Under the Sword of the Anti-Terror Law

Journalists and the Human Security Act
Under the Sword of the Anti-Terror Law
By Jose Bimbo F. Santos

JOURNALIST ARLYN dela Cruz is no stranger to danger. In 2002, she disappeared for 98 days while covering the bandit group Abu Sayyaf. In September of last year, she was disowned by her main source for an article she wrote for the Philippine Daily Inquirer. The article, which described how her news source was able to get past airport security and assemble a bomb inside the plane, put to shame the government’s vaunted efforts to secure the country’s entry points. The fiasco almost cost Dela Cruz a five-year jail term and a hefty fine.
But something is about to change.
“Eight out of 10 journalists will probably change (the way they practice journalism),” she says. “And I’m not saying that I’m not part of that eight.”
“I will still be passionate about pursuing stories,” but she adds, “I will be more cautious now.”
In addition to her unfortunate experience with a news source, there is another reason for Dela Cruz’s new-found respect for caution: the anti-terror law. Approved by Congress and signed by  President Gloria Macapagal Arroyo last March 6, the new law is part of the government’s so-called war on terror.
It is because of this law that Dela Cruz says she and many other journalists will now be “very cautious” in going about their jobs.

Bombers at bay
Republic Act (RA) 9372, also known as the Human Security Act (HSA) of 2007, was signed into law in Malacañang, in the presence not only of the leaders of Congress and the bill’s sponsors but also of diplomats from 27 countries, including the United States and Australia. The US and Australia are the countries that are aggressively pursuing the “war on terror.”
HSA 2007 is a consolidated version of House Bill 4839, which was approved on third reading on April 5, 2006, and Senate Bill 2137, which was passed on Feb. 7, 2007. The new law will be implemented in July as part of its supposed safeguard against abuse during the May elections.
Arroyo said “law-abiding Filipinos” have no reason to fear HSA “for it is a weapon that shall be wielded against bombers and not protesters.”
“We will keep bombers at bay as we drive up confidence in the Philippines, grow jobs, increase income, and lift the people from poverty,” Arroyo added.
She also called HSA a means of upgrading the country’s “pre-emptive capability to check the conspiracies of harm and mass murder, and contain the movement of arms and funds that sow mayhem.”
Foreign Affairs Secretary Alberto Romulo, who was in Jakarta for a sub-regional ministerial meeting on counter-terrorism, also assured the international community that human rights will not be trampled upon in the name of the counter-terror drive. He assured delegates from Indonesia, Australia, Malaysia, Singapore, and Thailand that HSA “is both a necessary anti-terror legislation and a protector of human rights.”
Not surprisingly, the US and Australia, countries that both have anti-terror laws, welcomed the Philippines’s HSA.
The US Embassy issued a press release saying, “The new law will help provide Philippine law enforcement and judicial authorities with the legal tools they need to confront the threats posed by international terrorism, while ensuring protection of civil liberties and human rights.”
Australia, which acknowledged the Philippines as a “key regional counter-terrorism partner,” praised the HSA. A statement from Australian Minister for Foreign Affairs Alexander Downer said the new law “will strengthen the legal regime for investigating, prosecuting and bringing to justice terrorists and their supporters who are captured in the Philippines.”

‘Overly broad’
Not everyone in the international community, however, was happy with the HSA.  Six days after the signing, Martin Scheinin, United Nations Special Rapporteur for human rights and counterterrorism, issued a statement saying that “many provisions of the Human Security Act are not in accordance with international human rights standards.” He then urged the Philippine government to amend, if not repeal, the new law.
Scheinin pointed to the broad definition of terrorism under the HSA 2007 as reason for concern.  It states that a person is guilty of terrorism when he commits any of the specified crimes under the Revised Penal Code (see sidebar) with the intent of “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.”
The UN official said this definition was “overly broad,” and “at variance with the principle of legality and thus incompatible with Article 15 of the International Covenant on Civil and Political Rights (ICCPR).”
A “norm cannot be regarded as a law unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able—if need be with appropriate advice—to foresee, to a degree that is reasonable in the circumstances, the consequences which a given situation may entail,” the European Court of Human Rights said explaining Article 7 of the European Convention on Human Rights (ECHR). Article 7 of the ECHR, similar to Article 15 of the ICCPR, enshrines the “principle of legality.”
The Philippines ratified the ICCPR in 1986.
Lastly, Scheinin said, “There is a further concern regarding the competence of various bodies authorized to review the detention of an individual since some of these are members of the executive rather than an independent judicial body.”

Shrinking democracy
Filipino officials and human rights advocates are just as worried.
Sen. Ma. Ana Consuelo “Jamby” Madrial described March 6, the day that HSA was signed, as a “dark day for all Filipinos.”
The Philippine Alliance of Human Rights Advocates issued a statement saying, “The tagging of a person as ‘terrorist’ is made easy by vague legislation. As a consequence, the freedom of association, assembly and movement are undermined.”
Maria Socorro Diokno of the Free Legal Assistance Group noted the HSA’s lack of standards and the subjective notion of what constitutes “fear and panic.”
The Inquirer’s editorial on Feb. 21 asked, “A bank robbery is a crime. If people scream, it becomes terrorism?”
The editorial also noted that “The bill should have defined terrorism in terms of actual violence, or conspiracy, supported by evidence, to commit violence. Instead, it criminalizes a feeling—a feeling that is difficult to define because (it is) intangible. It has made fear so legally fearful, in a sense, that its results can only be the shrinking of democratic space.”

Competence
With the passage of the anti-terror law, an Anti-Terrorism Council (ATC) has also been created. The council will be chaired by the executive secretary with the justice secretary as vice chairperson and the secretaries of Interior and Local Government, National Defense, Foreign Affairs, Finance, and the National Security Adviser as council members.
“At the end of the day,” Sen. Franklin Drilon said, “it is the integrity, competence, and trustworthiness of our law enforcers and the justice department that will spell the success or failure of the anti-terror law.”
But with the track record of the administration, the justice department, and the police, Drilon’s yardstick for RA 9372’s success could very well spell the end of civil liberties. Not yet forgotten are several issuances of the Arroyo administration that posed a threat to basic freedoms such as Presidential Proclamation 1017, Executive Order (EO) 464, the Calibrated Preemptive Response, EO 511 (which sought to create a communications group that would consolidate the advertising budgets of all government agencies), and the growing number of threats and killings committed against journalists. Not to be overlooked as well are the numerous libel suits filed by the president’s husband, Jose Miguel Arroyo, against 46 journalists.
Lawyer Neri Colmenares of Bayan Muna and convenor of the Counsel for the Defense of Liberties pointed out that the anti-terror law could be used the way libel is being used today to intimidate journalists, only this time it would be more lethal.
“If someone is angry at media, he will no longer file a libel suit since the amount for bail is relatively small and the journalist even gets to be released. But under the anti-terror law, I can always file a trumped-up case against you, like inciting to terrorism, or linking up with terrorists by interviewing them,” Colmenares said.
He added that even though a charge is clearly false and the evidence is weak, a journalist could still be placed under house arrest. When that happens, “you cannot use the phone, text a message, use the Internet, or even send an e-mail,” he said.

Detention and death
Armed Forces Chief Hermogenes Esperon Jr. also expressed dissatisfaction with the law, but for a reason far different from those raised by human rights advocates.
“We did not get all the number of days that we wanted for detaining terror suspects,” he said.
The defense establishment had lobbied for a month of detention without charges for suspected terrorists and the imposition of the death penalty for convicted terrorists. The death penalty was abolished in the country in June 2006.
Colmenares however explained that the approved anti-terror law allows for detention of more than three days.
“Section 19, which says that suspects may not be detained for more than three days without the written approval of a municipal city, provincial or regional official of Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals, actually says that anyone can be detained for more than three days as long as there is approval,” Colmenares said.
He added that the same section is sharply at odds with the Constitution which states under Section 18 that “when the writ of habeas corpus is suspended, no person may be detained for more than three days unless judicially charged.” The HSA is therefore  unconstitutional, Colmenares said.
“Why should anyone be arrested if there is no evidence? Why should anyone be jailed while the authorities are still looking for evidence against him, and then after three days, come back to him and say, ‘Sir, the evidence against you is not yet enough for us to file a case in court, so can you please stay in jail in the mean time?’” Colmenares said, adding, “Is that fair? Why don’t you gather evidence first before arresting me? Why should I be made to suffer for your incompetence?”
Not only is the anti-terror law unfair, it is also draconian.
As pointed out by Colmenares, the law also allows the authorities to tap telephones and conduct warrantless arrests—powers that are reminiscent of Martial Law.

Sequestration of media
Colmenares also cited Section 30 of the law which, through the seizure and sequestration of assets, could cripple media.
“Your assets can be sequestered on mere suspicion,” he said.
Commenting on the law’s imposition of P500,000 for each day that a person is wrongfully detained, Colmenares said this is a not much of a safeguard since it is taxpayers’ money, not the arresting officers’, that will be used.
Defense Undersecretary Ricardo Blancaflor, director for legal public information and advocacy of the Anti-Terrorism Task Force, however, said critics of the law have not read it. He further accused them of having their own agendas.
“Many of those criticizing the law have also something to hide, meaning, they are guilty…of wrongdoing (or) of some criminal act. That’s why they criticize the law, they are afraid that their illegal activities will be curtailed,” Blancaflor said.
He asked those who criticized the anti-terror law for curtailing civil liberties: “What is more important: human life or human rights?”

Freedom as weapon
The discussion on whether civil liberties should give way to national security has been the subject of much debate ever since US President George W. Bush declared a “war on terror” after the 9/11 attacks.
“The enemy has declared war on us,” Bush said on Nov. 29, 2001. “And we must not let foreign enemies use the forums of liberty to destroy liberty itself.”
Former US Attorney General John Ashcroft, who vowed to use the full might of the federal government and “every available statute” to hunt down and punish the “terrorists among us,” claimed to have gotten hold of a “terrorist manual” allegedly used by Osama Bin Laden’s Al Qaeda network.
“In this manual, Al Qaeda terrorists are now told how to use America’s freedom as a weapon against us. We are at war with an enemy that abuses individual rights as it abuses jetliners. It abuses those rights to make weapons of them with which to kill Americans,” Ashcroft said.
Still, some argue that human rights and national security are not mutually exclusive values.
“Human rights are not a luxury for good times. They must be upheld at all times, including in times of danger and insecurity. If the quest for a safer world is to succeed, human rights must lie at its heart,” Irene Khan, secretary-general of Amnesty International wrote in 2002.
Aidan White, secretary-general of the International Federation of Journalists,  said that  restrictive anti-terror laws only “put democracy in peril and benefit no one, except perhaps terrorists themselves who see every new limitation on people’s rights as a victory in their campaign to destabilize democratic and tolerant societies.”

Crackdown
In the name of the “war against terror,” and the stringent punitive measures that accompany it, there have already been a number of attacks on media and free expression around the world.
In 2003, the Committee to Protect Journalists reported that three editors from the weekly newspapers Al Sharq and Al-Hayat Al-Maghribiya were charged with supporting terrorist acts after they published an article that discussed the history of the Islamist movement in Morocco and its alleged relationship with the country’s intelligence services. In August, they were sentenced to prison terms ranging from one to three years. Their publication was also suspended for three months.
On September 2003, more than a hundred protesters were arrested while demonstrating outside Europe’s biggest arms fair in London. A number of those arrested were charged under the Terrorism Act of 2000.
In Spain, in one of the stranger forms of clampdown on free expression,  a band was taken to court on charges of allegedly praising separatists in four of their songs. The six members of Soziedad Alkoholika, a Basque punk rock band, was charged with singing songs that have “offending expressions” that constitute “humiliation” and “disdain” for ETA victims as well as “justification” for the actions of ETA. ETA (Euskadi Ta Askatasuna, which is Basque for Basque Homeland and Freedom), is a paramilitary Basque organization listed as a terrorist group by both the European Union and the US. The trial resulted in an acquittal, but not after the prosecutor also demanded that the band be banned from working as musicians for at least one year and a half.

Real but invisible
“Cataloguing, even anecdotally, the many encroachments on free expression since 9/11 is a little like writing about global warming. The danger is real, catastrophic, accelerating, and yet almost invisible. So many things are going on at so many levels we fail to see interconnections,” Dinah PoKempner, general counsel of Human Rights Watch, said.
Chief Justice Reynato Puno, in a speech delivered during the induction of officers of the Capampangan sa Media Inc. in Quezon City on March 27, also cautioned against using national security as an excuse for curtailing civil liberties.
Quoting the American scholar Dean Geoffrey Stone of the Chicago Law School regarding the excesses committed by the US in the name of national security, Puno said, “The Sedition Act of 1798 has been condemned in the ‘court of history,’ Lincoln’s suspensions of habeas corpus were declared unconstitutional by the Supreme Court in Ex Parte Milligan, the Court’s own decisions upholding the World War I prosecution of dissenters were all later effectively overruled, and the internment of Japanese Americans during World War II has been the subject of repeated government apologies and reparations.”
Puno concluded,  “The worst tyrants are those who deny our freedom on the pretext of doing so to protect us. This delusion destroys liberty, and almost always the first to go is freedom of speech and of the press.”

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