Kanak Mishra, a final year law student at O. P. Jindal Global Law University in Sonepat, India, discusses the arbitrariness of the new anti-terrorism law passed by Philippines in relation to international human rights law...
Rodrigo Duterte’s presidential term in the archipelagic country of the Philippines has been deeply concerning human rights activists since 2016. Immediately after assuming the Presidency, Duterte confirmed that he had personally killed three men when he was the Mayor of Davao to show the police that killing troublemakers should not be difficult.
Amid a deadly pandemic, the controversial President has urgently passed a new Anti-Terrorism Law. Prima facie, the law is believed to have come into effect to counter Islamic militancy in the south of the country. However, the law blatantly disregards human rights and actively suppresses any dissent. It is also expected to raise targeted and systemic killings, especially against illegal drug dealers in the country. UN High Commissioner for Human Rights, Michelle Bachelet, recently released a report highlighting the systemic killings being carried out in the country under Duterte’s regime as a means to counter illegal selling of drugs, which is in absolute disregard of the legal process. Amnesty International has also taken cognizance of Duterte’s targeted killing of the poor by condemning it as “nothing but a large-scale murdering enterprise”.
According to the new law, any individual can be ‘branded’ as a terrorist for being suspected of committing or assisting in committing a ‘deemed’ terrorist act under Sections 4 to 12 of the legislation. None of the Sections in the legislation attempt to lay down explicitly as to what acts, in particular, would amount to terrorist acts. It can be said that the legislation does not lay down any concrete mechanism through which the Anti-Terrorism Council (ATC) would have to justify the branding of any individual as a ‘terrorist’. The absence of the liability of the ATC to provide any justification or reasons for classifying an individual as a terrorist implies the unabashed arbitrariness of the legislation. The exercise of powers as grave as these would be in clear violation of the natural justice principle of ‘innocent until proven guilty’. Thus, by violating this principle, the law also contravenes Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR), which provides for the right to a fair trial, thereby recognizing the right to be presumed innocent until proven guilty as an important human right.
The law has obnoxiously widened the scope of terrorism by categorizing the destruction of all public properties as acts of terrorism. In Section 3 of the legislation, i.e., the definitions clause, public property is referred to as ‘critical infrastructure’. While the flowery language used in the text of the statute might seem convincing, it is a complete farce that considers even the slightest destruction of property as an act of terrorism. The definition of critical infrastructure ranges from telecommunications, water, energy, and food to radio and television assets. Additionally, it also criminalizes the destruction of any asset or system, the working of which is ‘vital to societal functions’. Considering that any dissent or protests are carried out primarily to oppose the existing societal functioning, the language of the text is very vague in its understanding of whether it seeks to criminalize dissent or destruction of property.
The definition of terrorism has been overextended to punish an individual for 12 years for inciting others through “speeches, writings, proclamations, emblems, banners, and other representations tending to the same end”. This constitutes a blatant suppression of the freedom of the press. The right to freedom of speech and expression is a fundamental human right under Article 19 of the Universal Declaration of Human Rights, 1948.
Under Section 45 of the legislation, the President shall appoint an Anti-Terrorism Council (ATC) that would comprise of the National Security Advisor, the Secretary of Foreign Affairs, and National Defense among others. The functions of the ATC are laid down in Section 46 of the legislation. The main functions of the ATC are to formulate and adopt plans and relevant measures to counter-terrorism, direct speedy trials, monitor the investigation process to establish a comprehensive database of terrorist activities and organizations, and take actions in compliance with UN Resolutions.
The ATC has unbridled power under Section 29 of the legislation in terms of ‘detention without judicial warrant of arrest’. This Section allows a person suspected of committing or assisting in terrorism to be put into preventive detention for a maximum of 24 days. Section 29(1) defines the period of custody as 14 days. But, Section 29(2) allows the ATC to extend the period of detention to a maximum of 10 more days on vague grounds such as preservation of evidence, completion of the investigation, necessity for further detention, and to conduct investigation ‘properly and without any delay’. Since the ATC members are appointed by the President himself, it is evident that they would be acting under his orders.
The Philippine government has defended the law by asserting that it does not go against International Human Rights Law. The President has tried to pacify lawyers by saying that law-abiding citizens should not fear the Anti-Terrorism Law as it is only meant to counter-terrorism. However, despite all these defenses, the people of the Philippines are protesting against this law mainly because it has the potential to conduct systemic killings, suppress dissent, and curb free speech in the country. Several rights groups, critics, lawyers, and indigenous people across the country have called the law ‘draconian’ and a ‘perilous piece of legislation’. In light of the severe and life-threatening attacks on human rights defenders and critics of the government including activists, journalists, lawyers, church leaders, trade union leaders, and individuals and groups affiliated with the political left, the Human Rights Council has adopted Resolution 41/2 to address the deterioration of human rights in Philippines.
But merely addressing the problem and being politically correct is not enough. Human Rights bodies have to actively step up to devise concrete measures to ensure that such grave and vicious human rights violations seize at the earliest. The Philippines, on the other hand, ought to direct its focus to reforming existing public and legal institutions instead of coming up with dangerous laws like the Anti-Terrorism Law. Considering the terrorism, corruption, and lawlessness prevalent in the country, the government should introspect the root causes of such problems rather than acting up and engaging in illegal acts itself. The need of the hour demands international players to act in solidarity in order to abolish the systemic and targeted killings of the poor and indigenous people of the country.
Kanak Mishra is a Final Year Law Student from O. P. Jindal Global University. Her areas of interest are Environmental Law, International Humanitarian Law (IHL), International Human Rights Law (IHRL), International Trade Law and Gender Studies. She believes that her intersectional understanding is helping her become a more politically informed individual.
Suggested citation: Kanak Mishra, Deconstructing Philippines’ New Anti-Terrorism Law, JURIST – Student Commentary, August 12, 2020, https://www.jurist.org/commentary/2020/08/kanak-mishra-philippines-anti-terrorism-law/.
This article was prepared for publication by Akshita Tiwary, JURIST’s Staff Editor. Please direct any questions or comments to her at firstname.lastname@example.org
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