Amendments to terror law will make it much worse

Posted: August 17, 2011 in Human Rights, War on Terror

At yesterday’s Legislative and Executive Development and Advisory Council (LEDAC), President Benigno Aquino III announced that one of his administration’s priority legislative measures was the amendment of the Human Security Act of 2007 (HSA).

The announcement comes less than a month before the 10th anniversary of the 9-11 attacks which marked the start of the US-led “war on terror”.

According to news reports, Aquino is seeking the lowering of penalties for law enforcers who commit human rights abuses in the course of implementing the law. The president is also seeking the removal of provisions that seek to notify persons that they are being subjected to surveillance by state forces.

“Who would want to be slapped with a half a million (pesos) daily fine? A law enforcement entity would be frightened to arrest anybody despite strong intelligence,” Aquino was quoted by news reports after submitting several priority bills to congressional leaders.

What Aquino is saying is that the law is not enforced because police are afraid of the consequences. The only way to remedy this is to give law enforcers less to worry about. The amendments Aquino is pushing seek to remove deterrents to human rights violations and instead give law enforcers more leeway to conduct arrests and detention. This is a very dangerous proposition. Aquino seems oblivious to the continuing cases of illegal arrests, torture and other abuses that are being carried out by his law enforcement units. Aquino seems unaware or simply does not care of the torture mindset ingrained on police and military trainees which they carry with them after graduation.

Four years of the HSA

Bayan was one of the organizations that questioned the HSA before the Supreme Court in 2007. However the SC denied the petition saying that no actual injury has been inflicted on the petitioners. In its petition, Bayan alleged that the HSA could be used to violate human rights including placing persons under surveillance. The group said that even without the HSA, there are already enough laws to deal with terrorism. In its decision, the court did not rule on the constitutional issues raised by Bayan and other petitioners. Our lawyers believe we can still question this draconian law in the future, especially when a controversy arises.

During the Senate deliberations of this law, stiff penalties for abuses were put in place because of the poor human rights record of law enforcers. The high amount was supposed to act as a deterrent to abuses. This was the response to the vigorous opposition mounted by human rights advocates and civil libertarians who were wary of the dire implications of the terror law.

The main objection then had to do with the definition of “terrorism”, which opponents say was deliberately made vague and overbroad. Section 3 of the terror law defines “terrorism” as an act 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.” The parameters of what constitutes this vague and loosely defined crime of “terrorism” will eventually be determined by Malacanang.

The broad definition of terrorism, along with provisions for prolonged detention without charges, surveillance and travel restrictions, pose a danger to human rights. Less than a year after the HSA took effect, a serious violation of this law took place in Zambales.

The curious case of Edgar Candule

In the case of Edgar Candue, even the stiff penalty of P500,000 for every day a suspect is wrongfully detained did not deter some law enforcers from abusing the HSA. Candule who was arrested in March 21, 2008 in Zambales for allegedly possessing so-called “subversive” documents and a firearm and for being suspected of membership in the NPA which the AFP considers a “terrorist” organization. At the time of his arrest, law enforcers said they found him inside a hut packing his belongings, hardly a situation that would cause widespread fear and panic .

Because of the alleged firearm and Candule’s supposed subversive documents, law enforcers in their complaint said that he was “engaged in sowing and creating a contention (sic) of widespread fear and peace (sic)among the populace.” The PNP charged Candule with the crime of terrorism under Section 3 of the HSA.

One of the arresting officers admitted that he only attended a seminar on the HSA once and that he was not familiar with all the provisions of the law. PO3 Rex Sahagun testified that he conducted the warrantless arrest on Candule, and that he did it without authorization from the Anti-Terrorism Council. He also said that based on his understanding, the possession of a firearm and subversive documents already constitutes terrorism.  Another police officer, PO1 Simon Gonzales admitted that they apprehended Candule because he had a gun and subversive documents, and that the elements of terrorism are “possession of firearm and rebellion”.

The case was eventually dismissed by the Branch 69 of the Zambales RTC on October 29, 2010 or more than two years after Candule was arrested. The presiding Judge Josefina Farrales said that the prosecution failed to prove the existence of the crime of terrorism. She said that the circumstances of the arrest showed that Candule was merely packing his things, did not cause widespread and extraordinary fear and panic among the populace. She said the presence of subversive materials was “inconsequential” and that the alleged firearm taken from the accused was not even presented or identified during the testimonies of the arresting officers.

However, the provisions granting Candule compensation have not been followed despite the patently illegal arrest and the false charges of terrorism that resulted in his detention for more than two years. Candule would have been entitled to P500,000 for every day he was detained.  For two years alone, Candule should have already received P365 million.

It’s clear in the case that even a high penalty will not discourage some abusive law enforcers, especially if they are not even aware of the provisions of the law. Now imagine a situation where in the penalty is significantly lower. Aquino has said that instead of a P500,000 penalty per day of detention, government can just pay P500,000 for the entire period of detention.

Can we now fault people who think the Aquino government treats rights abuses with kid gloves?

The problem is not if the law enforcers can use the law or not. The problem is not with the penalties. There are existing laws that already can be used in apprehending suspected terrorists.

The problem is that the PNP and AFP have such awful human rights record. We recall the recent news last week of members of the AFP torturing and setting on fire a suspected member of the Abu Sayyaf. The person was able to survive and a complaint was filed. Some officers were relieved. It is not clear if criminal cases have been filed against these erring soldiers.

If your state security forces act this way, no amount of anti-terror legislation will solve the problem of terrorism.

Institutions such as the Department of Justice, the Integrated Bar of the Philippines and the Commission on Human Rights should stand up to oppose the proposed amendments to the terror law. Human rights advocates in Congress should also question the proposed amendments.

On a final note, we wonder at the timing of this amendment to the terror law. Why is this even a priority now when the country is faced with far bigger problems. Is it to prove to the US that the Philippines is deserving of more military aid? Is it timed with the anniversary of 10th anniversary of the 9-11 attacks?

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