Senator Panfilo Lacson hastily inserted the new Anti-Terrorism Law’s ‘dangerous’ Section 25 empowering Duterte officials to ‘designate’ anyone a terrorist

MY EXCLUSIVE by Raïssa Robles

The most dangerous section of the Duterte Terror Law, which the President signed today, empowers his cabinet officials to call anybody a “terrorist” and order that person’s arrest without any warrant. That victim can then be detained for up to 14 days. It’s a tool straight out of Ferdinand Marcos’ brutal dictatorship.

That section was inserted stealthily, at the last minute, by Senate defense committee chair Panfilo Lacson.

Section 25 of the Anti-Terrorism bill was inserted personally by Lacson on February 12—only two weeks before the Senate finally passed the measure on February 26.

What does this mean?

It means Section 25 was never proposed by any of the other senators or congressmen in any of the anti-terror bills they filed in the current 18th Congress. It means it was never discussed during the lone Senate committee hearing conducted by Senator Lacson as defense committee chair on August 13, 2019. It means it was never debated on during the period of interpellation on the measure by the senators. .

After all, how could people debate or discuss something that wasn’t there yet?

Lacson, House Speaker Alan Peter Cayetano and Senate President Vicente Sotto III have been saying that critics of the Terror Bill had all the time in the world to protest it while it was being made, because the bill had undergone years of public debates and public consultations.

But how could critics discuss one of the most appalling parts of the terror bill when it was only inserted at the very last minute? After the years of consultation?

I found out, after weeks of research, backtracking and interviews, that Section 25 was never part of those years of debates and public consultations.

None of the bills filed by Senators Panfilo Lacson, Sotto and Imee Marcos contained Section 25. The Committee Report No. 9 submitted by Lacson for second reading into which he consolidated all the bills filed and other inputs into one measure—Senate Bill No. 1083 – also did not have it.

Not one of the senators had proposed it as an amendment during the second reading of SBN 1083.

I tried reaching out to Senator Lacson through his mobile, his Twitter accounts, his website and e-mail but got no response.

I then asked Senate President Sotto for clarifications and fortunately he did answer and was able to clear up some points.

Senate President Sotto suggested that I look up the Senate Journal which documents all discussions during floor deliberations.

So I did. And I found out that on February 12, Lacson had personally inserted Section 25 through an “amendment by substitution”. This means he replaced what he had already filed as SBN 1083 with a “substitute bill”, but it was still called SBN 1083.

Please note that the Lacson-modified substitute bill SBN 1083 was what the House of Representatives in turn adopted as a substitute bill at the very last minute, and approved without amendments last June 3.

Once it takes effect 15 days after being published online in the Official Gazette*  or at least two newspapers of general circulation, it will delete from the statute books the 2007 Human Security Act or RA 9372 but not its companion law, the anti-terrorist financing law or Republic Act 10168. [*CORRECTION as of July 4, 2020 – Former presidential spokesman Edwin Lacierda called my attention that the  Official Gazette that is printed on paper has not been replaced as one of the methods of publication to make a newly-enacted law take effect. This means, mere posting on the online Official Gazette is not considered publication of a law as an alternative to publishing in newspapers of general circulation. And so I have corrected this paragraph by deleting the word “online” and added “and at least two newspapers of general circulation”.] 

Most of the sections in the original SBN 1083 which Lacson filed on second reading remain intact in the substitute bill, but among those added was Section 25. [NOTE: In the substitute bill which the House also approved, Lacson also inserted back Section 23 of the Human Security Act of 2007 which he had earlier scrapped. This section requires the keeping of an “Official Custodial Logbook” for every person detained. It records, among others, each time a detainee is interrogated and then examined by a medical doctor for any signs of torture.]

But Section 25 was never in the Human Security Act of 2007. Section 25 gives the Anti-Terrorism Council, headed by the president’s Executive Secretary, totally new powers that are also absent in the companion law, RA 10168 or the Terrorism Financing Prevention and Suppression Act of 2012.

I asked Senate President Sotto whether Lacson, as the main sponsor, had the power to insert Section 25 even though no other senator had proposed it.

Sotto explained to me that since Lacson “is the Principal Sponsor, he is allowed to amend, delete or substitute his committee report. The body approves en toto on second and third reading after deliberations.”

Sotto also told me: “The provision you are concerned with was a suggestion of the AMLC (Anti-Money Laundering Council) for the Philippines to be compliant with FATF (Financial Action Task Force) requirements for us to be removed from their gray list.”

That is also what Lacson said in his website.

But what exactly is Section 25?

Before we go deeper into Section 25, please take a look at its five paragraphs especially the third one (in bold, with the controversial phrase underlined):

[1] Section 25. Designation of Terrorist Individual Groups of Persons, Organizations or Associations. – Pursuant to our obligations under United Nations Security Council Resolution No. 1373, the ATC shall automatically adopt the United Nations Security Council Consolidated List of designated individuals, group of persons, organizations, or associations designated and/or identified as a terrorist, one who finances terrorism, or a terrorist or group.

[2] Request for designation by other jurisdictions or supranational jurisdictions may be adopted by the ATC after determination that the proposed designee meets the criteria for designation of UNSCR 1373.

[3] The ATC may designate an individual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, 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.

[4] The assets of the designated individual, groups of persons, organization or association above-mentioned shall be subject to the authority of the Anti-Money Laundering Council (AMLC) to freeze pursuant to Section 11 of Republic Act No. 10168.

[5] The designation shall be without prejudice to the proscription of terrorist organizations, associations, or groups of persons under Section 26 of this Act.

Examining Lacson’s defense for the hasty insertion

Let’s examine Lacson’s defense that Section 25 is only meant to freeze terrorist assets, not nab terrorists

Lacson has justified his last-minute insertion by saying, “We deemed it important to include ‘designation of terrorists’ under the bill to comply with the United Nations Security Council Resolution 1373 and for the purpose of preventing designated terrorists from accessing their funding by freezing their accounts so the same cannot be used to carry out a terrorist attack.”

Lacson forgot to mention, though, that the anti-terrorist financing law (RA 10168) already made us compliant with UN Security Council Resolution No. 1373.

Even without the ATC “designating” any terrorist, RA 10168 already gives the Anti-Money Laundering Council the unilateral power to freeze such assets in order “to comply with binding terrorism-related Resolutions, including Resolution No. 1373, of the UN Security Council pursuant to Article 41 of the Charter of the UN.”

In other words, right now, the AMLC need not wait for the ATC to automatically adopt the UN terrorist list. It can simply go ahead and freeze any of their local assets.

Lacson asserted that elsewhere in his new Anti-Terrorism Law, “We even added a provision under this bill, not present under the Human Security Act of 2007 to allow partial withdrawal of frozen funds/assets for humanitarian reasons as well as for reasonable family needs and sustenance of the designated person. Ano pa ba ang gusto nila (what more do they want?), Mr. President?”

He forgot to mention the fact that this “humanitarian” clause already exists in Section 13 of the anti-terror financing law which allows withdrawals of “such sums as the court determines to be reasonably needed for monthly family needs and sustenance including the services of counsel and the family medical needs of such person.”

In other words, Section 25 seems superfluous, given the anti-terror financing law, except for its third paragraph which states that:

The ATC may designate an individual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, 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.

Lacson admitted in his website that this third paragraph gave ATC the power to “designate” once it determines “probable cause” to do so.

Through Section 25, the new Anti-Terrorism Law gives ATC three additional powers not found in RA 9372 and RA 10168:

These are:

Paragraph 1) the power to unilaterally adopt the United Nations Security Council terrorist list;
Paragraph 2) the power to accept requests to adopt names designated as terrorists by “other jurisdictions or supranational jurisdictions”.
Paragraph 3) the power to designate or tag as terrorist “whether domestic or foreign, upon a finding of probable cause” anyone or group that committed, or tried to commit or conspired in committing acts of terror as defined by the bill.

But Lacson insisted that this “Designation is purely an executive and administrative process intended to trigger the issuance of a ‘freeze order’ of properties and assets of designated terrorist individuals or terrorist organizations or associations.”

“Arrests, detention, and the limitation on travel are not the intended consequences of designation,” he said.

In fact, he pointed out, Section 45 which creates the new Anti-Terrorism Council, clearly states that “Nothing herein shall be interpreted to empower the ATC to exercise any judicial or quasi-judicial power or authority.”

Unfortunately, the word “herein” is vague. It could be interpreted as referring only to Section 45, which makes no mention of ATC’s power to “designate” under Section 25.

Lacson could have placed “Nothing in this Act” instead of “herein” and that would be clear.

Senator Lacson wrote in his website that “the Anti-Terrorism Council’s authority to ‘designate’ terrorist individuals and organizations does not authorize arrest and detention.”

“In fact, not a single mention of the word ‘arrest’ is found under Section 25 of the bill.”

But Far Eastern University Institute of Law dean, Mel Sta Maria, explained to me how “designating” terrorists could lead to warrantless arrests

I asked Dean Mel—besides ordering a freeze on assets of a “designated” terrorist, what else can the ATC do once it designates someone a terrorist?

Dean Mel pointed to Section 29 which deals with “Detention without Judicial Warrant of Arrest.” In other words, warrantless arrests.

Section 29 states that “any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act…”

Dean Mel pointed out to me that the threshold of evidence for using warrantless arrests under Section 29 is lower than that provided in the Bill of Rights of the 1987 Constitution. Section 2 of the Bill of Rights states that “no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

However, Dean Mel stressed that there are three exceptions when a warrantless arrest is valid:
1) when a person is trying to commit, is committing or has committed a crime and a person in authority or an ordinary citizen sees him;
2) during hot pursuit operations
3) and when the person is an escapee from prison.

According to Dean Mel’s reading, Section 29 adds a fourth ground for warrantless arrest—when the ATC orders someone to be taken into custody based on “mere suspicion”, and “not even probable cause determined by a judge.”

He then told me to take a look again at Section 25 which gives the ATC the power to “designate” both foreign and local terrorists, based on probable cause.

Dean Mel said that once the ATC “designates” someone a terrorist based on the evidence it used to establish probable cause, there is nothing in the Anti-Terrorism Law that bars the ATC from using the same evidence to order a warrantless arrest.

In fact, he said, “mere suspicion” requires a lower threshold of evidence than “probable cause” determined by a judge..

This law gives two ways of detaining a suspected “terrorist”, he said: 1) by judicial action through the courts; and 2) by executive action through the ATC. 

He and I both agreed that the last time that executive officials were given this kind of power was during Martial Law from 1972 to 1986.

Because of this, he said, “the bill, if passed into law, will be any despot’s deadly sword.”