Section 29 of anti-terror law should have been struck down: Chel Diokno


Posted at Dec 10 2021 11:59 AM

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MANILA – A human rights lawyer on Friday said Section 29 of the controversial Anti-Terror Act (ATA) allowing law enforcers to extend detention of terror suspects should also have been struck down by the Supreme Court.

“Well in the arguments we raised in the court we focused, and I’m speaking of the petition I was part of, we focused on the crime of inciting to terrorism as well as the issues on regarding prolonged detention on Section 29,” said Senate aspirant Atty. Chel Diokno of the Free Legal Assistance Group.

Under section 29 of the ATA, a law enforcement agent or military personnel, who, having been duly authorized by the Anti-Terrorism Council, takes custody of a person accused of committing terrorism and terrorism-related acts, can extend the period of detention up to 14 to 24 days.

FLAG on Thursday welcomed the high court’s decision to deem unconstitutional a qualifier to a proviso in section 4 defining terrorism, and the second method for designation under section 25 of the ATA.

Diokno, however, said other provisions of the law—which the Supreme Court determined to be within the bounds of the Constitution--remain problematic. He said the implementing rules and regulations (IRR) of the Anti-Terror Act do not make it any less problematic.

“Well you know any IRR is only intended and authorized to implement what is in the law itself. If the law does not provide for certain conditions, then the IRR would be…exceeding its authority if it were to impose additional conditions.”

“If you compare what is in the IRR on Section 29 with what is in Section 29 itself, there are a lot of things that aren’t in the law,” he said. 

Diokno said he was expecting the Supreme Court to rule in their favor when it came to Section 29.

“But you know, we are realistic and then, I’ve been involved in so many cases like this, where it is not often that major victories are secured only through a court battle.”

“In the struggle for basic rights, in the struggle for maintaining our democracy, there will always be setbacks that will happen. We’ve done this since the time of the Marcos dictatorship and it took a number of years before we were eventually able to boot out that dictator. And in that struggle, we know that its’s not going to be easy,” he said.

“We know that we will continue to stand up for our rights and regardless of how the courts may view the situation, we will just continue to fight for our rights.”

Justice official admits Section 29 ‘contentious’

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For his part, Justice Undersecretary Adrian Sugay said he was surprised that Section 29 of the ATA was not mentioned specifically in the press release of the Supreme Court yesterday.

“Like I’ve always also been saying, I’m surprised also that Section 29 actually was not, well, it’s not part of the media release of the press release. I’ve always said that really, as far as this law is concerned the most problematic provision should be Section 29.”

Sugay noted that the concept of an extended detention was ‘contentious,’ even in similar anti-terror laws in other countries.

“It’s really the whole concept of a extended detention. You know, that in itself is already problematic, that already needs--not problematic but I guess it’s a contentious issue: you know, whether or not in the first place there should be an extended period of detention, and secondly, what is the exact period we are talking about here.”

“You know even in other jurisdictions, it had always been a problematic issue. It’s been a concern.”

He stressed however, that they were very careful in crafting the IRR of the ATA.

“When we were doing the implementing rules, when we were crafting the implementing rules and regulations, we were just really mindful that you know this had to be consistent, not just with the the other provisions of the law…but we also needed to ensure that this was consistent with other laws, and particularly in this case with the Rules of Court.”

“So under these circumstances, you know we just interpreted the law the way we thought it should be interpreted and pursuant to existing laws and rules relevant to the matter.”

Sugay said the existence of the IRR is not an admission that the Anti-Terror Act itself is problematic.

“That’s really the whole point of having a set of implementing rules and regulations. It’s really for purposes of detailing or ensuring the proper implementation of any law.”

He added, “It’s a contentious provision of the law and we saw it fit to the best of our ability to clarify it and to clarify it consistent with existing law and provisions of the rules of court.”

--ANC, 10 December 2021