By the Hon. Senator M. A. MADRIGAL
Presentation before the Eminent Jurists Panel,
International Commission of Jurists
Djakarta, Indonesia
December 5, 2006
The Honorable Members of the Eminent Jurists Panel, Ladies and
gentlemen:
On the eve of my departure for Geneva last 13 October 2006, one
of the leading newspapers in my country, the Philippine Daily
Inquirer, published an editorial.
It was addressed not only to the public but also to senators
such as myself, who have been called upon to deliberate on a proposed
anti-terrorism law. It said that any such law “should
be of limited duration and subject to an annual review and reenactment
by Congress, just as we would like to see a genuine system for
congressional oversight over the Armed Forces and the police to
discourage abuses.”
The moderate appeal of that newspaper reflects the opinions of
many millions of concerned Filipinos. In the name of fighting
terrorism we have seen human, civil, and political rights set
aside in order to confer upon governments unprecedented powers
over those they view as their enemies.
The government of my country wants increased powers, too. The
government of Mrs. Gloria Macapagal-Arroyo is insisting on the
passage of an oppressive anti-terrorism law. The proposed legislation
would grant it vast powers over my fellow citizens. To the cautionary
charge that such a law might become another instrument of a far
bigger terror and worse form of terror – that is, of State
terrorism, President Arroyo and her cabinet, and her allies in
our legislature, insist on denying it might ever be so.
But it will be so, because the terrifying provisions of the law
are there for all to see and read.
According to the provisions of the proposed legislation, there
is no clear definition of who a terrorist is. A person may be
labeled as a terrorist by reason solely of his religious or political
belief and his defense thereof. The bill's definition of terrorism
is too broad and too sweeping, covering many crimes that are already
punishable under existing laws. The proposed law blurs the distinction
between real acts of terrorism and ordinary crimes. Worse, it
can be interpreted to include all acts in pursuit of legitimate
dissent. In a time of intense crisis and undisguised political
repression, the law can and will be used to illegalize the legitimate
activities of critics and opponents of the current administration.
This happened to six (6) progressive parliamentarians and members
of the House of Representatives in our country, who were accused
of participating in a rebellion against the current regime. A
few months thereafter, five (5) Farmers collectively known as
the “Tagaytay 5” were arrested and tortured without
any warrant. They continue to be detained until now based on trump
up charges of rebellion.
The vagueness of defining a terrorist is not limited to the Philippines
alone. Since 1995, the United Nations has yet to come up with
a clear definition of who a terrorist is.
Furthermore, the proposed legislation creates a new set of crimes.
It grants a disturbing freedom of movement and discretion to the
Philippine Law Enforcement Officers and the Military.
Under the present draft of the bill, Philippine police or any
government law officer, including the military may engage in wire
tapping for a period of one hundred twenty (120) days without
incurring any criminal liability. This may be done through an
ex parte written application before our Regional Trial Court to
be permitted, and based only on reasonable grounds. The written
application and the order of the court is declared as “classified
information.”
Mere membership in any organization declared as a terrorist organization
will become punishable by law. And any legitimate exercise of
one’s right to appeal for the redress of grievances has
the potential, under the proposed law, to be considered terrorism,
solely by reason of the membership of a suspect in an organization,
association or group of persons, labeled a terrorist group by
the government.
Any Filipino or foreigner is liable to arrest and detention without
judicial warrant of arrest for a period of 5 days. The police,
military and government law officer will not incur any criminal
liability for abuses or false arrests. This provision as pointed
out by the International Commission of Jurists in their letter
to the Members of the Philippine Senate dated 03 November 2006
would violate Article 9, paragraph 3 of the United Nations International
Covenant on Civil and Political Rights (ICCPR) which requires
that a person arrested be brought “promptly before a judicial
authority.” Under international law, the term “promptly”
does not exceed forty eight (48) hours, even if national security
concerns are involved.
Bank deposits, accounts and records may be examined through an
ex-parte written application by the police and military officers
before the Regional Trial Court. The written application and order
of the court allowing such examination is considered classified
information. The bank examination may be undertaken for a period
of one hundred twenty (120) days.
This panoply of powers, the executive department argues, is a
matter of national life and death and therefore, she must enjoy
these powers. But as the editorial I mentioned in the beginning
pointed out,
“We must bear in mind that the administration trying
to panic Congress into passing the law is the same administration
that proclaimed the February 2004 bombing of the Superferry 14
as an accident. Indeed, President Gloria Macapagal-Arroyo said
it was the work of “pranksters.” She and other officials
admitted only that it was what everyone thought it was -- the
country’s worst terrorist attack -- in October, after she
had claimed victory in the May 2004 elections. Yet four weeks
after the bombing, Redondo Cain Dellosa, alias Arnulfo Alvarado,
had been captured by investigators and confessed he had planted
the bomb where it would inflict the greatest number of casualties.
The Abu Sayyaf claimed credit, but the government laughed it off
-- until after the elections. Even then, the President claimed
six suspects had been caught, though the two masterminds evaded
apprehension.”
On the social and political, my concerns on the proposed anti-terrorism
legislation are as follows:
- In the hands of a repressive regime, such as that of Mrs.
Gloria Macapagal-Arroyo, the anti-terrorism bill will create
a shadow criminal justice system that, in turn will be used
as an instrument of a greater terror perpetrated by people in
power against their critics and political opponents. I am deeply
bothered by the incident that occurred in the raid on a Good
Shepherd Convent in the Philippine Provinces of Butuan and the
statement made by the Armed Forces of the Philippines in the
Province of Bulacan that, churches can be used as sites for
conducting anti-insurgency campaigns. Recently, the Armed Forces
of the Philippines sent a chilling message to all human rights
defenders when it called for the labeling of the reputable Amnesty
International as a “persona non grata.”
- We are against the use of violence against civilians. But
national security should not be used as an excuse to stifle
the freedoms and the human rights guaranteed by the Constitution.
We agree with the position taken by Amnesty International that,
“security and human rights are not alternatives; they
go hand in hand. Respect for human rights is the route to security,
not an obstacle to it. The route to security is through respect
for human rights, not their violations. As the UN Secretary-General
Kofi Annan has stressed: "While we certainly need vigilance
to prevent acts of terrorism... it will be self-defeating if
we sacrifice other key priorities -- such as human rights --
in the process."
- Worldwide, there is now a growing clamor for either the repeal
of or modification of existing terrorism laws. In 2004, India,
a country which has faced serious threats from terrorism and
other forms of political violence, took a significant step forward
for human rights by repealing the Prevention of Terrorism Act
of 2002. In Canada, a Federal Judge has struck out as unconstitutional
the definition of terrorist based on his political or religious
belief. And most recently, according to a news report, United
States District Federal Law Judge Audrey Collins in a 21 November
2006 ruling struck down as “unconstitutionally vague,”
an executive order of President Bush allowing the latter to
create a list of specially designated global terrorist groups.
The same ruling also enjoined the government of the United States
from blocking the assets of two (2) foreign groups – the
Tamil Liberation Tigers of Sri Lanka and the Partiya Karkeran
Kurdistan of Turkey which were placed on the list. This ruling
is significant considering the fact that, the Communist Party
of the Philippines and the New People’s Army are also
unjustly labeled and included in the list of the United States
as “foreign terrorist organizations” and Professor
Jose Maria Sison as a “terrorist.” This ruling only
amplifies the argument that the meaning of terrorism is often
determined by context rather than a logical explanation.
- in a report on India’s Anti-Terrorism and Security Law
prepared by the Association of the Bar of the City of New York
for the Committee on International Human Rights, it said that,
“Attentiveness to these human rights concern is not simply
a moral and legal imperative, but also a crucial strategic imperative.
As the Supreme Court of India has recognized, “terrorism
often thrives where human rights are violated, and the lack
of hope for justice provides breeding grounds for terrorism.”
- Present anti-terrorism legislations rely on the same institutions
used in fighting other crimes – the police or military,
the prosecution and the judiciary. More often than not, these
same institutions have been tainted with doubts and their competency
to protect human rights laws seriously undermined. If these
same institutions are used to confront the so-called menace
of terrorism, intense pressure will only subject them to commit
further abuses.
I am not alone in raising these concerns. In my visit to Europe
last month, the International Commission on Jurists, the International
Federation of Journalists, Amnesty International and Members of
Parliaments have also expressed the same concerns. More recently,
the European Union diplomatic corps in the Philippines have also
expressed their concerns on the Anti-terrorism Bill, particularly
with the version re-imposing the death penalty.
I have studied the issue on terrorism well particularly with respect
to human rights. I intend to introduce in the Senate a bill on
this proposed legislation that will introduce a paradigm shift
on how we view security or “insecurity” by the state.
Present anti-terrorism legislations rely on the same institutions
used in fighting other crimes – the police or military,
the prosecution and the judiciary. More often than not, these
same institutions have been tainted with doubts and their competency
to protect human rights laws seriously undermined. If these same
institutions are used to confront the so-called menace of terrorism,
intense pressure will only subject them to commit further abuses.
To break this cycle of merely legislating offenses without addressing
the root problem of why terrorism exists, it is necessary to protect
human rights and adopt a paradigm shift on how we view issues
on security.
This shift can be done by adopting the principles of Human Security.
Human security refers to the security of individuals, as opposed
to national security, which refers to the security of states.
The key elements of my proposed bill are:
• Adopts as a State policy to value the dignity of every
human person and guarantee full respect for human rights as the
means for ensuring the security of its people. Towards this end,
the State shall adopt human security measures to protect the people
from pervasive threats to their rights, safety and lives.
• Such measures, shall include conflict management and
post-conflict peace-building, to addressing the roots of conflict
by building state capacity and promoting equitable economic development.
The State shall further advance the protection and promotion of
human rights, the rule of law, the culture of peace and the peaceful
resolution of conflicts by adopting interventions that are people-centered.
• Includes a separate chapter devoted entirely on Human
Rights, such as:
- recognition and equality before the law;
- right to life;
- protection from torture, cruel, inhuman and degrading punishment;
- protection of the family and children as the basic unit of
society;
- protection of the right to privacy and reputation;
- freedom of movement;
- freedom of thought, conscience and belief;
- peaceful assembly and freedom of expression;
- right to liberty and security of person;
- right to humane treatment when deprived of liberty;
- right to fair trial;
- compensation for wrongful conviction;
- right not to be punished more than once;
- right of ethnic, religious or linguistic groups
• Strengthens the Philippines’ constitutional body
– the Commission on Human Rights by giving it prosecutorial
powers on human rights abuses, and requiring it to adopt human
security programs that will address the root causes of conflicts.
Most of us here can recall when Pope Paul VI told the United
Nations, “If you want to be brothers, let the arms fall
from your hands.''
And we remember how he made that emphatic, and immortal appeal,
"No more war, war never again! Never one against the other."
His hope, his entreaty, is our hope and our earnest prayer; but
it is nowhere near being accomplished reality either in his time
or in ours. But “Jamais la guerre!” That is what he
prayed; and it is what we must pray –and work to achieve.
Our work begins with speaking forcefully, and in a unified manner,
against such draconian laws and their approval. We ask your support
and seek your intercession in asking the non-passage of this proposed
measure.
The Honorable Members of the Jurists Panel, Ladies and gentlemen,
Jamais le terrorisme! Never again, the terrorism
of the state against its own!