Anti-terror law IRR introduce new provisions limiting warrantless arrests, terror-tag delisting

MANILA — Warrantless arrests under the country's new anti-terror law will be limited to those allowed under existing rules and will be based on probable cause, not mere suspicion, according to the implementing rules and regulations (IRR) of the Anti-Terrorism Act (ATA) released last week by the Department of Justice.

This is just one of several salient features of the 48-page IRR, which introduced new provisions not in the law in the hope of addressing mounting challenges the new law is facing.

WARRANTLESS ARRESTS

The IRR expressly enumerates the only instances when warrantless arrests may be made — the same situations already provided for under the Rules of Court.

These are:
-when a suspect has committed, is actually committing, or attempting to commit terrorism and terrorism-related crimes
-where there is probable cause that a suspect, based on personal knowledge of the arresting officer, was the perpetrator of any terroristic or terrorism-related acts
-when a prisoner escapes from prison or while being transferred

Unlike the IRR, section 29 of the law on detention without a judicial warrant of arrest is silent as to which situations the Anti-Terrorism Council (ATC) may authorize warrantless arrests, prompting several petitioners to challenge this before the Supreme Court.

The petitioners said the provision creates new grounds for warrantless arrests, and grants the ATC, a purely executive body, judicial powers to authorize arrests.

They also argued this lowers the constitutional standard for arresting a person from “probable cause” to mere “suspicion.”

In the context of warrantless arrests, the Supreme Court defined probable cause as “a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe that the person accused is guilty of the offense.”

Defending the measure, the Office of the Solicitor General said section 29 never replaced probable cause as the threshold for warrantless arrests.

ATC spokesperson DOJ Usec Adrian Sugay echoed this view, saying they need to harmonize the provisions of the Anti-Terrorism Act with “a whole system of laws that are already in place and judicial decisions, jurisprudence.”

“Ang position namin d’yan, the way we interpret it is, it should be interpreted in relation to Rule 113 on warrantless arrests. So talagang if you say, it can be reasonably interpreted that any arrests based on section 29, has to be based on probable cause,” he said.

“So you cannot interpret the law to us as far as we are concerned in isolation or in a vacuum,” he added.

SWORN STATEMENT FOR WARRANTLESS ARREST, EXTENDED DETENTION

In addition, the IRR requires law enforcers to submit a sworn statement to secure authorization from the ATC to conduct warrantless arrests of suspected terrorists and to detain them for 14 to 24 days.

Sugay said the ATC will deploy “probable cause” in determining whether to grant the authorization.

But critics have pointed out, if the warrantless arrests will be based on already existing grounds under the Rules of Court, the ATA provision is “superfluous.”

“I think what’s more important there is that the ATC can authorize extended period of detention beyond the periods provided for under Art. 125 of the Revised Penal Code (RPC). This is an acknowledgment of the nature of terrorism and I suppose the lawmakers saw it fit to give a longer period of detention, to allow a longer period of detention, upon authorization of the Anti-Terrorism Council,” Sugay explained.

Sugay was referring to the provision in the RPC that gives law enforcers between 12 to 36 hours, depending on the seriousness of the offense, to bring charges against the arrested person before judicial authorities to avoid any liability.

Under the ATA, a person whose arrest was authorized by the ATC may be detained for 14 days to 24 days even without charge.

Critics have pointed out this 24-day period violates the 1987 Constitution that imposes a 3-day limit for detention without charge in extreme circumstances that call for the suspension of the privilege of the writ of habeas corpus.

Sugay rejected this view, saying the provision on the privilege of the writ of habeas corpus is inapplicable, and there’s no limitation on the period for detention under the Constitution.

“There is nothing even under international, even under United Nations resolutions that says detention can be limited to a certain number of days,” he said.

The 24-day detention period is a departure from the 3-day period provided under the Human Security Act of 2007, the law which the ATA repealed.

48 HOURS TO NOTIFY COURTS

While the HSA required authorities to bring arrested persons before a judge, the ATA and its IRR only require notifying the nearest court.

The IRR itself added a time period — within 48 hours.

Sugay said the ATC itself came up with the 48-hour period, taking into account “many areas in the country [where] it sometimes take a while to make the proper notification.”

“If you have to cross the island, cross the seas, these are things we took into consideration in fixing the period for such notification,” he said.

Asked why the IRR only required notification, not actual bringing of the arrested person in court, Sugay said they could not go beyond what the law says.

“The law says immediate notification. It did not say you need to bring the detained person before a judge. Again, this should not be a prejudice to a person filing a petition for writ of habeas corpus if he wishes to,” he said.

PUBLICATION/DELISTING OF TERROR TAG

The IRR also provides for a way to delist those who have been designated as terrorists, but not before their names are first published or posted in a newspaper, the online official gazette, or the ATC’s official website.

The IRR says the ATC shall use probable cause to designate terrorists either coming from a request from a foreign or supranational jurisdictions, or by the ATC’s domestic designation.

But both the law and the IRR are silent as to whether individuals or groups designated as terrorists can take part in the designation process, raising concerns on due process among critics.

Those designated as terrorists only have 15 days from publication to file a request for delisting based only on the following grounds:
-mistaken identity
-relevant and significant change of facts or circumstance
-newly discovered evidence
-death of a designated person
-dissolution or liquidation of designated groups
-any other circumstance which would show basis for designation no longer exists

No such provision for delisting is in the law itself but Sugay justified its inclusion.

“I think that these things necessarily follow from a positive act. There also needs to be some form of remedy on the part of the persons designated,” he said.

A third mode of designation automatically adopts a consolidated list of terrorists and terrorist groups from the United Nations Security Council.

Under the ATA IRR, only delisting by the UNSC itself will cause the delisting in the Philippines of a designated group. The ATC however may, on its own, or upon request, file a petition for delisting with the UNSC.

PROSCRIPTION

Designation, a function of the ATC, is different from proscription, the judicial process of declaring a group a terrorist, which is done by the Court of Appeals (CA) upon the application of the DOJ with recommendation from the National Intelligence Coordinating Agency (NICA) and authority from the ATC.

In urgent cases and to prevent the commission of terrorism, the CA may issue a preliminary order of proscription within 72 hours without hearing the side of the groups sought to be declared as terrorists.

But the ATA and its IRR require the CA to hold continuous hearings within 6 months to determine whether the preliminary order of proscription should be lifted or made permanent, or in cases with no preliminary order, if an order of proscription should be issued or denied.

The proscription is effective for 3 years, subject to review within that period.

Proscription subjects proscribed groups to targeted financial sanctions such as freezing of assets and, under the ATA IRR, also makes mere membership of an individual in a proscribed group a crime under section 10 of the ATA, a provision which critics have challenged for being violative of the right to freedom of association.

FREEZE ORDER HEARING AND LIFTING DUE TO MISTAKEN IDENTITY

A crucial consequence of designation and proscription is that the Anti-Money Laundering Council (AMLC) may freeze the assets of designated terrorists.

The ATA IRR introduces the term “preventive” freeze order to refer to an order which the AMLC may immediately issue under the ATA without holding any hearing, effective for 20 days.

The ATA IRR requires a summary hearing at the CA before the 20-day period may be extended.

A “sanctions freeze order,” on the other hand, is issued based on a UNSC determination and will be effective until the basis is lifted.

The ATA IRR says the scope of the sanctions freeze order could include all property or funds owned by designated terrorists “not limited to those directly related or can be tied to a particular terrorist act, plot, or threat”, and may include those derived from funds or assets directly or indirectly owned by them or those from persons or entities acting on their behalf.

This may be contested before the CA within 20 days from issuance of the sanctions freeze order.

In yet another new provision, the IRR allows the lifting of AMLC’s sanctions on the basis of mistaken identity, upon submission of government-issued identification documents.

“We read the Anti-Terror Act in conjunction or in relation to the Anti-Money Laundering Act, the Terror Financing Act and all the IRRs. So we also drew from pieces of laws and legislations and IRRs. So, you will find many of the provisions in those laws, some of the provisions of those laws in the IRR of the Anti-Terror Act,” Sugay explained, justifying the inclusion of the provision.

TERRORISM DEFINITION LARGELY UNCHANGED

But the meat of the controversial law — the definition of terrorism and terrorism-related activities - remain largely unchanged.

The ATA IRR broke down the elements of terrorism following closely the language in section 4 of the law.

Advocacy, protest, dissent, stoppage of work, and other exercises of civil and political rights are considered not acts of terrorism, subject to the same conditions that they are not intended to cause death or serious physical harm to a person, endanger a person’s life, or create a serious risk to public safety. But the IRR included by reference all the other purposes for committing terrorism.

The IRR added a categorical statement: “The burden of proving such intent lies with the prosecution arm of the government.”

Some critics have contested the language of the provision because law enforcers are supposedly given the discretion to determine the “intent” of an otherwise constitutionally-protected action, which could lead to arbitrary enforcement.

The IRR attempts to limit the scope of certain crimes by defining terms such as “training” to refer only to teaching designed to impart a specific skill related to terrorism and which properties or services may be considered providing “material support” to terrorists.

The IRR also provides a criteria for determining whether inciting to commit terrorism has been committed, a controversial provision of the ATA.

Under the IRR, the context, position or status of the speaker, the intent, the content and form, the extent of the speech or act, as well as direct causation between the speech or act and the incitement shall be considered.

Petitioners before the Supreme Court have raised the issue of vagueness and “overbreadth” against the Anti-Terrorism Act, arguing that the lack of a clear standard on what constitutes terrorism and terrorism-related activities could curtail constitutionally-protected rights and will cause a “chilling” effect on freedom of expression.

They also raised the issue of lack of due process with the public not sufficiently informed of what constitutes a crime.

“We really tried to the extent possible to make it even clearer in the IRR, you know, particularly with regard to the definition of terrorism. We’d like to think that what we enumerated there, the specific activities which should not be considered terrorism,” Sugay said.

“It is our hope that this clarifies things for the other people, who want to exercise their constitutional, civil and political rights. We hope we are able to make it clear to others exactly what the law covers and what the law does not cover,” he added.

IRR CANNOT GO BEYOND THE LAW

But this early, some critics are questioning whether the IRR can remedy infirmities in the law by adding certain provisions.

“Even at first blush, it validates our position that the ATL (Anti-Terror law) is overbroad and vague as the IRR contains worrying provisions that supply, extend, enlarge and even add to the provisions of the law without statutory basis. The IRR is ultra vires (beyond the powers). As we have said time and again, the water cannot rise above its source,” National Union of Peoples’ Lawyers’ president Edre Olalia said.

“The IRR is the blindsided way to cure by way of afterthought a defective and unconstitutional law ab initio. It even implicitly supports our contentions. We will revisit our legal options to likewise contest this IRR. We reiterate our view that this law must be nipped in the bud before it spreads its toxin all over the place,” he added.

For his part, Sugay said they worked with the definition under the law, as they could not go beyond what the law says.

“Whether or not it’s vague, that’s really not our issue. If it’s something we need to work with and of course, until the Supreme Court says that the law or portions of it are unconstitutional or invalid, we work under the presumption that everything is valid and that we just need to make sure that the provisions of the law are properly implemented,” he said.

Thirty-seven petitions have been filed challenging the constitutionality of the anti-terror law before the Supreme Court.