CONSOLIDATED POSITION PAPER ON ANTI-TERRORISM ACT

The Commission on Human Rights, as a national institution for the protection and promotion of human rights, supports the international efforts of counter-terrorism, as mandated in United Nations Resolutions. Likewise, we acknowledge the initiative of the executive to address the alarming situation which our country faces in the line of terrorism. However, we should not resort to measures that will create further destruction, unrest and concern among peace loving citizens.

We do not undermine the rationale on making acts of terrorism criminal. Motivation notwithstanding, the rhetoric of terrorists should not be allowed to conceal their true identity. They are first and foremost, criminals. No doctrine or belief could justify killing helpless, innocent people. Nonetheless, it is most important for all of us, including the public, to have a clear understanding of what terrorism is and how it works. A correct appreciation of the problem will greatly help us deal with the situation more effectively.

A cursory reading on the bills pending before Congress on the matter of Anti-Terrorism gives the impression that this is the key which will most effectively diminish if not eradicate the crisis on terrorism. However, after a thorough analysis of the bill, we find most of its provisions to be inconsistent with the respect for human rights, especially of the innocent individuals.

THE BILL

1. Proposed Acts of “TERRORISM” are Broad, Vague or Loose

Most versions of the anti-terrorism bills define terrorism as “premeditated, threatened, actual use of violence, force or by any other means of destruction…, with the intention of creating or sowing a state of danger,panic,…or of coercing or intimidating the government to do or abstain from doing an act”

Issues and Concerns:

How does this definition of the crime of terrorism different from other crimes? What really constitutes violence?

• Intent is a highly subjective word which is difficult to determine with definitiveness. Further, our criminal law specifically identified the distinctions between mala in se and mala prohibita. Intent is only an element of a crime which falls within the purview of mala in se; thus, intent does not find application in offenses punishable by special laws.
• Further, what constitutes coercion or intimidation of the public or the government? The legitimate actions of people such as mobilizations in defense of urban poor communities against violent demolitions may be construed to create such state.
• It is difficult to measure when common danger, panic, fear, etc. is created or intended to be created. This provision may dangerously intrude into the legitimate rights of the broad masses to express themselves since it would only take an “outsider” to instigate panic and chaos in an assembly and it would be easy for the police to brand protestors as terrorists for creating a common danger, panic, etc.

This remission on the definition of “terrorism” and its key concepts may violate the Constitutional provision on fair notice, that is, the right of the accused to know the cause and nature of his/her case so that proper defense can be put up. No less than the Universal Declaration of Human Rights in Article 10 recognizes this basic human right:

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights obligations and of any criminal charge against him/her.”

Moreover, terrorism may wrongly include recognized forms of speech, expression and redress of grievances, as well as legal acts of protests, peaceful assemblies and lawful dissent.

Article 19 of the Universal Declaration of Human Rights states:

“Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

1. Membership in a Terrorist Organization

Who decides what organizations are considered “terrorist?” The military intelligence? The Chief Executive? Dictates from foreign governments?

This provision gives law enforcement agents a wide latitude in determining when and how persons and organizations are engaged in or aiding “terrorist” activity. Since the penalized “membership” extends to international organizations, even affiliation with Burmese or other Muslim NGO solidarity networks is feared to be possibly incriminating under the anti-terrorism bills.

Article 22 of the International Covenant on Civil and Political Rights (ICCPR) which provides, “Everyone should have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests,” should be taken in consideration in identifying what organizations are deemed “terrorists”.

1. Inclusion of Provisions Allowing Surveillance and Interception of Communications

This expressly repeals RA 4200 on Anti-Wire Tapping Act. This is violative of the Constitutional right to privacy of communication and correspondence. The Supreme Court has time and again ruled that evidences obtained in violation of the privacy of communication and correspondence are inadmissible as being fruits of the poisonous tree. More particularly, said provisions give law enforcers broad latitude for surveillance and tactical interrogation. Deemed also as another form of invasion of privacy are the provisions allowing the monitoring of financial transactions and permitting the authority to freeze.

Article 12 of the Universal Declaration of Human Rights provides:

“No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence; nor to attacks upon his/her honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

There are instances where the only available means to prove and substantiate the commission of a crime requires intrusion to this sacred right to privacy but we can never justify the employment of unlawful manner however noble the end is.

If the framers of these bills pursue the inclusion of provisions allowing electronic surveillance then it must be premised on the observance of the following conditions:

• Require probable cause to believe an offense has been committed, and that surveillance will lead to evidence of the offense;
• Require a showing that other alternatives are not feasible;
• Require minimization of impact on privacy of third parties;
• Require regular reporting to the courts.
• Arbitrary Arrests and Detention

The pending bills allow warrantless arrest when:

• A person commits terrorist crime in the presence of the arresting officer, or
• A terrorist crime has been committed and the officer has “reasonable ground to believe” the arrested person committed it.

Whereas, Rule 113, Section 5(b) of the Rules in Criminal Procedure provides that Arrest without a warrant may be effected, “when an offense has just been committed and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.”

The standard set forth in the pending bills on Terrorism is less than the standard of the Rules in Criminal Procedure. We should be minded that there must only be one procedure to be followed in criminal cases.

Bills from both chambers provide for a longer period of detention of persons arrested without a warrant when compared to the present maximum of thirty-six (36) hours. This would allow more chances to fabricate evidence, torture, force a confession, and even summarily execute a detainee. Article 8 of the Universal Declaration of Human Rights (UDHR) states that “No one shall be subjected to arbitrary arrest, detention and exile.” Further, Article 9 (1) and 9(5) of the International Covenant on Civil and Political Rights (ICCPR) states that; “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention” and “Anyone who has been victim of unlawful arrest or detention shall have an enforceable right to compensation.”

1. Acts that Facilitate, Contribute To, or Promote Terrorism

It includes a provision which bespeaks of “establishing, maintaining or serving as contact or link with any person or group of persons or organization/s who have pursued or are pursuing terrorism.” This might cover a family member who remains in contact and knew of individual’s activities. Law enforcement agents may use this provision as a basis to interrogate family members who have no affairs in the act of terrorism.

In fine, supporters of the anti-terrorism bills premised their arguments and justification that preventive measures can only somehow reduce the threat of terrorism but can not guarantee total safety; thence, with said reality, we must be resilient, i.e., capable and always ready to surge back and restore our lives to normal right after an incident. We, in the Commission on Human Rights, find such argument as misplaced if not cognizant. Loopholes in the proper implementation of existing laws should be given more emphasis if we seek to achieve peace and order in society. Scalawags are formidable opponents of the people not to mention executioners of human rights advocates.

We submit that never should we allow terrorists to dictate on us. However, whatever measures to resolve the attacks should conform with all international instruments on human rights and respect the dignity of every human person.

Done in Quezon City on this 25 th of November 2005.

POSITION PAPER
“ANTI-ENFORCED OR INVOLUNTARY DISAPPEARANCE ACT”

The Commission on Human Rights strongly supports the approval of the proposed bill on “Anti-Enforced or Involuntary Disappearance.”

The urgency of the passage of this bill is grounded upon the numerous cases of disappearances primarily perpetrated or participated in by agents of the State. The existence of judicial remedies such as but not limited to “habeas corpus” has proved ineffective in locating and bringing before the courts people who have disappeared. This crisis may be attributed to problems like judicial procedures, a lack of cooperation from police and military authorities and the fear of witnesses to testify.

Controversies concerning the bill on “involuntary or enforced disappearance” arose time and again. Others contend that there is no need for a separate law on enforced disappearances because the Revised Penal Code already penalizes such acts particularly the provisions on Kidnapping and Arbitrary Detention. However, this argument does not hold because a thoughtful consideration and comparison between Arbitrary Detention and Enforced Disappearance shows that although both acts are committed by public employees yet these offenses deal with varied issues, to wit: Arbitrary Detention concerns illegality of detention and initial circumstances surrounding the arrest, while Enforced Disappearance is the subsequent disappearance of the detainee and addresses the situation after the arrest and during detention. On the other hand, kidnapping is a crime perpetuated by private individuals or by public officers acting beyond their authority while enforced disappearances are not simply the result of aberrant officials acting on their own private interest, rather, they are in furtherance of a political motive or objective. It is apparent that the purpose is to eliminate persons against whom the state has charges, which it is unwilling to pursue in court.

ANALYSIS of the BILL

1. RE: Definition

The bill has adopted the definition of enforced or involuntary disappearance under the UN Declaration as well as the Draft Convention on the Protection of All Persons from Forced Disappearance. Thus, it limits the commission of forced disappearance to deprivation of liberty for political reason/s by agents of the State or by private persons or group of persons acting with the authorization, support or acquiescence of the State.

The bill, however, provides that in the event the prosecution fails to prove political motive, the deprivation of liberty of the victim who surfaces alive shall be punishable as Kidnapping or Serious Illegal Detention. Whereas, if the victim is subsequently found dead or his or her disappearance persists for over three (3) years, he/she is presumed killed by those responsible for his or her arrest or abduction, and the act of enforced disappearance in either case shall be punishable as murder.

Thus, it may be inferred that three minimum elements should be contained to constitute “involuntary disappearance,” to wit:

• Deprivation of liberty against the will of the person concerned. This occurs when freedom is withheld from the victim without due process or just cause.
• Involvement of government official, at least indirectly by acquiescence. The act to constitute an offense is perpetrated by agents of the state. They may be people who do not formally belong to the security services but are operating by order of the authorities or with their complicity or acquiescence.
• Refusal to disclose the fate and whereabouts of the person concerned. The act is shrouded in secrecy and the authorities deny holding the victim. This denial may be in the form of a public statement, a reply to inquiries by the victim’s relatives, or a response to a judicial procedure such as habeas corpus, which has been invoked.

2. RE: Principle of Command Responsibility

Consistent with the principle of command responsibility, the bill holds the immediate commanding officer or equivalent senior official of persons who committed the act of enforced disappearance criminally liable for the same offense; and his or her failure to avert the act of enforced disappearance shall be taken as evidence of conspiracy.

3. RE: Imposition of RP, not Death

Notwithstanding the heinousness of involuntary disappearance, the bill imposes the maximum penalty of Reclusion Perpetua, not Death. As a staunch defender of the right to life and therefore consistently opposed to the imposition of the death penalty. CHR fully endorses the penal sanctions that the bill seeks to impose. These sanctions that are commensurate to the gravity of the offense are not meant to be punitive but to be rehabilitative.

4. RE: Preventive Suspension

To prevent the accused from influencing the investigation and prosecution of the cases, the bill provides for his/her preventive suspension upon the filing of the information or complaint in the proper court.

5. RE: Justifying Circumstance not Available as a Defense

Section 16 of the proposed bill provides:

“An order from a superior officer or a public authority causing the commission of enforced or involuntary disappearance is unlawful and cannot be invoked as a justifying circumstance.”

This proviso further ensures that subordinates will not be cowed by higher authorities to take part in the commission of enforced disappearance, the bill declares unlawful an order from a superior officer or a public authority causing the commission of enforced disappearance and therefore such order cannot be invoked as a justifying circumstance.

6. RE: Continuing Offense

Continuing offense is defined as “one which may consist of separate acts or a course of conduct but which arises from that singleness of thought, purpose or action which may be deemed a single impulse”. The bill considers enforced disappearance as a continuing offense as long as the perpetrators continue to conceal the fate and whereabouts of the disappeared and these facts remain unverified.

This is consistent with Article 5.1 of the Draft International Convention on the Protection of All Persons from Forced Disappearance which provides that the “offense is continuous and permanent as long as the fate or whereabouts of the disappeared person has not been determined with certainty.” As such the act is not committed and consummated in the past or prior to the enactment of the law penalizing it. Thus, the “Anti-Enforced or Involuntary Disappearance Act” cannot be considered an “ex post facto law”.

Likewise, Article 17 of the Declaration on Disappearances, provides that a “disappearance” shall be considered a continuing offense as long as the victim’s fate and whereabouts continue to be concealed.

7. RE: Exclusion from Statute of Limitation

The bill further provides that the prosecution of persons responsible for the enforced disappearance shall not prescribe unless the victim surfaces alive, in which case the prescriptive period shall start to run from the date of his or her reappearance.

It should be emphasized that inclusion of this provision is significant if not indispensable because impunity for the perpetrators is a common feature of governmental programs of “disappearances”. The illusion of invincibility feeds the cycle of violence, encourages further abuses and denies the victims justice. Impunity can be reinforced by Statute of Limitations for prescription allows the criminals to go scot-free if the aggrieved party within a certain time frame has instituted no action.

8. RE: Special Amnesty Law and/or Executive Clemency

The bill likewise excludes persons who have committed the act of enforced disappearance from the coverage of any special amnesty law or similar measures that will have the effect of exempting them from any criminal proceedings and sanctions. It is worth noting that previous amnesty laws, i.e., Proclamation No. 348 (issued on March 25, 1994) as amended by Proclamation No. 377 (issued on May 10, 1994) and Proclamation No. 723 (issued on May 17, 1996) and concurred in by Congress through Concurrent Resolutions numbered 12-A and 14, respectively, excluded torture among other serious human rights violations, from the coverage of such amnesty laws. Hence, it is just and reasonable for persons who committed enforced disappearance, which is considered as the most cruel form of torture, to be barred from the benefit of amnesty and similar measures that would have the effect of exonerating them.

Involuntary disappearance violates practically all human rights, most often including the right to life. It wreaks incalculable pain and anxiety not only on the victims but on their families as well who agonize between hope and despair as they search for their missing loved ones. For this reason, no act of executive clemency should extinguish criminal liability of the perpetrators, more so because these offenders are agents of the State who are duty-bound to protect, promote and fulfill, not to violate the rights of the people.

9. RE: Witness Protection

The bill mandates the State through its appropriate agencies to ensure the safety of all persons involved in the investigation and prosecution of enforced disappearance cases. These include the complainant/s, legal counsel, witnesses and relatives of the victims of enforced disappearance.

10. RE: Monetary Compensation and State Responsibility

State responsibility evolves from the principle that the State is held accountable for human rights violations committed within its territory and is obligated to prevent such violations or to investigate them when they have occurred.

The Philippine government is bound to comply with the guarantees and obligations imposed by treaties which it has ratified. Moreover, the 1987 Constitution states that the Philippines adopts the generally accepted principles of international law, also known as the Law on Incorporation. No less than the Vienna Programme of Action of the World Conference on Human Rights welcomed the adoption by the General Assembly of the Declaration on Disappearance, and called upon all States to take effective legislative, administrative, judicial and/or other measures to prevent, terminate and punish acts of enforced disappearances.

Essentially, both the Declaration on Disappearances and the Draft Convention obligate the State to prevent “disappearances”, investigate them, bring to justice those responsible and provide redress for the victims and their families. In addition, “no circumstance – whether internal political instability, threat of war, a state of war, any state of emergency or suspension of individual guarantees – may be invoked in order not to comply with the obligations established in this Convention.”

The bill also mandates the State to render monetary compensation to the victims and ensure restitution of their honor and reputation. The Commission on Human Rights is also mandated to provide them with appropriate medical care and rehabilitation free of charge. The nearest of kin of the victim may claim for compensation as provided for under RA 7309 and other relief programs of government without prejudice to other available legal remedies.

Article 19 of the Declaration provides that “the victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation…”

11. RE: CHR as Oversight Committee

To ensure compliance with the provision of the “Anti-Involuntary Disappearance Act”, the bill creates an Oversight Committee to periodically oversee the implementation of the Act. The Committee shall be headed by a Commissioner of the CHR.

Putting an end to impunity may not bring back the desaparecidos to life and to the fold of their families and communities. However, it will definitely help prevent other men, women and youth from involuntarily disappearing, sparing their families the agony of waiting and searching, and permitting their communities to make full use of their contribution to sustainable development.

In a “disappearance”, victims are cut off from the world and placed completely in the power of their captors. They often suffer torture and eventually, extra-judicial execution; for female prisoners, there is the vulnerability to sexual abuse. Even those who do “reappear” are never free. Their movements are restricted and their communications monitored

Article 3 of the Declaration on Disappearances states that the “systematic or massive practice of forced disappearances constitutes a crime against humanity.” This parallels the Rome Statute of the International Criminal Court, to which the Philippine Government is a signatory, which delimits crimes against humanity, to a list of certain acts that are committed as part of a widespread or systematic attack directed against any civilian population. This list includes the enforced disappearance of persons.

Accordingly, the CHR earnestly seeks the immediate passage of the “Anti-Enforced or Involuntary Disappearance Act of 2005”.

Done this 25 th day of August, 2006 at Quezon City.