Human Security Act: An unnecessary law

BY ALEXANDER MARTIN REMOLLINO
Bulatlat
Vol. VII, No. 27, August 12-18, 2007

Is the Human Security Act of 2007 (HSA) – also known as the Anti-Terrorism Law – really necessary in curbing what it defines as “terrorism”?

Under Sec. 3 of the HSA, the following elements constitute “terrorism”:

· predicate crimes like a) piracy in general or mutiny in the high seas or Philippine waters, rebellion or insurrection, coup d’ etat, kidnapping and serious illegal detention, murder, crimes involving destruction; or b) acts punishable under the Law on Arson, the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990, the Atomic Energy Regulatory and Liability Act of 1968, the Anti-Hijacking Law, the Anti-Piracy and Anti-Highway Robbery Law of 1974, and the Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives;

· the sowing or creation of “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.”

The crime or “terrorism” as defined in the HSA carries the penalty of 40 years of imprisonment without the benefit of parole.

By themselves, the predicate crimes listed as elements of “terrorism” under the HSA are already punishable under existing laws.

Piracy in general or mutiny in the high seas or Philippine waters, rebellion or insurrection, coup d’ etat, and crimes involving destruction are all punishable by reclusion temporal (12 years and one day to 20 years of imprisonment under the Revised Penal Code. Murder carries the penalty of reclusion perpetua in its maximum period (30 years imprisonment) to death, while kidnapping or serious illegal detention is punishable by reclusion perpetua to death.

Arson is punishable by prision mayor (six years and one day to 12 years), and so are violations of the Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990.

Violations of the Atomic Energy Regulatory and Liability Act of 1968 carry the penalties of either: a) imprisonment of not more than five years or a fine of not more P10,000 or both; or b) imprisonment of not more than two years or a fine of not more than P5,000 or both.

Hijacking is punishable by imprisonment of five to 10 years or by a fine of P10,000-20,000; or by appropriate provisions of the Revised Penal Code if resulting in death, injury to persons, or damage to property.

Violations of the Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives carry the penalties of reclusion temporal in its maximum period to death.

Considering that all the predicate crimes listed as elements of “terrorism” under the HSA are already punishable under various other laws, is there a conflict between existing laws and the HSA?

Edre Olalia, president of the International Association of People’s Lawyers (IAPL) and one of the lawyers who represented the signatories in a recent petition urging the Supreme Court to declare the HSA as unconstitutional, told Bulatlat in an interview that without the element of “sowing and creating 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,” many of the predicate crimes under Art. 3 of the HSA would not constitute “terrorism” as the said law defines it.

At first glance there appears to be no conflict between the HSA and the other laws punishing the predicate crimes which could constitute “terrorism” if “sowing or creating 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.”

“But precisely, some of the predicate crimes in Sec. 3 of the HSA necessarily and essentially already result in or include such ‘sowing and creating a condition of widespread and extraordinary fear and panic among the populace’ (as) among the essential elements, (like) rebellion, mutiny, and crimes involving destruction,” Olalia said.

The other question is how to determine whether “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” has been created. There are no clear standards in the HSA defining the existence of such a condition.

As Bagong Alyansang Makabayan (Bayan or New Patriotic Alliance), et al put it in their petition filed before the Supreme Court, of which a copy was received by Bulatlat:

“But when are those specified felonies or offenses deemed to have sowed and created a condition of widespread and extraordinary fear and panic among the populace? Otherwise stated, when are the enumerated acts deemed not to have sowed and created a condition of widespread and extraordinary fear and panic among the populace?

“To ‘sow’ means to scatter or place, introduce into an environment or place in or on the ground for future growth while ‘create’ means to cause to exist or bring into being. It must be borne in mind that what needs to be sowed and created under the Act is only a condition of widespread and extraordinary fear and panic. The criminal intent (insofar as those punished under the Revised Penal Code) in relation to resultant widespread and extraordinary fear and panic (and not merely a condition of such) is not even needed as an essential element, unlike in other felonies where deceit (dolo) or deliberate intent must be present (Article 3, Act. No. 3815 or the Revised Penal Code).

“Hence, under this amorphous definition there is no room left for anyone accused or suspected of this crime to dispute the non-existence of a mere condition of widespread and extraordinary fear and panic as one’s criminal intent is immaterial or irrelevant to the determination of culpability. How can anyone then argue that a particular crime did not create a condition of widespread and extraordinary fear and panic among the populace? Is the existence of actual fear and panic not necessary to be created or sowed by one’s act? Will a ‘condition’ of the same suffice or necessarily mean there is fear and panic?”

There is also a question on what is meant by an “unlawful demand.” There are no clear parameters on which demands are lawful and which are not. As Bayan, et al stated in their petition:

“(W)hat exactly is the legal meaning of ‘unlawful demand’? Who determines this? Are there clear standards to measure or determine this? Is this equivalent to illegal? Or illegitimate? What about demands during legitimate strikes, pickets, mass actions which may be ‘unlawful’ because they lack some procedural requirement (e.g. strike vote or cooling off period in strikes or permits in rallies), would these be ‘unlawful’ too? What about a call for boycott of products or the non-payment of taxes, would they be ‘unlawful’ too?

“Or is it the character of the demand alone that makes it ‘unlawful’ even if the act or activity is lawful or legitimate (e.g. workers going on strike to demand a non-legislated wage increase, massive street demonstrations by sections of the populace calling for the resignation or ouster of a sitting public official)? If so, does this not curtail freedom of speech and expression, assembly and the right to redress of grievances?”

“(This is) precisely why our position is that (the law) is so broad and vague that it is susceptible (to) and invites arbitrary and even malicious interpretation,” Olalia said. “The HSA does not define these terms with sufficient clarity and specificity. It leaves so much discretion to the police officer, Anti-Terrorism Council (ATC), Department of Justice (DoJ) and eventually the courts to determine these without any sufficient standard in the law itself, contrary to the principles of due process and non-delegation of legislative powers, among others.”

For these reasons, Olalia said, he is of the view that the HSA is not only unnecessary but even dangerous.

“That has been our position ever since this bill was proposed in 2002,” Olalia said. “More fundamentally, it does not and will not stop terrorism by individuals and groups but encourages, emboldens and legitimizes violation of civil and political rights and freedoms of the people, meaning state terrorism.” Bulatlat