Mabini Hall - Access to Justice

Fighting Terror in the Philippines: Legal Challenges to Executive Action

Introduction

In 1995, then President Fidel Ramos called for the passage of an anti-terrorism law in his State of the Nation Address. Concerns were immediately raised over his ambitions beyond 1998, the specter of martial law, the potential abuses against our fundamental rights and freedom and the need for such a law. Ten years after, the debate continues.

This paper will first outline the incidents of terrorism for the period 2000 to 2005 and state some initial conclusions. The nature of terrorism will be explored. The government’s actions are presented with the end view of determining the difficulties experienced or obstacles encountered. Certain acts and scenarios are cited to check gaps in the law or the propriety of existing penalties. The anti-terrorism bill or law will be discussed next based on the latest consolidated bill from the lower House. Discussions will be from a legal standpoint. Systemic issues that affect the criminal justice system will not be extensively taken up.

A disclaimer: All views herein not in consonance with official government policy or pronouncements are deemed to be the writer’s own.

Incidents (2000 – 2005)

During this period, a total of 36 incidents resulted in the deaths of 123 persons and injuries to 788 others. Damage to property and collateral damages to business, investment, peace and order and peace of mind remain unquantifiable.

Nature of Terrorism

The summary shows that the targets of attack are: public transportation (LRT, bus, ships), terminals (bus, airports, wharves, ports), places of worship (churches and mosques), commercial establishments (malls, gas stations, restaurants, pension houses), and other public places (plaza, public market, gymnasium).

Although terrorism is described as an indiscriminate and symbolic attack not targeted at any particular person, the targets of terrorists are chosen deliberately. The targets are really not indiscriminate and there is a preference of high casualties. Careful planning and lengthy preparation is required and the incidents are meant to sow terror among the general populace as it is an attack on the innocent. Everyone is fair game. Attacks are random. There seems to be a checklist that is being ticked off. From the incidents, it can be said that the minimum elements of a terrorist incident are: an actual or threatened armed attack (which is violent) against public targets (whether places or key persons) without a personal motive against the victims. Public targets classified as critical infrastructure include the following, among others:           

1. Transport and communication facilities;   
2. Government offices;
3. Official and military installations;
4. Hospitals and prisons;
5. Places of worship, civic monuments, landmarks;
6. Large edifice or building complexes; and
7. Embassies and extensions.

The nature of terrorism is that it is cyclical. In contrast to the prisoner’s dilemma, there is a jailer’s dilemma – terrorists are forever planning and plotting. They also attack without warning. The agents of the law have to remain vigilant at all times. Any slippage is fatal. It is important to observe that terrorists have in their means force multiplier like media, technology, transnational, weapons that a small group of ill-intentioned persons can use to produce disastrous consequences or terror effect. Terrorists also have multiple motives in carrying out their plans. They may have an ax to grind against the political order or feel aggrieved, oppressed or marginalized in the present socio-economic regime. However, when the fight is taken to the civilian population at large, it ceases to be a political crime targetting the political order. There may be a political objective but the inherent moral reprehensibility and grave depravity of a terrorist act classifies it as a common crime with a political objective; a special common crime as it were. Public policy and common sense require this conclusion.

The foregoing is the understanding of terrorism which will be used as the basis for the rest of the paper. In a spectrum of conflict developed by the U.S. Army, terrorism is considered sui generis, a class by itself.

Executive Action – What has government done?

Any anti-terrorism program has the following components: prevention, deterrence, reaction and prediction. The following actions have been undertaken by the executive department following the terror attacks:

1. Organization –Cabinet Oversight Committee on Internal Security (COC-IS), Task Forces like Sanglahi, local government units
2. Intelligence – intelligence fusion, listing of terrorist organizations, deployment of intelligence teams
3. Planning - contingency plans, PNP Master Plan, OFW contingencies
4. Police - Saalam Police, STF Diplomatic Security, bus marshals, reward posters
5. Capability enhancement - training, modernization
6. Critical infrastructure – comprehensive plan, target hardening, emergency preparedness and crisis management
7. Inter-faith solidarity – inter-faith commission
8. Special projects - preemptive operations, special intelligence projects, anti-money laundering, media support
9. International - conventions and memorandum of understanding (MOU)

The executive department has also argued for the passage of anti-terror laws for two main reasons: a) intelligence and investigative work are handicapped by existing policies and laws, and b) there are gaps in the law as well as outmoded laws and penalties.

Legislation: Why we need an anti-terrorism law

The crime of terrorism is composed of a series of actions and starts with preparatory acts by several actors. These include:

  Information or intelligence gathering – example: casing of targets, monitoring of schedules and security measures;
  Financing – example: sourcing of funds;
  Direct logistics network – example: procuring explosives;
  Support network – example: securing motor vehicles, safe houses.
These activities are coordinated despite decentralization of the terrorist cells and the secrecy of communications. Maintenance of logistics as well as internal discipline is required. Recruitment and training of actors are also key ingredients.

Existing laws and policies do not target the preparatory acts of the crime. It is only when the different ingredients are brought together to execute the crime that it becomes punishable unless one of the separate acts is already a violation of a penal law, i.e. possession of explosives. In terms of terrorist financing, investigation is hampered by the bank secrecy law so the anti-money laundering law needs to be amended. The information/intelligence gathering is also limited by privacy rights and the anti-wiretapping law so surveillance powers should be broadened but only for the crime of terrorism. These can readily be provided for in the anti-terrorism law with the proper safeguards.

The bigger difficulty is conceptual, one of theory. Under our system of laws, intent is not punishable and preparatory acts that are not overtly linked to a crime like terrorism is likewise not punishable. It makes the work of law enforcers challenging because they have to wait until the stage of acts of execution before they can act. Although the same can be said of ordinary common crimes like murder, the widespread impact and far-reaching consequences of terrorism as a special common crime calls for a different approach.

It may be correct to posit that the crimes sought to be punished under the anti-terrorism bill are already punishable under existing laws although these refer only to the execution of the crime of terrorism with its three stages of execution – attempted, frustrated and consummated.

Under the Revised Penal Code where the crime of terrorism should properly fall under, the primary offender is the principal by direct participation. The others are principals by inducement and principals by indispensable cooperation as the case may be. Depending on their level of participation, they can be accomplices or accessories to the crime of attempted, frustrated or consummated terrorism. If conspiracy is proven, then the extent of their individual participation becomes immaterial in the eyes of the law as the act of one is the act of all. Contrary to the visual diagram, the preparation stage takes far more time and effort than the execution stage. The window of opportunity for law enforcers is inversely related.

The proposed anti-terrorism bill penalizes conspiracy and proposal to commit the crime of terrorism. It also penalizes inciting to terrorism. A review of Section 4 (Terrorism; How Committed) shows that it is a combination of the different bills. There is no logical fit; it is not rationally tight and makes the crime of terrorism dependent on intent of the perpetrator to sow terror or to create panic. (As a general rule, special penal laws do not require intent as an element.) Moreover, for the preparatory acts in Section 7 (Acts that Facilitate, Contribute to or Promote Terrorism), all the acts must be done knowingly, willfully and voluntarily in furtherance of terrorism. The question again revolves around the matter of intent and how to prove knowledge. As earlier stated, it is almost impossible to do so if the acts have not moved into the execution stage – there is yet no overt act to speak of.

Going back to our basic understanding of terrorism, it is a deliberate and indiscriminate attack that requires several components or factors to succeed. Above all, it operates with secrecy and stealth in a highly decentralized manner to avoid detection. It is a class all by itself. Even with good intelligence work, it is very difficult to prosecute and convict the crime of terrorism since the organization and the means used or employed are knowingly and purposely resorted to, to achieve their ends.

Thus considered, the key is to prevent the attack. But how can seemingly harmless acts like remitting funds without showing knowledge or manifesting intent of the crime of terrorism be punishable given the extant criminal law system? How can intent be shown other than through overt acts? This is the crux of the issue which has, in many different forms, made law enforcers creative with legislators trying to get a handle on the nature of terrorism. A conceptual approach is necessary to punish preparatory acts keeping in mind that acts or elements of a crime are not the same as the proof or evidence thereof. This can be done with a two step process.

First, Section 8 of the anti-terrorism bill proscribes organizations that engage in terrorism or commit acts of terrorism. A terrorist group is just like any other organization. It is concerned with sustainability and in general, the larger the group, the greater its capacity for terror such that the mere mention of its existence is enough to cause terror. In a sad sense, a terrorist group has to enjoy a certain degree of success to be recognized as such. Sporadic, sudden and isolated incidents are not brought within the radar screen. No one fears the Indigenous People’s Federal Army or the Filipino Soldiers for the Nation. Once there is a congressional finding that a group is a proscribed organization, it is considered a terrorist organization. This is equivalent to a declaration that the existence of such an organization is inimical to the state’s interest and national security. The strength of a terrorist organization lies in its being a loose cell-based grouping. However, for it to achieve its purpose and status, it must announce its presence through its actions or pronouncements. Otherwise, there will be no point of forming terrorist groups if it cannot claim an identity. It will have no platform from where to make statements. This is its weakness and must be utilized against it. A terrorist organization must be made accountable. A person can be proven to be a member of a terrorist organization whether by direct or circumstantial evidence, i.e. presence at meetings, giving support and other activities. The basis is provided for a group engaged in terrorism to be eventually proscribed.

Second, prima facie evidence needs to be utilized to establish knowledge or intent. Jurisprudence has sanctioned the use of this class of evidence for acts which are inherently hard to prove given its nature or by the circumstances. Prima facie evidence shifts the initial burden of moving forward with the evidence to the alleged offender. Thus, if he deposits an amount of money to the account of a member of the terrorist organization, he must disprove his knowledge of the purpose of the money. The listing of terrorist organizations coupled with prima facie evidence will serve as a new conceptual framework for preventing terrorist attacks.

Instead of merely enumerating the acts constituting the crime of terrorism, the degree or level of participation or buy-in into the objectives of the terrorist organization becomes the reference for a criminal charge. The imposable penalties will be adjusted accordingly for this class of offenders considering their lesser culpability. Regardless of the penalty, it is essential that the preparatory acts be criminalized for prevention to work. The penalties for other related crimes need to be reviewed either to increase them or to harmonize them with the penalty for the crime of terrorism. Terrorism can be complexed with other crimes.

With regard to revolutionary groups, the anti-terrorism law will say that if the war is taken into urban centers or when terror is made a policy, the group can be classified as a terrorist organization. There are after all limits to advocacy on what measures are acceptable to achieve a change in the political order. Violence, especially against civilians, is not an option. There can never be a valid cause or just excuse to kill even one person for an idea or an ideal. We must work with what we have and watch that we do not fall into historical traps.

Our past is checked with abuse of human rights, of warrantless arrest and indefinite detention. The pendulum has swung to the other end when overdue process thwarts the ends of justice. What is objectionable about a longer period of detention is an issue of access. Law enforcers should be required to promptly notify the court where the arrest was made and where the person is detained. As long as such persons are monitored, no one need unduly fear a fishing expedition. R.A. No. 7438 will see to that and the law enforcers can quickly build up the case and conduct follow-up operation. A long period may be prone to abuse and result in sloppy police work. For control, Congress can always conduct annual and periodic review to re-approve the measures.

Regarding the definition found in the bill which is argued to be too broad and vague, suffice to say that the function of a definition in the law is a legislative declaration that the acts described therein are morally reprehensible and ought to be punished. Terrorism is too complex to fit into any single definition. We need a working definition, not a perfectly accurate definition or 100% legal definition that will capture all the cases. Not having a neat definition in the law is not an excuse for not criminalizing terror as we know it. Our definition should fit our local situation and cover most of the cases we face.

Recommendations

1. Agree on a working definition. Rethink the conceptual framework.

As previously explained, the import and function of a definition of terrorism is important but not crucial. No one gets convicted for violating a definition. We need to agree on a working definition that essentially captures the meaning of terrorism. We can recognize terror when we see it.

The conceptual framework presented should wean us away from a traditional conception of the commission of crimes. The common crimes in terrorism are simply the means to an end – to sow terror.

2. List critical infrastructure and key persons.

It may be helpful to list the critical infrastructure or public places and the key persons in the law to be updated from time to time by Congress. An attack on them will be deemed a terrorist act unless the contrary is shown.

3. Operationalize the National Criminal Information System (NCIS).

The bedrock to the prevention and solution of crimes is our criminal justice system. The National Criminal Information System or the NCIS is crucial to build a database on criminal offenders for information, verification or research study exists only in paper. The key agency must strictly operationalize the computer system in the soonest possible time with support from Congress.

4. Regulate checkpoints and official communication vis media.

The Supreme Court may have ruled for the legality of checkpoints. However, this does not stop legislation from regulating one of the primary interfaces between law enforcers and ordinary citizens. A review of similar situations can be undertaken for legislative measures.

Since terrorism uses media as a force multiplier, the feeding frenzy must be stemmed in the name of the country’s interest. Media persons may interfere in the investigation of cases by ‘scoop’ reporting. This can be carefully provided for by law.

5. Pass a Revised Penal Code (RPC) of 2006

Our Revised Penal Code took effect in 1932, an era far different from the modern times we live today. The RPC is good law. It has served us in good stead. But speaking as a state prosecutor of the Department of Justice, it is time we review and update the whole law to respond to changes instead of making piecemeal amendments which destroy its coherence. The crime of terrorism is the prime example.

Conclusion

A law carefully thought out and well-crafted will help fight terror and at the same time, protect and safeguard human rights. We know of adequate mechanisms to guard against abuse and to punish those who are supposed to serve and protect. Sloganeering and scare tactics will not help our cause. Let us keep on our work quietly and unassumingly. Judgmental mindsets will not serve our purpose. Let us think constructively and act progressively. Overreaction invariably muddles and eventually overshadows the crucial issues. With an anti-terrorism law in place, we can rightfully punish terrorists and their acts will be an extraditable offense. Having such law also fulfills an international commitment.

Terrorism is a war on legality in which the ends justify the means. The executive and the legislative branches ought to view this as a common threat. The system of check and balance will continue to serve as the guiding principle of our open democratic society which always acts within the law yet acknowledge that not by law alone can we fight terror. Democratic legitimacy will be strengthened as well as confidence in our criminal justice system. Expediency should never rule the day in the passage of our laws; neither should closed minds hamper legislation that will preserve our most cherished virtues of life and liberty.