Analysis by Raïssa Robles
In its eagerness to smother the country with an all inclusive and oppressive anti terror law, the government may have shot itself in the foot.
The Anti-Terrororism Act of 2020, now under discussion in the Supreme Court, creates a brand new crime – ‘terrorism.” The bill’s authors specified that ATA would abolish – in fact it has abolished – an existing law: the Human Security Act of 2007. That act is now history.
Were the authors aware of what this would mean?
Laws defining a new crime cannot be applied retroactively – they can only be applied after they are passed. If somebody committed X in 2010 and a law against X was only passed in 2020, that person cannot be prosecuted BECAUSE THE LAW DIDN’T EXIST WHEN HE COMMITTED X.
What does this mean in the case of the Anti-Terrorism Act of 2020?
The implications of having put in place a brand new crime called “terrorism” in the country’s statute books are staggering.
For starters, the vast mountain of evidence that the military has gathered in the last 48 years against “communist terrorists” can now only be used as supporting evidence. Only new evidence, gathered starting August 2020 when the ATA took effect, can justify the filing of cases of terrorism against individuals and cases of proscription against their organizations.
And these implications affect not just “communist” terrorists, but Islamic extremists as well.
Instead of speeding up court cases that will send terrorists to jail and proscribe their organizations as criminal, the half-year-old Anti-Terrorism Act is likely to make these more difficult.
How this happened
Before ATA (or Republic Act No. 11479) was signed into law in July 2020, the Philippines had no specific crime called “terrorism”.
The country had the 2007 Human Security Act (HSA) or Republic Act No 9372 called “An Act to Secure the State and Protect our People from Terrorism”.
Security officials complained to senators it was too tedious and useless to use the HSA because for instance, communist rebels had to be convicted of rebellion first, and only after conviction could they be charged with terrorist acts in relation to their rebellion, using the HSA.
Senate defense committee chair Panfilo Lacson, the main sponsor of the ATA, had actually started by proposing numerous amendments to the 2007 HSA. The committee report issued by his committee reflected the proposed changes.
But, on February 12, 2020, at the start of the “period of amendments” – when individual senators propose their own revisions on the floor and the sponsor decides whether or not to accept them – Lacson instead presented his colleagues with a “substitute bill” and he said, “This substitute bill seeks to expressly repeal RA 9372, also known as The Human Security Act of 2007, in its entirety.”
In other words, what he wanted was no longer amendments but a replacement.
His colleagues agreed to his move and this decision to just repeal the entire HSA is actually reflected in Section 56 of the ATA which states:
Sec. 56. Repealing Clause. – Republic Act No. 9372 otherwise known as the “Human Security Act of 2007 is hereby repealed.
There were only two aspects of the HSA that the repeal did not affect.These were “all judicial decisions and orders already issued on the HSA, and all pending actions relative to the implementation” of the HSA.
Everything else, WAS GONE.
I vet the implications with a lawyer who has taught criminal law
I turned to Barry Gutierrez because he once taught Criminal Law in the University of the Philippines, not because he is the vice-president’s spokesman. Gutierrez, who is also a former congressman, is also not involved in any way with any of the petitions against the ATA now pending before the Supreme Court.
Personally, from having covered the Senate, Muslim extremism and murders, I was familiar with the idea that if Congress passes a law that punished something it had never punished before, those who had violated such a law before it came to being cannot be arrested and prosecuted for any act done before the new law has taken effect.
In addition, I recall the late Senate President Jovito Salonga telling me that a new law that gives a heavier penalty or punishes a new crime only has a prospective effect; but a new law that lightens the penalty for an existing crime has a retroactive effect.
This was the reason Robin Padilla got out of jail earlier than his court-issued sentence over his illegal possession of firearms. After then President Fidel Ramos had lightened the penalty for this crime – many suspect, to accommodate Robin – Padilla traipsed out instead of rotting in jail.
In the case of the Anti-Terrorism Act, it was simply not an amendment of the 2007 HSA. It was a stand-alone BRAND NEW LAW introducing A NEW CRIME in our statute books with more severe penalties.
So I asked Barry Gutierrez – okay, I picked his brains – whether my conclusions held.
I asked him the following:
1) can the cause-oriented group Gabriela – which the military has accused of recruiting for the armed, communist New People’s Army – be proscribed as a terrorist organization for actions of any of its officers or members, such as ending up dead with the NPA during a military encounter – if these took place before the ATA was signed into law last July?
Gutierrez said:
“No, because penal laws are applied prospectively. That’s the principle.
“It’s in the Constitution,” he said. He explained that ex-post facto laws, “which penalizes acts which were not crimes prior to the enactment of the law [are] specifically prohibited in the Constitution.”
Gutierrez was referring to Section 22 of the Bill of Rights which states: “No ex post facto law or bill of attainder shall be enacted.”
Then I told Gutierrez that during the Senate hearings on red-tagging held from November to December last year, security officials had replayed and pointed to a 1987 video of Communist Party of the Philippines (CPP) founder Jose Maria Sison lecturing on the differences between the CPP, the NPA and the above-ground legal organizations under the National Democratic Front umbrella organization.
2) Can the military use the Joma video as evidence to proscribe Bayan Muna and Gabriela as terrorist organizations?
Guterrez replied:
That’s a more interesting question. They would have to prove that the declarations in that particular video that happened prior to the enactment of ATA continue to actually define purposes and objectives of the organization that they are currently trying to proscribe.
In other words, you can technically look at what was done in the past prior to the effectivity of the (ATA) law to establish the nature of an organization, but you have to prove that they still exist or are still valid at the present time.
CPP for example, is that what they are still doing up to now?
Then, I asked him: 3) Do you need fresh additional evidence dated AFTER July 2020 when the ATA took effect?
“Yes,” Gutierrez replied.
4) But you cannot use the Joma video as the main evidence?
He replied, “By itself? Not possible because there is no direct causal link to the current state.”
5) What happens now to the mountain of evidence that they gathered before the ATA became law? Can they use it?
He replied: “In my opinion, standing alone, they cannot, because you are still talking about the character of an organization as it stood prior to the enactment of the new law, right?
“Unless,” he said, “they already filed a case under the old (HSA) law. Which, he said, would mean getting a conviction for rebellion first before filing a case to proscribe the organization as a terrorist organization, using the HSA and not the ATA.
I asked Gutierrez if he agrees that perhaps somebody made a mistake in repealing the entire HSA and replacing it with a new law, instead of just amending it.
Gutierrez, who is also a former congressman, replied:
“I agree. It makes it more difficult for them to actually conduct prosecutions under the new law. Because in effect, everything that happened prior to the definition of a new crime – you have to establish that it is a continuing crime.
That what was actually done before continues to the present under the new law.”
I told him, that means, for all those cases they intend to file they will have to get fresh evidence that was gathered AFTER the ATA took effect.
“Yes,” he replied. “At a minimum, they would have to get new evidence establishing that things that happened in the past continue to the present.”
And “the present” means – after July 2020 when Duterte signed ATA into law.
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