about HR position papers 3-4

ON
THE ANTI-TERRORISM BILLS

Senate Bill No. 1980,
Anti-Terrorism Act of 2002
(Introduced by Sen. Robert Z. Barbers),
Senate Bill No. 2263
(Introduced by Sen. Ramon Magsaysay, Jr. and Sen. Sergio Osmeña, III) Senate Bill No. 1458,
Anti-Terrorism Act of 2001
(Introduced by Sen. Panfilo Lacson),

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Since these bills treat the same subject matter on anti-terrorism with similar objectives and provisions, this represents the Commission's consolidated position paper.

These three Senate Bills on anti-terrorism, as drafted, cannot be supported by the Commission on Human Rights (CHR) for the following reasons:

1) The International Covenant on Civil and Political Rights Provides for International Standard Which are Legal Obligations Accepted by the Philippine Government

The Philippines became state party to these human rights instruments in 1986. As such the government has accepted legal obligations pursuant thereto.

Article 4, No. 1 of the Covenant on Civil and Political Rights provides that:

"In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the state parties to the present covenant may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."

The Philippine government under the covenant is under obligation to recognize and respect the provisions thereof.

Among them is Article 17, which states that "No one shall be subjected to arbitrarily or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation. xxx"

This particular provision and some other provisions in the covenant are reflected in our Philippine bill of rights.

The anti-terrorism bills in issue are clear derogation from our obligation under the International Covenant on Civil and Political Rights and, yet, they do not fall under the exceptions because there is no public emergency which threatens the life of the nation and the existence of which is not yet officially proclaimed.

2. Vague Provisions Exist in the Bills Which May Be the Source of Human Rights Violations

There is no clear and distinct definition of what terrorism really is. While "terrorism" is an acknowledged global scourge that these bills seek to deter or prevent and punish, existing crimes provided for in the Revised Penal Code already cover the acts purportedly constituting terrorism as mentioned in these anti-terrorism bills.

The vagueness on what constitute terrorism as provided for in these proposed legislative measure is also due to their redundancy. It is confusing enough. A case in point is Section 3 No. 1 of Senate Bill 1980 which states that:

"xxx

Sec. 3. Acts of Terrorism - Any of the following acts shall constitute terrorism:

1. Causing, attempting or threatening to cause the wanton destruction or loss of lives, liberties or properties through any means with the intent of sowing terror to the public, changing or impeding the operation of public utilities, or disturbing public peace and order whether internationally or domestically, and in the advancement of ideological, political, religious, ethnic, or cultist belief, or any form of belief espousing any cause or purpose.

xxx"

This above quoted offense is already covered under the Revised Penal Code, specifically Articles 248 (Murder) and 324(Arson as amended by PD 1613) among others. There is no need for it under the anti-terrorism bills.

3. The Provisions in the Bills are Rife with Constitutional Infirmities

Many of the substantive provisions found in these anti-terrorism bills are unconstitutional.

Section 11, Article II of the 1987 Philippine Constitution provides, that "the State values the dignity of every human person and guarantees full respect for human rights."

Senate Bill 1980, 2263 and 1458 run counter to this aforementioned State policy by providing provisions that violate human rights as enshrined in the Bill of Rights. Cases in point are the following:

A. These bills consider as crime membership in terrorist organization or association without clearly defining what terrorism is. The repeal of anti-subversion law is held nugatory by these bills, and this specific provision violates Section 4 of Article III of the Constitution which states that:

"No law shall be passed abridging the freedom of speech, of expression, or of the press, of the right of the people peaceably to assemble and petition the government for redress of grievances."

B. The authority to conduct searches and to intercept and to undertake surveillance as provided in these bills violates Section2, Article 3 of the Constitution which state, that:

"The right of the people to be secured in their persons, houses, papers, and effect against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."

While there are so called "safeguards" provided, the same remains suspect as any law passed curtailing the individual liberties is repugnant to the ideas of civilized society.

The CHR in its earlier position criticized Senate Bill No. 1353 (the Anti-Terrorism Act) filed by Senator Juan Ponce Enrile as a dangerous legislative proposal that warrants a strong opposition for its passage. The same is true to the above stated Senate Bills.

While the Commission on Human Rights supports the international efforts of counter-terrorism as mandated in UN resolutions, all acts, measures and proposals should always conform to all applicable human rights instruments and the Bill of Rights in the Philippine Constitution.

Quezon City , 11 December 2002

ON
HOUSE BILL NOS. 83, 382 and 780
(Freedom of Access to Information Act)

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The Commission, after a careful review of the Freedom Access to Information Act proposed in House Bill Nos. 83, 382 and 780, recommends that the version of the Honorable Rep. Lozada, Jr. (House Bill No. 83) be adopted for being comprehensive in scope and in consonance with the mandate of the Constitution and international instruments.

Its early passage into law is sought.

It is worth noting that the three bills deal with similar subject matter which primarily seek the grant to citizen and media personnel broad access to public records and information of public concern.

House Bills 382 and 780 of Representatives Abayon and Villar respectively hope to afford all Filipino citizens broad access to public records invoking Article II, Section 28 of the Constitution which mandates a policy of full disclosure of all state transactions involving public interest and Article III, Section 7 granting the right of the people to information on matters of public concern.

House Bill No. 83 of Rep. Lozada Jr., citing the same constitutional provision, rightly included all journalists and media practitioners in the coverage of the bill. A portion of his explanatory note reads, "the lack of access to information is detrimental not only to the public but for those in the government as well."

The importance of the mass media cannot be over-emphasized. Its contribution to nation building is unquantifiable. Whatever damage or injury the alleged intrusion of media may cause could not far outweigh its beneficial contribution to a democratic society towards its goal in nation building.

The aforementioned bills find support in the "International Bill of Human Rights" which provides in part:

          Article 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinion without interference and to seek, receiveand impart information ideas through any media and regardless of frontier."

          Article 29.
          (1) x x x

          (2) In the exercise of his right and freedom everyone shall be subject only to           such limitations as are determined by law solely for the purpose of securing          due recognition and respect for the rights and freedom of others and of the          just requirements of morality, public order and the general welfare in a          democratic society.

Also, the "International Covenant on Civil and Political Rights" emphasizes similar grant of freedom, to wit:

          Article 19
          (1) x x x

          (2) Everyone shall have the right to freedom of expression. This right shall           include freedom to seek, receive and impart information and ideas of all           kinds , regardless of frontier, either orally, in writing or in print, in the form           of art or through any other media of his choice.

As early as 1946, the freedom of information has been recognized in UN general Assembly Resolution 59 (1) wherein it was declared that "Freedom of Information is a fundamental human rights and is the touchstone of all the freedom to which the United Nation is consecrated."

This recognition of freedom of information was given effect in the UNESCO General Conference of November 28, 1978 when the "Declaration on Fundamental Principles considering the Contribution of Mass Media x x x to the Promotion of Human Rights" was promulgated. Prominent among which include the following Articles, namely:

Article II

           1. The exercise of freedom of opinion, expression and information             recognized as an integral part of human rights and fundamental freedom is             a vital factor in the strengthening of peace and international             understanding.

          2. Access by the public to information should be guaranteed by the diversity           of the sources and means of information available to it, thus enabling each           individual to check the accuracy of facts and to appraise events objectively           .To this end, journalists must have freedom to report and the fullest possible           facilities of access to information . Similarly, it is important that the mass           media be responsive to concern of people and individuals, thus promoting           the participation of the public in the elaboration of information.

          3. x x x

          4. If the mass media are to be in a position to promote the principle of this          Declaration in their activities, it is essential that journalists and other agents          of the mass media, in their own country or abroad be assured of protection          guaranteeing them the best of condition for the exercise of their profession .

It is also well settled that Philippine jurisprudence is replete with Supreme Court rulings as it acknowledged the freedom of information and access to official records . In a landmark case of Subido vs. Ozaeta (80 Ph 383, 1948) it was declared that the 1973 Constitution recognizes the right of access to public documents and records as a self-executory constitutional right. The Court further held that the incorporation of this right in the Constitution is a recognition of the fundamental free exchange of information in a democracy. There can be no realistic perception by the public of the State problems nor a meaningful exercise of its democratic decision-making process, if they are denied access to information of general interest. Information is needed to enable the members of society to cope with the exigencies of times. As has been observed, "maintaining the flow of such information depends on protection for both of its acquisition and its dissemination since, if either process is interrupted, the flow inevitably ceases."

However, restrictions on access to certain records may be imposed. In Chavez vs. PCGG (299 SC 747), the Court enumerated the said restrictions, among them includes: national security matter and intelligence information, trade secrets and banking transaction,criminal matters and other confidential information. Thus, in Baldoza vs. Dimaano (71 SC 14), it was held that "while the Constitution guarantees access to information on matters of public concern, the access is subject to reasonable regulation for the convenience of, and for order, in the office that has custody of the documents."

Further explained in Lantaco Sr., vs. Llamas (108 SCRA 502) where it was ruled that "while the public records have the discretion to regulate the manner in which such records may be inspected, examined or copied by interested persons, such discretion does not carry with it the authority to prohibit access, inspection, examination or copying." Reiterated in Legaspi vs. CSC (GR # 72119) and expounding that "certainly its performance cannot be made contingent upon the discretion of such agencies. Otherwise the enjoyment of the constitutional right maybe rendered nugatory" by any whimsical exercise of agency discretion. The constitutional duty not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.

From the foregoing discussion, it is recommended that the House Bill No. 83 be indorsed for the immediate approval of Congress. This bill if enacted into law would give life and substance to the spirit and letter of the law on the Right of Information and access to the same.

Quezon City , 3 October 2002