By DEAN MEL STA. MARIA
Dean Mel Sta. Maria
President Duterte certified as urgent the passing of House Bill 6875 amending the Human Security Act of 2007. Earlier, it was reported that the House of Representatives adopted Senate Bill 1083.
Under Senate Bill 1083 and House Bill 6875, there are two ways to go against a suspected “terrorist”: by executive action and by judicial action.
BY JUDICIAL ACTION. Under Article 26 of the bills, the Justice Department applies to the Court of Appeals. A hearing is conducted. The procedure is expressly provided, including due notice to the respondent and the manner of proceeding with the case. The respondent is given the chance to present counter-evidence. If warranted, it is the Court of Appeals that declares the respondent as a terrorist.
BY EXECUTIVE ACTION. The third paragraph of both bills’ Article 25 empowers the Anti-Terrorism-Council (ATC) – composed of the Executive, Department of Foreign Affairs, Department of National Defense, Department of Interior and Local Government, Department of Finance, Department of Justice, Department of Information and Communication Technology, secretaries ( all alter-egos of the President), the National Security Adviser, and the Anti-Money Laundering Council Executive Director – to “designate” an “inspanidual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the inspanidual, groups of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of this Act.”
Section 3(l) of Senate Bill No. 1083 and House Bill No. 6875 specifically defines a terrorist as referring “to any natural person who commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10,11, and 12 of this Act.”
The ATC will, in effect, be authorized to classify a person as a “terrorist.” The AMLC, upon application by the ATC can freeze without delay the properties of such “terrorist.” Section 29 of the bills also provides that the ATC can authorize the police to take into custody, without a judicial warrant of arrest and without incurring any liability, a person merely “suspected” of committing the defined penalized act.
These executive actions smack of violation of the constitutional mandate that no law shall be enacted depriving any person of life, liberty and property without due process of law and that all person are presumed innocent until proven guilty by a court of law.
The proposed law does not expressly provide an opportunity for the subject person sought to be ged as a terrorist a chance to present countervailing evidence. There is no explicit section mandating the giving of prior notice to the subject-person and a hearing. It was very easy to expressly provide such steps – just like in the judicial mode – but the bills completely omitted them.
The ATC designation-process cannot be compared to a preliminary investigation by a fiscal whose job is to determine whether a respondent can be elevated to the status of an “accused” triable by a criminal court. In such investigation, the respondent’s right to participate depends upon the law and is not technically within the concept of “due process.” This is because, in being designated as an “accused,” he/she is still presumed innocent until judicially declared guilty.
However, under the proposed bills, the ATC may consider a natural inspanidual not merely as an “accused” but, in effect, already a “terrorist.” The person is presumed guilty even prior to any court determination. The serious ging – even if mistakenly done in good faith – can effectively tarnish an innocent person’s reputation. For such a very serious criminal “designation,” the quantum of evidence is not even substantial evidence, preponderance of evidenceor proof beyond reasonable doubt. It is merely based on probabilities as determined by government officials the majority of whom are most likely not lawyers and therefore untrained in evaluating evidence with all its important legal nuances.
Any president, as the chief executive, shall be given by the proposed statute such enormous executive power, which, if abused, can lead to the weaponizing of the law to create fear even among legitimate critics. Indeed, the availability of such executive power provides a tempting invitation for its misuse and abuse, a lure which manipulative government officials may not be able to resist. If only for this reason, the proposed Anti-Terrorism Law should never be passed. It will be a despot’s deadly sword.
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