Thursday, August 16, 2007

A constitutional embarrassment

Terrorism is real, and no one disputes the need to combat it. But Republic Act 9372, otherwise known as the Human Security Act, cannot possibly be the weapon for it. The law is unenforceable because its definition of the crime is incompetent, and many of its provisions are constitutionally flawed. It is an embarrassment.

There is as yet no universally agreed legal definition of terrorism. The United Nations uses an “academic consensus definition,” the United States, Britain and the European Union have adopted their own. RA 9372 attempts to provide a Philippine definition. But it is a non-starter.

Under this law, terrorism is committed when for the purpose of “sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand,” a person commits 1) piracy in general and mutiny in the high seas; 2) rebellion or insurrection; 3) coup d’etat; 4); murder; 5) kidnapping and serious Illegal detention; 6) crimes involving destruction; and six other crimes defined in four Republic Acts and two Presidential Decrees. The crime is punishable with 40 years imprisonment without the benefit of parole.

This immediately raises one question. If by ‘government’, the lawmakers mean the corporate entity, how does one coerce a corporate entity? If by ‘government’ they mean the system by which the state is governed, how does one coerce a system?

Terrorism is a technique. It uses violence or the threat of violence on innocent civilians, quoting the words of the USA Patriot Act, “to intimidate or coerce a civilian population, to influence the policy of a government by intimidation or coercion, or to affect the conduct of a government by mass destruction, assassination, or kidnapping…” Whatever its motive (political, religious, or ideological), it is a means to an end, not an end in itself.

It is, therefore, wrong to say a person commits terrorism when he commits rebellion, insurrection, or coup d’etat. Someone will probably commit terrorist acts to ensure the success of his rebellion, insurrection or coup d’etat, but not the other way round. This is the known human experience.

The definition, therefore, cannot stand.

Now, to the text. There are 62 sections. Ten of these (from Sec. 7 to 16) are devoted to the surveillance of suspects by electronic and other means. Despite the inviolability of the privacy of communication and correspondence, guaranteed by the Bill of Rights, every private communication may be accessed and recorded. The only exceptions are those between lawyers and clients, doctors and patients, journalists and their sources, and confidential business correspondence.

Nothing is said about conversations between a confessor and a penitent, or between an individual and his or her spiritual director. All recorded communication of a suspect may be used as evidence against him upon authority of the Court of Appeals.

The law makes no distinction between “a person charged with the crime of terrorism” and “a person suspected of the crime of terrorism.” In Section 39, all their “bank deposits and their outstanding balances, placements, trust accounts, assets, and records in any bank or financial institution, moneys, businesses, transportation and communication equipment, supplies and other implements, and property of whatever kind and nature shall be seized, sequestered, and frozen in order to prevent their use, transfer, or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.”

The law does not require any showing or allegation that the properties, monies and holdings are being used by the suspect or accused to commit his alleged crime, nor does it require that the evidence of their being used for that purpose is sufficiently strong before they are sequestered and frozen. If the accused is finally convicted, then all his properties are forfeited, even if he was never charged of using them to commit his crime.

Section 1 of the Bill of Rights provides: “No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” This is now vaporized. All that a regime has to do is to suspect someone of terrorism and he loses control of his business empire, if he has one.

To the best of our knowledge, no suspect may be detained beyond a few hours without being judicially charged. The suspension of the privilege of the writ of habeas corpus allows the authorities to detain a suspect for three days, but he must be released if he has not been judicially charged after that period.

Under the RA 9372, a police officer must deliver a suspect in his custody to the judicial authorities within three days, counted from the day of the arrest. But Section 18 says the officer shall incur no criminal liability for any delay in delivering said person to the proper authorities.

In case of an actual or imminent terrorist attack, suspects may be detained for more than three days upon written approval of a municipal, city, provincial or regional official of the Human Rights Commission or a judge of the municipal, regional trial court, the Sandiganbayan, or a justice of the Court of Appeals.

Who decides when a terrorist attack is imminent? The law does not say. What constitutional provision authorizes such detention beyond three days? What constitutional provision gives officials of the Human Rights Commission the power of judges? The law does not say either.

In case of acquittal, the accused shall be indemnified P500,000 for every day his properties had been sequestered, and another P500,000 for every day he had been detained, chargeable against the funds of the law enforcement agency that had filed the case or the Anti-Terrorism Council.

Sounds great, except that the provision is completely worthless. It is not a valid appropriation measure and cannot be implemented.

Terrorism is a transnational crime. Many governments have declared “war on terrorism”, although one author likens it to declaring war against the Blitzkrieg rather than against the Nazis. Will RA 9372 now be used to justify the permanent presence of foreign troops in the country even without the requisite basing treaty? Will it now oblige us to ratify the visiting forces agreement with Australia, and enter into similar agreements with Singapore, China, Russia, India, Korea, Papua New Guinea, Vanuatu and the small South Pacific islands?

The law must be beyond suspicion. This one is not.

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