Mabini Hall - Access to Justice

Understanding the Human Security Act of 2007 (R.A. No. 9372)
Part 3 - Conclusion

          After introducing the basic provisions of new law in the previous articles, this last part deals perhaps with the more contentious issues considering the nature of the crime of terrorism.

Proscription of Terrorist Organizations, Association, or Group of Persons   

          There is no automatic listing, classifying or branding of any person or group of person as terrorists. The HSA mandates the Department of Justice to apply with a competent Regional Trial Court with due notice and opportunity to be heard given to the organization, association, or group of persons allegedly organized for the purpose of or actually engaging in terrorism. Once such a judicial finding is made, the pertinent provisions of the law apply.

          There are two provisions governing the period of detention. For years now, law enforcers have been pointing out that the existing period is too short. There is insufficient time to gather evidence and build up the case for proper filing in court and results to dismissal of cases. This is especially true when follow up operations are needed to track down the rest of the members of a terrorist cell. The other side of course is the need to guard abuse against warrantless detention.

Period of Detention Without Judicial Warrant of Arrest

          The law allows the detention of persons for three (3) days if charged with or suspected of the crime of terrorism provided that the arrest must result from the electronic surveillance or examination of bank deposits outlined in the law. Otherwise, the applicable provision is Article 125 of the Revised Penal Code which gives law enforcers only thirty six (36) hours to file charges in court.

          The procedure is that the law enforcer shall present the detained person before any judge together with a written notice at the latter’s residence or office nearest the place where the arrest took place at any time of the day or night including Saturdays, Sundays and holidays. The judge shall ascertain the identity of the law enforcer and the persons arrested to inquire and to determine probable cause. He must likewise check if the suspect has been subjected to any physical, moral or psychological torture. A report shall be submitted to the proper court within three (3) calendar days.

Period of Detention in the Event of an Actual or Imminent Terrorist Attack

          In the event of an actual or imminent terrorist attack, the period of detention may conceivably be for five (5) days provided that written approval of a municipal, city, provincial or regional official of a Human Rights Commission or judge of the municipal, regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest is secured. The law enforcer shall likewise present the arrested person to any of these officials. It is essential however that within the first three (3) days counted from the detention of the arrested person, his connection to the terror attack or threat is established.

Rights of the detained person

          In any event, the detained person has all the rights under custodial investigation including the right to counsel and the right to be informed of the charges. There is to be absolutely no torture or coercion during the investigation and interrogation under stiff criminal penalty.

         Moreover, there is the requirement of an official logbook which is declared a public document and available for inspection and scrutiny of the lawyer, any member of his family or relative by consanguinity or affinity within the fourth civil degree or his physician at any time of the day or night without any form of restriction. The logbook shall contain, among others, (a) the name, description, and address of the detained person; (b) the date and exact time of his initial admission for custodial arrest and detention; (c) the name and address of the physician or physicians who examined him physically and medically; (d) the state of his health and physical condition at the time of his initial admission for custodial detention; (e) the date and time of each removal of the detained person from his cell for interrogation or for any purpose; (f) the date and time of his return to his cell; (g) the name and address of the physician or physicians who physically and medically examined him after each interrogation; (h) a summary of the physical and medical findings on the detained person after each of such interrogation; (i) the names and addresses of his family members and nearest relatives, if any and if available; (j) the names and addresses of persons who visit the detained person; (k) the date and time of each of such visits; (l) the date and time of each request of the detained person to communicate and confer with his legal counsel or counsels; (m) the date and time of each visit, and date and time of each departure of his legal counsel or counsels; and, (n) all other important events bearing on and all relevant details regarding the treatment of the detained person while under custodial arrest and detention.

Restriction on Travel
   

          When an accused is entitled to bail, his right to travel may be restricted to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety. Travel outside without the authorization of the court is a violation of his bail. He may also be placed under house arrest at usual place of residence. While under house arrest, he may not use telephones, cell phones, e-mails, computers, the internet or other means of communications with people outside the residence until otherwise ordered by the court. This is necessary to disrupt any ongoing or planned terrorist operation.

Immunity and Protection of Government Witnesses

          Witnesses may avail of the benefits under the Witness Protection Program although to qualify as a state witness, he must get the approval of the court.

Prosecution a Bar

          When a person has been prosecuted under the HSA, his acquittal or dismissal of the case shall be a bar to another prosecution for any offence or felony which is necessarily included in the offence charged under this law unless the court finds the accused guilty of another crime.

Damages for Unproven Charge of Terrorism
   
          Law enforcers particularly are wary of this provision which provides that upon acquittal, any person who is accused of the crime of terrorism shall be entitled to the payment of damages in the amount of P500,000.00 for every day that he has been detained or deprived of liberty or arrested without a warrant.  The amount of damages is chargeable against the violating agency. This does not mean that any case dismissed will result to the application of this provision. For example, if the evidence really did not meet the standard of proof beyond reasonable doubt. Properly, the damages will be paid if the law enforcers abused their authority or acted maliciously or negligently.

Duty to Record and Report the Name and Address of the Informant
   
          For the final layer of protection of human rights, the law enforcer concerned shall report the informant’s name and address to their superior officer who shall transmit the information to the Congressional Oversight Committee or to the proper court within five (5) days after the suspect was placed under arrest or his properties were sequestered, seized or frozen. The name and address of the informant shall be considered confidential and shall not be unnecessarily revealed until after the proceedings against the suspect shall have been terminated.

          This three part series on the controversial Human Security Act of 2007 hopes to introduce the law to any citizen at large and for Juan dela Cruz to understand how it works to prevent violence and disrupt terrorism and at the same time, informing of his rights so that at all times, human rights is respected and peace and order preserved.