State terrorism in HSA amendments

More than 10 years ago, Congress passed the Human Security Act of 2007. It is the country’s primary weapon against terrorism. When it was first proposed, the HSA was controversial. While some justifies the law as a necessary response to terror incidents happening all over the world and in the country, critics raised concerns about its potential derogation of civil and other human rights. The compromise was to pass the law but with safeguards.

The HSA gives state security agencies the authority to conduct surveillance upon order by the court, detain suspected terrorists, proscribe terrorist organizations or associations after due notice and hearing, detain suspected terrorists without warrant although they must be delivered to proper judicial authorities within three days. The law also authorizes authorities to examine bank deposits, accounts and records. Violation of the law carries a penalty of up to forty (40) years imprisonment.

Ten years after its enactment, two bills are now pending in Congress seeking to amend the existing anti-terror law. Introduced by Representative Amado Espino Jr. of Pangasinan, the bills denominated as H.B. 5507 (“An Act Declaring as Unlawful the Membership in any Philippine Court-Proscribed or United Nations Security Council-Designated Terrorist Organization and Providing Penalties Therefor”) and HB 7141 or An Act to Secure the State and Protect the People from Terrorism. House Bill 5507 seeks to penalize unlawful membership in terrorist organizations and proscribed UN designated organizations while HB 7141 introduces a number of amendments to the present anti-terror law including the inclusion of additional predicate crimes to the existing twelve (12) to the definition of terrorist; inclusion of other punishable acts; and an increase in penalty from “40 years imprisonment” to “life imprisonment to death.”

Under HB 5507, membership in a proscribed organization shall suffer the penalty of reclusion perpetua and assets seized without judicial trial. The proposed bill criminalizes mere membership in the proscribed organization, and his or her guilt could be prove on the mere testimony of at least two (2) persons.

All these proposed amendments are repugnant to the sacred constitutional doctrine of due process of law which protects life, liberty and property of any person and the right of an accused to be heard and present evidence in his or her behalf.

It gets worse.

In HB 7141 the law enforcement agencies and the military are placed on equal footing in the surveillance of suspects notwithstanding that these institutions perform different roles under the law. Without a clear-cut dichotomy at least in the conduct of surveillance, performance of functions between the law enforcers and military might overlap if not intrude into one another’s turf on the pretext that the surveillance is to prevent terroristic activities. Worse, safeguards incorporated in existing privacy laws have been removed. This grant of authority is too susceptible to abuse. Moreover, the bill, as crafted, also imposes the death penalty to certain derivative crimes thus violating treaty obligations which prohibit the Philippines from doing so.

In other times, these bills would not have a chance to prosper. But in the time of Dutertismo, the bills were speedily referred by the House Committee to Technical Working Group.

Interestingly, during the only two public hearings conducted to discuss and fine-tune the two proposed bills only representatives from the national security agencies were invited, with no participation from human rights groups, civil libertarians, lawyers’ groups, and other concerned citizens.

I make mine Anakpawis Party-list Rep. Ariel Casilao argument opposing the HSA amendments “These draconian bills have grave impact on the state of our human rights which today is already under attack from all sorts of oplans hatched by the Duterte administration. They have Oplan Kapayapaan, Tokhang, and Oplan Rody. The entire Filipino people should reject these bills for they are added fangs to a rising tyranny. They are weapons of mass destruction of our human rights.”

Casilao continues: “We treat these proposed bills as another step toward a dictatorship. Just recently, the Supreme Court thumbed down the appeal of [former Chief Justice Maria Lourdes] Sereno to reverse its ruling that ousted her through a quo warranto, making the three branches of the government literally under the executive power.”

It is lamentable that notwithstanding the plethora of existing laws and treaties entered into by the Philippines designed to protect human rights the Duterte administration and its law enforcement agencies are now almost universally accused of widespread violation of human rights in the prosecution of the so-called war on drugs. The bills as proposed should they be enacted will give both law enforcement agencies and military an almost unfettered discretion and latitude to perform acts that amount to violation of civil rights and liberties.

This is not to say that the State has no right to protect and preserve the peace and security of the people. Terrorism is a universal scourge that recognizes no borders. It is the duty of every State to adopt means to address this challenge. But by adopting countermeasures that curtail civil liberties and violate human right, the state does an an evil to eradicate another evil.

We are better than this. Fighting terrorism with terror will lead to failure. State terrorism is wrong and can never be justified. Justice Marvic Leonen explains why in his dissent in Lagman vs Medialdea, the Supreme court decision that upheld the constitutionality of President Duterte’s martial declaration of martial law in Mindanao as a response to the Maute terrorist acts in Marawi. According to Justice Leonen:

“We all need to fight the long war against terrorism. This needs patience, community participation, precision, and a sophisticated strategy that respects rights, and at the same time uses force decisively at the right time and in the right way. The terrorist wins when we suspend all that we believe in. The terrorist wins when we replace social justice with disempowering authoritarianism. We should temper our fears with reason. Otherwise, we succumb to the effects of the weapons of terror.”

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Topics: Human Security Act , Congress , Ariel Casilao , United Nations , Maria Lourdes Sereno , Marvic Leonen
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