New Philippine Anti-Terrorism Law: Fighting Terror to Protect Human Rights

by Rommel C. Banlaoi, PhD*

4 July 2020

Despite continuing public criticisms, President Rodrigo R. Duterte signed the new Philippine anti-terrorism law or the Republic Act 11479 on 3 July 2020 to serve as a lawful instrument to fight terror and not to cause terror.  Officially entitled “The Anti-Terrorism Act of 2020”, the new law is strongly grounded on the universally accepted principle of human rights that the law intends to protect amidst clear and present danger posed by threats of terrorism in the Philippines, which are real and not only imagined.

Section 2 (Declaration of Policy) of RA 11479 upholds State policy “to protect life, liberty and property” of the Filipino people against terrorism.   RA 11479 even emphasizes that in the implementation of State policy against terrorism, “the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution”.

The Anti-Terrorism Act of 2020 or ATA is not only mindful of the need to protect human rights.   The ATA exists precisely because of human rights. The ATA fights terrorism as terrorism poses a grave threat to human rights not only of the Filipino people but also of the entire humanity.

In fact, the ATA views terrorism as “inimical and dangerous to national security of the country, and to the welfare of the people.”  The ATA also regards terrorism as “a crime against the Filipino people, against humanity, and against the Law of Nations.”

Thus, the ATA is clearly against terrorism and not against human rights.   In the fight against terrorism, the ATA even has progressive provisions requiring that “respect for human rights” shall be “protected and absolute at all times”.

One important feature of the ATA is the explicit recognition that the fight against terrorism in the Philippines requires not only a legal approach.  The ATA emphasizes that a comprehensive approach is needed to defeat terrorism. 

This comprehensive approach comprises “political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities.”    In pursuing this comprehensive approach, the ATA requires the State to build its capacity to prevent and combat terrorism by promoting equitable economic development, conflict management and post-conflict peacebuilding.

As such, the ATA meets international standards in fighting terrorism as it implements the Global Counter Terrorism Strategy of the United Nations composed of four pillars: 1) Addressing the conditions conducive to the spread of terrorism; 2) Preventing and combating terrorism; 3) Building states’ capacity to prevent and combat terrorism and to strengthen the role of the UN system in this regard; and, 4) Ensuring respect for human rights for all and the rule of law as the fundamental basis of the fight against terrorism.

In addition, the ATA has strong provisions that vigorously guarantee protection of human rights in the fight against terrorism.   ATA even empowers the Commission of Human Rights to have “the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act” (Section 47).   

The ATA also empowers Philippine courts, as it requires Regional Trial Courts to designate special anti-terrorism courts to speed up trials of terrorism-related cases.  In the preventive custody of suspected terrorists for fourteen days (14), the law requires law enforcement agents to notify the nearest court to ensure that all rights of the persons under preventive custody are protected and observed.

Thus, the ATA fights terrorism with justice.  The ATA even requires judicial authorization (Section 17) to uphold the rule of law in surveillance of terrorist suspects and interception and recording of communications pertaining to counterterrorism (Section 16).  The ATA requires Philippine law enforcement authorities to get the written order from the Court of Appeals to undergo secret wiretap operations.    The ATA also empowers the Court of Appeals in the proscription of terrorist organizations, associations or group of persons (Section 26).

Aside from empowering the judiciary, the ATA also provides oversight power to the Philippine Congress to establish Joint Oversight Committee (JOC) composed of twelve (12) members of the House of Representatives and the Philippine Senate including their chairperson of the Committee on Public Order and five (5) additional members from each House to be designated by the Senate President and the Speaker of the House.  The JOC is mandated to ensure effective and accountable governance of the Philippine security sectors involved in combating terrorism, particularly the Anti-Terrorism Council (ATC).

The ATC is the main government agency tasked to implement the ATA, especially in protecting human rights while fighting terrorism.  Thus, the ATC is mandated to implement programs on preventing and countering terrorism, preventing and combating terrorism, international affairs and capacity building for counterterrorism, and legal affairs, particularly on the protection of the victims of terrorism (Section 45).

The ATA also has adequate provisions that account law enforcement authorities for violation of human rights during counterterrorism operations.    Section 30 provides the “Rights of a Person Under Custodial Detention”.   Penalty for “Violation of the Rights of Detainee” is in Section 31 stating, “The penalty of imprisonment of ten (10) years shall be imposed upon any law enforcement agent or military personnel who has violated the rights of persons under their custody.”

The ATA absolutely prohibits “Torture or Coercion in Investigation and Interrogation” (Section 33).  The ATA upholds the Anti-Torture Act of 2009, which prohibits the use of torture, and other cruel, inhumane and degrading treatment or punishment at any time during investigation or interrogation of a detained suspected terrorist. 

Law enforcement agent who is proven guilty of using torture will be penalized not only under ATA but also under existing Philippines laws.  Moreover, evidences gathered as a result of torture will be entirely inadmissible and cannot be used as evidence in any judicial, quasi-judicial, legislative or administrative investigation, and inquiry, proceeding or hearing.

Finally, the ATA is solely against terrorism and violent extremism.  The ATA is not against activism, unionism, and other peaceful isms.  In its definition of terrorism, the ATA clearly states that it does not include “ advocacy, protest, dissent, stoppage of work, industrial or mass action, and other exercises of civil and political rights” as long as those exercises will not cause “deaths or serious physical harm to person, to endanger a person’s life, or to create a serious risk to public safety” (Section 4).

In short, the ATA is not against human rights. The ATA is passed to fight terror in order to primarily protect human rights. 

Civil society organizations, human rights associations, cause-oriented groups, workers activists, students, teachers, celebrities and common citizens criticizing the ATA should continue raising their concerns, worries, fears, and apprehensions to ensure that the spirit of the ATA to protect human rights is duly promoted and observed by the State.

*The author is the Chairman of the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR) and President of the Philippine Society for Intelligence and Security Studies (PSISS). 

This analysis also appeared in Eurasia Review.

Photo Credit: As used in Eurasia Review. Philippine soldiers secure an area where they encountered Abu Sayyaf bandits in Patikul, Sulu province, on the day a long-held Dutch hostage was shot as he tried to escape the militants during a firefight, May 31, 2019. Joint Task Force Sulu Handout

The ASEAN Summit and the South China Sea: Little Has Changed

by Mark Valencia*

2 July 2020

On 26 June, the leaders of the ten-member Association of Southeast Asian Nations (ASEAN) held their 36th annual summit by video conference, after the in-person summit scheduled for April was postponed because of Covid-19. The pandemic was the main topic of discussions. But also high on the agenda was the South China Sea conundrum. 

In the run-up to the delayed summit, there were expectations in some quarters that the leaders – particularly of Vietnam and the Philippines – would strongly criticize China for its perceived transgressions against rival claimants in the South China Sea. But hope is not a good basis for objective analysis. As was predictable such hopes were dashed and the outcome of the meeting regarding the South China Sea was muted and ambiguous. That has left analysts to try to sort out the situation by reading the proverbial tea leaves.

Over the past year, China has taken actions that have alarmed some other claimants and stoked the US narrative that China is a threat to the region. After the early April sinking of a Vietnamese fishing boat due to a collision with a Chinese Coast Guard vessel in China’s claimed waters off the Paracels, the US State Department expressed serious concern, adding that “this incident is the latest in a long string of PRC actions to assert unlawful maritime claims”. But this was simplistic hype that lumped different political and geographic circumstances as well as the degree of egregiousness and legitimacy of China’s actions. Each should be dealt with individually and there may be reasonable explanations for many of them. 

The China-Vietnam dispute over the Paracels and their attendant maritime zones is quite separate from its dispute with Vietnam and other ASEAN claimants over the Spratly features, maritime space and the resources there. China has occupied the Paracels for 45 years after seizing them from South Vietnamese forces in 1974. Fishing off China’s administrative capital, in violation of its laws, is extremely provocative. Moreover, it is not clear who was at fault. 

The State Department went on to link this incident to China’s other actions in the Spratlys. But China has as good a claim to the features as several other claimants. As others have done, it claims the right to build such installations on its territory and to name administrative districts to govern them. 

Another alleged transgression by China was the presence of its seismic research vessel in Vietnam and Malaysia’s claimed 200 nautical mile Exclusive Economic Zones (EEZ). Vietnam considers China’s claims and actions a violation of the UN Convention on the Law of the Sea (UNCLOS), to which both are parties. But China may have an UNCLOS-compatible claim to part of the area, namely that the Paracels belong to China, that they are legal islands and that they generate an EEZ and a continental shelf extending out to 350 nm. They could also point out that Vietnam uses an excessive baseline that extends its EEZ and continental shelf in this area further than allowed by UNCLOS.  Moreover the joint Vietnam-Malaysia claim to extended continental shelf in the area is just that –only a claim – yet to be affirmed by the international process for doing so. 

Until an arbitration or an agreement determines otherwise, neither country should unilaterally proceed with exploitation – although surveying is permitted.  

Regarding “illegal” entrance of Malaysia’s EEZ, so far China’s vessels are only exercising their freedom of navigation there. Although the vessel appeared to have carried out a survey – it may have been in a carefully selected area beyond Malaysia’s 200 nm EEZ claim from a legitimate baseline off Sabah. Zubil Mat Som, the head of Malaysia’s maritime enforcement agency, said of the vessel, “We do not know its purpose but it is not carrying out any activities against the law”.  

Vietnam has been the most vocal regional critic of China’s actions in the South China Sea. It is the current ASEAN Chair and was the summit host. In his opening speech, Vietnam’s Prime Minister Nguyen Xuan Phuc said, “While the entire world was fighting an epidemic of irresponsible actions that violate international laws and pose threats to security and stability was taking place in some areas, including Vietnam’s.”  

But unlike the US, he did not call out China by name. Nor did any other leader, thus demonstrating respect, fear or both.

The Philippines is the current ASEAN lead interlocutor with China. President Rodrigo Duterte said little progress had been made “in producing deliverables” from the ASEAN-China dialogue. But perhaps his most significant observation was that ASEAN members and China “must find innovative ways and exercise flexibility to achieve our common goals”.  

According to Philippines Presidential spokesperson Harry Roque, at least half of the ten ASEAN leaders raised the South China Sea issue. One can assume that, besides Vietnam and the Philippines, this would include Indonesia, Malaysia and Singapore. But it may not have been solely in veiled criticism of China.

The leaders were clearly concerned with the US-China military buildup in the region. As China’s PLAN continues its modernization and projections of power further out to sea, the US has responded by deploying forces from Europe to the Asia-Pacific. US Secretary of State Michael Pompeo declared, “We’re going to make sure we’re postured appropriately to counter the PLA [People’s Liberation Army].”

Indonesia’s Foreign Minister Retno Marsudi said that it was “important for ASEAN to keep sending out messages to great powers involved in the dispute to maintain regional peace and stability in the South China Sea”.  Considering previous relevant statements by high-level Indonesian government officials, this appears to be a plea to both China and the US to back off and exercise more restraint in their military deployment in the region.  

The statement of the ASEAN Chair said, “We underscored the importance of non-militarisation and self-restraint in the conduct of all activities by claimants and all other states [emphasis added] which could further complicate the situation and escalate tensions in the South China Sea.” That could be interpreted to mean a concern with the behaviour of both China and the US – which, unlike China, is a non-claimant. If this were truly the unanimous sentiment of ASEAN, it would be new. 

The statement also “reaffirmed [emphasis added] that the 1982 UNCLOS is the basis for determining maritime entitlements, sovereignty, jurisdiction and legitimate interests over maritime zones.” If this endorsement of the sole role of UNCLOS in determining claims had been issued by ASEAN collectively, it could indeed be interpreted as a new level of veiled criticism of China’s claims. But it should be remembered that the non-negotiated statement was drafted by Vietnam, which has a particular axe to grind. Moreover, although some have seized upon this statement as “new“, it is not really “new”. Previous Chair statements have referred to UNCLOS as the guide for maritime claims and resolving disputes.  Also several rival claimants have previously individually asserted this principle. What may be new is the dropping of the concurrent reference to “international law”.

But it appears elsewhere and in the same sentence in para 64 in reference to the South China Sea (“and we reaffirmed the importance of upholding international law, including the 1982 UNCLOS”). The difference is certainly not clear because in ratifying UNCLOS, states are agreeing that it supersedes other applicable international law. Nevertheless, Mike Pompeo, the Secretary of State of the US – a non-ratifier of UNCLOS – hypocritically welcomed such a statement and gratuitously added that “China can’t be allowed to think about the SCS as its maritime empire”.  

The overall result regarding the South China Sea seems to be a mixed bag. The tea leaves say that regarding the South China Sea, ASEAN is still – or even more – disunited and worried about the China-US confrontation there and getting caught in between. For ASEAN and ASEAN-China relations in the South China Sea, little or nothing has changed.

*The author is an internationally known maritime policy analyst, political commentator and consultant focused on Asia. He is the author or editor of some 15 books and more than 100 peer-reviewed journal articles. He is an adjunct senior scholar at the National Institute for South China Sea Studies in Haikou, China.A considerably shorter version of this piece first appeared in the Interpreter published by the Lowy Institute.

Photo Credit: Jeremy Horner/Getty Images as used by the Interpreter.

Parañaque Raid Against the Abu Sayyaf: Countering Terrorism in the City Amidst the Pandemic

Mary Ysabelle Samantha A. Chikiamco*

1 July 2020

On 26 June 2020,  four alleged Abu Sayyaf Group (ASG) members were killed in a police raid at Don Bosco district in Parañaque City. Slained suspects were identified as:  1) Merhama Abdul Sawari, female; 2) Bensaudi Sali, male; 3) Rasmin Hussin, male; and, 4) Jamal Kalimming, male.

Based on police investigations, the four suspects were connected with Mundi Sawadjaan, a bomb expert who helped mastermind the January 2019 Jolo Cathedral suicide bombing that led to the death of twenty persons and wounding of more than 100 others. 

In fact, the Philippine police identified Merhama Abdul Sawari and Bensaudi Sali as members of the Daulah Islamiyah (Islamic State). The couple  allegedly served as financial conduits of the Islamic State of Iraq and Syria (ISIS) in the Philippines.

During the raid, the police found .45 pistols, wires, hand grenades, M16 rifle, and explosive materials, and firing devices with ISIS black flags.  These material evidences strengthened police suspicions that the four suspects were working for ISIS. 

Investigators also suspected that those killed ASG members were planning to conduct a terrorist attack in the country, particularly in Metro Manila, to wreak havoc during the COVID-19 pandemic as strongly encouraged worldwide by ISIS virtual central office.  But, investigations are still ongoing to confirm this suspicion.

Philippine law enforcement authorities raided the house at Better Living Subdivision, Barangay Don Bosco in Parañaque City based on information that the four suspects were acquiring illegal firearms. Judge Noemi Balitaan of Parañaque Regional Trial Court Branch 258 issued a search warrant to the Parañaque police office to investigate  the four suspects for violation of the Comprehensive Firearms and Ammunition Regulation Act.

At around 12:26 AM of 26 June 2020, operatives from the police and the military were about to search the suspects’ residence. But before the operatives even entered the house, one of the suspects fired his gun towards the law enforcers triggering an unintended shootout operation. When suspects attempted to throw hand grenades to the police and military, the explosives mistakenly blew off.  The enforcers then fired their guns to break into the residence.  

At the end of the shootout operation, one police officer was wounded while the four suspects were declared Dead on Arrival at the Parañaque Hospital.

The killing of the four suspects strongly indicated that pro-ISIS elements in the Philippines still regarded Metro Manila as one of their main targets of terror.   It is also evident how terrorism remains a huge threat to the country and the whole world even when there is a deadly pandemic preoccupying our political, economic, and social lives.

It is indeed very alarming that the aforementioned ASG members associated with ISIS were able to enter Metro Manila with their dangerous firearms and ammunitions along with ISIS flags.

But thanks to the diligence of Philippine law enforcement authorities involved in the Parañaque incident, their decisive actions prevented a major terrorist attack in Metro Manila still suffering from the scourge of COVID-19 pandemic.

According to the Armed Forces of the Philippines, the neutralization of four terrorists in Parañaque City stressed the need for President Rodrigo Duterte to sign and expedite the implementation of the proposed Anti-Terrorism Act of 2020.  The Philippines is truly in dire need to strengthen and develop its counterterrorism policies and laws in order to prevent such dangerous threats that can kill innocent lives. 

There is no doubt that the Parañaque City incident highlighted the need for enhanced protection of public security and general welfare as terrorists   operate throughout the Philippines with the intentions and capabilities to mount deadly attacks at any time and any place, particularly in the cities of Metro Manila. 

The urgent task of Philippine law enforcement authorities is to deny these terrorists to find opportunities to carry out their plans.  A new anti-terrorism law is a lawful approach towards this end.

* The author is a senior student taking up BA International Studies at Miriam College, the Philippines.  She is currently undergoing internship at the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR). This analysis also appeared in Eurasia Review.

Photo Credit: Paranaque City welcome marker in Metropolitan Manila, Philippines. Ramon F Velasquez, Wikipedia Commons as used by Eurasia Review.

Why The Philippines Needs An Anti-Terrorism Law

by Anna Malindog-Uy*

27 June 2020

Introduction

It has been three years now since the tragic “Marawi Siege”. But until now, terrorist attacks continue to permeate the Philippines making it hard for the government to secure its citizens from those who persistently seek to attack the lives and the way of life of every Filipino.

Terrorist Threats in the Philippines

The Marawi Siege just like the tragic events of 11 September (9/11), the Bali bombings, and the home-grown terrorists’ attacks in London, is the quintessence of the country’s long struggle against terrorism. Even while facing a deadly pandemic, the internal and external threats of terrorism are continuously making a dent in the country’s peace and security; compounding the already difficult situation brought about by the novel coronavirus.

Hence, it cannot be denied that the Philippines, more predominantly the southern part of the country where the Maute Group also known as the Islamic State of Lanao, and the Abu Sayyaf Group (ASG) then linked with international terror organisation, Al-Qaeda and now with the Islamic State are situated, has long been a haven of terrorist activities.

There’re also the intimidations posed by pro-IS Bangsamoro Freedom Fighters (BIFF), whose leader Sheik Muhiddin Animbang, alias Commander “Kagi Karialan” recently made a plea to his followers to unleash attacks against the government of the Philippines. BIFF forces are mainly situated in the forested and mountainous areas of Maguindanao and Cotabato and are unhappy with the government’s policy of not allowing congregation in mosques because of the COVID-19 pandemic. This according to them is “destroying Islam.”

The country has also faced growing aggression from the New People’s Army (NPA) of the Communist Party of the Philippines, National Democratic Front (CPP-NDF). The CPP-NPA-NDF is listed as a terrorist organisation by the United States (US), European Union (EU), the United Kingdom (UK), Australia, Canada, and New Zealand.

The Philippines is also vulnerable to possible external attacks from extremist networks like ISIS and elements of the Southeast Asian terror group, Jemaah Islamiyah.

On 17 April, 2020, 11 soldiers of the Armed Forces of the Philippines (AFP) were killed, while 14 others were wounded during an encounter with suspected ASG members in Brgy Danag, Patikul, Sulu. Likewise, on 27 May, 2020 six thousand residents of Maguindanao had to abandon their homes because of terrorist attacks. And on 5 June, the AFP lost four more soldiers while 17 others were injured in another military encounter with members of the ASG in Sitio Lagaron in Barangay Kan-Ague, Patikul, Sulu.

On 21 March, 2020 in Iligan city, the 44th Infantry Battalion (44th IB) of the AFP was able to thwart an attempted attack by the NPAs to disrupt a government information campaign on COVID-19 in Barangay Penaranda, Kabasalan, Zamboanga Sibugay. Then on 28 March, the NPA launched another attack on government forces in Rizal. Around 30 NPA rebels assaulted a group of 18 Philippine Army Community Support Program Team (PACSPT) soldiers who were in Barangay Puray, Rizal distributing leaflets and relief goods to distraught residents affected by the enhanced community quarantine. 

The said clash took the life of one soldier and also one fatality on the part of the NPA. Similarly, on 7 April, 2020, the NPA launched an assault in Pantukan, Davao de Oro, where they attacked the Philippine National Police Mobile Force Company in Barangay Tangdanua. On the same day (7 April), around 30 NPA rebels attacked village officials distributing relief assistance at Sitio Nagon in Barangay Guinmayohan, Balangiga Eastern Samar and forcibly seized some portion of the relief supplies/aid intended for residents of the area affected by the quarantine measures due to the COVID-19 pandemic. 

In Calbiga Samar, along a route between Barangays Hubasan and Binanggaran, communist rebels planted landmines as a plot to ambush government forces, which also posed a threat to the lives of the residents of the said areas. Two suspected NPA operatives were intercepted at Barangay Llavac in Real, Quezon, where two anti-personnel mines and four blasting caps were confiscated by the 1st Infantry Battalion. On 22 April, the NPA launched another attack using a bomb on a remote village in Paquibato District, Davao City to disrupt the distribution of a cash emergency subsidy under the Social Amelioration Program (SAP) in the area. Two soldiers were slightly wounded during the fight. 

In retrospect, the Philippines is indeed facing serious security challenges on multiple fronts. Muslim extremist groups and the NPA are certainly taking advantage of the COVID-19 outbreak, and are continuously pursuing acts of violence and aggression against government forces and innocent civilians. Now more than ever, it becomes imperative for the government to effectively respond not only to the challenges posed by the COVID-19 virus but also to the threats of terrorism in the country. 

The Anti-Terrorism Bill    

The Anti-Terrorism Bill, which has been officially transmitted to the Office of the President for signing as confirmed by Presidential Spokesperson Harry Roque on 9 June, 2020, is the improved version of the Human Security Act of 2007. The said bill, just like the Human Security Act of 2007, is very controversial and is confronted by debates between the realists/pragmatists who are cognisant of the need for tougher and compelling counter-terrorism legislation grounded on actual realities, and those who are out of touch and have failed to recognise the enormity and seriousness of numerous terrorist threats confronting the country. 

The Anti-Terrorism Bill just like the Human Security Act of 2007 is being opposed by the political opposition and human rights groups who are claiming that the bill contains dangerous provisions that could be abused by authorities once implemented. Others are saying that it has unconstitutional provisions that would undermine the Bill of Rights enshrined in the 1987 Constitution. 

However, the principal author of the bill, Senator Panfilo Lacson argued that the “Anti-Terrorism Act of 2020” aims to secure the country and its people from domestic and foreign terrorist attacks. He said that with the help of his colleagues in the Senate, he has made sure that the bill adheres to the Bill of Rights enumerated in the 1987 Constitution. He even articulated that he incorporated most of the provisions of the Anti-Terrorism laws of other strong democracies like Australia and the US, which by far are guided by the standards set by the United Nations (UN).

Despite the explanations and justifications offered by Senator Lacson, those who oppose the bill continue to advocate a popular misconception that the Anti-Terrorism Bill is the anti-thesis of human rights and would likely violate the fundamental rights of Filipinos the moment it is passed into law. This is preposterous. Human rights principles are not rigid and do not constrain the government from effectively countering dangers posed by terrorism. International human rights principles/laws, being the reverberations of the great world wars have long recognised the necessity to strike a balance between national security interests of a particular state and the fundamental rights of its inhabitants. 

Practically speaking, this means that on issues such as terrorism, individual rights have to be balanced against the collective security and collective rights of the greater number of people, especially if it’s about securing the collective survival of the greater number of people against aggression and the destruction of human lives caused by terrorism. This further means that human rights laws/principles allow governments to take protective actions proportionate to the severity of the threats. Hence, terrorism being a gross human rights violation requires tougher and stronger counter-terrorism legislation that is proportionate to the objective of safeguarding and preserving the national security and integrity of a particular state/government. 

By the same token, the Anti-Terrorism Act of 2020 is a stronger and tougher piece of legislation compared to the Human Security Act of 2007, which according to its principal author Senator Lacson, “aims to protect the Philippines and its citizens from terrorist acts that know no timing nor borders, perpetrated in a manner so sudden, least expected and indiscriminate – as in, anytime, probably even today, tomorrow or next week”, endowed with equally strong check and control mechanisms that protect and safeguards the individual rights of people who might be subjected to it in the advent that it becomes a law.” 

Conclusion

Terrorism is a global predicament, and no country is invulnerable to it. The Philippines has experienced terrorism for more or less 44 years which started on 7 April, 1976 when three Moro National Liberation Front (MNLF) members hijacked a Philippine Airlines BAC-111 jetliner from Southern Philippines and ordered it flown to Libya. Until this very day, even in the midst of a deadly pandemic, the country is continuously being tormented by the scourge of terrorist attacks coming from but not limited to the Maute Group, ASG, BIFF, and even the NPA. 

The dangers and threats of terrorism in the Philippines are both, legitimate and real. Hence, the government has both the duty and the right to catechise counter-terrorism legislative measures that will protect the national security and integrity of the country and to safeguard its citizens from the brutal and ruthless effects of terrorism. The Anti-Terrorism Bill serves that purpose. 

The Anti-Terrorism Bill – if rendered with fair and objective judgment – will strike a balance between effectiveness in responding to the threat of terrorism and protecting basic human rights principles. The bill has safeguard provisions that protect the basic human rights of Filipinos enshrined in the 1987 Constitution. It has safeguards against abuse, error, and illegality. It also has provisions where charges or actual enforcement of the bill’s provision by its implementers will be subject to quick, effective, and a full review by independent courts in the country. 

Hence, the fears of those who want the bill junked are mislaid. The concern probably should not be on the bill per se, but rather on the strict and proper implementation of the said bill the moment it becomes a law. And this is a completely different matter altogether.

Moreover, the hostility and antagonism accorded to the Anti-Terrorism Bill by fragments of Philippine society should not be construed as representing the entire Filipino nation because that is not true. Many, if not the majority of Filipinos recognise the importance of enacting the Anti-Terrorism Bill into law. 

Likewise, it also doesn’t mean that just because some sections of the community are against the bill, the government of the Philippines will abandon its position or its course of action for fear of offending those who oppose it.    

In the advent of the novel coronavirus pandemic, the threats posed by COVID-19 and terrorism are both serious and real and need the utmost consideration of the government. It’s not either-or, or neither-nor, it’s both, and both need to be addressed swiftly. It will not be to the detriment of Filipinos if the government responds to both threats, rather it will be for their safety. There should be no duality or contradiction. The COVID-19 pandemic and terrorism are lethal threats to the country and both deserve attention.

*Anna Rosario Malindog-Uy is a researcher, academic and consultant on a wide array of issues. She has worked with the Asian Development Bank (ADB) and other local and international NGOs as a consultant. She is President of Techperformance Corp, an IT-based company in the Philippines. This article originally appeared in the ASEAN Post.

Photo Credit: Pinglacson.Net

Addressing the Root Cause of Terrorism: Beyond Duterte’s Proposed New Anti-Terrorism Law

by Lucio Blanco Pitlo II*

24 June 2020

While mayor of Davao, Rodrigo Duterte tolerated the presence of rebel groups so long as they will not bear arms and carry out attacks in his city. It was an uneasy arrangement that was generally observed. Since becoming President of the Philippines, the self-confessed socialist even appointed some leftist leaders in his cabinet. But this romance with the reds now seem to unravel as pressure mounts on the country’s remaining insurgent and terror groups. A controversial anti-terror bill recently passed by both legislative chambers is now up to his signature. Whether it will be the nail in the coffin or a boon to recruitment for local non-state armed groups depends on how it will be enforced and whether it will be complemented by non-military measures.

Domestic security challenges long kept the Philippines from shifting towards territorial and maritime defense. The country is home to Asia’s longest communist insurgency by the Communist Party of the Philippines-New People’s Army (CPP-NPA), a three-decade old reign of terror by the Abu Sayyaf Group (ASG), and offshoots from two main Moro rebel groups that since made peace with the government in return for autonomy.

Aside from tying down its military to internal security, conflict frustrated economic opportunities in the countryside, discourage investors and put communities in the crossfire. According to the Global Terrorism Database, over 60 percent of deaths from terrorism in Southeast Asia in 2017 alone occurred in the Philippines.   

Insurgent and terror groups engaged in recruiting child soldiers, targeting civilians, extortion, disrupting public works, destroying telecommunication towers and burning farm equipment and provincial buses not paying “revolutionary taxes.” The CPP-NPA’s internal purges also killed hundreds of former members in “killing fields” unearthed in different parts of the country. The ASG has become notorious for its kidnap-for-ransom, beheadings, and daring cross-border raids. In fact, the transboundary danger posed by this extremist group and its regional linkages, along with piracy, led neighbors Philippines, Indonesia and Malaysia to conduct trilateral air and naval patrols.

Most communist movements in Southeast Asia predated World War II and reach their zenith during the Cold War. But they eventually splintered, surrendered, dismantled or withered by the 1990s. Not the CPP-NPA, which persisted, although its numbers and areas of operation greatly diminished. With domestic stability, many of the country’s neighbors were able to focus on economic development. To a much lesser extent, Jakarta continue to fight a localized insurgency in west Papua and Bangkok still deal with occasional disturbances in its far south. But the Philippines joins Myanmar in a continuing struggle against geographically spread armed groups, although Naypyidaw is besieged by more rebel outfits than Manila. And while terrorism has become a regional concern, nowhere is the threat more felt than the Philippines. The five- month battle to retake Marawi from the clutches of these radicals in 2017 showcase this.  

The troop strength of homegrown insurgent and terror groups pale in comparison to their heydays in the 1980s and early 1990s. Nevertheless, their continued presence check development in rural areas and divert military resources away from external defense. At their present form, neither the CPP-NPA nor the ASG constitute an existential threat to the country. But Duterte seems not inclined to give them another 50-year and 30 year leases in life respectively.

The anti-terror bill provides the state greater authority to defeat these enduring domestic security challenges. It expanded the range of punishable acts to include preparatory and mobilization activities for the commission of terrorism. Planning, recruitment, training, financing, facilitating, conspiring, providing material support, inciting and proposing to commit terror were now covered. The bill allows for surveillance, extends the period of detention without warrant, restrain travel, and examine and freeze financial assets of suspects. The proposed measure also has an extra-territorial clause that can apply to Filipinos or foreign nationals preparing for a terrorist attack against the country or a Philippine vessel or aircraft. 

The bill created an executive-led inter-agency Anti-Terrorism Council that can designate individuals and organizations as terrorists. It can also direct and supervise the swift investigation and prosecution of terrorism cases and raise rewards for persons that can share vital information leading to the capture of terrorists. The Council can also cooperate with other countries in the global fight against terror.

The timing of the bill, however, was seen as misplaced priority given the prevailing pandemic and its serious economic impact. Critics also expressed concerns about relaxing legal restrictions for police and security agencies that may create openings for abuses. Government was quick to point out the safeguards present in the proposed law to allay these concerns. These include the need to secure a court order prior to engaging in surveillance, inadmissibility as evidence of any information obtained in violation of the bill, and the opportunity given to persons or organizations about to be proscribed as terrorists to be heard before a court. The bill also prohibited the use of torture or coercion during interrogations.

The bill may help address perennial concerns of security allies about the country’s inadequate legal framework to deal with the evolving landscape of terrorism. Both the CPP-NPA and ASG were designated as foreign terrorist organizations by the United States. Australia listed the ASG as a terror group and the European Union did the same for the CPP-NPA. The United Nations Security Council designated the ASG and its close affiliate, the Rajah Soliman Movement, as terrorist organizations. 

But while the bill can strengthen the Philippine posture in confronting terrorism, addressing the root causes of terrorism will require measures that go beyond its text.

The provision for preventing and countering violent extremism program is a good start, but much of its details remain to be spelled out. Finally, over reliance on draconian measures and limiting space to express legitimate grievances may inadvertently drive people to the fold of the very groups the bill is out to defeat.

*Lucio Blanco Pitlo III is a research fellow at the Asia-Pacific Pathways to Progress Foundation, fellow at the University of the Philippines Korea Research Centre, lecturer at the Chinese Studies Programme at Ateneo de Manila University, and contributing editor (Reviews) for the Asian Politics & Policy Journal.

Original version of this piece appeared in South China Morning Post.

Photo Credit: Fighters of the New People’s Army by EPA as used in South China Morning Post.

Terrorism During COVID-19 Pandemic: A Collection of Analyses and Commentaries

To provide ready materials and references on terrorism and COVID-19 pandemic, we collect and share the following analyses and commentaries for appreciation of our readers. We will update this post from time to time to provide our readers timely and useful sources of analyses and commentaries on the topic. Photo Credit: Google Images

by PIPVTR Research Staff

How to Prepare for the Coronavirus’s Impact on Terrorism

The threat of bioterrorism: Insights and lessons from the Covid-19 pandemic

Has COVID-19 Increased the Risk of Bioterrorism?

ISIS thrives in Covid-19 shadows in Philippines

‘Islamic State’ exploiting coronavirus and conflict to rise again

COVID-19 Breeds Terrorism

Jihad in the shadow of the coronavirus

How will the coronavirus impact the threat of terrorism?

COVID-19 An Opportunity for Terrorists or a Threat to Their Existence

COVID-19 and Terrorism: Assessing the Short and Long-Term Impacts of Terrorism

After Coronavirus, Don’t Repeat 9/11’s Mistake

ISIS Terrorist Attacks Continue During the COVID-19 Pandemic

How COVID-19 Is Reshaping Terror Threats in Indonesia

Terrorist Threat Arise Amid Coronavirus Pandemic

Terrorism in the Era of COVID-19

Terror in a Pandemic

COVID-19 and Terrorism

COVID-19: A Game Changer for Terrorist Groups

COVID-19 and American Counter Terrorism Response

COVID-19 and Crime-Terror Nexus in the Cyber Domain

COVID-19 and ISIS in Indonesia

How Europe’s Terrorists Take Advantage of the Pandemic

Terrorism During a Pandemic: Assessing the Threat and Balancing the Hype

Coronavirus is the New Terrorism

Coronavirus and the Threat of Biological Terrorism

Why is Coronavirus a New Biological Weapon of Terrorism?

Radicalization and Violent Extremism in the Wake of COVID-19 Pandemic

List of Analysis here.

The VFA and Philippine-American Alliance Amidst the COVID-19 Pandemic

Rommel C. Banlaoi, PhD*

21 June 2020

When the Philippine government suspended the termination of the Visiting Forces Agreement (VFA), US Defense Secretary Mark Esper expressed his utmost gratefulness to President Rodrigo R. Duterte.  Esper gave his statement during his telephone conversation with his counterpart, Philippine National Defense Secretary Delfin Lorenzana, on 12 June 2020. 

An Independent Philippine Foreign Policy

The conversation between the two defense officials was very momentous as it occurred during the commemoration of the 122 years of Philippine independence from Spain.  The timing of the telephone conversation between two defense leaders has delivered a strong message that the US, as an erstwhile colonial master, should respect the Philippine independence and that the Philippines, as a former US colony, deeply cherishes its hard-fought independence from colonial powers.  The termination, and eventual suspension of the termination, of the VFA also conveys a strong message to the US that the Philippines can pursue an independent foreign policy.

The suspension of the VFA termination, on the other hand, is very timely as both countries celebrate the Filipino-American Friendship Day on 4 July 2020.  This indicates that the Philippine government continues to value its security alliance with the US amidst Manila’s simultaneous effort to promote “comprehensive strategic cooperation” with China.

In Light of Political Developments in the Region

Philippine Foreign Affairs Secretary Teodoro Locsin announced the suspension of the VFA termination based on a diplomatic note submitted to the US Embassy on 1 June 2020.     The Diplomatic Note, with reference number 2020-2622, states:

  • “In light of political and other developments in the region, the termination of the Agreement between the (Philippine and United States governments) regarding the treatment of United States Forces Visiting the Philippines contained in Note No. 20-0463 dated 11 February 2020 is hereby suspended.
  • “The suspension shall start on even date and shall continue for six months which period is extendible by the Philippines for another six months, after which the tolling of the initial period in Note Verbale No. 20-0463 dated 11 February 2020 shall resume.”

What compels the Philippine government to suspend the VFA termination? 

As the Diplomatic Note aptly states, it has something to do with “political and other developments in the region”.  This “political and other developments in the region” may refer to the geopolitical consequences of the COVID-19 pandemic arising from increased US-China tensions in the South China Sea (SCS).

Increased US-China Rivalry in the Time of the Pandemic

The global impacts of the COVID-19 should have encouraged US and China to cooperate in order to overcome the pandemic. 

However, the pandemic has put the two major powers in a blame game situation that accuses each other of mishandling the pandemic and even finger pointing at each other for spreading the coronavirus fear mongering.   Rather than jointly solving the problem for the benefit of the whole world, the pandemic sadly caused the US and China to engage unnecessarily in a bitter and even counter-productive smear campaign against each other’s reputation as global leaders.   

Thus, the pandemic is seemingly creating a global divide for states to be either pro-China or pro-US in addressing the current global crisis.  This perceived divide is creating the nasty illusion of emerging cold war between the US and China because of the worsening major power rivalry between them.

US-China Military Competition in the SCS

Increased US-China rivalry during the pandemic is clearly manifested in the SCS where the Philippines find itself in between two competing powers.  Amidst the COVID-19 pandemic wrecking havoc to the whole world, US-China competition in the SCS has recently intensified as both powers expand their sphere of military influence in a highly strategic maritime domain being viewed as one of the major flashpoints of armed conflicts in Asia. 

Thus, the US is pleased with the suspension of the VFA termination as it can give the Pentagon renewed access to Philippine territories to resume its military activities that aim to promote President Donald Trump’s security strategy towards the Indo-Pacific.  

The VFA termination being suspended for six months, with the possibility of being extended for another six months, can allow the US to implement its more than 100 planned military activities in the Philippines for 2020.  These military activities are in the form of joint military exercises and capacity-building trainings in the following key areas:  Humanitarian Assistance and Disaster Response (HADR), Counterterrorism Cooperation (CTC), and Maritime Domain Awareness (MDA).

HADR and CTC

In this time of the pandemic where terrorist threats persist in the Philippines, HADR and CTC can offer the US and the Philippines mutual benefits to confront their common security concerns.  

Effective HADR activities during the 2013 Typhon Haiyan in the Philippines gave the US a very strong track record of being a reliable Philippine ally.  HADR activities to address the COVID-19 pandemic in the Philippines can provide the US another golden opportunities to prove its worth as a strong ally of the Filipino people.

Successful CTC activities during the 2017 Marawi Siege also gave the US another exemplary practice of being an effective security ally of the Philippines.    Through the Pentagon’s Operation Enduring Freedom-Philippines (OEF-P), the US provided the Philippines counterterrorism assistance and advice that became essential for the October 2017 liberation of Marawi against terrorist groups in the Philippines aligned with the Islamic State (IS).  With the suspension of the VFA termination amidst the continuing threats from pro-IS groups operating largely in the Southern Philippines during the pandemic, the US can implement its planned CTC activities with the Philippines in 2020.    The Philippine government needs these CTC activities as it pushes for its new anti-terrorism law.

Maritime Domain Awareness

The MDA is the most controversial and the most sensitive aspect of US military activities in the Philippines as it is associated with the SCS disputes.    

Though the MDA has counterterrorism objectives, it allows American military access to Philippine waters to build the capacity of the Armed Forces of the Philippines (AFP) to promote maritime security in two major problematic maritime domains: the Sulu Sea and the West Philippine Sea (WPS).  The MDA can also cover the waters within the Philippine Benham Rise.

The Philippines and the US have greater security interests to implement MDA activities in the WPS because of China’s growing presence in the area, particularly in geographic features where China conducted massive land reclamation activities.  During the pandemic, claimants have not stopped their usual military and paramilitary activities in the SCS.  Vietnam, China, and Malaysia have even intensified their unilateral patrols in the SCS. 

The Philippines also continued its routine patrols and rotation missions in the WPS, particularly in Pag-Asa (Thitu) Island where it recently inaugurated the construction of a docking port.  Amidst the pandemic, the Philippines announced its long-delayed plan to start the rehabilitation of the runway in Pag-Asa Island. 

The Philippines even facilitated the entry of American ships passing through the WPS in order to conduct freedom of navigation operations (FONOPs) in the SCS.  With the suspension of VFA termination, the US can implement its planned MDA activities with the Philippines, particularly in WPS, where the US can cover in its FONOPs in remaining months of 2020.

Philippine-US Security Alliance: Business As Usual?

In other words, suspending the VFA termination has brought Philippine-American security alliance in business as usual.  Despite some dramas created by the notification of VFA termination on 11 February 2020, its recent suspension has allowed the Philippines and the US to kiss and make-up to sustain their security alliance. 

However, the stability of Philippine-American security alliance remains on uncertain ground under Duterte Administration as the Philippine government can still resume the VFA termination after the suspension period. 

Playing the US Card

Apparently, the Philippine government is currently playing the US card because of China’s recent activities in the SCS.   The indefinite postponement during the pandemic of the negotiation between China and members of the Association of Southeast Asian Nations (ASEAN) on the Code of Conduct (COC) in the SCS is also creating renewed regional security uncertainties requiring an American presence to balance China.  Thus, the Philippines can utilize its existing security alliance with the US in order to balance China’s growing presence in the SCS.

Playing the China Card

But being an ally of the US does not make the Philippines the enemy of China.    The Philippines continues to value its centuries old friendship with China.  Under Duterte Administration, the Philippines government is still interested to pursue “comprehensive strategic cooperation” with China.  

In fact, the Philippines and China just commemorated on 9 June 2020 the 45 years of their diplomatic relations where both countries agreed to boost ties and to “embrace a better future” of their bilateral friendship and partnership.  The Philippines still needs to be friendly with China to have another card to play when dealing with its only security ally, the US.

Friendly to All, Enemy to None

The Philippine government’s decision to suspend the VFA termination while remaining friendly with China is an exercise of Duterte’s independent foreign policy.    It is a foreign policy that is anchored on the pragmatic principle of being “friendly to all and enemy to none”.  This principle serves only one purpose: the effective advancement of Philippine national security interests amidst regional security uncertainties in the time of the pandemic.

*The author is a Professorial Lecturer at the Department of International Studies, Miriam College.  He has a PhD in International Relations at Jinan University, Guangzhou China and a BA and MA in Political Science at the University of the Philippines, Diliman.  He is the Chairman of the Philippine Institute for Peace, Violence and Terrorism Research (PIPVTR) and the President of the Philippine Association for Chinese Studies (PACS).

This analysis also appeared in Eurasia Review.

Photo Credit: The USS Barry conducts operations in the South China Sea near the Paracel Islands, April 28, 2020. U.S. Navy handout photo by Samuel Hardgrove as used in Eurasia Review.

Understanding Terrorism in the Context of the Proposed New Philippine Anti-Terrorism Law

by Rod Kapunan*

20 June 2020

The latitude of freedom accorded to our people has gone a bit too far. To express one’s indignation to the proposed law is beyond the concept of freedom of expression. Such unmitigated rile against the Anti-Terrorist Law already crosses the boundary of freedom.

The action of the so-called militant group is indirect censorship. They are now acting as terrorists demanding that it be stricken off the record. Their opposition manifests their unjustified prejudgment of the proposed law.

One cannot even say the law is unconstitutional. It does not particularize a person or group of persons guilty like a bill of attainder enforced by a coup-installed president singling out the Marcoses as guilty and whose properties were sequestrated by the prejudgment of the presidential-good-for-nothing commission as ill-gotten.

Despite the heated acrimony about the passage of the ATL, Congress has not taken steps to amend the Constitution like giving the President stronger power to impose martial law as the hypocrites would often like to compare.

The creation of a Council is in lieu of suspending the writ of habeas corpus. Suspected terrorists can be detained as determined. However, the fiscal remains free to charge the accused in court. Likewise, the Council is more adept and familiar how terrorist organizations operate than a judge who is preoccupied in deciding cases violated under the Revised Penal Code.

But for all of their denunciations of the ATL, they remain silent why death penalty has not been re-imposed. The misplaced leniency saw many big time drug lords stocked inside the New Bilibid Prison only to continue their syndicated operations and enjoying privileges of private rooms or “kobol” complete with karaoke bar, and visitation pass, which reason why Senator Leila De Lima landed in jail. The opposition is silent on this issue because they do not want to recall this “miscarriage of justice” that ludicrously favored big-time criminals.

Although the ATL provides that any person convicted of terrorism cannot be granted pardon or have his sentence commuted, they skip the truth that this is equivalent to life imprisonment, stated differently. Our decision to spare the life of hardened criminals saw many convicted felons agonizing inside the penitentiary without visitation for years. This has contributed to the congestion of prisoners, thus tempting prison guards to give special favor to well-off criminals.

Admittedly, the Anti-Terrorism Law gives the accused terrorist a slim chance of evading the punitive measures of the law. But looking at the rationale behind its enactment, one could discern that it is intended to pre-empt the commission of crimes unimaginable and grotesque in magnitude. The opposition themselves never clarified the meaning of terrorism for our people to understand their advocacy.

They say it could lead to the arrest and detention of suspects without warrant up to 18 days. The hypocrites want to cram the prosecutors to file cases presenting haphazard evidence only to secure their untimely release. They disregard that the duty of the Council is to ramify cases committed by terror -suspects but are charged with rebellion and sedition and whose penalty correspondingly increases similar to the concept of “qualified” theft which under the RPC increases three times, say for violating the country’s laws on national security like the Anti-Terrorist Law.

The ATL is a modified version of the anti-subversion law that has long been abrogated. In short, the ATL is in reaction to the ferocity and savagery of terrorists.

Our law enforcement authorities are no longer fighting a warfare understood as guerrilla or irregular warfare but one termed today as “asymmetrical warfare.” They observe no rules, no humane treatment of prisoners, and they feel free to torture and execute their hostage.

Terrorists do not distinguish civilian from military targets, nor are they obligated to refrain from bombing hospitals, refugee camps, and residential areas. They prefer to use weapons intended to inflict maximum damage and casualties. Their followers adhere to a primeval form of ideology like executing prisoners in the name of jihad, and finally demand rather than negotiate ransom for the release of their hostage.

Even the dead are desecrated like showing in social media the head of the fallen soldier skewered in a bamboo pole in the most contemptible act of scoffing the dead. The killing of our 44 SAF policemen is the most vivid act of terrorism. Each of the dead body was hacked, mutilated and undressed of their uniform to consummate insult. They express their utter contempt to the government.

As terrorists, they do not recognize such thing as theatre of operations or demand the temporary cessation of hostilities as observed in any conventional warfare. They observe no rules on warfare recognized under international law. They substitute their lack of support by instilling fear to weaken the morale of the people. Their objective is to inflict the greatest number of casualties.

To deal with suspects bent in sowing fear and terror, the ATL has to put limitations: that when terrorism begins, the state has to use all the legal means to preserve order in society. Such is necessary to respond to the degree of crime committed which today poses as the greatest threat to humanity. Terrorism must be rooted out, for often they are committed either through a web of conspiracy and unmitigated treachery.

Admittedly, the latitude upon which suspects are made liable is now narrower but that can never be interpreted as violation of our basic rights. The government is merely seeking to provide itself the remedy in reaction to the drastic changes resorted to by terrorists in the rules of warfare.

For example, the opposition bewails the use of the word “incite others to commit terrorism by means of speeches, proclamation, writing, and emblems or other representations to achieve the same end.” However, they failed to consider that the word “inciting” already exists in crimes of rebellion and sedition. The Council opted to include inciting to commit terrorism, for often suspects use it to sow fear or threat to use violence.

Specifically, left-leaning groups and their front organizations vigorously denounce the ATL. Even the yellow opposition, being the unofficial outlet of US propaganda, adds confusion such that the military is having difficulty classifying them as terrorists for the fact that in many instances they commit ambuscades and are engaged in systematic extortion. The siege of Marawi is a lesson which the opposition wishes to expurgate in our memory.

The issue of human rights and claim of repression blends well to allow known US lackeys and the oligarchy to coalesce with hardcore leftists. This is made convenient by the support of the Church and derailed intellectuals to lambast the government. Yet, nobody now stands up to criticize the US Patriot Act of 2001 which is similar to our ATL that saw the kidnapping of terror suspects by the US to be detained for years without charges in Guantanamo, Cuba.

The danger is they are unaware that the principal sponsor of many terrorist groups today is the US itself. They forgot that it was Duterte who exposed the participation of the US embassy when it airlifted a suspected CIA operative to Manila who was wounded in a bomb blast carried out by the Abu Sayaff.

*The author is a columnist for the Manila Standard. A former rebel soldier, he was a prominent leader of the Reform the Armed Forces Movement (RAM).

This piece was originally published in Manila Standard.

Photo Credit: University of the Philippines College of Law.

On the Proposed New Philippine Anti-Terrorism Law: Beyond Constitutionality

By Soliman M. Santos, Jr.*

Naga City, 18 June 2020

The current public debate in media and occasionally in the streets, as well as the reported executive department review of the new Anti-Terrorism Bill (ATB) presented by the leaders of both houses of Congress to the President for him to sign it into law, can be said to be focused on its constitutionality.  Opponents have already announced their intentions to question the new law’s constitutionality before the Supreme Court (SC) once it has been enacted by presidential approval.  Defenders in turn challenge them to just do so, in their desire to get it enacted already, confident that the SC will uphold its constitutionality.  As if constitutionality is all there is to it.

Of course, constitutionality and the even broader principle of legality are important.  Indeed, it can be said to include concerns of preserving Philippine democracy, fundamental freedoms, civil liberties and human rights – reflected in such basic constitutional concepts and principles as a democratic State, the separation of powers, checks and balances, the Bill of Rights and even adherence to international law.  The latter itself as a long tradition of treaties and institutions on human rights and a more recent, growing set of treaties and institutions on terrorism.  The latter might also be said to be covered by such constitutional provisions as the primary duty of the Government to protect the people, the maintenance of peace and order, and the protection of life, liberty and property, essential for the enjoyment by all the people of the blessings of democracy.

Still, there is more to anti-terrorism legislation than constitutionality.  Beyond or apart from but adjunct to this is the wisdom, correctness and efficacy of the law for its intended purpose of  protecting the people from terrorism.  Stated otherwise, the question is not only:  is it constitutional?  The question is also:  does or will it serve its intended or at least declared purpose?     If we go by the ATB (Senate Bill No. 1083/ House Bill No. 1083) itself, its Sec. 2 Declaration of Policy contains these parameters:

>   “… to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.”

>     “In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.”

>  “The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism…”

>  “Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…”

“… shall not prejudice respect for human rights which shall be absolute and protected at all times.”

These are progressive policies by any measure.  Incidentally, this is the same pareho Sec. 2 Declaration of Policy in the sought to be repealed Human Security Act (HSA) of 2007.  Much of the credit for progressive policy formulations there must be given to the late Senator Aquilino Q. Pimentel, Jr.   Using the HSA/ATB Declaration of Policy as the standard for evaluating the ATB, three things come out:

1.  The ATB mainly deals with the criminalization of terrorism.  The bulk or the meat of the law covers the “legal means” in the “fight against terrorism,” defining and penalizing terrorism and adjunct crimes, providing for measures of surveillance, interception, designation, proscription, detention, investigation and freezing of bank deposits, continuous trial, special anti-terror courts, among others.  Most importantly, the Sec. 4 definition of terrorism, which is the proper starting point in the fight against it, appears to be in accord with United Nations (UN) instruments on the matter.   It was the late UN Secretary-General Kofi Annan who called “for a definition of terrorism which would make it clear that any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of  intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.

2.  There is at least in “the letter of the law” a number of provisions in the ATB that appear to effectuate the Declaration of Policy’s double upholding of  constitutional and “human rights which shall be absolute and protected at all times.”  It is interesting to note that the lead agency Anti-Terrorism Council (ATC) in its defining Sec. 45 includes a “Legal affairs program” which “shall ensure respect for human rights and adherence to the rule of law as the fundamental bases of the fight against terrorism.”  Again, it was Annan who once said, “Upholding human rights is not merely compatible with a successful counter-terrorism strategy.  It is an essential element of it.”  One might describe this as a human rights approach or a rights-based approach to terrorism.  After all, it has been said that “There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights.”  But there also serious concerns that such rights, and the spirit of upholding constitutional and human rights, would be undermined by a number of other provisions in the ATB such as most notably the Sec. 29 Detention Without Judicial Warrant of Arrest on mere suspicion of committing terrorist acts or of membership in a proscribed terrorist organization.

3.  The ATB Declaration of Policy speaks of, quite notably, of  the fight against terrorism requiring a comprehensive approach, comprising political, economic, diplomatic, military and legal means duly taking into account the root causes of terrorism … Such measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict…”  It appears that this “comprehensive approach” is left for the ATC under Sec. 45 to develop “focus programs” of four kinds:  “(a) Preventing and countering violent extremism program; (b) Preventing and combatting terrorism program;  (c)  International affairs and capacity building program; and (d) Legal affairs program.”   This presentation of four “focus programs” is new, as it is not found in the counterpart Sec. 53 of the HSA.  The ATB or Congress has provided only broad strokes of the four “focus programs.”  The one which seeks to address the root causes of terrorism is the “(a) Preventing and countering violent extremism program.”  To “address the conditions conducive to the spread of terrorism… It shall identify, integrate, and synchronize all government and non-government initiatives and resources to prevent radicalization and violent extremism, thus reinforce and expand an after-care program.”   

Off-hand, this does not appear to us to be enough to address the root causes of terrorism.  Not to belittle the expert inputs and legislative deliberation that may have gone into and resulted in this policy guidance for the ATC but I believe there can be more inputs and deliberation for a better programmatic guidance… if we give it more time.  If the law is now rushed for passage, the short-term recourse to the SC will cover only at most constitutionality issues, it will not cover the other important issues we mentioned earlier of  the wisdom, correctness and efficacy of the law for its intended purpose of  protecting the people from terrorism.  That will have to wait for another, longer time in the future for legislative oversight review and amendments.  As we had said, the Implementing Rules and Regulations cannot fill the substantive gaps in the law itself.

Though the ATB Declaration of Policy does not state it, there is reason to believe that for certain of its proponents the real target of the ATB is the domestic proscription of the Communist Party of the Philippines (CPP)-New People’s Army (NPA) as a terrorist organization, as part of a “legal offensive” against it under the auspices of a National Plan to End Local Communist Armed Conflict (NP-ELCAC).  Apart from questions of transparency about this objective if indeed it is of the ATB, the questions of wisdom, correctness and efficacy might also be asked.  IF this is the underlying motivation for the ATB, does it do justice to the broader and distinct fight against terrorism?   On the other hand, is anti-terrorism the right approach (even if it is just one of 12 lines of effort) to end the local communist armed conflict?   As it is,   President Duterte’sProclamation No. 374 dated 5 December 2017 had already “declar[ed] the CPP-NPA as an entity designated and/or identified as a terrorist organization pursuant to Section 3(e)(1) of RA No. 10168”  (The Terrorism Financing Prevention and Suppression Act of 2012).”  It cites as basis for this that “on 09 August 2002, the United States of America (USA) designated the CPP-NPA as a foreign terrorist organization (FTO) and to date continues to include the CPP-NPA in its list of FTOs.”

Once upon a time, there were President Ramos’ Executive Order (EO) No. 125 dated 15 September 1993 and then  President Arroyo’s EO No. 3 dated 28 February 2001, both on the Government’s Comprehensive Peace Efforts, developed on the basis of nationwide public consultations in 1992-93 of the National Unification Commission (NUC).  Both EOs adopted as government policy the “Six Paths to Peace,” among which were the “Pursuit of Social, Economic and Political Reforms… aimed at addressing the root causes of internal armed conflicts…” and the “Peaceful, Negotiated Settlement with the Different Rebel Groups.”  That now seems like ages ago. 

And now some relevant questions come to mind:  Is the CPP-NPA (still) a “rebel group”?  Or is it (already) a “terrorist organization”?  Or is it both (the categories are not mutually exclusive)?  Or is it what the CPP-NPA claims to be “as a co-belligerent in the civil war in the Philippines”?   The correct characterization should lead to the correct response.   Clearly, questions like these and many others relevant to the ATB are beyond the pale of constitutionality.  We should not limit this important discourse to this.    

*SOLIMAN M. SANTOS, JR. is presently a Judge of the Regional Trial Court of Naga City, Camarines Sur.  He is a long-time human rights and IHL lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer;  and author of a number of books.

Photo Credit: Stand united against terrorism creative vector image/VectorStock

Terrorism: An Emerging Definition and Framework

by Atty. Soliman M. Santos, Jr.*

15 June 2020

Introduction

Contrary to general impression, there is an emerging internationally acceptable definition of terrorism.  This much can be gleaned from the Report of the UN High Level Panel on Threats, Challenges and Change on 2 December 2004, subsequently endorsed by the UN Secretary-General Kofi Annan in, among others, his keynote address to the International Summit on Democracy, Terrorism and Security on 10 March 2005 in Madrid on the eve of the first anniversary of the “3/11” terrorist attacks on passenger trains there.   Those working for or against anti-terrorism legislation in the Philippines should take these new developments into account.  

Definition   

In paragraph 164 of the said UN High Level Panel Report, it stated that the definition of terrorism should include the following elements:

  • Recognition, in the preamble, that State use of force against civilians  is regulated by the Geneva Conventions and other instruments, and, if of sufficient scale, constitutes a war crime by the persons concerned or a crime against humanity;  
  • Restatement that acts under the  12 preceding anti-terrorism conventions are terrorism, and a declaration that they are a crime under international law;  and  restatement that terrorism in time of armed conflict is prohibited by the Geneva Conventions and Protocols;  
  • Reference to the definitions contained in the 1999 International Convention for the Suppression of the Financing of Terrorism and Security Council resolution 1566 (2004);
  • Description of terrorism as “any action, in addition to actions already specified by the existing conventions on aspects of terrorism, the Geneva  Conventions and Security Council resolution 1566 (2004), that is intended to cause death or serious bodily harm to civilians or non-combatants, when the purpose of such an act, by its nature or context, is to intimidate a population, or to compel a Government or an international  organization to do or to abstain from doing any act.”

That last paragraph actually provides what could become the internationally accepted short definition of terrorism.   In fact, UN Secretary-General Kofi Annan made  use of or paraphrased it in his above-said keynote address in this way:   “The  [UN High Level] Panel calls for a definition of terrorism which would make it clear that any action constitutes terrorism if it is intended to cause death or serious bodily harm to civilians or non-combatants, with the purpose of  intimidating a population or compelling a Government or an international organization to do or abstain from doing any act.  I believe this proposal has clear moral force, and I strongly urge world leaders to unite behind it, with a view to adopting the comprehensive convention [on terrorism] as soon as possible.”   (boldface supplied)

Immediately preceding this, Annan had said:   “For too long the moral authority of the UN in confronting terrorism has been weakened by the spectacle of protracted negotiations.   But the report of the High-Level Panel offers us a way to end these arguments.  We do not need to argue whether States can be guilty of terrorism, because deliberate use of force by States against civilians is already clearly prohibited under international law.  As for the right to resist occupation, it must be understood in its true meaning.  It cannot include the right to deliberately kill or maim civilians.”            

The UN High Level Panel Report’s above-quoted proposed elements in the definition of terrorism makes reference to Security Council resolution 1566 (2004).    This resolution which was adopted on 8 October 2004 stated in its paragraph 3 that  it:  “Recalls that criminal acts, including against civilians, committed with the intent to cause death or serious bodily injury, or taking of  hostages, with the purpose to provoke a state of terror in the general public or in  a group of persons or particular persons, intimidate a population or compel a government or an international organization to do or to abstain from doing any act, which constitute offenses within the scope of  and as defined in the international conventions and protocols relating to terrorism, are under no circumstances justifiable by considerations  of a political,  philosophical, ideological, racial, ethnic, religious or other similar nature…”             

From the above formulations towards an international legal definition of terrorism, it would seem that terrorism during armed conflict is basically covered by the Geneva Conventions and Protocols, the core of international humanitarian law (IHL) i.e. the international law on armed conflict.  What remains to be covered is terrorism during peacetime.  This is where the other international legal terms of reference mentioned by the UN High Level Panel Report come in – like the 12 international conventions on various aspects of terrorism and Security Council resolution 1566 (2004).

None of the 12 conventions, however, has a generally accepted single inclusive definition of terrorism.  Former International Law Commission member Raul I. Goco of the Philippines has pointed out that each of these conventions describes only the particular or specific acts or subject-matter covered by it.  These are aircraft hijacking and sabotage, crimes against internationally protected persons including diplomatic agents, hostage-taking, physical protection of nuclear material, airport violence, acts against maritime navigation safety, acts against the safety of fixed platforms on the continental shelf, terrorist bombings, and terrorist financing.    

It bears noting that the terminology “global war on terror” has been rightly criticized, for example by the Madrid Summit on Democracy, Terrorism and Security, being not only misleading but also dangerous.  That terminology plays into the hands of  the perpetrators of terrorism, confuses the terminology applied in IHL and jeopardizes the applicability of human rights (HR) standards. To apply the “war on terror” terminology implies the possibility that HR standards that should be applied in these cases may be derogated or indefinitely suspended because of “war.”  

Framework

This brings us to the question of framework in handling, including countering, terrorism.  Aside from what we just said about the inappropriateness of “war” terminology and the applicability of IHL only to situations of war or armed conflict, IHL  alone cannot be the sole term of reference or framework in defining and handling terrorism.  IHL is a framework for armed conflict, not just for terrorism, and less so in peacetime.  There is a distinct international legal framework on terrorism – starting with the 12 conventions on its various aspects and moving towards a comprehensive convention with an internationally accepted legal definition.   IHL and the emerging international law on terrorism represent different frameworks dealing with different phenomena which have come to the fore of global attention at different eras.  That the emerging international law on terrorism makes use of IHL particularly for terrorism during armed conflict does not change those differences.       

Indeed, in the 1977 Protocol I Relating to the Protection of Victims of International Armed Conflicts, Article 51, paragraph 2, and in the 1977 Protocol II Relating to the Protection of Victims of Non-International Armed Conflicts, Article 13, paragraph 2, one finds an early legal concept of terrorism: “The civilian population as such, as well as individual civilians, shall not be the object of attack.   Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.”  But the context is armed conflict or wartime, not peacetime.  Thus, the early idea to consider an act of terrorism as “peacetime equivalent of a war crime.”  But not all war crimes are committed against civilians, many are also committed against combatants.  So, the analogy or transposition might not be appropriate or satisfactory.       

So, some attention has been directed to crimes against humanity which may be committed not only during armed conflict (like war crimes) but also during peacetime.  But the latest international legal definition of this, in the1998 Rome Statute of the International Criminal Court, Article 7, requires a threshold, thus:  “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”  What if the acts of terrorism during peacetime fall below this threshold, i.e. are “not part of a widespread or systematic attack directed against any civilian population”?  What international (and national) law would then cover them? 

It is not only IHL which can and must be among the international legal terms of reference regarding terrorism.  Aside from specific international conventions on terrorism, UN Secretary-General Kofi Annan cites two others in his Madrid Summit keynote address:  “By the same token, the UN must continue to insist that, in the fight against terrorism, we cannot compromise on the core values I have listed.   In particular, human rights and the rule of law must always be respected. As I see it, terrorism is in itself a direct attack on human rights and the rule of law.   If we sacrifice them in our response, we are handing a victory to the terrorists.”  But in the first place terrorism violates the basic right to life and the fundamental freedom from fear.  Law enforcement is a valid counter-measure against terrorism but the premise of law enforcement is the rule of law.

The Berlin Declaration of the International Commission of Jurists (ICJ) adopted 28 August 2004 is one on “Upholding Human Rights and the Rule of Law in Combating Terrorism.”   This Berlin Declaration states, among others, that

In adopting measures aimed at suppressing acts of terrorism, states must adhere strictly to the rule of law, including the core principles of criminal and international law [e.g. legality, necessity, proportionality, and non-discrimination] and the specific standards and obligations of international human rights law, refugee law and, where applicable, humanitarian law.  These principles, standards and obligations define the boundaries of permissible and legitimate state action against terrorism…

… There is no conflict between the duty of states to protect the rights of persons threatened by terrorism and their responsibility to ensure that protecting security does not undermine other rights,.. Both contemporary human rights and humanitarian law allow states a reasonably wide margin of flexibility to combat terrorism without contravening human rights and humanitarian legal obligations…

International and national efforts aimed at the realization of civil, cultural, economic, political and social rights of all persons without discrimination, and addressing political, economic and social exclusion, are themselves essential tools in preventing and eradicating terrorism.  (italics supplied) 

One might describe this as a human rights approach or a rights-based approach to terrorism. UN Secretary-General Kofi Annan even says, “Upholding human rights is not merely compatible with a successful counter-terrorism strategy.  It is an essential element of it.”   The Berlin Declaration has reiterated the relevant guiding principles and the ICJ has been monitoring and providing legal advice on counter-terrorism measures with a view to ensuring compatibility with the rule of law and human rights and, when necessary, challenging excessive anti-terrorism legislation and promoting policy options fully consistent with international human rights law.

The question should no longer be whether to have anti-terrorism legislation but instead whether such legislation upholds human rights and the rule of law, starting with a good, well-informed definition of terrorism (and the prohibition of specific acts of terrorism should follow from this).  As it is, the Philippines has ratified most, if not all, of the 12 international anti-terrorism conventions and therefore already has an international obligation to pass implementing domestic legislation.  Terrorism must be given its just due in terms of a specific legal framework to address it, in the same way that common crimes like murder, political offenses like rebellion, war crimes, crimes against humanity, and genocide have their respective specific legal frameworks.  Murder committed in furtherance of rebellion is absorbed by the latter.  But rebellion does not absorb war crimes, crimes against humanity, genocide and terrorism even if committed in furtherance of rebellion. 

Conclusion 

 In the 112th Assembly of the Inter-Parliamentary Union held in Manila, it passed on 5 April 2005 a Resolution on “The Role of Parliaments in the Establishment and Functioning of  Mechanisms to Provide for the Judgment and Sentencing of War Crimes, Crimes Against Humanity, Genocide and Terrorism, with a View to Avoiding Impunity.”  Note how terrorism is distinct from and not subsumed under or absorbed by war crimes, crimes against humanity and genocide.  In the Philippine legislature, the latter three international crimes are covered by an existing bill for a “Philippine Statute on Crimes Against International Humanitarian Law and Other Serious International Crimes,” while the international crime of terrorism is sought to be addressed in several anti-terrorism bills.  None of the latter appear to be informed of the emerging international legal definition and framework regarding terrorism and its proper handling.  Bad for human rights, bad for human security.

SOLIMAN M. SANTOS, JR. is a Bicolano human rights lawyer, legislative consultant and legal scholar; author of The Moro Islamic Challenge (UP Press, 2001), Peace Advocate (DLSU Press, 2002), Peace Zones in the Philippines (Gaston Z. Ortigas Peace Institute, 2005), and Dynamics and Directions of the GRP-MILF Peace Negotiations (Alternate Forum for Research in Mindanao, 2005).  

This piece was also published in Eurasia Review.

Photo Credit: Image ID : 102570361Media Type : Vector Copyright : Anatolii Korniakov. Source: Vector graphics.