EXECUTIVE POLICY BRIEF

Vol.1 No. 2011

A MONTHLY POLICY PUBLICATION ON GLOBAL, REGIONAL AND NATIONAL DEFENSE AND SECURITY ISSUES

Why Amend the Human Security Act of 2007?

By Chester B. Cabalza, MA
Background
On March 6, 2007, the Human Security Act (HSA) of 2007,1 or otherwise known as, Republic Act (RA) No. 9372 was enacted by the 13th Congress of the Philippines and signed into law by the President of the Philippines, which took effect on July 15, 2008, providing legal framework for governments anti-terrorism strategy and security policies. The 35-page HSA ensures that any actions undertaken are done so within the bounds of the law. It is declared to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.2 This law was triggered after the tragic September 11, 2001 terrorist attack in the United States and several high-profile terrorist activities in the Philippines by extremist/terrorist Abu Sayyaf Group (ASG) and antigovernment group the Moro Islamic Liberation Front (MILF), both organizations are based in Mindanao; and the regional terror partner Jemaah Islamiyah (JI) from Indonesia which have mercilessly abducted and caused terror to foreigners and the Filipino citizens, as well. Most Muslim terrorist acts in the country are executed by these notorious groups that include the Sipadan-Sulu Hostage Crisis on April 2000, the Rizal Day bombing on December 2000, the Dos Palmas Kidnapping on May 2001, the Superferry bombing on February 2004, the Makati Valentine bombing on December 2005, and the Zamboanga bombing on October 2006; prior to the enactment of the HSA on March 2007. Because terrorism is not only a local menace, it transcends global actions among countries that are threatened by this nontraditional security issue and transnational crime. The UN through the United Nations Human Rights Commission (UNHR) has to address terrorism as a universal problem many nations are currently facing.3
1

In the Philippines, through this anti-terror law, the government can effectively pursue security imperatives without sacrificing civil liberties. However, legal experts deem that the HSA is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforces, provided by Section 24 of R.A. No. 9372.4

Issues / Controversies / Considerations:

The policy paper will attempt to argue on the following propositions:

1) 2) 3)

Is there a clear definition of the Human Security and Terrorism in RA No. 9372; Does the new special law supersede some provisions of the 79-year-old Revised Penal Code or R.A. No 3815; Is the Philippine anti-terrorism law contrary to Filipino basic human rights as it tackles controversies on wiretapping, detention, and the issue on writ of amparo; and Will the penalties and damages are just and admissible.

4)

Strategic Scenarios for Policy Considerations

Terrorism is a multi-faceted phenomenon for it contains legal, political, psychological, philosophical, historical, technological and other components. Terrorism constitutes the illegitimate use of force and is premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience, as articulated by Walter Lacquer and James Poland. Implication: In my own personal view, terrorism resembles an iceberg, with the tip of shocking attacks, and with the base of multidisciplinary issues like religious radicalization and poverty. To annihilate and wipe out an iceberg, one must destroy it from the base. Hence, human security and terrorism should be properly addressed by resolving the issues that support the tip. Proposition One:
latter to yield jurisdiction to international courts according to treaty obligations. 4 Human Security Act (2007).

Available at lawphil.net, accessed on 16 July 2010. 2 Section 2, para 1, HSA (2007). 3 In 2002 the UNHRC organized a global convention on Terrorism and the International Law: Challenges and Responses, Complimentary Nature of Human Rights Law, Humanitarian Law and Refugee Law. To date, the UN does not have a generally accepted, single, inclusive and legal definition of terrorism and international terrorism. However, definitions of terrorism vary from direct experiences of several countries, of scholars and of policymakers. Because of this, terrorism will not only make applicable to the doctrine of universal jurisdiction but will also provide for concurrent jurisdictions between international courts and domestic courts and allow the

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In my view of the newly adopted legislation, while wellintended, the Human Security Act is one of the most incoherent, disorganized and disjointed laws our Congress has ever passed. It is a mix-and-match collection of 62 sections and 22 provisions; and the law has no discernible structure, no headings or subheadings, and no groupings of sections. The absence of the definition of terrorism makes the special law as vague, ambiguous, and highly susceptible to abuse. With no objective standards to guide our law enforces, the HSA in effect bestows on law enforcers the unfettered discretion to decide if a person is engaged in terrorism or conspiracy to commit terrorism, which is very dangerous indeed. The Human Security Act is also too broad. It is not in line with the definition proposed by the UN High Level Panel on Threats, Challenges and Change entitled A More Secure World: Our Shared Responsibility,5 published by the United Nations. Although, the universal definition of terrorism remains contentious and debatable; terrorism, according to UNs former Secretary General Kofi Annan is the use of violence against civilians for political reasons. However, the UN High-Level Panel definition imposes that the action must be intended to cause death or serious bodily harm to civilians or non-combatants. This fundamental aspect of terrorist acts is not taken into account in the definition enshrined in the Filipino legislation. Proposition Two: Before the Human Security Act of 2007, the Philippines relied on the Revised Penal Code of 1932, or R.A. No. 3815,6 which is a 79-year-old law now. Upon the enactment of HSA, criticisms were thrown, especially among the leftists or militants and civil libertarians or members of the civil society, that the new law will be used by the government to commit human rights abuses. However, the government panel said this law itself has many built-in safeguards against human rights abuses. The HSA lists 11 crimes punishable with terrorism: piracy, rebellion or insurrection, coup detat, murder, kidnapping and serious illegal detention, arson, hijacking, highway robbery, illegal possession of firearms, violation of the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 and the Atomic Energy Regulatory and Liability Act of 1968.7 The Anti-Terror Law made terrorism a crime against the Filipino people, against humanity, and against the law of nations.8 More importantly, three essential elements of the crime of terrorism should include: 1) The commission of one or more of the crimes enumerated above; 2) The commission of the crime sows and creates a condition of widespread and extraordinary fear and panic among the populace; and;

3) The purpose for the commission of the crime is to coerce the government to give in to an unlawful demand. Although, the Human Security Act of 2007 does not have a landmark case yet, the Revised Penal Code has several benchmark cases, which may affirm or may reverse, provisions of the new law. For instance, in People vs. Lava,9 the Court defines rebellion, to wit: rebellion cannot be complexed with murder, arson, robbery and/or other common crimes, committed as means to or in furtherance of the rebellion charged. The reason is that political crimes are directly aimed against the political order and common crimes may be committed to achieve a political purpose. The decisive factor is the intent or motive. On the other hand, Umil vs. Ramos,10 affirms that criminal law; habeas corpus; subversion; the crime of rebellion, subversion, conspiracy or proposal to commit such crimes, and crimes or offenses committed in furtherance thereof or in connection therewith constitute direct assaults against the State are in the nature of continuing crimes. Lastly, in People vs. Mapa,11 the court held that it shall be unlawful for any person to possess any firearm, detached parts of firearms or ammunition thereof, or any instrument or implement used or intended to be used in the manufacture of firearms, parts of firearms, or ammunition. Firearms and ammunition regularly and lawfully issued to officers, soldiers, sailors, or marines of the AFP, the PC, guards in the employment of the Bureau of Prisons, municipal police, provincial governors, lieutenant governors, provincial treasurers, municipal treasurers, municipal mayors, and guards of provincial prisoners and jails, are not covered when such firearms are in possession of such officials and public servants for use in the performance of their official duties. No provision is made for a secret agent. The above-mentioned cases are already punishable under the Revised Penal Code; but as defined by HSA, these acts will be considered terrorism if it sows and creates a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give into an unlawful demand.12 In my view, there is lack of clear parameters in its listing of common crimes to convert to terrorism. For example, rebellion or insurrection is a crime against public order and is committed by rising publicly and taking arms against the government would necessarily sow and create a condition of widespread and extraordinary fear and panic among the populace. The HSA, in effect should obliterate rebellion and insurrection in our criminal laws and substitute them with the crime of terrorism. Given the situation, could EDSA Revolution13 I, II, and III be considered as terrorist acts as it may be deemed by government as acts of rebellion or insurrection since it ebbed fear and caused extraordinary terror among the public or populace; and the call for

5 6

http://www.un.org/secured/org/, accessed on 16 July 2010. Available at Chan Robles Library, (Book One and Two) 1930-12-08. 7 Section 3, HSA (2007). 8 Id., para 1.

28 SCRA 27, 16 May 1969, GR L-4974. 187 SCRA 313, 9 July 1990, GR L-81567. 11 GR L-22301, 30 August 1967. 12 Sec 2, para 1, HSA (2007). 13 In political discourse, the Philippine EDSA Revolution does not qualify as a revolution in its political entirety compared to other political revolutions which occurred in other parts of the world but a mere clash against the government.
10

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the chief executive to vacate office may be deemed an unlawful demand under the law. In my observation, after the controversial enactment of HSA, known terrorist groups such as the Abu Sayyaf Group (ASG), continuously commit crimes of terrorism by kidnapping for ransom 14 and rebellion15 as a continuing crime against the Philippine government by instilling fears among the citizens and foreigners. Although, few terrorist leaders had already been caught by the law enforcers, however, the organization they represent does not deter them from continuously doing their criminal and terrorist acts. Hence, criminalizing terrorist organizations and conspiracies are useless, impractical and ineffective in addressing the problem on terrorism. It may only result in the arrest of lots of small fry but will never stop the big fish behind those organizations. Proposition Three: In the Declaration of Policy of the HSA, it explicitly expressed that the State shall uphold basic rights and fundamental liberties of the people as enshrined in the Constitution,16 and, further down, it reiterates that powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times. 17 On the issue on wiretapping, the law requires a written order of the Court of Appeals (CA) before authorities can listen to, intercept and record any communication, message, conversation, discussion or spoken or written words, between suspected terrorist groups or persons.18 A penalty of ten years and one day to twelve years of imprisonment for the liability attaching to the offender upon commission of the act.19 In my view, the provision clearly violates due process, since those under surveillance or wiretapping are barred from participating in the proceeding to the detriment of their life and liberty. They are not to be informed of the application or any such authorization order against them. They are also not allowed to contest such application or any evidence that may be brought against them; neither are they allowed to present evidence on their own behalf. More so, they will be subjected to invasion of their privacy rights without due process for up to 60 days by a battery of law enforcement officers, and any recordings made or evidence obtained in violation of their privacy and due process rights may be used in evidence against them. The law also expressly stipulates the period of detention without judicial warrant of arrest20 and authorizes the police or law enforcement personnel who take custody of a suspect are required to deliver said charged or suspected person to the proper judicial authority within a period of three days 21 or risk a long jail term.

In the said provisions, HSA follows the general rule that official duties are regularly performed by police officers, acting as mere agents of the state, in enforcing the said law. The state, on the other hand, cannot be sued without its consent and consent may be express or implied.22 In the event of an actual or imminent terrorist attack, persons suspected of terrorism may be arrested and detained without charges for as long as the detention is approved by a judge of the municipal or regional trial court, the Sandiganbayan or a justice of Court of Appeals nearest to the place of arrest or by municipal, city, provincial or regional office of a Human Rights Commission,23 or, where the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the accused was arrested.24 In my analysis in the said provision, it is not clear whether the Human Rights Commission mentioned here is the same as the constitutionally established Commission on Human Rights (CHR). Also, the two paragraphs in Section 19 are contradictory. While the latter requires personal delivery of the arrested person to the judge nearest to the place of arrest and the later appears to negate this requirement by asking only a written notice to the judge nearest to the place of arrest. The writ25 of amparo26 is an order issued by a court to protect the constitutional rights of a person. The Supreme Court of the Philippines announced that the draft guidelines (Committee on Revision of Rules) for the writ of amparo were approved on September 23, 2007 which was deliberated by the En Banc Court last September 25, 2007. However, skeptics believe that the said law has several effects which are dangerous piece of legislation in Philippine legislative history, threatening the Bill of Rights and contravening the constitutional provisions put in place to avoid a repetition of the horrors of martial law. In my view, the judicial question on writ of amparo in prosecuting terrorists/insurgents is contrary to the spirit and intent of the Human Security Act of 2007. I believe that these and other similar provisions violate the right to liberty, to be presumed innocent, to due process of law, to equal protection under the law, to fair trial, to travel and to privacy of communication and correspondence. Proposition Four: Other controversy in the provisions is stipulated in Section 26 of HSA which provides that persons who have been charged with terrorism or conspiracy to commit terrorism even if they have been granted bail because evidence of their guilt is not stronger and can be detained under house arrest; restricted from traveling; and/or,
22

14

Jurisprudence defines kidnapping for ransom as the unlawful taking and carrying away of a person by force or fraud or against his will, or in any manner depriving him of his liberty for the purpose of extorting ransom as payment of his/her release.
15 16

Cited, People vs. Lava case.

Section 2, para 1, HSA (2007). 17 Id., para 4. 18 Section 16, para 1, HSA (2007). 19 Id., para 2. 20 Section 18, para 1, HSA (2007). 21 Id., para 2.

Express consent may be embodied in a general law or a special law. Consent is implied when the state enters into a contract or in itself commences litigation. 23 Section 19, para 1, HSA (2007). 24 Id., para 2. 25 Writ is an official court document, signed by a judge, commanding the person to whom it is addressed, to do something specific (Legal Jargon for beginners, p.51). 26 The word amparo comes from the Spanish verb amparar, meaning to protect,.

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prohibited from using any cellular phones, computers or other means of communicating with people outside their residence.27 Strongly stipulated in Section 50,28 it provides that any person accused of terrorism who is later acquitted by the court shall be entitled to the payment of P500,000 in damages for every day that he or she has been detained or deprived of liberty or arrested without a warrant as a result of such an accusation. However, Section 4129 provides that persons whose properties are seized, sequestered or frozen, but who are later acquitted or the cases against them dismissed, are entitled to P500,000 a day for the period in which their properties were seized, sequestered or frozen. The amount shall be taken from the appropriations of the police or law enforcement agency that caused the filing of the charges. Hence, prior to the enactment of HSA, also a new law had been created by the Congress on terrorist financing. Based on intelligence report, some members of the Al Qaeda global terrorist network studied aeronautics and basic flying in Pampanga, Philippines in preparation of their successful terror attack in World Trade Center on the infamous 9/11 terrorist attacks in New York, USA. Foreign terrorists funneled through funds and money in Philippine banks to support terrorism.30 Because of this and other increasing cases on terrorist financing since the 9/11 terrorist attack, the Philippine Congress immediately passed another controversial law, which is the R.A. No. 9160, also known as, The Anti-Money Laundering Act (AMLA) of 2001. 31 The AMLAs32 mission includes the following: 1) 2) 3) To protect and preserve the integrity and confidentiality of bank accounts. To ensure that the Philippines shall not be used as a money laundering site for the proceeds of any unlawful activity. To extend cooperation in transnational investigation and prosecution of persons involved in money laundering activities whenever committed.

In the final analysis, I reiterate that it only proves that Human Security Act of 2007 is the only Philippine law that specifically penalizes torture and imposes stiff penalties and fines on law enforcers.

Conclusion
The Philippines continues to be a prey of terror acts; whether by communist terrorists or Muslim terrorists, the country still experiences kidnappings of foreigners and fellow Filipinos that have become a cottage industry in Mindanao and other remotest areas in the country, where decades of rebellion have stunted social and economic development. I propose legal amendment in this new special law on antiterrorism or Human Security Act of 2007, where provisions follow one another without logical connection; some sections contradict each other; while others simply make no sense. Worse, the HSA is a dangerous law for me, despite my affirmative belief that we have now laws to prosecute terrorists, however, its intent is contrary. Because it authorizes preventive detention, expands the power of warrantless arrest, and allows for unchecked invasion of privacy, liberty and other basic rights. Persons merely suspected of engaging in terrorism may be arrested without warrant and detained without charges. More so, suspected terrorists, which are revolutionary terrorists in our law, may be placed under house arrest, prohibited from using their cell phones, computers and other means of communication, even when they are granted bail on the ground of evidence of guilt is not strong. They may also be subjected to surveillance and wiretapping, as well as examination, sequestration and freezing of bank deposits and other assets, on mere suspicion that they are members of a terrorist organization.
Bibliography A. Secondary Sources Blacks Law Dictionary, (1968), 4th Edition, West Publishing Co. Cabalza, Chester B. Luwaran.com: Mouthpiece of the Bangsamoro in Southern Philippines, January 2011. Asian Politics and Policies, Volume 3 Issue 1, pp. 153-155. Online Publication. Wiley-Blackwell, USA. Legal Jargon for Beginners (2005), A Codex of Terms, Acronyms, Idioms and Abbreviations on Philippine Law and Politics, Business and Computer Language and Law School Culture, Center for Legal Education and Research, Arellano Law Foundation. Supreme Court Report Annotated (SCRA) People vs. Lava, 28 SCRA 27, 16 May 1969, GR L-4974 Umil vs. Ramos, 187 SCRA 313, 9 July 1990, GR L-81567 People vs. Mapa, GR L-22301, 30 August 1967 B. Electronic/Online Sources http://www.lawphil.net, Human Security Act (HSA) of 2007 or R.A. No. 9371 (Full Text), accessed on 18 July 2009. http://www.lawphil.net, The Anti-Money Laundering Act (AMLA) or R.A. No. 9160 (Full Text), accessed on 18 July 2009. http://www.un.org/secured/org/, A More Secure World: Our Shared Responsibility, accessed on 16 July 2009. http://www.chanrobles.com, Chan Robles Virtual Law Library, Revised Penal Code of 1932 or R.A. No. 3815 (Book One and Two) 1930-12-08, accessed on 16 July 2009. ###

Although, detention premised on suspicion of involvement in a future crime is unacceptable in a supposedly democratic society that operates, among others, on the presumption of innocence among those accused. Restricting the suspects' right to travel and depriving them of their right to privacy also do not bode well for a government that is supposed to protect and uphold civil rights of all people, including those charged with crimes. What proves to be worse is people being presumed guilty by association and consequently penalized by seizing, sequestering and freezing their assets.

27 28

HSA (2007). Id. 29 Id. 30 National Defense Report (2001), Terrorist Financing in the Philippines, National Defense College of the Philippines. 31 Available at lawphil.net, accessed on 18 July 2010. 32 The AMLA has designated the Anti-Money Laundering Council (AMLC) to assist foreign States in tracking down, freezing, restraining, seizing and forfeiting assets alleged to be proceeds of any unlawful activity. AMLC is also a quasi-judicial body to hear and decide administrative cases involving AMLA violations by covered institutions.

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The views expressed in the policy brief do not necessarily reflect the views of the National Defense College of the Philippines. The readers are free to reproduce or quote any part provided proper citations are made. For comments and suggestions, please contact the Research and Special Studies Division, National Defense College of the Philippines @ telephone no 9120767 or email otum@ndcp.edu.ph.

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Produced by the Research and Special Studies Division, National Defense College of the Philippines For inquiries, please call Tel/Fax. (63-2) 912-0767 * Trunkline: 912-6001 local 4591 * www.ndcp.edu.ph