“The protection of fundamental liberties is the essence of constitutional democracy. Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder.” -Fr. Joaquin Bernas, S.J.-
NOTE: As of this writing, 173 members of the House of Representatives have voted in favor of passing House Bill (HB) No. 6875, which will now be consolidated with Senate Bill (SB) No. 1803 during the bicameral conference. Together, they form what is commonly known as the “Terror Bill.”
Much has been said about the Terror Bill. But what does it really mean to human rights and fundamental liberties? Let’s put it this way: If the “Human Security Act of 2007” (RA 9372) can be likened to the Terminator, the Terror Bill seeking to repeal RA 9372 can be likened to Terminator 2.0 in that it has an even greater danger of wreaking havoc on human rights and fundamental liberties, such as the freedoms of speech and expression, freedom from warrantless arrests, searches, and seizures, freedom against arbitrary detention, and privacy. As such, it’s everyone’s duty to understand the Terror Bill’s dangerous implications and the chilling effect it creates.
It is submitted that the following are some of the provisions in the Terror Bill, which appear to be constitutionally infirm:
1) Definition of terrorism is vague and overbroad.
Anyone or any group can easily be tagged as a terrorist, especially if an “act” is interpreted as creating an atmosphere or spreading a message of fear, or is seen as provoking or influencing the government by intimidation. The bill also covers threats, conspiracies, proposals, and inciting to commit terrorism.
2) Surveillance and wiretapping violate due process and privacy.
The Court of Appeals may allow surveillance and wiretapping on the communications of anyone suspected of being a terrorist upon a mere application by a law enforcement agency. It effectively authorizes unreasonable searches and seizures against anyone who has been broadly defined or suspected of being a terrorist.
3) Arrest and detention without judicial warrant violate due process and a usurpation of judicial power.
Anyone suspected of being a terrorist can be arrested without a court warrant and detained for 14 days, extendible for another 10 days, by a law enforcement agent upon a mere authority given not by the proper judicial authority but by the Anti-Terrorism Council alone. If the suspicion turns out to be false, there is no criminal liability for the law enforcement agent.
4) Hold departure order violates due process and right to travel.
On the mere suspicion of being a terrorist, a hold departure order can be issued even prior to the filing of any criminal charge.
5) Examination and freeze of bank deposits violate due process and privacy.
On the mere suspicion of being a terrorist, the Anti-Money Laundering Council can examine and freeze private bank deposits, which constitutes as unreasonable search and seizure.
However, existing jurisprudence does not bode well for those against the Terror Bill. In Southern Hemisphere Engagement Network v. Anti-Terrorism Council, GR No. 178552, 5 October 2010, the constitutionality of RA 9372 was challenged for violating free speech and expression under the “void-for-vagueness and overbreadth” doctrines. But the Supreme Court refrained from invalidating RA 9372 and upheld its validity for the reasons that the petitioners did not have legal standing (i.e. they were not the injured parties), there was yet no actual justiciable controversy (i.e. issue not ripe for adjudication since no real injury has been sustained), and because what RA 9372 punishes is conduct and not speech. Despite RA 9372 not being struck down, hope is not lost as the Supreme Court has on certain occasions reconsidered past rulings.
Hence, when the Supreme Court becomes the next battleground for the Terror Bill, it is hoped that when fundamental liberties are threatened by the awesome powers of the State, the scales of justice should weigh heavily in favor of the people. Activism should never be a measure of terror. In fact, a critical, but constructive voice against any government should be taken as a measure of patriotism and civic duty that is done totally and freely without fear of being branded as a terrorist with its legal sanctions. A free voice should help temper and balance any arbitrary flexing of the State’s powers because at the core of it all, that sovereign power still resides in the people and all government authority emanates from them. And it therefore becomes incumbent upon the citizens to continue being that voice of, in the words of the poet Dylan Thomas, “rage against the dying of the light”
During his Nobel Prize acceptance speech, holocaust survivor Elie Wiesel said: “Wherever men and women are persecuted because of their race, religion, or political views, that place must - at that moment - become the center of the universe.”
Thus, this becomes the center of our universe now, at this place and time, where and when our fundamental liberties within the “forbidden zones in our private spheres” are in danger of being trampled upon and stripped away. And we have to ask ourselves in the name of everything that is good and just: What are we going to do about it?
So yes, by all means, let’s be “epal” with our constitutionally protected voices, remain vigilant, fight using the rule of law on our side, and never allow ourselves to go “gentle into that good night.” Because no matter how tired our voices may be and how frustrating the fight has been, our country and people still deserve no less.
*Eugene Kaw is a Law Professor at the Ateneo Law School and FEU Law and the Executive Director of the Institute for Leadership, Empowerment, and Democracy (iLEAD), a start-up public policy think tank group.