Anti-Terror Law’s slippier slope

“Fortunately, the Supreme Court did declare unconstitutional a provision in a Section of the ATA for being overbroad and violative of freedom of expression, in essence agreeing with the proposition that activism is not terrorism”

In my last column, I summarized Judge Maldoza-Malagar’s decision on the proscription case against the Communist Party of the Philippines and the New Peoples’ Army, that the CPP-NPA is not a terrorist organization under the HSA for failure to meet the definitional elements to proscribe these organizations under the law.

The significance of the decision cannot be understated for the country in light of the Anti-Terror Act (ATA) which repealed the Human Security Act.

In this column, which is again based on an analysis I wrote with my colleague Ally Munda, I will address the dangers of red-tagging or policing activism in the name of the war on terror and other concerns regarding the ATA.

In the Philippines, we have consistently made a distinction between “political crimes” and common crimes.

Common crimes, which are perpetrated in furtherance of the political offense, say rebellion are divested of their character as “common” offenses and assume the political complexion of the main crime of which they are mere ingredients, and, consequently, cannot be punished separately from the principal offense, or complexed with the same, to justify the imposition of a graver penalty.

An act like killing is not a common crime like homicide or murder if it is committed in furtherance of rebellion.

The killing assumes the political complexion of rebellion and becomes a mere ingredient of the rebellion. The accused can only be prosecuted for the political crime, the rebellion.

Red-tagging removes an important distinction by lumping together through broad and indiscriminate strokes all those who associate with activist organizations with those who espouse violence aimed at overthrowing the government — as a means to achieve the same.

Even Judges have not been spared from this red-tagging as we have seen in the statements of Lorraine Badoy against Judge Magdoza-Malagar.

The nature of the CPP-NPA organization is political with political goals.

The organization is by nature steeped in ideology.

But does holding these ideologies automatically mean one is willing to commit terrorism acts?

Is this an encroachment on the exercise of the free mind and the right to associate with above-ground organizations which espouse these political leanings in a lawful way?

In 1964, the Supreme Court of the Philippines saw the social dangers of red-tagging and enunciated in the landmark case of People v. Amado V. Hernandez that a belief in or active espousal of Communist ideologies is not the same in actual participation in a conspiracy to overthrow the government by force.

The Court there held “the act of indoctrinating and preparing its members for the revolution is not the revolution itself.”

There is a vast sea separating membership in legal organizations that share the ideals of violent Communist groups and the groups which commit acts of violence themselves.

This sea continues to exist even if it is proven that there may be some bridges that a portion of individual members choose to cross.

Ideas are not intended to cause death or serious harm to any person, endanger a life, or create a threat to public safety.

Without a physical act to accomplish this, how could an idea be capable and held accountable?

In contrast to the HSA, the ATA is fraught with danger.

Under the HSA, a group, association or organization was labeled a terrorist one purely through judicial proscription.

The ATA expands these limits and to grant authority to the Executive, through the Anti-Terrorism Council (ATC), to automatically adopt the designation of terrorist groups made by the United Nations Security Council.

The power of designation grated by the ATC was originally broader, but the Supreme Court last year limited its powers by striking down as unconstitutional the ATC’s ability to designate terrorist groups upon the request of other countries or upon determination that it meets the relevant criteria of the United Nations Security Council.

Still, these expansions outside of judicial proscription pose a danger, specifically when coupled with the other “innovations” of the ATA which will soon be discussed.

First, even if the courts do not proscribe the CPP-NPA, or any other accused group, as a terrorist organization, the Anti-Terrorism Council established under the ATA is empowered by Section 25 of the Act to designate the same as such.

The safeguard here, as retired Supreme Court Justice Antonio Carpio asserts, is that the ATC cannot order the arrest of any person except in the context of warrantless arrests.

Arrests and detention are still the judiciary’s domain, according to Carpio who concludes that the government actually lost the ATA case.

Second, the ATA allows for the label of terrorism to attach to individuals for committing the acts enumerated under Section 4 of the ATA, if conditions are satisfied. Even without performing any of the acts enumerated in the ATA, mere membership in and recruitment to a proscribed organization already merits a penalty.

The danger of membership without any act committed by the individual being equated to terrorism cannot be understated.

The distinctions between activists and possible terrorists can be blurred with little to no consequences for the government as the safeguards to prevent wanton accusations have been removed.

Fortunately, the Supreme Court did declare unconstitutional a provision in Section of the ATA for being overbroad and violative of freedom of expression, in essence agreeing with the proposition that activism is not terrorism.

Clearly, we are standing at the precipice of a slippier slope.

There is a distinction between political rebels, activists, and terrorists that should not be erased from our penal statutes, lest we risk losing fundamental freedoms like the right to redress our grievances against the government, to organize, associate, and speak truth to power.

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