ATL-IRR raises fear of further state repression; terror council wields wide powers
By Fil Andrew E. Bagano
Social activists and government critics must now self-censor more than ever, or face targeted government suppression.
Last Friday, October 16, the Department of Justice published the Anti-Terror Law’s (ATL) Implementing Rules and Regulations (IRR) on its official website. Touting it as a solution to perceived deficiencies of the ATL, DOJ undersecretary Adrian Sugay claimed the IRR will “make sure it is properly understood by law enforcement, prosecutors and judges”.
However, Makabayan bloc representative Carlos Zarate disputes this, noting the IRR will make the terror law worse in making it “palatable to the people.” Former Supreme Court secretary Theodore Te agrees, adding that the IRR cannot introduce any content contrary to what is written in the original law.
In the country’s legal system, IRRs merely operationalize a law’ provisions for easier implementation. No part of the IRR may run counter to its related law, or it will be declared unconstitutional. As such, the IRR cannot solve the ATL’s issue of vague terms and infringement on exclusive judicial mandates (see Rule 3.10 of the IRR).
Judicial powers appropriated by the executive body
Critics claim that the terror law will legitimize its repression of constitutional rights. These contentious points include the removal of penalties for wrongful arrests, the possible 24-day warrantless detention period, and its restrictions on free speech and expression.
But perhaps the most controversial part about the ATL-IRR is the Anti-Terror Council’s powers to list certain groups and individuals as “terrorists.” The process, which is a function exclusive to the judiciary under the 1987 Constitution, will be deliberated solely by the ATC’s members in closed-door meetings. This shifts the burden of proof to the accused, violating the presumption of innocence; worse, they cannot defend themselves as it is done.
Gapay defends this process by arguing practical considerations. According to him, a hearing would defeat the ATL’s purpose, as it would “give designated persons or entities the opportunity to conceal funds and other assets.”
Gapay also does not give light to other equally important issues. For one, being listed as a terrorist by your own state exposes legitimate activists to physical danger and violence. Given the current political atmosphere and the long history of government maltreatment of activists and progressives, being added to this list means the attention of even more vigilantes and paramilitary forces.
More alarmingly, the whole process is done by an executive body serving at the President’s will. This can create a dangerous cycle, where a president can list down political enemies as “terrorists” under the ATL’s overbroad definition of terrorism, which his successor can then tailor according to political motives. Coupled with the IRR’s Rule 3.5, which restricts access to all of the ATC’s records, this makes the process easy to abuse and hard for watchdogs to check.
With the Supreme Court’s continued silence, what else can activists and lawyers do to stop the effects of the Anti-Terror Law? By continuing to speak up. Only by the sustained practice of our constitutional rights can freedom of speech, expression, and assembly survive.
More importantly, some of us should be ready to go to prison for these injustices to be corrected. One of the most powerful weapons of nonviolent reform is the willingness to suffer so that the people may see faulty constructs as they are. Coupled with a vigilant mind and a resolute will, this is the only thing we can do until the Supreme Court resolves this matter.
It must be noted that freedom of speech was born during tumultuous times. Now, as an opportunist regime takes advantage of the COVID-19 crisis to systematically strip us of our freedoms, we are called to brave the storm once more, and to protect those very rights even at our own risk.