Inquirer Opinion / Talk Of The Town
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FAQs on the Human Security Act
By Jose Manuel Diokno
Inquirer
Posted date: July 15, 2007

(Editor’s Note: The antiterror law takes effect today, raising fears among
bishops and human rights advocates that authorities would use it to crack
down on political enemies. But Malacañang claims that the law was enacted
to protect the people from terror. To help the public understand the
implications of the law, we are featuring here the frequently asked
questions [FAQs] prepared by a lawyers’ group. The group warns against
abuses that could be committed in the name of the new law.)

MANILA, Philippines-

Q. What is the Human Security Act of 2007?A. The “Human Security Act of 2007,” or Republic Act No. 9372, is a law
that Congress enacted “to protect life, liberty and property from acts of
terrorism, to condemn terrorism as inimical and dangerous to the national
security of the country … and to make terrorism a crime against the
Filipino people, against humanity, and against the law of nations.”
While well-intended, the Human Security Act (HSA) is one of the most
incoherent, disorganized and disjointed laws our Congress has ever passed.
A mix-and-match collection of 62 sections, the law has no discernible
structure, no headings or subheadings, and no groupings of sections.
Provisions follow one another without logical connection; some sections
contradict each other; while others simply make no sense.
Worse, the HSA is a dangerous law. It authorizes preventive detention,
expands the power of warrantless arrest, and allows for unchecked invasion
of our privacy, liberty and other basic rights. Persons merely suspected
of engaging in terrorism may be arrested without warrant and detained
without charges.

They may be placed under house arrest, prohibited from using their cell
phones, computers and any other means of communication, even when they are
granted bail on the ground that evidence of guilt is not strong. They may
also be subjected to surveillance and wiretapping, as well as examination,
sequestration and freezing of bank deposits and other assets, on mere
suspicion that they are members of a “terrorist organization.”

Defining the crime

Q. How does the HSA define the crime of ‘‘terrorism?”

A. It defines the crime as follows:

“Sec. 3. Terrorism-Any person who commits an act punishable under any of
the following provisions of the Revised Penal Code:

A. Art. 122 (Piracy in General and Mutiny);

B. Art. 134 (Rebellion or Insurrection);

C. Art. 134-A (Coup d’Etat), including acts committed by private persons;

D. Art. 248 (Murder);

E. Art. 267 (Kidnapping and Serious Illegal Detention);

F. Art. 324 (Crimes Involving Destruction); or under

(1) P.D. 1613 (Law on Arson);

(2) R.A. 6969 (Toxic Substance and Hazardous and Nuclear Waste Control Act);

(3) R.A. 5207 (Atomic Energy Regulatory and Liability Act);

(4) R.A. 6235 (Anti-Hijacking Law);

(5) P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law); and

(6) P.D. 1866, as amended (Decree Codifying the Laws on Illegal and
Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition
of Firearms, Ammunition or Explosives)

Thereby 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 shall be guilty of terrorism and shall
suffer the penalty of 40 years of imprisonment, without the benefit of
parole…”

For the crime of terrorism to be committed, therefore, four elements are
essential:

The commission of one or more of the crimes specified in Section 3 above,

That sows and creates a condition of “widespread and extraordinary fear
and panic” among the populace,

For the purpose of coercing the government,

To give in to an “unlawful” demand.

Vague, susceptible to abuse

In FLAG’s view, the law’s definition of terrorism is vague, ambiguous and
highly susceptible to abuse. When does a condition of “widespread and
extraordinary fear and panic” exist? Does the “populace” refer to the
public in general, those who live in the same city or town or those who
live in the same barangay? What is an “unlawful demand?”

With no objective standards to guide our law enforcers, the HSA in effect
bestows on our law enforcers the unfettered discretion to decide if a
person is engaged in terrorism or conspiracy to commit terrorism. And that
is very dangerous indeed.

In the words of Martin Scheinin, the United Nations’ Special Rapporteur on
the Promotion and Protection of Human Rights and Fundamental Freedoms
While Countering Terrorism, “… there are some positive aspects of the
definition of terrorist acts in the Human Security Act but the end result
is an overly broad definition which is seen to be at variance with the
principle of legality and thus incompatible with Article 15 of the
International Covenant on Civil and Political Rights.”

Q. How does the HSA define “conspiracy to commit terrorism?”

A. Section 4 provides that a conspiracy to commit terrorism is committed
“when two or more persons come to an agreement concerning the commission
of the crime of terrorism as defined in Section 3 hereof and decide to
commit the same.” The law, in short, defines a terrorist conspiracy as an
agreement between two or more persons to commit the crime of terrorism and
a decision to commit it.

The basic principle in conspiracy is that the act of one is the act of
all. As an American lawyer has observed, however, modern criminal
organizations operate on an entirely different principle:

“… Conspiracy laws make all conspirators equally liable for all the
crimes, when clearly that just is not the case. In fact, criminal
organizations are structured specifically to place the greatest risk on
the people with the least to gain from the enterprise. That’s how you rise
in those organizations.

… Criminal conspiracies don’t happen amidst open forum discussions. I
can’t imagine that many criminal organizations have large group meetings
… Quite the opposite. Mostly, conspiracy convictions are based on
disparate, separate and barely if at all coordinated acts by the
conspirators. Meetings are one on one, or (in) tiny minimal groups. Almost
none of the typical conspirator even knows what the whole scheme is, let
alone the harmful effects…”

Small fry

In FLAG’s view, criminalizing terrorist conspiracies is a useless,
impractical and ineffective way of addressing the problem. It may result
in the arrest of lots of “small fry,” but will never stop the “big fish”
behind these organizations.

Q. Does the HSA provide for the outlawing of “terrorist organizations?”

A. Yes. Section 17 provides that an organization, association or group of
persons that is organized for the purpose of engaging in terrorism, or,
although not so organized, actually engages in acts of terrorism, may be
outlawed or proscribed as a “terrorist organization.”

In FLAG’s view, the outlawing of organizations on the ground they are
“terrorist” is not only vague and ambiguous; it is an open invitation to
the authorities to muzzle free speech, to stifle the right to peaceably
assemble and petition the government for redress of grievances.

Penalties

Q. What is the penalty for the crimes of terrorism and conspiracy to
commit terrorism?

A. The penalty for the crime of terrorism is 40 years of imprisonment
without benefit of parole. This is a new penalty not recognized by the
Revised Penal Code.

The penalty for conspiracy to commit terrorism is also 40 years of
imprisonment without the benefit of parole.

The penalty for accomplices is 17 years, 4 months and 1 day to 20 years of
imprisonment.

The penalty for accessories is 10 years and 1 day to 12 years of
imprisonment.

Q. Can the rights and liberties of a person merely suspected of terrorism
be curtailed under the HSA? If so, in what manner can they be curtailed?

A. Yes. It contains many provisions that allow the rights of mere suspects
to be curtailed.

Section 26 provides that persons who have been charged with terrorism or
conspiracy to commit terrorism-even if they have been granted bail because
evidence of their guilt is not strong-can be:

Detained under house arrest;

Restricted from traveling; and/or

Prohibited from using any cellular phones, computers or other means of
communicating with people outside their residence.

Section 19 provides that in the event of an actual or imminent terrorist
attack, persons suspected of terrorism may be arrested and detained
without charges for as long as the detention is approved by a judge of the
municipal or regional trial court, the Sandiganbayan or a justice of the
Court of Appeals nearest the place of the arrest or by “a municipal, city,
provincial or regional office of a Human Rights Commission.” It is not
clear whether the “Human Rights Commission” mentioned here is the same as
the constitutionally established Commission on Human Rights.

FLAG believes that these and other similar provisions violate the right to
liberty, to be presumed innocent, to due process of law, to equal
protection under the law, to a fair trial, to travel and to privacy of
communication and correspondence.

Detention

Q. What is “custodial detention” and what are the rights of persons under
custodial detention?

A. Section 21 uses the term “custodial detention” but does not expressly
define it. It would appear from the wording of this section, however, that
“custodial detention” begins the moment a person is arrested and detained.
Section 21 provides:

“The moment a person charged with or suspected of the crime of terrorism
or the crime of conspiracy to commit terrorism is apprehended or arrested
and detained, he shall forthwith be informed, by the arresting police or
law enforcement officers or by the police or law enforcement officers to
whose custody the person concerned is brought, of his or her right: (a) to
be informed of the nature and cause of his arrest, to remain silent and to
have competent and independent counsel preferably of his choice. If the
person cannot afford the services of counsel of his or her choice, the
police or law enforcement officers concerned shall immediately contact the
free legal assistance unit of the Integrated Bar of the Philippines or the
Public Attorney’s Office, who are duty-bound to immediately visit the
detainee and provide legal assistance. These rights cannot be waived
except in writing and in the presence of counsel of choice; (b) informed
of the cause or causes of his or her detention in the presence of counsel;
(c) allowed to communicate freely with his legal counsel and to confer
with them at any time without restriction; (d) allowed to communicate
freely and privately without restrictions with the members of his family
or with his nearest relatives and to be visited by them; and, (e) allowed
freely to avail [himself or herself] of the services of a physician or
physicians of choice.”

Violations of Section 21 by law enforcers are punishable by imprisonment
of between 10 years and 1 day to 12 years.

Under Section 24, persons under investigation for the crime of terrorism
or conspiracy to commit terrorism have the right to be free from torture,
threat, intimidation, coercion or any act that inflicts physical pain or
torment or mental, moral or psychological pressure that vitiates free
will; any evidence obtained as a result thereof is not admissible in any
judicial, quasi-judicial, legislative or administrative investigation or
proceeding.

The penalty for those who commit torture or any of the other acts
mentioned above is imprisonment of between 12 years and 1 day to 20 years.

Contradictory

Q. What procedure must law enforcers follow before detaining a person they
have arrested without warrant under the HSA?

A. The second paragraph of Section 18 provides that the law enforcers
must, before detaining arrested persons, present them before a judge at
the latter’s residence or office nearest the place of arrest, at any time
of the day or night.

The judge, among other things, must:

Ascertain the identity of the arresting officer;

Ascertain the identity of the arrested person;

Inquire into the reasons for the arrest;

Determine, by questioning and personal observation, whether the arrested
person was subjected to any physical, moral or psychological torture, by
whom, and why; and

Within three calendar days from the time the arrested person was brought
before him or her, submit a report to the court with jurisdiction over the
arrested person, stating in detail what he or she observed when the
arrested person was brought to him or her.

The third paragraph of Section 18, however, provides that “(i)mmediately
after taking custody of a person charged with or suspected of the crime of
terrorism or conspiracy to commit terrorism, the police or law enforcement
personnel shall notify in writing the judge of the court nearest the place
of apprehension or arrest; Provided, that where the arrest is made during
Saturdays, Sundays, holidays or after office hours, the written notice
shall be served at the residence of the judge nearest the place where the
accused was arrested.”

In FLAG’s view, the two provisions are contradictory. While the first
provision requires personal delivery of the arrested person to the judge
nearest the place of arrest, the second provision appears to negate this
requirement by requiring only a written notice to the judge nearest the
place of arrest.

Dangers of wiretapping

Q. Can government place suspects under surveillance, or tap into their
private conversations and communications? How may this be done?

A. Yes, if authorized by the “authorizing division” of the Court of
Appeals. In FLAG’s view, surveillance and wiretapping operations infringe
on the rights to be presumed innocent and to privacy. Why should these
rights be sacrificed because the investigating officers are incompetent,
ineffective or unable to gather evidence in a lawful manner? Added to
this, with current technology, the danger of fabricated recordings,
spliced tapes and conversations taken out of context is real. The
potential for abuse is frightening.

Anyone who undertakes surveillance or wiretapping operations against
terrorism suspects, without authority from the “authorizing division” of
the Court of Appeals, shall be punishable by imprisonment of between 10
years and 1 day to 12 years.

Q. Will the subject of surveillance or wiretapping be informed about it?

A. While the HSA states that it upholds the “right to be informed of the
acts done by law enforcement authorities,” the subject of surveillance or
wiretapping will only be informed of the surveillance or wiretapping if no
case is filed against him or her. If the applicant fails to notify the
subject of surveillance or wiretapping in writing within 30 days from the
expiration of the operation, he or she shall be punished with imprisonment
of between 10 years and 1 day to 12 years.

FLAG believes that this provision violates due process, since those under
surveillance or wiretapping are barred from participating in the
proceeding to the detriment of their life and liberty; they are not to be
informed of the application or any such authorization order against them;
they are not allowed to contest such application or any evidence that may
be brought against them; neither are they allowed to present evidence on
their own behalf.

They will be subjected to invasion of their privacy rights without due
process for up to 60 days by a battery of law enforcement officers, and
any recordings made or evidence obtained in violation of their privacy and
due process rights may be used in evidence against them.

Q. Can government examine bank deposits and finances, and seize, sequester
or freeze assets of persons suspected or charged under the HSA?

A. Yes. Under Section 27, bank deposits and finances may be examined if
judicially authorized. Under Section 39, assets of (1) any person
suspected of or charged with terrorism or conspiracy to commit terrorism
before a competent regional trial court, (2) a judicially declared
terrorist organization, and (3) members of a judicially declared terrorist
organization “shall be seized, sequestered and frozen in order to prevent
their use, transfer or conveyance for purposes that are inimical to the
safety and security of the people or injurious to the interest of the
State.” Unlike Section 27 however, Section 35 does not expressly require
judicial authorization and is silent on which office or agency may
authorize and implement such seizure, sequestration or freezing of assets.

License to look into bank deposits

In FLAG’s view, the power to examine bank deposits and finances of persons
or entities suspected of involvement in terrorism or conspiracy to commit
terrorism is particularly alarming. Law enforcers are armed with the
widest license to inquire into the bank deposits of persons who are merely
assumed or perceived to be terrorists.

Anyone could easily be assumed or perceived or suspected of being a
terrorist. Even worse, these examinations could lead to incidents of
extortion, blackmail or even be the basis for kidnapping committed by
erring law enforcers or syndicates.

Anyone who examines the bank deposits and finances of terrorism suspects,
or members of outlawed terrorist organizations or outlawed terrorist
organizations without authority from the “authorizing division” of the
Court of Appeals, shall be punishable by imprisonment of between 10 years
and 1 day to 12 years.

Q. Who authorizes government’s inquiries into bank deposits and finances
of terrorism suspects or members of outlawed terrorist organizations or
outlawed terrorist organizations?

A. The justices of the Court of Appeals “designated as a special court to
handle antiterrorism cases” are authorized to allow government to inquire
into the bank deposits and finances of terrorism suspects, if they are
“satisfied” that probable cause exists to warrant such examination. They
may authorize:

The examination of the deposits, placements, trust accounts, assets and
records in a bank or financial institution; and

The gathering of any relevant information about such deposits, placements,
trust accounts, assets and records in a bank or financial institution.

Q. Will the subject of the examination be informed that it is being done?

A. Persons whose bank deposits and finances are being examined will only
be informed about it if no case is filed against him or her after the
period of examination. If the applicant fails to notify the subject of the
examination in writing within 30 days from the expiration of the
examination, he or she shall be punishable by imprisonment of between 10
years and 1 day to 12 years.

FLAG reiterates that this provision violates the due process and property
rights of those whose bank deposits and finances are under examination.

Payment of damages

Q. Does the HSA penalize law enforcers and government officials who misuse
the law?

A. Yes. Section 50 provides that any person accused of terrorism who is
later acquitted by the court shall be entitled to the payment of P500,000
in damages for every day that he or she has been detained or deprived of
liberty or arrested without a warrant as a result of such an accusation.
The amount of damages shall be automatically charged against the
appropriations of the police agency or the Anti-Terrorism Council that
brought or sanctioned the filing of the charges against the accused. The
payment of damages must be released within 15 days from the date of the
acquittal. In addition, the award of damages shall be without prejudice to
the filing of criminal or administrative charges against those responsible
for the unproven charge.

Section 41 provides that persons whose properties are seized, sequestered
or frozen, but who are later acquitted or the cases against them
dismissed, are entitled to P500,000 a day for the period in which their
properties were seized, sequestered or frozen. The amount shall be taken
from the appropriations of the police or law enforcement agency that
caused the filing of the charges.

Other sections of the Act-for instance, Sections 11-16 and 35-provide
various penalties for acts committed by law enforcers in violation of the
law. While most of these sections impose a penalty of imprisonment for a
certain period of time, a few sections provide that evidence seized as a
result of illegal police actions may not be used against the accused.

Q. Why should I care about the Human Security Act? It’s only for terrorists.

A. The HSA is so vague that it can be used against just about anyone,
including you or me. The law is so sweeping that it can be used to curtail
the rights of persons merely suspected of terrorism, even if they have
been granted bail because evidence of their guilt is not strong. And the
law is so dangerous that, unless repealed, it will destroy the Bill of
Rights of the Constitution and rip apart the very fabric of our democratic
system.

Jose Manuel I. Diokno is chairperson of the Free Legal Assistance Group
(FLAG).