PHILIPPINES: Enactment of terror law emboldens commission of violations

On March 6, the Human Security Act of 2007, which defines acts of terrorism, was signed into law (the law is available on the internet at http://philippines.ahrchk.net/pdf/HumanSecurityActof2007.pdf). It will take effect two months after elections in May 2007 are concluded. The new law defines the crime of terrorism as “sowing and creating a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand.” It provides a 40-year prison term without parole for those convicted. The failure to define what constitutes “widespread and extraordinary fear and panic” raises a serious concern that the law will be abused.

Under the new law, the police and other law enforcement officers have the authority, among others, to conduct covert surveillance on people or organisations suspected of committing terrorism, intercept any form of communication, scrutinise and freeze bank accounts and detain a person without a warrant for three days. Although the law stipulates that a court order must be obtained, this provision and the law in general do not provide any assurance that the basic rights of suspects will be respected because of the police’s usual arbitrary and illegal practices in the conduct of their normal operations. Rather, it is feared that the law strengthens impunity and further weakens the protection of every citizen’s constitutional rights.

For instance, although the law imposes the penalty of imprisonment on the police or law enforcers found to have violated this law, it does not provide any mechanism or system of control over them to prevent false or fabricated accusations to protect innocent people. Moreover, one provision of the law provides confidentiality for police informants. While this lack of accountability and oversight and this confidentiality provision may seem innocuous, it is unfortunately a fact of life that policemen and law enforcers in the Philippines are corrupt, inept, lack training and skills in conducting investigations and other matters of police work, among others, and to empower them with this blanket authority is extremely alarming. Even though compensation is provided for people who are later found to be innocent, is it enough to repay the damage caused them, more so if the victims are killed or disappear while in police custody?

In addition, the contradictory and inadequate provisions of the just-passed Human Security Act denies every citizen equal protection of the law. These deficiencies are evident in the provisions regarding torture; for while the law prohibits torture and other forms of cruelty,  it allows the rendition of suspects if ordered by a court, an act in the law that makes people vulnerable to torture, and it does not provide any mechanism for the rehabilitation of victims nor compensation to them. Meanwhile, although it provides the penalty of imprisonment to police or law enforcers committing torture, the offence of torture itself is not a crime under the penal code. Thus, how can the police or law enforcers be prosecuted for an offence that is not a crime? The new law consequently offers false hopes and completely deceives victims of torture that they can get redress for their grievances when, in reality, they cannot. Moreover, to prosecute and punish a person for an offence that is not a criminal offence constitutes wrongful prosecution. It deprives not only the alleged perpetrators equal protection of the law but also the victims of justice and redress.

Weakness in the legislation is also evident in the provision of the law which empowers the government’s Commission on Human Rights (CHR) to assume jurisdiction to “prosecute public officials, law enforcers and other persons” for the violation of people’s civil and political rights. Once again, while it is a welcome development that this law provides the commission with prosecutorial powers, the absence in the law of how the commission would do so raises further legal questions. Moreover, unless the provision of the 1987 Constitution which defines the role and functions of the CHR as a constitutional body is amended, the possibility exists that the commission’s legitimacy to undertake such a role would be questioned. In addition, for the commission to assume a prosecutorial role in only cases involving violations by public officials and law enforcers in relation to acts of terrorism denies this role to victims of violations that are not related to terrorism. This uneven application of law prohibits victims of equal protection as the number of victims of human rights violations that are not related to terrorism is tremendous. To deny them such an avenue for justice is completely unacceptable.

Even though the law prohibits the use of torture and imposes a ban on extraordinary renditions, the law provides exemptions, allowing people to be sent to another country in cases where the person’s “testimony is needed for terrorist-related police investigations” in the requesting country. Although an assurance is required that a person’s rights must be ensured before they are sent to another country, the mere transfer of a person and investigation by authorities of another country alien to the person already constitutes a traumatic experience.

The law also provides for the “proscription” of organisations as a terrorist body upon petition to a court, in particular by the Department of Justice (DoJ) which is mandated to make such applications. The potential consequently exists for any organisation to be outlawed or declared a terrorist organisation whether or not they profess this ideology and utilise the strategies of terrorists. It must be noted that prior to the enactment of this law there has been an entrenched and deep-rooted bias by the police, military, public officials, and even the DoJ, towards organisations critical of the government. The police and military have publicly declared as terrorists and enemies of the state several individuals and organisations, including human rights groups, church and religious bodies, the media and others. Therefore, by enacting this provision, the possibility of the government attacking these groups legitimately through this law to advance their long-held prejudices against these groups is inevitable.

In addition, the majority of the seven officials who will initially sit on the Anti-Terrorism Council are people who either tolerated or failed to criticise the police, military, public officials and others who labelled groups or individuals as “terrorists and enemies of the state.” It would thus be unwise for these people to occupy such official positions on the newly formed  Anti-Terrorism Council as their independence from the government is questionable, especially as the temptation exists for the government to use this new law to suppress and oppress legitimate dissent. Unless there is a system of control and active participation by members of civil society regarding the operation of the council, the well-founded anxiety of legally recognised organisations that they will be targeted for attack through the use of this legislation is legitimate. This measure, even though suspected groups have the opportunity to defend themselves in court, denies them equal protection at an early stage of the legal process.

What is highlighted above are among the many provisions in the newly enacted law that raise serious concerns regarding the state’s responsibility to protect the people’s human rights in the Philippines. What is being enacted is a law which provides overreaching and blanket authority to the police, law enforcement agencies, public officials and others who have been accused of committing serious human violations or of tolerating them. While there is a need to protect the lives of the country’s citizens, it must not be done at the expense of reducing and subverting the people’s constitutional rights.

If this law would have been passed in other countries where the system of justice is much more developed and respect for human rights is relatively strong, condemnation and opposition would have been less, and fear that the government would abuse the law would have been less evident. The Philippines, however, is not such a country. It is a country in which the system of justice, in particular the police and prosecution, deny victims the possibilities of attaining  justice and redress. It is a country where there is an utmost priority to develop its system of justice and implement its laws rather than enact repressive and exploitative laws. We urge the international community, human rights advocates, legal and human rights scholars and other people concerned about the continuing degeneration of the protection of human rights in the Philippines to register your strong opposition and reject this law.