Diokno tells SC: Only the Anti-Terrorism Act punishes based on person’s ‘state of mind’

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Metro Manila (CNN Philippines, February 2) — No other law penalizes the exercise of civil and political rights based on a person’s intent, human rights lawyer Chel Diokno said during the Supreme Court’s oral arguments on the Anti-Terrorism Act on Tuesday.

“Worse, it allows the state to simply presume the existence of intent from the citizens’ acts even if the acts themselves do not constitute a crime,” said Diokno, one of the seven counsels of the petitioners seeking to junk the controversial law.

He argued mainly against Section 4 of the law, which states that advocacy, protest, dissent, and similar exercises of civil and political rights will not be considered terrorism as long as they 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.”

While Associate Justice Marvic Leonen backed this provision, saying the government should be able to step in if protest actions are clearly intended to harm someone, Diokno argued it only allows the arrest of individuals "based solely on a law enforcers’ subjective opinion of their state of mind."

“If this law existed in 1986, Cardinal Sin’s call to People Power will easily qualify as inciting to terrorism,” Diokno said, noting that the People Power Revolution would constitute seriously destabilizing the fundamental political economic or social structures of the country, and creating a public emergency.

Anyone who tweets to invite people to a peaceful rally can also be arrested for engaging in acts intended to endanger a person’s life due to the coronavirus pandemic, he added.

Associate Justice Rosmari Carandang asked, does not the burden to prove intent lie with the government?

Diokno responded that under the assailed law, "Intent may now be presumed from innocent, legitimate, non-criminal acts. That is our concern."

Senior Associate Justice Estela Perlas-Bernabe also presented international definitions of terrorism, saying these are quite similar with the one in the Anti-Terrorism Act.

Diokno explained that unlike the United Nations Security Council for instance, the Philippines’ law does not mention any predicate crime or refer to any “criminal act,” making it vague and overly broad.

In repealing the Human Security Act of 2007, the Anti-Terrorism Act expanded the definition of terrorism. Under the previous law, an act of terrorism is committed when crimes such as piracy, rebellion, and murder are done to sow “widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.”

The Anti-Terrorism Act makes no mention of any predicate crime. Instead, under Section 4, a person commits terrorism when engaging in acts that intend to endanger someone or to damage public or private property, and certain other actions when the purpose is any of the following: intimidate the public, the government, or any international organization; create an atmosphere of or spread a message of fear; seriously destabilize or destroy the fundamental political economic or social structures of society; and create a public emergency or seriously undermine public safety.

READ: Here are the major issues raised against the Anti-Terrorism Act

Law professor Alfredo Molo, one of the petitioners’ counsel, said the vagueness of the law’s definition of terrorism makes its other provisions vague as well, warranting the scrapping of the entire measure. The Human Security Act will be revived, he said.

There are 37 sets of petitioners composed of framers of the Constitution, lawyers, human rights advocates, and individuals who claim to have been victims of authorities’ red-tagging. Seven representatives presented their case during the three-hour oral arguments, while Solicitor General Jose Calida and the government’s lawyers are expected to defend the measure when the discussion resumes on Feb. 9.

Two Aetas who claimed to have been tortured by the military and falsely charged with violating the Anti-Terrorism Act have urged the high court to allow them to intervene in the legal challenge. Leonen said this may be the "actual case" that would allow the Supreme Court to act on the most challenged law in recent history without risking giving an "advisory opinion" on a political matter.