Written by Maiya Dario
The Philippines faces threats from terrorist organisations such as the New People’s Army (NPA) of the Communist Party of the Philippines, a main contender in the communist rebellion against the Philippine government, and Islamic extremist groups. These threats have become more evident during the Covid-19 pandemic. For instance, NPA rebels attacked village officials in Sitio Nagon distributing relief goods due to lockdown measures, looting a portion of these goods. Consequently, the Philippine government was urged to respond promptly to terrorism. As a result, Congress drafted the Anti-Terrorism Bill. Despite it addressing the country’s need to counter terrorism, critics express concerns regarding its constitutionality. This article will evaluate three main concerns: the violations of the rule of law, the separation of powers and fundamental human rights. It concludes that the Bill is unconstitutional and should not be enacted.
Rule of Law
“The extended rule of law requires legislation to exhibit certain characteristics:”
Firstly, legislation must be sufficiently clear to guide conduct. The Bill’s provisions are vaguely worded. Thus, it can be widely interpreted, causing individuals uncertainty regarding the legality of their actions in relation to it. This is alarming since it introduces new criminal offences, thereby threatening the liberty of individuals, a value accorded utmost protection in a democratic society. Section (s.) 4 aggravates this concern by introducing an element of intention when defining what constitutes a terrorist offence. Consequently, this definition includes inchoate offences, acts that contribute towards the actual commission of a crime. Hence, a wide range of everyday activities may be construed as terrorist acts. For instance, it is an offence under s.9 to “incite others” to commit terrorist acts through “speeches, proclamations … or other representations.” However, incitement is not defined, allowing an “open-ended basis for prosecuting free speech.” The Concerned Lawyers for Civil Liberties (CLCL) remarks that for instance, merely critiquing the government on social media may constitute this offence.
Secondly, legislation must permit individuals to access courts and an independent judiciary to try cases fairly according to due process. s.25 removes the requirement of a hearing. Rep. Zarate remarks that the Anti-terrorism Council (ATC), a body composed of cabinet officials, can label a group as terrorist, allowing the immediate arrest of individuals for merely being a member of it (an offence under s.10) without the opportunity to defend themselves through a hearing or trial against the charge instigated. Consequently, individuals are unable to access courts and are unable to avail of their right to a fair trial.
Thirdly, legislation must permit the judiciary to review governmental actions to ensure that these comply with the law. s.29 removes the requirement of a judicial warrant, replacing it with an executive warrant from the ATC. Consequently, the ATC solely determines whether an act constitutes an offence and is not required to specify a “probable cause” (i.e. reasonable grounds) when issuing warrants (s.29). Hence, the judiciary is inhibited from reviewing the legality of warrants of arrest by assessing whether the Bill justifies these. This results in a major opportunity for the executive to abuse this power. For instance, former Justice Carpio remarks that s.29 enables executive officials to order the arrests of individuals despite knowing that they have not committed offences under the Bill. Though the judiciary may review the legality of the warrant of arrest after the accused has been detained, this is unsatisfactory since the accused would have already been significantly deprived of his/her liberty due to the long period of detention under s.29 (discussed below).
Separation of Powers
This requires governmental powers to be divided among the three branches of government: the executive, judiciary and legislature. Its aim is to uphold liberty by creating a system of “checks and balances,” whereby the different branches of government can hold each other accountable in the exercise of their powers.
Atty. Matula argues that s.29 of the Bill, which permits the executive to issue warrants rather than the judiciary, infringes this principle by permitting the executive to usurp an exclusive judicial competence. Consequently, excessive power is delegated to the executive, enabling it to abuse its power, thereby threatening the liberty of Filipinos.
Freedom of expression
This right, especially in relation to the press, allows people to be informed on public issues, to contribute towards public debate and for the government to be held politically accountable. Hence, it gives effect to the characteristics of a democratic society and thus, should be upheld.
Since civil liberties such as expressing one’s dissent, protesting and gathering for mass action can be easily construed as criminal offences under this Bill, Atty. Tugade argues that s.4 entails a “chilling effect.” This means Filipinos will refrain from exercising these liberties due to fears of being prosecuted. Consequently, this right is significantly inhibited.
Justice Undersecretary Perete assures that civil liberties are protected, citing s.4, which explicitly excludes these as offences. However, Rep. Lagman remarks that exercising these liberties are conditional on certain criteria (s.4) being satisfied, such as not creating a “serious risk to public safety.” These criteria are vague, allowing for wide interpretation. Furthermore, instances wherein these have been satisfied have not been specified in the Bill or given by Congress. Moreover, the ATC solely decides when these conditions are met and issues warrants of arrest. Additionally, s.25 inhibits the right of individuals to defend themselves. In light of these considerations, s.4 remains an inadequate safeguard to civil liberties.
Right to Liberty and Security
s.29 legalises the detention of individuals without charge lasting up to 24 days before they are submitted to the proper judicial authority. However, under national law, the maximum period of detention without charge is 1 day and a half. Hence, s.29 excessively infringes, and thus violates, this right.
Access to Court and a Fair Trial
s.25, which removes the requirement of a hearing, violates these rights since an individual lacks the opportunity to defend oneself against the charge instigated.
Malindog-Uy rightly states that human rights are not absolute and may be compromised in pursuit of an aim, such as countering terrorism. However, Atty. Tugade argues that this is conditional on the infringement being proportional to the aim pursued. Hence, she commends that the Bill’s imputed provisions be subject to the “close scrutiny” test, which ensures that this condition is satisfied by determining whether the provision takes the least necessary means to satisfy the pursued aim, which is to counter terrorism. For instance, s.4 may fail this test since it is an arguably excessive, and hence disproportionate, means of countering terrorism as it entails a chilling effect on the freedom of expression. Furthermore, Atty. Matula supports this, arguing that countering terrorism cannot compromise fundamental law.
The CLCL importantly remarks that proponents of the Bill fail to adequately address the concerns of critics, merely stating that it is constitutional and respects human rights without citing supporting evidence. Furthermore, even if adequate legal safeguards existed, Heydarian argues that the ‘endemic culture of impunity’ (e.g. no top governmental official has been held accountable for his/her crimes) in the country negates the effectiveness of these. For instance, President Duterte is able to discard and act above the rule of law by orchestrating extrajudicial killings in his War on Drugs.
Furthermore, critics express concerns regarding the effects of the Bill if it were to be enacted. Secretary General Clamor opines that this Bill further contributes to the establishment of a fascist dictatorship in the Philippines, while former Justice Carpio opines that the country will permanently be “under a situation worse than Martial Law.” These concerns are tenable considering the excessive amount of power that the Bill confers to the executive, as demonstrated above, along with the ‘endemic culture of impunity’ in the country.
In conclusion, the Anti-Terrorism Bill contains unconstitutional provisions since it undermines and violates the rule of law, the separation of powers and fundamental human rights. Hence, applying it would result in dangerous outcomes. Therefore, the Bill should not be enacted to uphold democracy and safeguard the rights of Filipinos.
Critics urge for the Bill to be invalidated once it passes into law. This is achieved when the Supreme Court judicially reviews the Act and declares it unconstitutional. Former Justice Carpio, along with many others, plan to initiate this by advancing a facial challenge (argues that the provisions of the imputed legislation are unconstitutional and consequently, invalid) to the Court.
 Anna Malindog-Uy, ‘Why The Philippines Needs an Anti-Terror Bill’ (The Asean Post, 14 June 2020) <https://theaseanpost.com/article/why-philippines-needs-anti-terror-bill> accessed 15 June 2020  Roger Masterman and Colin Murray, Constitutional and Administrative Law. (2nd edn, Pearson, 2018).  Human Rights Watch, ‘Philippines: New Anti-Terrorism Act Endangers Rights’ (Human Rights Watch, 5 June 2020) <https://www.hrw.org/news/2020/06/05/philippines-new-anti-terrorism-act-endangers-rights> accessed 8 June 2020  Lian Buan, ‘EXPLAINER: Comparing dangers in old law and anti-terror bill’ (Rappler, 5 June 2020) <https://www.rappler.com/newsbreak/in-depth/262912-explainer-comparison-old-law-dangers-anti-terror-bill> accessed 8 June 2020  Lapis, Interview with Atty. Chel Diokno, Sen. Risa Hontiveros, Rep. Edcel Lagman, Rep. Kaloi Zarate, Atty. Sonny Matula (4 June 2020)  The Constitution of the Republic of the Philippines Article III (Bill of Rights) Section 2.  Antonio T. Carpio, ‘Anti-terrorism law: A double whammy’ (Inquirer.net, 9 June 2020) <https://opinion.inquirer.net/130599/anti-terrorism-law-a-double-whammy> accessed 8 June 2020  Cited above at n.1  Cited above at n.5  The Constitution of the Republic of the Philippines Article III (Bill of Rights) Section 4.  Helen Fenwick, Gavin Philippson and Alexander Williams, Text Cases and Materials on Public Law and Human Rights. (4th edn, Routledge, 2017)  Vince Nonato, ‘Lawyers, Other Groups Terrified by Anti-Terror Bill. Here’s Why’ (One News, 4 June 2020) <https://www.onenews.ph/lawyers-other-groups-terrified-by-anti-terror-bill-here-s-why> accessed 5 June 2020  Lian Buan, ‘DOJ defends terror bill’s dissent exception, but leaves out ‘killer’ caveat’ (Rappler, 8 June 2020) <https://www.rappler.com/nation/263219-doj-defends-terror-bill-exception-dissent-leaves-out-killer-caveat> accessed 10 June 2020  The Constitution of the Republic of the Philippines Article III (Bill of Rights) Section 1.  Act No. 3815 (The Revised Penal Code), Article 125.  The Constitution of the Republic of the Philippines Article III (Bill of Rights) Sections 1 and 14.  Cited above at n.1  Cited above at n.14  Cited above at n.5  Lian Buan, ‘Lawyers’ group: Lacson ‘dead wrong,’ bill allows anti-terror council to order arrests’ (Rappler, 13 June 2020) <https://www.rappler.com/nation/263730-anti-terror-bill-allows-anti-terror-council-order-arrest-despite-lacson> accessed 15 June 2020  Richard Heydarian, ‘Duterte’s terror bill threatens freedom in the name of security’ (Nikkei Asian Review, 16 June 2020) <https://asia.nikkei.com/Opinion/Duterte-s-terror-bill-threatens-freedom-in-the-name-of-security> accessed 18 June 2020  The Economist, ‘Rodrigo Duterte’s lawless war on drugs is widely popular’ (The Economist, 20 February 2020) <https://www.economist.com/briefing/2020/02/20/rodrigo-dutertes-lawless-war-on-drugs-is-wildly-popular> accessed 1 June 2020  Luis Liwanag and Jojo Rinoza, ‘Philippine President Urges Congress to Speed Up Passage of Anti-Terror Bill’ (BenarNews, 1 June 2020) <https://newsinfo.inquirer.net/1287126/biz-groups-join-clamor-vs-terror-bill-focus-on-what-really-matters>  Lian Buan, ‘PH situation ‘worse than martial law’ under anti-terror bill- Carpio’ (Rappler, 17 June 2020) <https://www.rappler.com/nation/264082-carpio-anti-terror-bil-will-put-philippines-permanent-situation-worse-than-martial-law> accessed 18 June 2020  Cited above at n.10