Undeterred by domestic and international complaints against human rights abuses under its regime, as well as the Supreme Court’s declarations of the unconstitutionality of its oppressive Calibrated Preemptive Response policy and provisions of Proclamation 1017 and E.O. 464, the Arroyo government pushed the passage of The Human Security Act of 2007.
We place the HSA in the same category as the CPR policy, the unconstitutional raids and arrests provided under Proc. 1017, and the unbelievably broad executive privilege under E.O. 464, for being similarly unnecessary, excessive and oppressive in a democracy as will be explained below.
Already punishable acts
First of all, the acts that make up the definition of terrorism under the HSA are alll already prohibited under the Revised Penal Code (RPC) or other special laws. They are:[2]
a) Piracy in General and Mutiny in the High Seas or in the Philippine Waters (Art.122, RPC);
b) Rebellion or Insurrection (Art. 134, RPC);
c) Coup d’ Etat (Art. 134-a, RPC);
d) Murder (Art. 248, RPC);
e) Kidnapping and Serious Illegal Detention (Art. 267, RPC);
f) Crimes Involving Destruction (Art. 324, RPC);
g) Arson (P.D. 1613);
h) violating the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990 (R.A. 6969);
i) violating the Atomic Energy Regulatory and Liability Act of 1968 (R.A. 5207);
j) violating the Anti-Hijacking Law (R.A. 6235);
k) violating the Anti-Piracy and Anti-Highway Robbery Law of 1974 (P.D. 532);
l) violating the Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives (P.D. 1866, as amended).
So what makes the commission of these acts terrorism? Well, the law says that if any of them are done “thereby 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” then terrorism is committed.
So what’s wrong you say? Well, let’s tackle the obvious:
a) A necessary element in most crimes is criminal intent. A lot of these acts are committed without the intention of “sowing and creating widespread and extraordinary fear and panic among the populace and of coercing the government to give in to an unlawful demand.” Yet the HSA automatically stamps the crime of “terrorism” to the commission of any of the acts even if they accidentally sow and create widespread and extraordinary fear and panic among the populace and force the government to give in to an unlawful demand.
The penalty of reclusion perpetua (40 years imprisonment) without parole further emphasizes the harshness of the terrorist tag.
b) How many people and how much area would actually constitute “widespread and extraordinary fear and panic”? The definition is too vague to leave to the determination of a paranoid or abusive government. A student demonstration that somehow alarms shoppers in a mall may be deemed widespread and extraordinary. That’s how vague the law is and how much discretion is left to authorities in interpreting it.
c) What would constitute an “unlawful demand”? The participants in a mass action - say a labor or transportation strike seeking the overturn of an otherwise legal though unjust decision – are easily labeled as terrorists once some disorder is declared. What then of the people’s constitutionally protected rights to association, to free speech, to free assembly and to seek redress for grievances? Beware those who plan to engage in civil disobedience. Goodbye People Power.
d) And what about government forces that commit any of the mentioned acts thereby sowing and creating widespread and extraordinary fear and panic among the populace? What are they called? Why aren’t they covered?
Additional crime
The HSA also punishes persons who conspire to commit any of the acts mentioned above with 40 years imprisonment. As defined therein there is conspiracy when 2 or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit the same.[3]
So, if you only agreed to provide the streamers, vehicles, t-shirts, placards, stickers, refreshments, or chewing gum for the mass action, you think you’re free? Think again. By the grace of Gloria, you could be a conspirator liable to also spend 40 years in jail.
Not alarmed yet? Hang on, there’s more …
Detention
Contrary to Art.125 of the Revised Penal Code which sets 12-, 18- and 36-hour detention limits and requires the actual commission of a crime, the suspected terrorist can be detained for up to 3 days under the HSA based on mere suspicion.[4]
There is absolutely no requirement of probable cause or legal ground for detention. Suspicions as to an imminent attack and possible participants therein are enough to go ahead with warrantless arrests and prolonged detentions.
Further, contrary to the Constitution which requires that even during the suspension of the privilege of the writ of habeas corpus, a “person arrested or detained be judicially charged within 3 days, otherwise he shall be released,”[5] under the HSA, in the event of an actual or imminent terrorist attack, suspects may be detained for more than 3 days (and until eternity) upon the simple 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.”[6] And still no requirement to provide probable cause or legal ground for detention. Did I hear you say Guantanamo?
Examination of Bank Records
The HSA allows law enforcers, with a court order, to:[7]
a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and
b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution.
The only requirements are that there exists probable cause of:
a) a person charged with or suspected of the crime of terrorism or, conspiracy to commit terrorism, or
b) a judicially declared and outlawed terrorist organization, association, or group of persons; and
c) a member of such judicially declared and outlawed organization, association, or group of persons.
Based on the above requirements, the law clearly does not require that the examination be limited to only the bank records of the suspected terrorist. The law even specifically allows the “gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution.” You may not be suspected at all of terrorism but if your information is deemed relevant in relation to the bank records of any suspected terrorist, then your information, financial or otherwise, is fair game.
Sequestration of Property
Property of whatever kind and nature belonging to a mere suspected terrorist is liable to seizure, sequestration, and freezing.[8] In this instance, no court order is required. Again, there is no process at all to determine probable cause of the commission of terrorism. And again, mere suspicion is all that is required. We’ll leave it up to your imagination as to what an abusive government can do with this power.
Travel Restrictions
The HSA states that in cases where evidence of guilt is not strong, and the person charged is entitled to bail and is granted the same, the accused may be limited the right of travel to within the municipality or city where he resides or where the case is pending, in the interest of national security and public safety.[9] Note that the provision begins by stating the fact that “evidence of guilt is not strong”. And so the violations to the Constitution never end.
The Constitution provides that all persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall be bailable. The right to bail is not impaired even when the privilege of the writ of habeas corpus is suspended.[10]
Not content with restricting travel, the HSA also provides that the accused may be placed under house arrest by order of the court at his/her usual place of residence. To add further abuse, the lawmakers also provided that “while under house arrest, he or 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.”[11]
And all these even as the evidence is weak. The HSA allows bail but severely limits one’s right of movement. Is the accused on bail or not?
What to do with critics? Simply accuse them of being terrorists, file a case and apply for the travel restrictions to take place. Et Voila! No more dissenters. Why bother gathering evidence? The travel restrictions will apply even if the evidence is weak. Why bother prosecuting the case and getting a conviction?The incommunicado detention is punishment enough.
Void, void, void
We sincerely hope we don’t have to wait until any of the HSA provisions are fully implemented before the entire law is struck down for what is - unconstitutional. There are other words for it and for those who drafted it but there’s not enough space.
[1] R.A. 9372, March 09, 2007.
[2] Sec. 3, Ibid.
[3] Sec, 4, Ibid.
[4] Sec. 18, Ibid.
[5] Sec. 18, Art VII, Philippine Constitution.
[6] Sec. 19, Ibid.
[7] Sec. 27, Ibid.
[8] Sec. 39, Ibid.
[9] Sec. 26, Ibid.
[10] Sec. 13, Art. III, Philippine Constitution.
[11] Sec. 26, Ibid.
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