This post is in response to all those comments about how the Anti-Terrorism Act 2020 (ATA) (which was rushed through the legislative system right in the middle of this whole coronavirus crisis) will not be used against government dissenters because it says Terrorism —
shall not include advocacy, protest, dissent, … and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person’s life, or to create a serious risk to public safety.Anti-Terrorism Act 2020, sec. 4
From the very first day in law school, we were taught that the answer to the question “is it legal/illegal?” is always “it depends.” Lawyers are taught from the very beginning that everything is arguable, cases are decided based on the specific circumstances surrounding the facts, and decisions are always complex. There’s always a caveat, a loophole, a way out.
The problem with the ATA is how easy it is to argue that a particular advocacy, protest, dissent is or can be terrorism. Other than the provisions relating to guns and bombs, terrorist acts are dependent on an intention, not that something actually happened. Terrorism is committed by any person who —
(a) engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life; (b) engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property; (c) engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructureAnti-Terrorism Act 2020, sec. 4.
In theory, lawyers and judges determine the intent behind a particular act by looking at the surrounding circumstances — in other words, it’s quite a subjective process, filled with arguments that can go either way.
What’s wrong with that? Anyone can just say, “this rally was intended to endanger my life.” The police will then have justification (both under the main definition of terrorism and under the caveat of the protest exception) to arrest the organisers of the rally under the ATA. That’s all it takes.
While the lawyers are arguing about whether an act is an act of terrorism or not and the judicial system is slowly chugging along, the Filipino people will have to, in the meantime, suffer the terribly high price of just being suspected of committing terrorist acts — curtailment of their right to privacy and their freedom (e.g. arrested and held in custody for 14 to 24 days).
The worst part is that this broad application of the ATA will likely happen to the people who will not have the means of defending themselves. Those who have a privileged background will have the resources, lawyers, connections who will fight to protect their freedom. What about the have nots, who are exactly the same people suffering from the very heavy-handed, militaristic stance of the government?
This is only looking at that one part of that one section of the ATA – the definition of terrorism. The entire law is filled with sweeping, broad, and dangerous provisions that can easily be used to violate any person’s human rights.
You might argue that this way of thinking is a slippery slope and far-fetched. It’s never going to happen, you might say. Really?
- The San Roque 22 were arrested because they were lining up for relief goods (i.e. a half-sack of rice) to be distributed
- More than 30,000 people were arrested because they “violated” curfew and quarantine restrictions (without any law making these acts a crime)
- This artist was arrested because she was spreading “fake news” about the pandemic by posting satire on her Facebook feed
- Let’s not forget the tens of thousands of people who were killed because of the government’s war on drugs
You might think that the government will act reasonably and its lawyers will use the law fairly and justly. Really?
- The Presidential Legal Adviser theorised that the coronavirus is an actual invasion, thereby allowing the President to declare martial law
- The Solicitor General filed a quo warranto petition in an attempt to shut down a media entity that criticised the Philippine President
- The Department of Labor and Employment attempted to have a woman deported from Taiwan because she posted “nasty and malevolent materials against President Duterte.”
Given this track record, the possibility that the police will use the ATA to detain dissenters or anyone the government wants to because it can is so easily believable. That could be you. Worse, that could be a helpless kababayan who’s daily worry is where his next meal will come from.
Apart from all of this, why did the government rush to pass the ATA in the middle of a pandemic the country can’t even get a handle on? The timing is telling, as my law school professor said.