OPINION: The Anti-Terror Bill is a law that lends itself easily to abuse

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Do we have enough faith in our State agents not to feign injury at our rallies? Photo by JL JAVIER

Editor's note: Philip Baltazar and Anna Bueno are lawyers. The views expressed in this essay are the authors'.

Manila (CNN Philippines Life) — On June 1, amid a lockdown that has gripped the country since March, President Duterte certified as urgent House Bill 6875, which earlier adopted the Senate’s version of the new Anti-Terrorism Bill, or Senate Bill 1083, skirting the bicameral conference committee. On June 9, the bill was transmitted to Malacañang for signing of the president.

It was not growing criticism over the administration’s handling of the pandemic that triggered the bill’s haphazard enactment. As early as January this year, military and police officials lobbied for a stricter anti-terror law, after struggling to get convictions under the Human Security Act of 2007 (HSA), which the new bill seeks to repeal. The same officials are now expected to exercise near unlimited discretion in implementing a law that vaguely defines “terrorism” — a term with no agreed definition even under international law — and which vagueness, once the bill takes effect, provides cover for law enforcers to commit any number of atrocities.

Perhaps even more alarming than the bill’s provisions (see here for a matrix, prepared by human rights lawyer Ross Tugade, comparing the new bill’s provisions with the HSA), was the railroading by Congress in what seemed like a declaration of its readiness to bend to executive will. These irregularities are aggravated when set against the backdrop of this administration’s track record of tolerating, downplaying, and even encouraging human rights violations in enforcing State policies, and careless red-tagging of organizations critical of it.

Most recently, the president himself (who has admitted in public that his only sin is extrajudicial killings) expressed his preference to hogtie online scammers and throw them into the Pasig river. He has told police to “shoot dead” violators of a quarantine. He also renewed his conviction to kill drug dealers, a statement that came at the heels of a U.N. report documenting the “near impunity” of police officials committing serious human rights violations (including the planting of evidence) in the crackdown against drugs.

When Duterte commands, the police and military obey. This ‘militarized’ obedience has resulted in countless deaths on account of excessive force or ‘shoot first, think later’ tactics, as seen in the cases of Kian de los Santos (murdered by police who insisted he was a drug runner) or Winston Ragos (shot by a police officer now charged with murder, perjury, and planting of evidence). Despite the conviction of and the charges brought against erring police officers, impunity looms large, and many of these erring officers remain in the force.

As it is, the government response to the pandemic has been militarized and tagged as a “war” (similar to the “war” against drugs) instead of a public health crisis. In the midst of the quarantine, a two-billion U.S. dollar arms deal with the U.S. (including attack helicopters, missiles, warheads, guidance and detection systems, and ammunition) has been proposed for “counterterrorism,” which has also targeted poor and oppressed groups. Even for the years prior, various surveillance technologies have been employed in the Philippines in the context of a “global war on terrorism”; or in Davao, a war against drugs.

Over the years, we have observed the creeping acquisition of power and cabinet-level posts by police and military officials (many of them retired) in the executive department. The following key posts, for example, are occupied by ex-military officers or individuals affiliated with the military as of date: Interior and Local Government (Eduardo Año), Social Welfare and Development (Rolando Bautista), Agrarian Reform (John Castriciones), and Environment and Natural Resources (Roy Cimatu).

The Anti-Terrorism Bill institutionalizes the level of influence that the military may already have, and it shows they can even railroad the legislative process.

Much of the uproar about the bill is how it combats “terrorism” by catching too wide a net over acts that may, or may not be, punishable: an approach that may make sense from a military standpoint, but not from a civilian standpoint, especially in the Philippines, where individual liberties are supposedly held paramount. “Civilian authority is, at all times, supreme over the military,” states the 1987 Constitution. “The State values the dignity of every human person and guarantees full respect for human rights.”

In this respect, the Anti-Terror Bill is already in clear violation of Constitutional precepts. In Section 4, terrorism may include a broad range of acts (e.g. those that cause death or serious, physical harm) already punished under existing law, or the so-called common crimes, without providing sufficient standards to classify such acts as terrorism. Without these standards, certain common crimes may now be brought within the pale of the anti-terrorism law, which could mean warrantless arrests and detention for up to 24 days on mere suspicion.

While the bill does provide that respect for human rights is absolute, and dissent, advocacy, protest, mass action, among others, do not qualify as “terrorism,” in the same breath it qualifies that these acts are permissible so long as they are not “intended to cause death or serious physical harm to a person… or create a serious risk to public safety.”

It does seem that as a result of a person (even a police officer) being injured at a protest, State agents could tag the same protest as an act of “terrorism.” So, too, would be the burning of an effigy, coupled with loud calls to oust the presidency. The vagueness in the bill invites certain questions: Do we have enough faith in our State agents not to feign injury at our rallies? Will a “matrix” waved around by the chief presidential legal counsel — supposedly of journalists and lawyers who have an ouster plot — be used as evidence of “terrorism”?

The bill then broadens its coverage to include acts associated with “terrorism”: proposal, threat, incitement, conspiracy, and mere membership into organizations that the authorities may, in the exercise of its wide discretion, tag as terrorists.

In Section 9, any person who incites others to “terrorism” by means of speeches, proclamations, writings, etc. commits the crime of “inciting to terrorism.” Angry posts on social media could qualify as “inciting to terrorism,” a possibility not at all remote, since the police have, in fact, already arrested a teacher without a warrant on the basis of inciting to sedition (a similar crime), for posting on Facebook that a gym should be raided, because people are going hungry during a pandemic.

True to form, the bill does make it easy for State agents to obtain evidence: by questioning persons in held detention on mere suspicion, or through a blanket authority to surveil, wiretap and record private communications on the State agents’ mere assertion that the surveillance would provide evidence.

Just who is vulnerable under the bill?

The military and the Department of Defense have already red-tagged legitimate non-government organizations such as Gabriela, Oxfam Pilipinas, and the National Council of Churches in the Philippines, calling them fronts for communism. Too many activists and journalists have been arrested, detained, and released based on “mistaken identity.” Opposition lawmakers have repeatedly pointed out how the government has continually targeted activists for demanding accountability.

But it is not just persons with past brushes with State agents who are vulnerable. The present administration has never lacked for creativity in weaponizing laws against its own critics, be they persons or institutions, even as we thought those laws robust enough to repel abuse. The danger in this bill is therefore composite: a law that lends itself easily to abuse is now in the hands of authorities who have been known to abuse.

What is becoming clear is that the militarization of our democratic space has not been abrupt. Abrupt would have been easier to contend with: it would have shocked us into mounting a full and formidable opposition. The manner in which this administration has institutionalized militarization is gradual and creeping. And this is the problem: we know our rights and liberties are being eroded, but we can’t quite put our finger on the exact moment we have ceded these rights.