Saturday, March 6, 2021

Just what the doctor proscribed

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by Marie Yuvienco

The judge, rather.  Ignorance of the law excuses no one from complying therewith is the bedrock of practically all legal systems of civilized societies.  Most people operate in a gray zone of ignorance which generally serves them just fine but because one if ignorant of a law or laws does not mean that one will be given a free pass and a wink should one be caught, well, breaking a law one has never even heard of.  I daresay about 99% of laws are not known by the people, but simply for appearances, the government makes the effort to publish these laws in newspapers of general circulation as a pre-condition for their effectivity.  The publication serves as notice to the general public even if the general public does not read them; at least, the government can say, we did our job to publicize such law.  After that, it’s the public’s look-out.

The Human Security Act of 2007 is one of those laws that, I guess about 99.9% of Filipinos do not know about.  That’s fine, unless they are terrorists, in which case, they should be in holy terror of its provisions.  But 99.9% of the population are not terrorists so they should not be unduly concerned, but in the interest of continuing legal education for the ordinary Filipino which this column adopts as a public service, I will call their attention to a specific article in the Human Security Act, which defines the crime of terrorism and imposes harsh punishments for its commission.  Section 17 of this Act provides:

Any organization, association, or group of persons organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts to terrorize mentioned in this Act or to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand shall, upon application of the Department of Justice before a competent Regional Trial Court, with due notice and opportunity to be heard given to the organization, association, or group of persons concerned, be declared as a terrorist and outlawed organization, association, or group of persons by the said Regional Trial Court.

This law, Republic Act No. 9372, was passed in 2007 during the presidency of Gloria Macapagal Arroyo.  However, it was only three years later, in 2010, when the first application for prescription was filed in the Regional Trial Court, and that was in Basilan against the Abu Sayyaf.  And then, it took another five years before the trial court handed down a resolution finding facts sufficient to declare the group a terrorist organization and proscribing it.

Proscription, it bears mentioning, under both the Human Security Act and Republic Act No. 10168, the Terrorism Financing Prevention and Suppression Act of 2012, inflicts severe hardships on those proscribed as terrorists.  It impacts an individual’s right of and to privacy:  a proscribed person can be followed and surveilled and all his communications monitored and recorded.  One’s confidential financial records can be opened and examined even against one’s wishes.  One’s property rights are also imperiled because they are subject to seizure and sequestration.  One may even be confined to one’s home and all outside communication prohibited—all these on top of possible criminal prosecution and harsh penalties.

One would think that given the severity of those consequences, proscription would be declared only after the government has established its case by proof beyond reasonable doubt.  That is not the case.  The trial courts, in the two instances mentioned, treat an application for proscription as an ordinary civil action, that is, one that requires only preponderance of evidence. Preponderance of evidence is a level of proof much lesser than proof beyond reasonable doubt.  This circumstance alone opens the door wide open for abuse by the government.

And it is happening already.  Last December, Rodrigo Duterte issued Proclamation No. 374 declaring the Communist Party of the Philippines and the New People’s Army as terrorist organizations.  A month earlier, he had terminated peace talks that had been ongoing between the National Democratic Front and the CPP-NPA.  You may ask:  but why only now are they being declared terrorists considering that the Human Security Act had been on the statute books since 2007?

To put this in context, recall that the struggle between the government and the CPP-NDF-NPA began in the sixties, making it the longest armed struggle of its kind in Southeast Asia.  Terrorism, however, was criminalized only in 2007.  The legal nicety is that terrorism is defined in R.A. 9372 to include rebellion, which is what the CPP-NDF-NPA has been waging.  A rebel is not necessarily a terrorist:  in fact, in public international law, rebellion has been recognized as a means of last resort for people to exercise their right of self-determination.  In the proper cases, it is not just legal, it may even be regarded as moral.

In the hands of such administrations as President Duterte’s, proscription is being used as a bargaining chip to force the opposing party to concede.  That, however, is a misuse of the law.  The proper object of proscription is to protect the people against actual terrorists, not to liquidate the State’s enemies.  That is not being done here.

 

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