OPINION: A sober look at the proposed 'Anti-Terrorism Act of 2020’

Michael Henry Yusingco, LL.M

Posted at Mar 13 2020 04:41 PM

Terrorism is a public threat all Filipinos must thoroughly understand. 

Terrorists are driven by different ideological motivations. They inflict violence on society via various means and tactics and with diverse levels of lethality.

The country has suffered numerous terrorist attacks since the 1960s, but a frightening development in the last 2 years is the deployment of suicide bombers. One such attack occurred last year executed by 23-year-old Norman Lasuca, now confirmed by authorities as the very first Filipino suicide bomber. 

There are key points about terrorism that Filipinos need to appreciate. First, terrorists always evolve and adjust their tactics. But military readiness is fundamental in the make-up of all terrorists. 

Second, terrorists are linked through an intricate web of kinship, friendship, and fellowship. Terrorist cells may function autonomously, but they are more than likely part of a bigger network. These connections also allow them to move seamlessly between terrorism and criminality (i.e. kidnap for ransom, extortion and trafficking of illegal drugs).

Third, terrorists often act motivated by domestic goals, but they also showcase their ferocity for potential international alliances. Having a strong social media presence also serves this angle of their modus operandi. 

Clearly, fighting terrorism poses tremendous challenges to national security and law enforcement agencies. So, one critical question about Senate Bill No. 1083 (SB 1083) or the proposed Anti-Terrorism Act of 2020 is whether it actually improves the capability of national security agents and law enforcers to do this extremely tough job?

A proper evaluation of a proposed law entails examining the mechanisms and processes sought to be established. Obviously, a complete legal analysis cannot be fully accomplished here. This piece will only examine the endowment in SB 1083 of broad surveillance powers to law enforcement or military personnel, i.e. 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”. (See Section 11)

First thing to note is that this power can only be exercised with authority from the Court of Appeals. Simply put, undertaking any of these surveillance activities without the proper court order is unlawful and will subject the law enforcers and/or military personnel involved to criminal and administrative liabilities. 

Second, the Court of Appeals will only grant an application for the use of these surveillance powers when law enforcers and their witnesses are able to demonstrate under oath the following: 

“(a) that there is probable cause to believe based on personal knowledge of facts or circumstances that the crimes defined and penalized under the provisions of this act has been committed, or is being committed, or is about to be committed; 

(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; and, 

(c) that there is no other effective means readily available for acquiring such evidence." (see section 12)
 
Last note and the most crucial of all, the broad grant of surveillance power imposes upon national security and law enforcement agencies serious intellectual demands. First and indeed the most obvious one is they have to keep abreast with surveillance technologies and techniques. This is especially vital in maintaining operational secrecy because the surveillance must cease once the subject becomes aware of the operations. Carrying on beyond the point of discovery can be seen as a violation of the subject’s right to privacy. 

Second, police and military personnel must be well-versed in legal and constitutional prescriptions relating to the collection of information for use in the prosecution of terrorism offenses. This is a good way to ensure that evidence produced by surveillance operations are unimpeachable when presented in court.

And third, law enforcers have to be updated in surveillance strategies and tactics. The complexities of modern life make clandestine operations extremely difficult. And improper or clumsy surveillance methods, even if duly authorized, can always be tagged as a form of harassment and possibly expose law enforcers to civil or administrative complaints.

When the nuances of terrorism are taken into account, the gravity of these competency requirements imposed on law enforcement by SB 1083 rises significantly. But SB 1083 does not provide any assurance that law enforcers and military personnel will always have the necessary aptitude and proficiency to exercise the broad powers of surveillance. 

The argument that this is already presumed in the bill is untenable. Given the country’s experience of law enforcement abuses during Martial Law, the bill should clearly account for the capability of law enforcers and military personnel to effectively and lawfully exercise broad surveillance powers.

Indeed, the recent Supreme Court decision against the surveillance operations of the Philippine National Police targeting the widow of a communist commander makes it imperative for any anti-terrorism legislation to have explicit prescriptions on the regular enhancement of skills and competencies of law enforcers and military personnel relating to counter-terrorism efforts.

Filipinos have an inherent fear of government itself becoming a force of terror. One way of making the public less afraid of a proposed anti-terrorism measure is by institutionalizing the involvement of academic institutions in ensuring the education and training of national security and law enforcement agents in preventing violent extremism and counter-terrorism. 

Indeed, while there is an urgent need to enact a robust anti-terrorism law, Congress cannot ignore the fact that Filipinos deserve and expect a dedicated law enforcement unit that can truly and professionally protect the state and the people from terrorism. 

Disclaimer: The views in this blog are those of the blogger and do not necessarily reflect the views of ABS-CBN Corp.