[Update: On 3 July 2020, the President signed Republic Act No. 11479, otherwise known as the Anti-Terrorism Act of 2020. Earlier this year, the Senate passed Senate Bill No. 1083, a proposed law to prevent, prohibit and penalize terrorism, and repeal Republic Act No. 9372, otherwise known as the “Human Security Act of 2007.” The provisions of SB 1083 were adopted in House Bill No. 6875, certified as urgent by the President on 1 June 2020. On 3 June 2020, the House of Representatives approved HB 6875 on third and final reading. The enrolled bill was transmitted to and received by Malacanang on 9 June 2020. The salient points of the proposed Anti-Terrorism Act of 2020 are discussed below.]
WHO IS A TERRORIST INDIVIDUAL
A “terrorist individual” is a natural person who commits any of the following proscribed acts:
- (i) Terrorism;
- (ii) Threat to commit terrorism;
- (iii) Planning, training, preparing and facilitating the commission of terrorism;
- (iv) Conspiracy to commit terrorism;
- (v) Proposal to commit terrorism;
- (vi) Inciting to commit terrorism;
- (vii) Recruitment to and membership in a terrorist organization;
- (viii) Foreign terrorist; and
- (ix) Providing material support to terrorist.
At this juncture, it is important to emphasize that the Anti-Terrorism Council has the authority to label or designate any person or group as a terrorist or terrorist group, respectively, and cause the warrantless arrest of any person suspected of committing the aforementioned proscribed acts.
WHAT IS A TERRORIST ORGANIZATION
A “terrorist organization” or “terrorist group” is: (1) any entity organized for the purpose of engaging in terrorism; or (2) any group of persons, organization or association who commits any of the acts enumerated above; or (3) United Nations Security Council-designated terrorist organization. The proposed law provides the procedure for proscription of terrorist organizations.
JURISDICTION AND SCOPE OF APPLICATION
The Anti-Terrorism Act of 2020 has extraterritorial application. The proposed law applies to the following:
- (1) Any person who commits the proscribed acts within the territorial limits or jurisdiction of the Philippines.
- (2) A Filipino citizen or national who commits any of the proscribed acts outside the territorial jurisdiction of the Philippines;
- (3) Individual persons who, although physically outside the territorial limits of the Philippines, commit any of the proscribed acts inside the territorial limits of the Philippines;
- (4) Individual persons who, although physically outside the territorial limits of the Philippines, commit any of the proscribed acts on board Philippine ship or Philippine airship:
- (5) Individual persons who commit any of the proscribed acts within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity;
- (6) Individual persons who, although physically outside the territorial limits of the Philippines, commit the proscribed acts against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime; and
- (7) To individual persons who, although physically outside the territorial limits of the Philippines, commit the proscribed acts directly against the Philippine government.
In case of an individual who is neither a citizen nor a national of the Philippines who commits any of the proscribed acts outside the territorial limits of the Philippines, the Philippines shall exercise jurisdiction only when such individual enters or is inside the territory of the Philippines.
WHAT IS NOT CONSIDERED TERRORISM
Terrorism does not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.
To constitute the crime of terrorism, the purpose of the act, by its nature and context, must be to: (i) intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear; (ii) provoke or influence by intimidation the government or any of its international organization; (iii) seriously destabilize or destroy the fundamental political, economic, or social structures of the country; or (iv) create a public emergency or seriously undermine public safety.
Terrorism is committed by any person who, within or outside the Philippines, for any of the purposes enumerated above, regardless of the stage of execution:
- (1) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life.
- (2) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property.
- (3) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure. “Critical infrastructure” refers to an asset or system, whether physical or virtual, so essential to the maintenance of vital societal functions or to the delivery of essential public services that the incapacity or destruction of such systems and assets would have a debilitating impact on national defense and security, national economy, public health or safety, the administration of justice, and other functions analogous thereto. It may include, but is not limited to, an asset or system affecting telecommunications, water and energy supply, emergency services, food security, fuel supply, banking and finance, transportation, radio and television, information systems and technology, chemical and nuclear sectors.
- (4) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical weapons.
- (5) Release of dangerous substances, or causing fire, floods or explosions.
A person who commits the act of terrorism shall suffer the penalty of life imprisonment without the benefit of parole.
(ii) THREAT TO COMMIT TERRORISM
Any person who shall threaten to commit any of the above-enumerated acts of terrorism shall suffer the penalty of imprisonment of 12 years.
(iii) PLANNING, TRAINING, PREPARING, AND FACILITATING THE COMMISSION OF TERRORISM
It shall be unlawful for any person to participate in the planning, training, preparation and facilitation in the commission of terrorism, possessing objects connected with the preparation for the commission of terrorism, or collecting or making documents connected with the preparation of terrorism. “Training” refers to the giving of instruction or teaching designed to impart a specific skill in relation to terrorism as defined hereunder, as opposed to general knowledge.
The accused, if found guilty, shall suffer the penalty of life imprisonment without the benefit of parole.
(iv) CONSPIRACY TO COMMIT TERRORISM
There is conspiracy when two or more persons come to an agreement concerning the commission of terrorism and decide to commit the same. Any conspiracy to commit terrorism shall be penalized by life imprisonment without the benefit of parole.
(v) PROPOSAL TO COMMIT TERRORISM
Proposal to commit terrorism is committed when a person who has decided to commit any of the proscribed acts proposes its execution to some other person or persons. Any person who proposes to commit terrorism shall suffer the penalty of imprisonment of 12 years.
(vi) INCITING TO COMMIT TERRORISM
A person commits inciting to commit terrorism when, without taking any direct part in the commission of terrorism, he/she incites others to the execution of any of the above-enumerated acts of terrorism by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end. The imposable penalty is imprisonment of 12 years.
(vii) RECRUITMENT TO AND MEMBERSHIP IN A TERRORIST ORGANIZATION
Any person who shall recruit another to participate in, join, commit or support: (i) any terrorism; or (ii) a terrorist individual; or (iii) any terrorist organization, association or group of persons, shall suffer the penalty of life imprisonment without the benefit of parole.
The same penalty shall be imposed on any person who organizes or facilitates the travel of individuals to a state other than their state of residence or nationality for the purpose of recruitment which may be committed through any of the following means:
- (a) Recruiting another person to serve in any capacity in or with an armed force in a foreign state, whether the armed force forms part of the armed forces of the government of that foreign state or otherwise;
- (b) Publishing an advertisement or propaganda for the purpose of recruiting persons to serve in any capacity in or with such an armed force;
- (c) Publishing an advertisement or propaganda containing any information relating to the place at which or the manner in which persons may make applications to serve or obtain information relating to service in any capacity in or with such armed force or relating to the manner in which persons may travel to a foreign state for the purpose of serving in any capacity in or with such armed force; or
- (d) Performing any other act with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in or with such armed force.
Any person who shall voluntarily and knowingly join any terrorist organization, association or group of persons, knowing that such is a terrorist organization, association or group of persons, shall suffer the penalty of imprisonment of 12 years.
(viii) FOREIGN TERRORIST
The following acts are unlawful and shall be punished with the penalty of life imprisonment without the benefit of parole:
- (a) For any person to travel or attempt to travel to a state other than his/her state of residence or nationality, for the purpose of perpetrating, planning, or preparing for, or participating in terrorism, or providing or receiving terrorist training;
- (b) For any person to organize or facilitate the travel of individuals who travel to a state other than their states of residence or nationality knowing that such travel is for the purpose of perpetrating, planning, training, or preparing for, or participating in terrorism or providing or receiving terrorist training; or
- (c) For any person residing abroad who comes to the Philippines to participate in perpetrating, planning, training, or preparing for, or participating in terrorism or provide support for or facilitate or receive terrorist training here or abroad.
(ix) PROVIDING MATERIAL SUPPORT TO TERRORISTS
Any person who provides material support to any terrorist individual or terrorist organization, association or group of persons committing any of the proscribed acts, or knowing that such individual or organization, association, or group of persons is committing or planning to commit such acts, shall be liable as principal to any and all terrorist activities committed by said individuals or organizations, in addition to other criminal liabilities he/she or they may have incurred in relation thereto.
“Material support” refers to any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel (one or more individuals who may be or include oneself), and transportation.
THE ANTI-TERRORISM COUNCIL (ATC)
The ATC, created under the proposed law, is composed of: (1) the Executive Secretary, as Chairperson: (2) the National Security Adviser, as Vice Chairperson; and (3) the Secretary of Foreign Affairs; (4) the Secretary of National Defense; (6) the Secretary of the Interior and Local Government; (6) the Secretary of Finance; (7) the Secretary of Justice; (8) the Secretary of Information and Communications Technology; and (9) the Executive Director of the Anti-Money Laundering Council or AMLC Secretariat.
AUTHORITY TO DESIGNATE TERRORIST INDIVIDUALS OR TERRORIST GROUPS
The ATC is given the power to label or designate any person or group as a terrorist or terrorist group, respectively. The ATC may designate an individual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, groups of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the proscribed acts.
The designation includes the authority to freeze, through the Anti-Money Laundering Council (AMLC), the assets of the designated individual, groups of persons, organization or association. The designation shall be without prejudice to the proscription of terrorist organizations, associations, or groups of persons.
PROSCRIPTION OF TERRORIST GROUPS
The Court of Appeals (CA) is given the jurisdiction to hear and decide applications for proscription to declare any group of persons, organization or association as a terrorist and outlawed group of persons, organization or association. The verified application is filed by the Department of Justice (DOJ), with authorization from the ATC and recommendation from the National Intelligence Coordinating Agency (NICA).
A preliminary order of proscription is issued, within 72 hours from the filing of the application, when the CA makes a finding of probable cause, that the issuance of an order of proscription is necessary to prevent the commission of terrorism. The CA shall immediately commence and conduct continuous hearings, which must be completed within 6 months from the time the application has been filed, to determine whether:
- (a) The preliminary order of proscription should be made permanent;
- (b) A permanent order of proscription should be issued in case no preliminary order was issued; or
- (c) A preliminary order of proscription should be lifted.
The applicant has the burden of proving that the respondent is a terrorist and an outlawed organization or association before the CA issues an order of proscription, whether preliminary or permanent. The permanent order of proscription, if granted, shall be posted in a newspaper of general circulation. It shall be valid for a period of 3 years after which, a review of such order shall be made and if circumstances warrant, the same shall be lifted.
DETENTION WITHOUT JUDICIAL WARRANT OF ARREST
The ATC is empowered to authorize any law enforcement agent or military personnel to arrest any person SUSPECTED of committing any of the proscribed acts. The person arrested may be detained, without any warrant, for a period of 14 calendar days, subject to a 10-day extension if it is established that: (a) further detention of the person/s is necessary to preserve evidence related to the terrorism or complete the investigation; (b) further detention of the person/s is necessary to prevent the commission of another terrorism; and (c) the investigation is being conducted properly and without delay.
The arresting officer has no duty to turn-over the accused to judicial authorities. However, the arresting officer must notify the judge of the court nearest the place of apprehension or arrest of the following facts: (a) the time, date, and manner of arrest; (b) the location or locations of the detained suspect/s and (c) the physical and mental condition of the detained suspect/s. The arresting officer must furnish a copy of the written notice to the ATC and the Commission on Human Rights (CHR).
RESTRICTION ON THE RIGHT TO TRAVEL
The prosecution may apply for a precautionary hold departure order (PHDO) before filing an information for any violation of the proscribed acts, or a hold departure order (HDO) upon filing of the information. If the evidence of guilt is strong, the court shall immediately issue an HDO and direct the DFA to initiate the procedure for the cancellation of the passport of the accused.
In cases where evidence of guilt is not strong, and the person charged is entitled to bail and is granted the same, the court, upon application by the prosecutor, shall limit the right of travel of the accused to:
- (a) Within the municipality or city where he/she resides or where the case is pending, in the interest of national security and public safety. Travel outside of said municipality or city, without the authorization of the court, shall be deemed a violation of the terms and conditions of his/her bail, which shall be forfeited; or
- (b) House arrest, at his/her usual place of residence. While under house arrest, he/she may not use telephones, cellphones, e-mails, computers, the internet, or other means of communications with people outside the residence until otherwise ordered by the court.
The restrictions shall be terminated: (a) on motion of the prosecutor or of the accused, subject to court approval; or (b) upon dismissal of the case; or (c) upon acquittal of the accused.
SURVEILLANCE OF SUSPECTS AND INTERCEPTION AND RECORDING OF COMMUNICATIONS
Law enforcement officers or military personnel may apply for a court order (Court of Appeals) to secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect, with the use of any mode, form, kind or type of electronic, mechanical or other equipment or device or technology now known or may hereafter be known to science, or with the use of any other suitable ways and means for the above purposes, any private communications, conversation, discussion/s, data, information, messages in whatever form, kind or nature, spoken or written words:
- (a) of any person charged with or suspected of committing any of the proscribed acts.
- (b) between members of a judicially declared and outlawed terrorist organization.
- (c) between members of a designated person, as defined in Republic Act No. 10168, to wit:
- (i) any person or entity designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group under the applicable United Nations Security Council Resolution or by another jurisdiction or supranational jurisdiction;
- (ii) any organization, association, or group of persons proscribed pursuant to Section 17 of the Human Security Act of 2007; or
- (iii) any person, organization, association, or group of persons whose funds or property, based on probable cause are subject to seizure and sequestration under Section 39 of the Human Security Act of 2007.
Surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized. [See also Illegal Interception of Computer Data, Warrant to Intercept (WICD): Rule on Cybercrime Warrants]
The law enforcement agent or military personnel shall likewise be obligated to file an ex-parte application with the Court of Appeals for the issuance of an order to compel telecommunications service providers (TSP) and internet service providers (ISP) to produce all customer information and identification records as well as call and text data records, content and other cellular or internet metadata of any person suspected of any of the crimes defined and penalized under the provisions of the proposed law.
The authorizing division of the Court of Appeals must make a determination that:
- (a) there is probable cause to believe based on personal knowledge of facts or circumstances that the a proscribed act has been committed, or is being committed, or is about to be committed; and
- (b) that there is probable cause to believe based on personal knowledge of facts or circumstances that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained.
Any authorization granted by the Court of Appeals is effective for the length of time specified in the written order of the authorizing division of the Court of Appeals which shall not exceed a period of 60 days from the date of receipt of the written order by the applicant law enforcement agent or military personnel. It is subject to a 30-day extension.
The written order granted by the authorizing division of the Court of Appeals, as well as the application for such order, shall be deemed classified information. The penalty of imprisonment of 10 years shall be imposed upon any person, law enforcement agent or military personnel, judicial officer or civil servant who, not being authorized by the Court of Appeals, reveals in any manner or form any classified information.
NO TORTURE OR COERCION IN INVESTIGATION AND INTERROGATION
The use of torture and other cruel, inhumane and degrading treatment or punishment, at any time during the investigation or interrogation of a detained suspected terrorist is absolutely prohibited and shall be penalized under said law. Any evidence obtained from said detained person resulting from such treatment shall be. in its entirety, inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding, or hearing.
RIGHTS OF A PERSON UNDER CUSTODIAL DETENTION
The moment a person charged with or suspected of committing any of the proscribed acts is apprehended or arrested and detained, he shall forthwith be informed of his or her right to:
- (a) be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the law enforcement agent or military personnel concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney’s Office (PAO). It shall be the duty of the free legal assistance unit of the IBP or the PAO thus contacted to immediately visit the person/s detained and provide him or her with legal assistance. These rights cannot be waived except in writing and in the presence of his/her counsel of choice;
- (b) be informed of the cause or causes of his/her detention in the presence of his legal counsel;
- (c) be allowed to communicate freely with his/her legal counsel and to confer with them at any time without restriction;
- (d) be allowed to communicate freely and privately without restrictions with the members of his/her family or with his/her nearest relatives and to be visited by them; and,
- (e) be allowed freely to avail of the service of a physician or physicians of choice.
VIOLATIONS OF THE RIGHTS OF DETAINEES
Any law enforcement agent or military personnel who violates the rights of persons under his/her custody shall be liable for imprisonment of 10 years. Unless the law enforcement agent or military personnel who violated the rights of a detainee or detainees as stated above is duly identified, the same penalty shall be imposed on the head of the law enforcement unit or military unit having custody of the detainee at the time the violation was done.
FALSE EVIDENCE; WITNESS PROTECTION
Under the proposed law, a 6-year imprisonment is imposed on any person who knowingly furnishes false testimony, forged document or spurious evidence in any investigation or hearing conducted in relation to any violations covered by the proposed law.
This penalty may not be applicable because the proposed law also provides for immunity and protection of government witnesses.
BAN ON EXTRAORDINARY RENDITION
No person suspected or convicted of any of the proscribed acts shall be subjected to extraordinary rendition to any country. Extraordinary rendition refers to the transfer of a person, suspected of being a terrorist or supporter of a terrorist organization to a foreign nation for imprisonment and interrogation on behalf of the transferring nation. The extraordinary rendition may be done without framing any formal charges, trial, or approval of the court.