts and history that inform it. To continue to deliberate under state-centric prism amounts to the acceptance of the government’s primacy in constructing reality and the legitimization of impunity.
There are more urgent matters, more urgent legislation than an anti-terrorism bill. The economic stimulus package bill, for one, has not received as much support, as have not environmental bills that offer durable and systemic solutions to problems that had existed before and could be exacerbated by the pandemic. These and more should occupy the government, not measures that dampen engaged citizenship, under this time of overwhelming need. Rather than securing the citizenry, the ATB further sows uncertainty, insecurity and fear. //