President Rodrigo Duterte on 3 July 2020 officially passed The Anti-Terrorism Act, 2020 (“The Act”), purporting to curb the menace of terrorism in the Philippines. In the Philippines, there has been a surge in the number of killings and armed attacks and, more recently, “a deadly ramp up of suicide bombings”. Two extremist groups, The Communist People’s Party and its ally National People’s Party, have been a major cause of trouble to the government and the people. “According to the Institute for Economics and Peace’s Global Terrorism Index 2014, the [National People’s Party (NPA)] was the ‘largest individual group’ suspected to be behind terrorist attacks in the Philippines.” Thus, Duterte determined a counter-terrorism measure was the need of the hour. However, the legislation the government passed seeks unviable shortcuts to peace, disregarding human rights.

Human rights activists and civil liberties experts across the globe have condemned this hastily-passed Act. They contend this legislation will have chilling effects on fundamental rights of citizens. The Philippines is a democratic republic, and democracy entails three Ds—debate, dissent, and deliberation. The bill, however, was labelled as urgent and passed without allowing deliberation or considering dissent on the same. 

THE ACT RAISES FOUR PARTICULAR HUMAN RIGHTS CONCERNS 

First, the principle of legality, which is a subset of the rule of law, states that the legislature cannot infringe the fundamental freedoms of an individual unless the law so framed is clear, ascertainable, and non-retrospective. The vague definition of terrorism provided in the legislation violates the principle of legality, because it is not clear nor ascertainable. The Act defines terrorism as “engag[ing] in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property”. The issue with this definition is that it blurs the distinction between criticism of the government and terrorism—here, even certain public protests or dissent could be labelled as terrorism. 

While the Act explicitly exempts “advocacy, protest, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights” from the definition of terrorism, other open-ended terms, such as “risk to public safety” and “create an atmosphere or spread a message of fear” make the law prone to abuse. With no elaboration, these terms are left to individual interpretation as to what shall be a “risk” or what is worthy of invoking “fear”. Thus, experts are concerned that these terms could be used to restrict legitimate expression of dissent in the name of performing its purported task of maintaining law and order in the society. Historically, we saw a similar incident play out in Senator Leila de Lima’s and prestigious national journalists’ harassment as well as journalist Maria Ressa’s conviction for being critical of the government’s “war on drugs”.

Another shortcoming of The Act’s is its creation of an Anti-Terrorism Council (“the Council”), a presidentially-appointed body consisting of members of executive such as the National Security Advisor and the Secretary of National Defense, among others. The Council shall implement the Act and is empowered to designate an individual as a terrorist without a judicial warrant. The arbitrary and discriminatory power granted to the Council may lead to dissenters of government and human rights advocates being swept up as “terrorists,” given that the Act offers little to distinguish acts of activism and those of terrorism by employing ambiguous, sweeping terms such as “acts intended to cause damage to government”. Given the difficulty of proving intent, this term could be twisted as the Councils sees fit, perhaps to classify activists’ writings or representations as inciting damage regardless of the true intent.

The Act lays down that suspects of terrorism could be detained without a judicial warrant of arrest for 14 days, extendable by 10 more days without being presented before the Judicial Authority. The suspect may then face a sentence of 12 years in prison upon conviction by the Council. They could also be placed under surveillance for 60 days, extendable by up to 30 days, by the police or military. The right to parole for these suspects has been altogether eliminated. Such provisions of the law essentially make the Council the judge, jury, and jailer. Prolonged detention without charge and restrictions on right to travel together with warrantless arrests will increase instances of torture in the hands of the state as well as other inhumane and degrading treatment, like prolonged sentences imposed on potentially innocent persons. 

A fourth fundamental flaw is in Section 18 of The Act, which bestows despotic power upon military personnel to conduct surveillance. Section 18 permits tracking, tapping, intercepting, and listening to all personal communications and discussions of any people suspected to be involved in terrorism. This poses a serious threat to the right to privacy of an individual.

THE ACT RISKS TOO MUCH AND MUST BE REPLACED WITH CAREFUL REFORM

Such a piece of legislation is a blot on human rights. The Act empowers the government to employ the tactic of red-tagging—the act of branding individuals and organisations that dissent from the government as “communist fronts”—to target government critics, peaceful protestors, and journalists. It is a means to endanger citizens’ lives, leaving them at risk of harassment and attacks by unknown and unaccountable authority figures. 

The Act raises several constitutional questions by giving the state the ultimate power to censor free speech, infringe the right to privacy, and suppress peaceful dissent. It grants enormous power to the executive, desecrating democracy and the separation of powers. True reform could best be achieved only through a cautious and inclusive approach. Respect for human rights, the rule of law, and individual integrity cannot be compromised in the garb of a counter-terrorism law. The government, while framing a piece of legislation, must conform to its international obligations under, for example, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.Excessive delegation of power as in the case of the Anti-Terrorism Act must be checked immediately so as to prevent any sort of chilling, lasting effect on fundamental rights. Unchecked, the erosion of civilian checks and balances via this consolidation of power in hands of an executive-appointed Council and the executive itself shall have an unprecedented effect on the civil liberties of the individuals. 

Preetkiran Kaur is a second year undergraduate law student at Rajiv Gandhi National University of Law,
Punjab. Her main areas of interest are International Law and Jurisprudence. She is an avid reader and is always up for discussion on politics, feminism and constitutional law.

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