11 August 2020
Philippines

On 3 July 2020, the Philippine President signed into law Republic Act No. 11479 or The Anti-Terrorism Act of 2020 (the “Act”), a law that seeks to prevent, prohibit and penalise terrorism. The Act repealed the Human Security Act of 2007, the old anti-terrorism law of the Philippines. Although the implementing rules and regulations are yet to be promulgated, the Act already took effect in the Philippines. It bears noting, however, that the Act has an extraterritorial application, which means that it may also apply to non-Filipino citizens and/or those situated outside the territorial limits of the Philippines.

Prior to its enactment, the Act has already been the subject of controversies. In less than a week after the President signed the Act, several petitions were filed with the Philippine Supreme Court seeking to nullify certain provisions of the Act.

The salient provisions of the Act and its most controversial provisions are discussed below.

Terrorism and other punishable acts

The Act defines and penalises the following crimes, among others.

Punishable ActPenalty
Terrorism

Commission of any of the following acts:

  • engages in acts intended to cause death or serious bodily injury to any person or endangers a person’s life;
  • engages in acts intended to cause extensive damage or destruction to a government or public facility, public place, or private property;
  • engages in acts intended to cause extensive interference with, damage, or destruction to critical infrastructure;
  • develops, manufactures, possesses, acquires, transports, supplies, or uses weapons explosives or of biological, nuclear, radiological or chemical weapons; and
  • release of dangerous substances, or causing fire, floods or explosions

when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organisation, or seriously destabilise or destroy the fundamental, political, economic, or social structures of the country, or create a public emergency or seriously undermine public safety.

Life imprisonment without the benefit of parole
Conspiracy to commit terrorismLife imprisonment without the benefit of parole
Recruitment to a terrorist organisationLife imprisonment without the benefit of parole
Membership in a terrorist organisation12 years imprisonment
Planning, training, preparing, and facilitating the commission of terrorism (including possessing objects or collecting or making documents connected with the preparation of terrorism)Life imprisonment without the benefit of parole
Threat to commit terrorism12 years imprisonment
Proposal or inciting to commit terrorism12 years imprisonment

 

Other salient provisions

In addition to providing a new definition of terrorism, the Act has the following significant provisions:

  • Warrantless arrest – A person suspected of committing terrorism may be arrested without a warrant upon a written authority from the Anti-Terrorism Council (“ATC”). A prior warrant of arrest issued by a judge is not necessary.
  • Surveillance and interception of communications – Upon a written order from the Court of Appeals, private communications, data, and information of any person charged with or suspected of committing terrorism may be wiretapped, intercepted, recorded, or collected.
  • Waiver of bank secrecy – The Anti-Money Laundering Council (“AMLC”) has the authority to inquire into bank deposits and investments with any banking or non-bank financial institutions without a court order in case a person/group was designated as a terrorist/terrorist organisation or upon issuance of a preliminary order of proscription.
  • Extra-territorial application – The Act also applies to any person who, although physically outside the territorial limits of the Philippines, commit the crime against Philippine citizens or persons of Philippine descent, where the citizenship or ethnicity was a factor in the commission of the crime or commit said crime directly against the Philippine government. In such a case, the Philippines may exercise jurisdiction only when the individual enters or is inside Philippine territory.
  • Removal of award for damages in case of acquittal – Under the Human Security Act, upon acquittal, any person who is accused of terrorism shall be entitled to the payment of damages in the amount of PHP500,000 for every day that he or she has been detained or arrested. This provision was omitted from the Act and hence no longer applies.

Constitutional challenge

Several petitions filed by opposition senators, human rights lawyers, journalists, student organisations, and other groups are currently pending before the Supreme Court. Some of the petitions move to strike down the Act in its entirety while some seek to nullify specific provisions only, the most common of which is the definition of “terrorism” or the acts that constitute “terrorism.”

According to the petitioners, the definition of terrorism is vague, unclear, and sweeping such that it is prone to abuse. Unlike the old anti-terrorism law (i.e., the Human Security Act) that enumerates specific predicate crimes for terrorism (e.g., piracy, rebellion, coup d’etat, murder, hijacking, etc.), the acts constituting terrorism under the Act are said to be very broad such that its enforcers “will have unbridled discretion to select the targets of the new terror law including those from among critics and the opposition.”

Another provision that is sought to be nullified is that which empowers the ATC, a body composed of members of the Executive Branch of the government, to order the warrantless arrests of persons on the basis of mere suspicion even if no charges have been filed. According to the petitioners, this violates a person’s Constitutional rights to due process and to be secure from unreasonable searches and seizures. In addition, the power granted to ATC is said to be violate the principle of separation of powers of the three branches of the government (i.e., the Executive, Legislative, and Judiciary) “as it effectively allows the [ATC] to circumvent the issuance of warrants of arrest that are the exclusive prerogative of the Judiciary.”

It has yet to be seen how the Supreme Court would rule on these issues. In the meantime, unless and until the Act or parts thereof have been declared void with finality by the Supreme Court, the provisions of the Act remain valid and effective.

 

If you have any questions or require any additional information, please contact Felix Sy or Aubbrey Lim of Insights Philippines Legal Advisors (a member of ZICO Law).

This alert is for general information only and is not a substitute for legal advice.