Beware of that two-faced clause in the anti-terror law

The fact is the Philippines remains the “hot spot” of jihadist terrorism in Southeast Asia, and it needs a law properly calibrated to address this insidious security threat.

That said, international terrorism analyst Sidney Jones believes the recently signed Anti-Terrorism Law of 2020 is “flawed.” Jones is the director of the Jakarta-based Institute for Policy Analysis of Conflict.

“If I look at this law, there are a couple of things that jump out at me,” Jones said on Friday, July 10, in a forum hosted by the Foreign Correspondents Association of the Philippines (FOCAP).

“One is that there’s basically no room for rehabilitation. Anybody who gets arrested for terrorism gets put away virtually for life, and it doesn’t seem to be particularly easy to move out of that very draconian regime,” she added.

Republic Act no. 11479, signed into law by President Rodrigo Duterte on July 3, punishes with life imprisonment terrorism, facilitating terrorism, and recruiting members for terror groups. Someone who threatens, proposes, or incites people to commit terrorism gets 12 years.

The law does not provide for offenders’ rehabilitation, which many experts say, is crucial in stemming extremist ideology. In fact, a number of known terrorists were radicalized in jail and wreaked more havoc after serving time for other crimes.

The second item Jones found troubling is a line in Section 4 that blurs what would have been the law’s one redeeming provision.

“I think it was good in this law that there was a clause basically saying this law specifically is not intended to punish dissent, protest, mass action, and so on. Why then at the last minute did they add another qualifier, ‘except in cases where life is threatened and so and so,’ which raises concerns that if somebody wants to use a public order excuse [to prosecute a suspect], that in fact this law could be used?” Jones said.

'Which we are not...'

Section 4 of the anti-terrorism law defines terrorism as engaging in acts intended to cause death or injury, damage to property, or using weapons or dangerous substances to “intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety.”

Combined with other provisions that punish speech and actions that may be deemed supportive of terrorism as defined above, human rights advocates and progressive groups flagged the law as a crackdown on dissent and activism. For example, authorities may claim protest rallies are a threat to public safety, and call it an act of terrorism.

Defending the measure, its authors and supporters highlighted a clause in Section 4 that they said excludes dissent and activism from what constitutes terrorism. That line, however, includes the “qualifier” Jones found troubling:

“Provided that terrorism as defined in this section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights” – and here is the crucial part – “which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.”

That last line effectively negates the exclusion, Jones pointed out. 

The East Asia Wilayah

The 4 Philippine Army intelligence soldiers shot dead by policemen for a still unknown reason in Jolo, Sulu on June 29 were on a signals intelligence mission to track down Mundi Sawadjaan and another Abu Sayyaf bomber. The killing of the soldiers set back the hunt for the two terrorists, the military said.

Said to be an expert bomb maker, Mundi Sawadjaan is the nephew of Hajan Sawadjaan, considered the leader of the Islamic State (ISIS) international terror network in the Philippines.

The older Sawadjaan is a sub-leader of the Abu Sayyaf. Its top leader, Radullan Sahiron, rejects ISIS ideology but is said to be too old to influence the group’s daily affairs. The pro-ISIS Hajan Sawadjaan then has the Abu Sayyaf functioning as ISIS' most active ISIS affiliate in Southeast Asia.

Besides the Abu Sayyaf, up to 5 other extremist groups in the Philippines have ties to ISIS, based on regular reports of their activities in ISIS’ online news bulletin. They are the Basilan faction of the Abu Sayyaf led by Furudji Indama, the “Dawlah Islamiyah” faction of the Bangsamoro Islamic Freedom Fighters (BIFF) under Abu Torayfie, another “Dawlah Islamiyah” breakaway from the BIFF under Salahuddin Hassan, and remnants of the Maute Group and Ansar Khalifa Philippines also known as the “Tokboy Group,” after its slain leader, Mohammad Jaafar Maguid, alias Tokboy.

“Dawlah Islamiyah” is Arabic for “Islamic State.”

Most, if not all, of these groups harbor foreign fighters, Jones said. ISIS’ relative decline in the Middle East means less direct financing for these groups, driving them to work more closely together to establish a “wilayah” or territory in East Asia.

Replacing the 'worst' anti-terror law

Extremists from other parts of Southeast Asia have been sneaking into the Philippines to help carve out that territory in Mindanao. Besides fighters, money also trickles in from other countries, particularly Indonesia.

On June 26, police and military operatives killed 4 suspected Abu Sayyaf members and supporters in a raid on a house in Parañaque City. The casualties included Merhama Abdul Sawari and her husband Bensaudi Sali.

Sawari received remittances from Indonesian terror cells supporting the Abu Sayyaf, while Sali used to be a fighter for the group. He was working as a security guard at a condominium in Parañaque City at the time he was killed. (READ: Women of the Eastern Caliphate)

On June 15, National Security Adviser Hermogenes Esperon said 8 Abu Sayyaf sleepers – inactive members waiting to attack – have been arrested in Metro Manila since 2019. This, he said, illustrated the need for the new Anti-Terrorism Law.

Esperon and other security officials said the Human Security Act of 2007 lacked teeth and was too cumbersome to address terrorism. For instance, it fined law enforcement or military agents P500,000 for every day they detained and froze the assets of a wrongly accused terror suspect.

Jones said the new measure "replaces one of the worst anti-terror laws that was ever passed because it had so many safeguards that it was never used or almost never used, and it was particularly that personal liability provision.” (EXPLAINER: Comparing dangers in old law and anti-terror bill)

To incriminate captured terror suspects, lawmen at times resorted to planting evidence so they could press charges other than terrorism, such as illegal possession of firearms or murder, Jones said.

With significantly fewer restrictions on lawmen particularly in surveilling, arresting, and detaining suspects, the new anti-terror law should make prosecutions for terrorism more feasible, she added.

“The Philippines remains the regional [terrorism] hot spot. It continues to be a more dangerous terrorist center than anywhere else in the region, and that’s the context for the development of the new law, flawed as it is,” Jones said.

'Communist terrorist group'

Lieutenant General Cirilito Sobejana leads the military in Western Mindanao, where all 6 known ISIS-affiliated groups in the Philippines are based.

As an Army captain in January 1995, Sobejana nearly lost his right forearm in a fierce firefight with the then 4-year-old Abu Sayyaf in Basilan. He and his troops held their ground and killed 30 Abu Sayyaf fighters that day. For this, he was awarded the Medal of Valor in 1997.

Now, his order from the commander-in-chief is to eradicate the same group that nearly killed him.

“The Western Mindanao Command welcomes and supports any legitimate intent within constitutional bounds to reach peace and development…. We welcome this anti-terror law because it adds teeth to our effort,” Sobejana said in the FOCAP forum.

The military is also under orders to eliminate an older enemy, now with the help of the new law that stretches the definition of terrorism.

“We also have the New People’s Army (NPA) of the communist terrorist group,” Sobejana said, referring to the Communist Party of the Philippines (CPP), the NPA’s parent organization.

In a televised public address on July 8, Duterte said friendly ties with communist rebels made for good politics and helped him win the presidency in 2016. “It was a good rapport while it lasted,” the President said, recounting failed attempts at peace talks early in his term.

In December 2017, Duterte issued an order designating the CPP-NPA as a terrorist organization, but a court petition to make this official is still pending.

Under the new Anti-Terrorism Law, the Cabinet-led Anti-Terrorism Council may issue a “preliminary proscription” of a person or group as terrorist ahead of an official court decision. With this, law enforcers may go after that person or group as though they were terrorists.

It is one of the most strongly opposed provisions in the new law, as it gives the Executive the power to unilaterally label a person or group as terrorist.

"They are terrorist because we – I finally declared them to be one,” Duterte said of the CPP-NPA in his July 8 speech.

Where to draw the line?

It is this possibility of arbitrary accusations of terrorism that has sparked considerably widespread opposition to the new law.

Long before the law’s enactment, the defense establishment accused progressive groups such as the Gabriela Women’s Party, the National Council of Churches in the Philippines, and Oxfam sa Pilipinas of being legal fronts of the CPP-NPA.

Under the new law, this “red-tagging” may lead to serious allegations of terrorism against members of such groups. The measure punishes membership in a group tagged as terrorist with life imprisonment.

With that Section 4 caveat on excluding dissent and protest action, critics of the law worry dissenters and protesters may be tagged as terrorists if they are associated with groups the government perceives to be its enemies – and “threats to public safety.”

Sobejana said the military would be “very deliberate” in its use of the law to go after terrorists. But would it draw the line between actual terrorists and those simply targeted by the commander-in-chief?

“Our commander-in-chief is the President and we have a chain of command. This Anti-Terrorism Law will serve as our guide,” the general said.

In all its operations, the military observes 3 operational imperatives that, Sobejana said, should allay people’s fears of abuses.

“First, we do our job following the rule of law. We give due respect to human rights, and we strictly adhere to the so-called international humanitarian law,” he said.

But what if the law itself, as Jones said, is flawed?

Review

So far, 6 petitions have been filed, urging the Supreme Court to strike the Anti-Terrorism Law or certain provisions in it as unconstitutional.

Section 4, including its two-faced stance on dissent and protest action, is among the provisions under question.

For Jones, cutting the caveat line would resolve one of the measure’s most problematic aspects.

“Take out that last qualifying clause because I think without that last clause, you’ve got a statement that this law will not be used for protest or dissent, which seems to be the big concern of human rights organizations,” she said.

And while the High Court scrutinizes the law’s provisions, Jones suggested amending some of its wording “so that it became more possible to think about rehabilitation rather than just locking people up for life.”

Supposing the anti-terror law hurdles the Supreme Court, it should be subjected to a thorough review after one year of enforcement – to check for abuses as well as successes, she said.

“But it was important to have replaced the old terror law,” added Jones, emphasizing the broad and intricate network that fuels terrorism in the Philippines.

“I agree that there should be a reassessment after a certain period of time,” Sobejana said. Every military campaign must evolve according to the nature of the threat.

“Time changes. For us at this point in time the Anti-Terrorism Law is very timely. The situation demands for it,” he added. – Rappler.com

JC Gotinga

JC Gotinga often reports about the West Philippine Sea, the communist insurgency, and terrorism as he covers national defense and security for Rappler. He enjoys telling stories about his hometown, Pasig City. JC has worked with Al Jazeera, CNN Philippines, News5, and CBN Asia.

image