UPPER RIGHT HAND: The Anti-Terror Law, red tagging and culture of impunity

TANDAG CITY (MindaNews / 27 December) — In one small but important step, the Supreme Court  conducted the preliminary conference on 26 November 2020 of the 37 petitions to junk Republic Act 11479, “The Anti-Terrorism Act of 2020.” Apparently for lack of time to rule on an urgent motion to hold it by video conference, it happened face-to-face at the New Session Hall of the Supreme Court in Manila. Considering the public health emergency and corresponding travel restrictions, the petitioners from Mindanao and their counsels were represented by lawyers in Metro Manila.

At least three of the groups of petitioners are from Mindanao – with representations of the indigenous peoples and the Bangsamoro, including the group assisted by members of the Union of Peoples’ Lawyers in Mindanao (UPLM).

During the preliminary conference, the Supreme Court laid down the rules for the oral arguments of the consolidated cases on 29 January 2021. The Court gave specific guidelines on the preliminary and substantive issues including time allocation for both petitioners and respondents.

The number of petitions, which could be one of the highest if not the highest number filed against a law, speaks of the utmost significance of the issues involved. Moreover, the several common grounds relied upon by the different groups of petitioners show the transcendental importance which cuts across sectors and geographical areas. These common issues or grounds include, among others – void for vagueness and contravention against fundamental constitutional rights to free speech, due process, liberty, to bail, against unreasonable search and seizures and other basic rights of the accused, which are also recognized under international laws.

The notable constitutionalist and former Associate Justice Vicente V. Mendoza described the Anti-Terrorism Bill as “vague and badly written.” He lamented that the law is “hard to understand.” In a commentary published in the Philippine Daily Inquirer on 28 June 2020, Justice Mendoza said: “A statute whose terms are so vague that persons of common understanding must necessarily guess at its meaning or differ as to its application offends due process.  And a statute that sweeps unnecessarily broadly both prohibited and protected conduct is overbroad and likewise offends due process.”

Unlike the Human Security Act of 2007 (RA 9372) where terrorism is defined by identifying predicate crimes that are already punished under the Revised Penal Code, the new Anti-Terrorism Act completely removed the listing of those predicate crimes whose elements for commission and violation were already specifically defined under the penal code.  By erasing the predicate crimes, the assailed law is left with an utterly vague definition of terrorism which indeed badly needs rewriting.

As it stands, the definition of terrorism does not meet the strict requirement of due process. The vague definition would leave persons of common intelligence to guess on its meaning and to differ in its application. It would give law enforcers unbridled discretion to arbitrarily carry out the provisions of the law on the basis of their own understanding or interpretation.

Petitioners contend that Section 4 of the ATA is void for being vague. It violates the basic rule that the terms of a penal statute must be sufficiently explicit and clear enough to inform those who are subject to it, what conduct on their part will render them liable to its penalties.

In the 2017 case of Samahan ng mga Progresibong Kabataan (SPARK) vs. Quezon City, the Supreme Court established the doctrine that a penal statute is unconstitutional if it does not reasonably put a person on notice as to what the person may not do or what a person is required to do.  A statute is said to be vague when it lacks comprehensive standards that “men of common intelligence must necessarily guess at its meaning and differ as to its application.”  This is repugnant to the constitution in two aspects: (a) it violates due process for failure to accord persons, especially parties targeted by the law, a fair notice of the conduct to avoid and (b) it leaves law enforcers unbridled discretion in carrying out its provisions and become arbitrary in flexing government muscles.

Following the void-for-overbreadth principle, a penal statue is unconstitutional if its language is so broad that it unnecessarily interferes with the exercise of constitutional rights, in this case the freedom of speech and expression and the right to peacefully assemble, even though the purpose is to prohibit activities that the government may constitutionally prohibit.

Section 4 of ATA in particular is so overbroad that it operates to inhibit the exercise of individual freedoms guaranteed by the constitution, such as the freedom of speech, when it includes within its coverage not only unprotected activity but also activity protected by the constitution.

Truly, for as long as democracy abounds in our midst and the due process clause remains a pervading component not only of the Constitution but of our lives as civilized citizens, the Court, being the vanguard of our rights, should defend such rights from unjustified infringement by all means legal, logical and reasonable including utilizing the vagueness doctrine, which has been carved out from the due process clause, in the invalidation of ambiguous penal laws that could result to the undue deprivation of life, liberty and property.

In between the filing of most of the petitions against the ATA and the promulgation of its Implementing Rules and Regulation (IRR) by the Anti-Terrorism Council (ATC), it is very alarming to note that red-tagging and extra-judicial killings continue with impunity. These documented facts are relevant because the assailed ATA authorizes the ATC to designate individuals and organizations as terrorists. In fact, the ATC has recently issued a Resolution designating the Communist Party of the Philippines / New Peoples’ Army (CPP/NPA) as terrorist organization or association.

While the Council may have their own bases or justification for the designation, including a Presidential Proclamation by President Rodrigo R. Duterte in December 2017, the ATC Resolution puts the lives of persons who have been aggressively red-tagged and baselessly associated with the CPP/NPA by the State, in clear and present danger. It was also President Duterte himself who announced that he was not merely red-tagging but designating progressive elected lawmakers like the Makabayan bloc as affiliated with the CCP/NPA.

These consistent official pronouncements by the President, aggravated by the seemingly indiscriminate issuance of warrants which have also been questioned, emboldened the police and the military to disregard basic constitutional rights in the guise of law enforcement. The wanton violation of due process further contributed to the apparent ironic acceptance of the culture of impunity, which has resulted in thousands of unsolved killings including of lawyers and even judges. It is not stretching the imagination too far to connect the senseless killing of a mother and son in Tarlac by an active police officer to abuse of authority because of express condonation by government officials of police and military brutalities.

The Mindanawon petitioners are no strangers to the cycle of violence and the ugliness of war that constantly paint this land of promise. From the string of kidnappings to the bombings in Davao, the Marawi siege and the slide back to Martial Law, petitioners admit that they themselves will greatly benefit from government’s counter-terrorism drive to flush out terrorism in every nook and corner of the country.

The stories and experiences of Mindanao, however, provide solid evidence that counter-terrorism with no regard for human rights cannot win the hearts and minds of the people against terrorism nor can it suppress violent extremism. To be truly effective, government’s counter-terrorism fight should target the real terrorist;  and NOT towards Lumads and Moro people and NOT against human rights defenders, social activists and journalists whose fundamental rights are  guaranteed by no less than the Constitution.  It is NOT a choice between fighting terrorism, on one hand, and human rights on the other hand. For as a matter of State obligation, terrorism must be fought relentlessly to protect human rights.

[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. Antonio C. Azarcon is the Chair of the UPLM.  A private law practitioner based in Tandag, he is a former Provincial Board Member of Surigao del Sur and a former Chapter President of the Integrated Bar of the Philippines in the same province.]

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