UPPER RIGHT HAND: The Terror Law and the People’s Defense

OZAMIZ CITY (MindaNews / 20 July) — As to when the Anti-Terrorism Act (ATA) takes effect brings with it more controversies.  Government quarters put it as midnight of July 18, 2020, fifteen days after its cyber publication on July 3, 2020.  Law Dean Sta. Maria puts it as July 22, 2020, the fifteenth day after actual start of the publication by the Official Gazette on July 6, 2020. But whether July 19 or July 22, the people have to brace themselves in defense. Arguably, there seems to be no human made typhoon and catastrophe dropping like a hammer from the sky upon Philippine society after its declaration of Independence as a state in the world of nations. Remember that Marcos’ martial law was designed or ballyhooed to be temporary.   ATA, until repealed, is part of the law of the land.

Human Rights lawyers and mainstream lawyers, indispensable components  of balancing the legal processes, are in the thick of bracing up in the people’s defense.  Petitions right and left have been filed with the Supreme Court questioning the validity of the ATA as being repugnant to the constitution.  Familiar names and not so unfamiliar names in the legal firmament are cropping up in these petitions, plodding on in spite of possible reprisals by the present administration.  The provoked message is clear: the terror is real for all.

Without getting exactly into the nitty gritties of ATA, and relying on mainstream media and socmed (social media) reporting, its  leading and at the same time its chilling cynosure is Section 25 which allows the arrest of any person upon mere suspicion of your local police or any branch of the Armed Forces of the Philippines, or any component law enforcement agencies under the President, upon direction of the Anti-Terrorism Council (ATC), the ATA has no precedent in the annals of Philippines’ legal history, its potential capacity for damage to the Philippine psyche seemingly beyond measure to a civilized citizenry.

Under the Philippine 1987 Constitution and upon which all laws must pass muster, only a judge can issue a warrant of arrest that may lead to preventive detention while the criminal charges are ongoing, and before resolution of the controversy.  With ATA, that rule will change.

True, warrantless arrests by policemen, and citizens’ arrest (in the absence of a policeman) are allowed under Rule 113, Section 5, to wit:  a) caught in the act or attempting to commit it (en flagrante delicto);  b) upon probable cause belief after the act has been committed and the policeman has personal knowledge of facts and circumstances that the person to be arrested has committed it (hot pursuit);  and c) a convicted criminal.

With ATA, however,  those circumstances that allow warrantless arrests have been expanded – mere suspicion will suffice, with the period for detention without charges increased from a maximum of 36 hours or 2 1/2 days to 14 days, subject to a maximum extension of 24 days, not to mention the freezing of one’s assets.   Once the Anti-Terrorism Council designates an organization or a person as terrorist without giving the latter a chance to contest the designation,  the arrested person is totally placed at  the mercy of his arrestors.

Making it worse is the lack of safeguards to prevent possible torture.  The arrested person is no longer required to be presented to the judge according to the hitherto requirement, within the mandated periods provided for by long-standing law, practice and procedure, for JUDICIAL assessment of possible physical, moral or psychological torture.  That has been done away with, by ATA.

Offhand, the ATA seems aimed at silencing legitimate criticism and dissent to poorly crafted laws and policies, corruption and other forms of misrule or inept management, a playbook rule of dictatorships, and also to make up for poor intelligence and diligent police work.  Truth is bad for dictatorships, which is what the present administration is fast turning out to be. The danger lies not in what could possibly happen under ATA but the possibility that it could. The classic sword of Damocles remains a deathly threat:  not that the sword falls but that it hangs by a thread.

The rebels, who have been the thorn of a series of administrations and who are not showing signs of weakening to a point of national insignificance, are not situated any way worse with the ATA.  According to the well-reasoned opinion of retired Justice of the Supreme Court, Antonio Carpio, squarely grounded on the deliberations in the Senate in the crafting of ATA, rebels are beyond the coverage of ATA.  Rebellion, he opines, as a necessary predicate for terrorism under the Human Security Act has been expunged from the ATA. It is worth pondering why rebels are, or will be spared, the subjective application of ATA. It has not been explained.  No effect on rebels but harm and deadly possibilities on the unarmed critics and dissenters who may be designated terrorists by the ATC subject only to the latter’s own overbroad definitions at their disposal.

Human rights activists, the press, and peace-loving citizens in general are arguably in the crosshairs of a possible subjective and partisan-political motivations to stay in power longer or in perpetuity.  They are defenseless and not schooled, trained or experienced  in the arts and rigors of war, compared to the rebels. They, however, from time to time, if not to the point of regularity,  tug at the heartstrings of the national  conscience through their thoughts articulated in media, particularly social media.  And this is the danger that has to be quashed.  Deprive critics and unarmed peaceful dissent a voice through legitimized and weaponized terror by government and the dire conclusion will not be hard to imagine.

What are the people (have) to do?  The lawyers cannot do it all.  They are constricted to fast eroding legal remedies for the protection of people and their human rights.  Especially now with ATA, which is soon to be, or already, part of the law of the land as of this writing.  There are petitions, yes, but the composition, as well as recent decisions of the Supreme Court being lopsidedly pro-administration, hope is reduced to a glimmer.  Albeit glimmers can be the harbinger of blazing lights.  The question:  is it going or coming?

The people’s defense lies in their very nature as beings of reason.  There is no template for concerted peaceful actions to succeed.  Situations give rise to the best and the worst of men, and the unfolding scenarios in the wake of ATA and its eventual implementation will perforce dictate the peaceful struggle and its outcome. The harder the force, the harder the resistance of a reasonable people. A life of enslavement is death. A life of principled resistance in, and through, peace has possibilities.

[MindaViews is the opinion section of MindaNews.  Upper Right Hand is a revolving column of the Union of People’s Lawyers in Mindanao (UPLM). Atty. Virgilio Ponciano A. Ocaya is the auditor of the UPLM. A member of the University of the Philippines (UP) Law Class of 1979 and admitted to the bar in the same year, he went into private litigation practice in Manila before going back to his hometown in Misamis Occidental in 2014.]