Anti-Terrorism Law

One of the most controversial laws to passed by the Congress this year is the Anti-Terrorism Bill
of 2020 which is just awaiting the signature of the President before it can finally become a law. Critics
have been very vocal about their dissent on the law pointing out that it violates the Constitution and
basic human rights.
Among the salient features of the bill is Section 29 entitled ‘Detention without judicial warrant
of arrest,’ which authorizes the ATC to take custody of a person “suspected of committing any of the
acts defined under Sections 4, 5, 6, 7, 8 , 9, 10, 11, and 12” of the said law, this is otherwise known as a
warrantless arrest. It further provided that the law enforcement officer may detain such person for a
period of 14 calendar days which may be extended for another ten days if is established that (1) further
detention of the person/s is necessary to preserve the evidence related to the terrorism or complete the
investigation, (2) further detention of the person/s is necessary to prevent the commission of another
terrorism; and (3) the investigation is being conducted properly and without delay.
On warrantless arrest
One of the senators who lobbied the bill argued that it was necessary and even posed the
question: “If you see a person wearing vest filled with explosives, will you not arrest him/her?” The
question was raised to justify the warrantless arrest of a person who is about to commit an act of
terrorism. The present system, this is already addressed.
Under Section 5 of Rule 113 of the Rules of Court, warrantless arrest can only be done under
the following circumstances : (a) when, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense also known as in flagrante arrest; (b) when
an offense has just been committed and he has probable cause to believe based on personal knowledge
of facts or circumstances that the person to be arrested has committed it or ‘hot pursuit’ ; or (c) when
the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is
serving final judgement or is temporarily confined while his case is pending, or has escaped from while
being transferred from one confinement to another.
The question posed earlier would fall under the first instance of warrantless arrest, or in
flagrante arrest. A person who is about to commit an act of terrorism by wearing undetonated
explosives can be arrested as a person who is ‘attempting to commit an offense.’ Why is the provision
on warrantless arrest under the Anti-terrorism Law dangerous?
First, it allows for warrantless arrest based on ‘suspicion.’ The law allows for the arrest of
persons ‘suspected’ to have committed acts under Sections 4, 5, 6 ,7 ,8 , 9, 10, 11, and 12 of the law. The
acts referred to under these sections are : terrorism; threat to commit terrorism; planning, training,
preparing and facilitating the commission of terrorism; conspiracy to commit terrorism; proposal to
commit terrorism; inciting to commit terrorism; recruitment to and membership in a terrorist
organization, foreign terrorist and providing material support to terrorist.
This means that a person who is ‘suspected’ to have ‘threatened to commit terrorism’ can be
arrested and detained for a maximum period of 24 calendar days. Why is this dangerous? Our legal
system requires probable cause to grant a warrant for the arrest of a person otherwise enumerated
above. This is important because our laws and the Constitution uphold the value of the life, liberty, and
property of a person. A persons’ liberty should never be put under restraint unless it is warranted by
law, and he should be given due process before such fundamental right be taken away from him. The
person, who is arrested, is put on restraint not as punishment for the offense he allegedly committed
but to ensure that the court his attendance when trial ensues. The only time when it is legally justifiable
to take away this fundamental right is when he has been convicted by the court for the offense charged.
A person may be arrested based on ‘suspicion’ that he ‘threatened’ to commit terrorism. The
Anti-Terrorism Bill is consists of crimes ‘mala prohibita’ which means that the intent of the person
charged is not important. This is different from crimes ‘mala insi’ which relies heavily on the intent of
the person charged with its commission. So, whether a person actually means the threat or not, or
whether there is probable to believed that he has done it, as long as there is suspicion that he did, he
can be arrested.
Second, it is a law which can easily be abused. Under Section 10 of the law, recruitment to and
membership in a terrorist organization is punishable, and anyone suspected to have committed such as
act can be arrested. The law defined terrorist organization as “any entity organized for the purpose of
engaging in terrorism or any persons, organization, or association which commits any of the acts defined
and penalized under Sections 4 to 12 as declared by the Court of Appeals upon application by the DOJ
for such declaration or the United Nations Security Council-designated terrorist organization. This is
highly problematic because it can easily be subjected to red-tagging. Red-tagging is the act of branding
persons or members of legitimate organizations as terrorist. In Press Release by one of the regional
offices of the Philippine National Police, they tagged legitimate organizations such as Bayan Muna,
Anakbayan and Kabataan as ‘communist terrorist’. In hindsight, this means that a person who is
‘suspected’ to be a member of a legitimate organization branded as terrorist group by none other than
the PNP can be arrested without a judicial warrant and can be detained for a maximum of 24 calendar
days.
Detention of Persons Arrested without a Warrant
A person’s liberty should never be restraint unless there is a lawful order by the Court. In
criminal cases, this is ensured by putting a maximum number of hours in which the law enforcement
officer making the arrest can detain a person without formal complaint filed against him. Presently, a
person arrested for a crime punishable with light penalties can only be detained without being inquest
for twelve hours, if he is arrested for a crime with correccional penalties, the maximum time for
detention is eighteen hours while thirty-six hours if the crime if punishable with grave penalties. Under
the Anti-Terrorism Bill, the maximum period of detention is 24 calendar days, which is more than 22
days compared to 36-hour maximum detention for heinous crimes. The safeguard offered by the rule
provided in order to secure that a person is not deprived of his liberty without due process, ensure that
detention is not used to harass persons at the same time, in order to hold law enforcement officers
accountable. This means that anyone ‘suspected’ to have committed any of the crimes above can be
arrested and detained for a maximum period of 24 calendar days without any charges filed against the
person yet. In case he or she is released after the 24 calendar day period and based on the investigation,
is not liable for the acts he was suspected to have committed, he cannot press charges against the
people who wrongfully detained him. If this is not a recipe for abuse, I do not know what is.

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One of the most controversial laws to passed by the Congress this year is the Anti-Terrorism Bill

Detention of Persons Arrested without a Warrant

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