[OPINION] Anti-Terror Law? Or Anti-Filipino Law?

Hard cases make bad law, says a legal maxim that is more than 180 years old.

Its meaning is simple: It is a dangerous time for society when lawmakers start making laws that appeal to strong emotions or feelings, rather than to reason. As someone once wrote: “Good law is not based on exceptions – and especially not exceptions wrapped in emotion. The law should embody sound reasoning rooted in a desire for justice, not warm feelings.” 

When it comes to the anti-terror bill, it is clear what those strong emotions are: Terror. Fear. 

But is the law protecting us from terror and fear? Or normalizing them?  

If this law passes, no part of any person’s life is secure anymore, as it gives the government the power to track down or follow anyone, and to tap, listen, intercept or record any message, conversation, discussion, spoken or written words, including computer and network surveillance, and other communications of persons. 

The government says that there are safeguards in place, including the judicial authorization. Yet the law allows so much discretion on the executive, including in the determination of what constitutes terrorist attacks and who are terrorists and terrorist organizations, that it is easy to imagine a scenario where even the courts might not be willing, able, or prepared to stand as safeguards against abuse.

In fact, we don’t have to imagine. One only has to flip back 3 or more decade’s worth of jurisprudence to find a time when courts have yielded to the will and whims of the executive under the guise of the “political question” doctrine. It is not hard to imagine that, when it comes down to the actual application of the law – given how vague some of the definitions are – that the judiciary might limit its powers of judicial review in deference to the executive. 

So what is the danger there? If this were any other law, it might not be so dangerous. 

First, of course, is that this is a criminal statute. It puts people in danger of losing their liberty, possibly for the rest of their life. People have the constitutional right to know what acts are being punished before they are penalized from doing them.  

Second, given the vague definitions, it could be weaponized as a tool for harassment against those that government wants to silence, simply because they do not like to hear valid criticisms, dissent, and calls for truth and transparency.  

This becomes even more critical considering that these collected information include communications. That means that the privacy and security of persons other than the person being apparently investigated are equally being violated. So they can listen to a person’s communications indirectly, without the court ever authorizing the interception of their communications.

Interestingly, the law is not clear as to whether the information collected via this extraordinary method of obtaining evidence can only be used for prosecution of offenses defined under this extraordinary law. If not, if such information can be used as evidence for the prosecution of other offenses, then a tremendous amount of incentive is being created for the government and particular officials therein to use this law as an instrument for so-called “fishing expeditions” or simple harassment against those they deem their enemies.  

In short, it can be used as much as a weapon against terrorist activities, as against the legitimate activities of persons who are engaged in the exercise of their freedom and political and civil rights. 

Perhaps the most obvious is how easy it would be to fabricate or misrepresent evidence in order to dupe the judiciary into giving the authorization. My own experience as one falsely tagged as a “drug lord” or “narcopolitician,” perhaps just one level below a “terrorist” tag, is an egregious example of both the present executive’s capacity and propensity to initiate trumped-up charges, and the courts’ tendency to accept, with eyes closed, the DOJ’s finding of “probable cause.” 

And once judicial authorization is given, and vast amounts of information about a person has been gathered – perhaps more information than that person knows about himself or herself – that information is out there.  There is no amount of reassurance from the government that can guard that information from being misused. 

In fact, what is conspicuously missing in the law is a provision limiting how long the government can keep these collected information without charging the person for any alleged terror-related activity. Since these information were collected under extraordinary powers granted to address a very specific threat to public safety, the law should at least provide that, should sufficient time elapse without the government finding any basis to charge the person with terror-related activities, such information should be rendered functus officio and be disposed of in a manner that protects the privacy and security of all persons directly or indirectly affected. 

The longer these information exist in collected form, the more vulnerable they are to being breached and misused.  

They can be used to coerce someone in critical positions in government, or in private financial institutions or business enterprises, or other positions of influence in the community into doing something against their will, or refraining from doing what they would otherwise have legitimately been able to do. 

We need only look at how dissent in Hong Kong is being handled.  Protesters and people who merely show support for them are targeted, and not even the CEO of a major international airline was safe from reprisals. It is easy to imagine that anyone who dares to participate in legitimate peaceful protests against government can lose their jobs, simply with the government knowing “enough” about those persons’ employers. The government, therefore, can politicize its powers without even showing its dirty hands.  

We might as well say goodbye even to the freedom that is as private as freedom of thought.  We need only look to our giant neighbor to the north to see how, during the Cultural Revolution, scientists, teachers and academics were among those who were most gravely persecuted, and there is evidence to show that hundreds of thousands were persecuted, some of them to death. Even today, seeing how it handled information about the pandemic, it is a great example of how, given the power to do so, the government can and will seek to control even academic research and publication.

In fact, we need to look no further than the reprisals being suffered by journalists and members of the media who have dared to publish facts and views that displeased the President.  In a few days, verdict will be handed down in the cyber libel case filed against Maria Ressa and others from Rappler.   

Rappler, along with ABS-CBN and Inquirer, have two things in common: one, they are among the remaining bastions of freedom of information and of the press in the country, where dissenting views and inconvenient facts are still published; and, two, they have all been the subject of varying forms of harassment in the last 4 years as reprisal for their refusal to be silenced and co-opted.

We need not imagine what powerful people in our government can and will do with a comprehensive dossier on persons who dare speak truth to power. 

Let there be no mistake: that amount of information could be as powerful as any bomb that a terrorist can deploy.   

History has taught us over and over that repressive regimes can and will abuse any power they can get, even to the point of using it against persons who are merely exercising their legitimate rights and freedoms that are the very essence of democracy: the freedoms of speech, of expression, or of the press, or the right of the people to peaceably assemble and petition the government for redress of grievances. 

Worse, our government might be presenting itself as a force multiplier for other tyrannical states that are going after political dissenters from their jurisdiction, as it allows the executive, through the ATC, to classify an organization,“whether domestic or foreign,” as one that is “organized for the purpose of engaging in terrorism.”  This power under Section 25 is separate from the process of proscription under Section 26, which is the provision that envisions judicial intervention. 

So the law can be used as a weapon against our own people, and against other peoples who might legitimately be fighting for their freedom, or defending themselves from persecution and death.

In truth, therefore, the word “terror” in the title of the bill is very appropriate.  The question is, who is it really fighting?Terrorists? Or the Filipino people? 

The problem with bad laws is that they inflict more damage than they fix. 

So, truly, the converse of the legal maxim is as true as the original: Bad laws make hard cases.  Bad laws cause people more suffering. 

It is no different from treating cancer with chemotherapy. It kills cancer cells, but it also kills healthy ones; ones that we need to survive. That is precisely why chemotherapy are done in sessions. Not continuously. And certainly not indefinitely.  Because the cure can be as fatal as the disease.

Sure, the bill might be able to catch a terrorist or two; but for certain it can and will be used to kill the Filipinos’ freedoms first.  

Who needs to fear attack by terrorists when the government can and will attack the people at its whim?  

And, like the treatments for cancer, there is a huge difference between “the haves” and “the have nots.” The have nots – the poor – at best, will have to make do with palliative care. Maybe they’ll be prescribed painkillers to somewhat lessen the pain of inevitable death. They won’t even have hope for a cure. Much like poor suspects are killed in the streets and are never even allowed their day in court. The best that their loved ones can expect is maybe a visit at Malacañang Palace and a photo-op with the President. 

But the haves – the rich – they have access to all the best treatments, such as stem cell treatments that can seemingly prolong their lives indefinitely. That is why rich suspects are allowed to leave the country before charges are even brought against them. 

So does this mean that we should not legislate to improve our response to terrorism? Of course we do. And I applaud those who wish to amend the bill for the right reasons: which is to protect the people.  

But the government cannot protect the people by perpetually and absolutely placing their lives under threat. Otherwise, the government will be doing a better job than the terrorists. 

As one study on “Crisis Legislation in Britain” once concluded:  

“… while the Anglo-Saxon tradition keeps alive historic suspicions of legislation by an encroaching executive, there is also the possibility of tyranny by the legislature itself. Democracy, as we have seen, needs and improvises exceptional weapons against exceptional attacks.  Free peoples, when they temporarily surrender freedom, will expect to see their inheritance restored to them when the storm is over.  There will be two anxious questions – how large must that surrender be and how soon will the restoration come?  Intensive regimentation and restrictions, impatient suppression of heterodox views, internment of dissentients, and other phenomena likely to be visible in times of grave stress are steps towards dictatorship, even when taken along a lawful and constitutional road.  The most successful dictator is he who gains his power without forsaking that road.  Hence, the anxiety. 

In other words, there is a good way and a bad way to address a problem like terrorism. The bad way is to railroad it at a time of great stress for the Filipino people.  How curious it is that this bill was passed at a time when people cannot safely organize and protest if they wanted to. Is this the Duterte administration’s masterful plan to entrench a “successful dictatorship”? By using a pandemic in order to stealthily put a noose around our Democracy’s neck? 

The bad way is to pass a law that restricts so much of our freedoms without answering the question: for how long? At the very least, this law should include a provision that these powers of extraordinary intrusions will expire at a specified time, unless renewed by another law. It ensures that any abuses or misuses, vagueness or ambiguities will be addressed before they cause more damage to the people. 

It’s easy to make bad laws. It is more difficult to make good ones. So, really, the question is: what kinds of lawmakers do we have? – Rappler.com