October 22, 2020
HON. LEILA M. DE LIMA
Webinar on the Implementing Rules and Regulations of the Anti-Terrorism Act of 2020
22 October 2020
To my mind, the most alarming provision of RA 11479 (Anti-Terrorism Act of 2020) is Sec. 29 on detention without a judicial warrant of arrest. This provision of law is unprecedented in our statute books since the EDSA Revolution.
It is the single exception to warrantless arrests that is not found in the Rules of Court. It is basically a license to warrantless arrests without limits. It destroys the very foundation of the Bill of Rights and its foremost provision on the right of the people to be secure in their person and property against warrantless arrests. If you think this is enough, there is more.
Sec. 29 also violates another constitutional provision. Its provision that allows the government to hold mere suspects arrested without warrants in detention for 24 days without filing any charges in court violates the constitutional provision on the suspension of the privilege of the writ of habeas corpus.
This constitutional provision provides that even in instances of the suspension of the privilege of the writ, NO ONE can be held in detention for more than three days without being charged in court. This constitutional provision therefore provides that the maximum number of days that anyone can be held in detention without any charges being filed is three days, under any and all circumstances, even under conditions of martial law and the suspension of the privilege of the writ.
Without the benefit of any amendment to this constitutional provision, Sec. 29 of RA 11479 has basically extended this maximum allowable period of detention without charges by an additional TWENTY ONE DAYS. We all know that no law can rise above the Constitution. If the Constitution says that three days is the maximum period that anyone can be detained without charges for whatever crime, no law can change this and extend it to twenty four days. This is clear.
The IRR of RA 11479 does nothing to cure this abomination of the Constitution. It retains the 24-day period, and hence brings us back to the days of Presidential Commitment Orders and Arrest, Search, and Seizure Orders of the Marcos Dictatorship.
There are also provisions of the IRR that go beyond the provisions of RA 11479, as if the constitutional violations found in the law itself are not enough. These provisions of the IRR are therefore ultra vires.
Rule 4.4 of the IRR states that advocacy, protest, dissent, stoppage of work, industrial or mass action, creative, artistic and cultural expressions, and similar exercises of civil and political rights can be considered acts of terrorism if these are intended to cause death or serious physical harm to people or create a serious risk to public safety.
Sec. 4 of the law explicitly states that the above actions are not intended to cause death or harm or create serious risk to public safety, and should not therefore be considered as acts of terrorism. But under the IRR, these exercises of civil and political rights can still be prosecuted as acts of terrorism.
Rule 4.14 of the IRR provides that the ATC shall determine which are the kind of humanitarian activities that do not constitute material support to terrorism.
Sec. 13 of the law does not provide that the ATC shall be the one to determine such non-terroristic humanitarian activities. In accordance with our legal and judicial system, it should be the courts that should determine these. Rule 4.14 therefore gives the ATC additional powers that are not found in RA 11479. In effect, the ATC can designate a charitable project as a terroristic undertaking merely by saying that it does not recognize said project as a legitimate humanitarian activity. And knowing this government’s proficiency for terrorist-tagging, relief operations of progressive mass organizations and political movements can be designated as terroristic activities that provide material support to terrorists.
Rule. 6.5 authorizes the ATC to publish the list of designated terrorists and terrorist organizations according to the ATCs own determination of probable cause.
Nowhere in Sec. 25 of the law does it provide that the ATC is empowered to publish its list of designated suspected terrorist individuals and organizations. This provision in the law itself is one of the most tyrannical and authoritarian provisions of the law, where the Executive Branch can terrorist-tag any person and organization on its mere say-so without presenting any evidence whatsoever before a court of law. The provision that it should do so only upon probable cause is not even an assurance, because we all know how the Executive Branch has distorted the concept of probable cause for the sake of filing trumped-up charges against political opponents, civil society organizations, and mass movements. I am the classic victim of this government practice.
Aside from having the law declared unconstitutional, there is nothing really nothing much that those targeted for its implementation can do. The law itself has basically removed the constitutional protections that we have against the strong arm of the State. These include the freedom from arbitrary arrests and searches and the right against detention without charges, or the privilege of the writ of habeas corpus. Those have basically been taken away from us under this law.
What can our response be when every relief operation or humanitarian activity can be considered as rendering material support to terrorism, unless it is cleared first with the ATC? What can our response be when anyone can be picked up from their homes or from the streets on mere suspicion of being a terrorist and thrown in jail for 24 days without being charged? What can our action be against a list of suspected terrorists that the ATC will be releasing and publishing in the Official Gazette before those on the list are even heard before a court of law?
Of course, we can run to the courts, but if this law is not declared unconstitutional, those courts we run to will only continue to uphold its legitimacy, and what used to be illegal arrests and illegal detentions will now become legal and uncontestable before the courts. The writ of the privilege of habeas corpus will be erased from our law books, will cease to exist, and democracy and freedom as we know them will likewise be erased from our political reality.
We have the option to withdraw from the struggle and stop in our political activism and fight for social justice. We can do that, although I doubt if many among us here will take that option and stop fighting injustice and tyranny. In the first place, no Marcosian law ever stopped the progressive movement and political opposition then from fighting the Marcos dictatorship. The people fought despite Marcos’s draconian laws. And they won.
I know that the same will hold true for us. No matter the law, or precisely because of this Anti-Terror Law, we will continue fighting to defend our rights and our people from oppression and tyranny. This tyrannical law is therefore actually an opportunity for us to continue organizing and politicizing the people to fight for their rights and to struggle for political freedom and social justice.
We therefore cannot expect the IRR to be any better than the law it is implementing. The law is the root of the evil abomination that is the Anti-Terrorism Act of 2020. All our efforts should be geared towards having this law declared unconstitutional by the Supreme Court. Our fight and our struggle against tyranny, dictatorship, authoritarianism, and militarization demands no less. It demands that we kill this law, lest it kills all of us in the end.