H. Harry Roque Jr. [Professor, University of the Philippines College of Law; Director, Institute of International Legal Studies at the U.P. Law Center]: "Due to the inherent problems in defining terrorism, crimes ordinarily punished by the penal laws are now sought to be punished under the PHSA with a corresponding increased penalty with no clear test or measure when the penal laws or the PHSA applies. Also, the powers granted to the courts to classify terrorist groups under the PHSA in the absence of a clear definition of terrorism also violates due process.
As such it is also posited that elevation of ordinary crimes into acts of terrorism punishable by much higher penalties would also raise concerns of equal protection due to the fact that such a distinction exponentially raises the penalty while making conviction easier due to the malum prohibitum nature of crimes punished under the PHSA. Simply stated, it is violative of equal protection in that the bill makes an unclear distinction then punishes those falling under this definition much more severely. As such the PHSA would raise serious concerns of equal protection especially in light of the difficulty in properly defining terrorism.
Also due to the difficulty in defining terrorism it is similarly odious to free association. This could penalize many legitimate organizations including genuine independence movements that are exercising their legitimate and ergo omnes right to self-determination. Similarly odious to the right of free association is Section 17 of the PHSA on the power to proscribe a terrorist organization, since one of the grounds for proscribing a terrorist organization is that any member or members thereof have committed and act or acts of terrorism as defined in the PHSA.
Further, the outstretched access provided by the PHSA may have a chilling effect on the freedom of speech. The application for the interception of communications encompasses all kinds of communications with the only proviso that such communication is because, or in furtherance of, the ill-defined crime of terrorism. It only penalizes the unauthorized interception of communications, which is interception of communications without judicial authorization. This creates situation for mischief usually exploited by law enforcement officers, where the law enforcement officer, who is not exactly the paragon of virtue in protecting human rights, would risk violating the law given that risk to the law enforcement officer is smaller than the advantages, i.e., catching the "terrorists". Also, as it is limited to penalizing law enforcement personnel, companies handling communications services such as postal, messengerial and telecommunications companies escape liability under PHSA when they intercept communications out of cooperation or coercion of law enforcement personnel.
Under international human rights standards, the accused should normally be released pending trial as stated in Article 9(3) International Covenant for Civil and Political Rights (ICCPR). Besides favoring pretrial release, international human right norms specifically bar long periods of pretrial detention as provided by Section 19 of the PHSA. The PHSA also creates an Anti-Terrorism Council, vesting it with vast powers without institutional safeguards on human rights. In a country where torture is practiced and where it has not been defined, contrary to the Convention on Torture, as a domestic crime, even 3 days detention without judicial intervention appears to be far too long. Besides, intervention of a Judge would be indispensable as deterrence to torture.
In sum, as in the words of Mr. Martin Scheinin, Special Rapporteur by the United Nations Commission on Human Rights:
"The Philippines is a country facing many challenging issues and I wish to reaffirm that I am fully conscious of the need to take effective measures to prevent and counter terrorism, and of the difficulties of States in doing so without compromising the freedoms of a civil society. However, I am concerned that many provisions of the Human Security Act are not in accordance with international human rights standards."
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.