Legally Impermissible at Home and Abroad: Debating the Permanence of the Philippines' Anti-Terrorism Act
On July 3, 2020, Republic Act No. 11479, commonly known as the Anti-Terrorism Act of 2020, was passed into law in the Philippines. This new legislation effectively repealed Republic Act No. 9372, also known as the Human Security Act of 2007 (HSA), and aimed to prevent and prohibit terrorism. [1] Due to the broad definition of terrorism and the acts included therein, critics believe that the Anti-Terrorism Act was signed with the ulterior motive of deterring government criticism, raising questions about the act’s legality. [2] Considering its ambiguous definition of terrorism, suppression of free speech, and allowance of prolonged detention, the act is clearly illegal under domestic and international legal standards. Despite its legal inconsistencies, however, the Anti-Terrorism Act may very well withstand challenges in international or domestic courts. This is because there is insufficient coercive capacity in the existing human rights regime to deter non-compliance with its laws. The passage of the act, which clearly defies existing legal norms, reflects the need to strengthen systems that protect human rights in order to ensure accountability for violations of human rights law.
The constitutionality of enforcing an ambiguous definition of terrorism was first raised in the context of HSA in Republic of the G.R. vs. Herminio Harry Roque (2013). Herminio Harry Roque, a Filipino Human Rights Lawyer, petitioned the Philippines Supreme Court arguing that HSA violated the Philippines’ void-for-vagueness doctrine. This doctrine holds that a law is unconstitutional if a man of “common intelligence” cannot understand its meaning or applications. [3] The Court ruled that HSA did not meet the void-for-vagueness doctrine criteria because it enumerated various acts that constitute terrorism. In its decision, the Court clarified that a law is only void-for-vagueness when it fails to provide a clear idea of conduct, leaving the enforcement of said law ambiguous. [4] While HSA did not meet this criteria, the Anti-Terrorism Act is far more ambigious because it does not define the extent of fear or coercion that constitutes terrorism, nor does it offer any examples of terrorist acts. [5] Under the precedent established in Roque, therefore, the Anti-Terrorism Act should not survive domestic legal challenges.
Beyond its vague language, the Anti-Terrorism Bill can also be faulted for its implications for free speech, which contradict the international precedent set in Alexander Adonis v. The Philippines (2011). Alexander Adonis, a radio broadcaster, was convicted of libel when he reported on a local congressman’s extra-marital affair without confirming the story. Because HSA classified libel as terrorism, Adonis was sentenced to an indefinite penalty, but appealed his case to the United Nations Human Rights Committee (UNHRC). [6] Adonis argued that the Philippines’ libel laws violated the International Covenant on Civil and Political Rights (ICCPR) to which the Philippines is legally bound because it has ratified and adopted the covenant. [7] Specifically, Adonis contended that prison penalties should be replaced by civil damages and that the threat of imprisonment breeds a climate of press censorship, violating the free speech protections enshrined in Article Nineteen of ICCPR. UNHRC found that imprisonment is never an appropriate penalty for libel and concluded that the Philippines violated ICCPR. [8] Applying the precedent set in Adonis to the Anti-Terrorism Act, it is clear the law could be challenged under international standards. This case affirms the United Nations’ ability to review judicial decisions and legislation due to the binding nature of ICCPR, establishing jurisdiction to evaluate the Anti-Terrorism Act. Furthermore, because libel is also classified as terrorism under the Anti-Terrorism Act’s definition of terrrorism, it is clear that mechanisms of the act are not compliant with international law. [9] The act can thus be legally challenged under international standards for violating ICCPR.
The authorization of warrantless arrest on mere suspicion established in the Anti-Terrorism Act further infringes ICCPR, as defined in Albert Wilson v. The Philippines (2003). In this case, UK national Wilson was arrested and held on death row in the Philippines for alleged rape. When the accusation was proven false, Wilson was released and demanded to pay the Philippines for staying overtime as a foreigner. [10] Wilson appealed to human rights organization Redress and the United Nations Human Rights Committee, arguing that his experiences on death row amounted to torture and unfair punishment. The committee concluded that Wilson’s arrest violated Article Nine of ICCPR because he was not informed of the charges against him at the time of his arrest. As such, the committee cleared Wilson of his charges and offered effective remedy through monetary compensation. The Philippines was warned to refrain from similar violations of human rights law in the future. [11] The Anti-Terrorism Act’s standards for arrest do not comply with either the ICCPR’s contents or the covenant’s interpretation in the Wilson case. Unlike HSA, the Anti-Terrorism Act does not mandate any judicial oversight during the arrest or detention of terrorism suspects. [12] This exclusion flouts Article Nine of ICCPR, which states that detained persons must be promptly brought before a judge. [13] Due to the binding nature of ICCPR, the Anti-Terrorism Act could be brought before the United Nations Human Rights Committee, as in the Adonis and Wilson cases, under the premise of unlawful detainment.
Despite the binding nature of international human rights law, the Philippines continues to violate ICCPR without direct consequences, as seen in People of the Philippines v. Santos, Ressa, and Rappler (2020). In June 2020, Maria Ressa and Reynaldo Santos Jr were arrested for cyber libel after publishing a story on Rappler that suggested collusion between a businessman and a top judge. [14] Ressa and Santos were sentenced to six years in prison and charged with a 200,000 PHP fine (approximately $4000). [15] Despite similar circumstances in Adonis, the case has not been appealed to the UNHRC. Without an appeal, there is no guarantee that the Philippines will be held accountable for defying international law because there are no enforcement mechanisms for the ICCPR. Furthermore, there are no penalties even when the United Nations Human Rights Committee intervenes in an ICCPR violation, as seen in Adonis and Wilson. This case demonstrates that the Philippines continues to violate Article Nineteen of ICCPR with impunity.
Ultimately, the Philippines’ Anti-Terrorism Act violates both international and domestic legal standards. Domestically, the act’s broad definition of terrorism directly contradicts the void-for vagueness-doctrine; internationally, the act violates standards of free speech and lawful detention. Despite these clear violations, there is still a chance that the law may never be challenged or amended due to the weak nature of the international human rights regime. Maria Ressa’s case clearly demonstrates that countries like the Philippines can choose not to abide by international human rights law because they maintain state sovereignty. The implications of the passage of the Anti-Terrorism Act are tremendous, as freedom of expression is the foundation for many other human rights laws, such as the freedom of peaceful assembly and freedom of press. Given the repercussions of domestic non-compliance, it is imperative that we strengthen the human rights law regime.
[1] Republic Act No. 114791, Congress of the Philippines Official Gazette (2020), online at https://www.officialgazette.gov.ph/2020/07/03/republic-act-no-11479/ (visited August 23, 2020).
[2] Aspinwall, Nick, Philippine Court Asked to Annul Anti-Terror Law Amid Concerns It Will Target Dissidents, The Diplomat (2020), online at
https://thediplomat.com/2020/07/philippine-court-asked-to-annul-anti-terror-law-amid-concerns-it-will-target-dissidents/ (visited August 23, 2020).
[3] G.R. No. 167011, The Lawphil Project (2008), online at https://lawphil.net/judjuris/juri2008/dec2008/gr_167011_2008.html (visited August 23, 2020).
[4] G.R. No. 204603, The Lawphil Project (2013), online at https://lawphil.net/judjuris/juri2013/sep2013/gr_204603_2013.html (visited August 23, 2020).
[5] Lyew, Brent H, An Examination of the Philippines' Anti-Terror Law, Washington International Law Journal, 1, 19 (2010): 187–216.
[6] Alexander Adonis v. The Philippines, Communication No. 1815/2008, U.N. Doc. CCPR/C/103/D/1815/2008/Rev.1, University of Minnesota Human Rights Library (2012), online at http://hrlibrary.umn.edu/undocs/1815-2008.html (visited August 3, 2020).
[7] UNTC, United Nations (2019), online at https://treaties.un.org/Pages/showDetails.aspx?objid=080000028002b6ed&clang=_en (visited August 23, 2020).
[8] Alexander Adonis v. The Philippines, Communication No. 1815/2008, U.N. Doc. CCPR/C/103/D/1815/2008/Rev.1, University of Minnesota Human Rights Library (2012), online at http://hrlibrary.umn.edu/undocs/1815-2008.html (visited August 3, 2020).
[9] Palatino, Mong, Why the Philippines’ New Anti-Terror Law Would Be a Blow to Rights, The Diplomat (2018), online at https://thediplomat.com/2018/07/why-the-philippines-new-anti-terror-law-would-be-a-blow-to-rights/ (visited August 23, 2020).
[10] Albert Wilson v. Philippines, United Nations High Commissioner for Refugees (2003), online at https://www.refworld.org/cases,HRC,404887ec3.html (visited August 23, 2020).
[11] id
[12] Republic Act No. 9372, Congress of the Philippines Official Gazette (2007), online at https://www.officialgazette.gov.ph/2007/03/06/republic-act-no-9372/ (visited August 23, 2020).
[13] International Covenant on Civil and Political Rights, United Nations Human Rights Office of the High Commissioner (2019, online at https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (visited August 23, 2020).
[14] Buan, Lian. Maria Ressa, Rey Santos Jr Convicted of Cyber Libel, Rappler (2020), online at https://rappler.com/nation/maria-ressa-reynaldo-santos-jr-convicted-cyber-libel-case-june-15-2020 (visited August 23, 2020).
[15] Ressa, Maria. Philippines: Cyber-Libel Conviction of Maria Ressa and Reynaldo Santos a Blow to Freedom of Expression and Media Online, International Commission of Jurists (2020), online at https://www.icj.org/philippines-cyber-libel-conviction-of-maria-ressa-and-reynaldo-santos-a-blow-to-freedom-of-expression-and-media-online/ (visited August 23, 2020).