Debating the Anti-Terrorism Bill

Other Philippine Commentaries on this topic are:

Is Terrorism a Tactic?

Definition: Terrorism is Organized Crime for Poltical and Ideological Ends

PDI's Fallacious Arguments Against the Anti-terror Bill

How Saddam Hussein Supported Terrorism in the Philippines

OTH the Palace and its critics in the debate over proposed anti-terrorism legislation seem to be talking past each other on the issue, though given the extreme degree of political polarization today, it's understable. Here I consider two of the principal arguments being raised, one from the NAY side of the house and the other from the YEA side.

The first argument is that the legislation is not needed because it is superfluous.
(PDF)
You can download the above proposed legislation from the website of the Philippine Center for Investigative Journalism.

Yesterday PCIJ published this comment from a regular correspondent there Manuel Buencamino to Rizalist in regards to the anti-terror legislation currently before Congress:

The Revised Penal Code contains all the medicines you need to deal with the symptoms of the disease. The anti-terrorism bill is being sold as a vaccine but it was prescribed even before a diagnosis of the disease has been made. So let’s make do with the Revised Penal Code until we find a vaccine that won’t kill us.

The observer is right about the fact that virtually every component crime mentioned in the propsed law is already punishable under the Revised Penal Code. Almost every crime, but I think he is really saying that an Anti-Terrorism Law is NOT NEEDED, that it is superfluous given the fact that other laws already exist punishing terrorist crimes.

Fair enough, yet many other countries have adopted such laws and they don't all have tyrants or vote-riggers looking for a way to suppress dissenters. Besides, anti-terror legislation by itself is useless unless it is part of a greater effort, an honest to God participation in the War On Terror. Willing to be engaged in that War on Terror, or not, determines whether one will be for an Anti-terror Law, or not.

Most Filipinos I think, want the country to contribute more to the fight against the nihilists, and to be a more steady and reliable ally. But many of them also have reason to be suspicious of a President with her back to the wall. Someone who hasn't slept much at all during the last six months of stonewalling and worrying about her security in office, might be a dangerous person to give certain powers and privileges to.
Today's PDI headline, Prayer Rally Dispersed By Water Cannon describes yesterday's violent disperal of a peaceful prayer procession led by three Catholic Bishops:

IOT police on Friday hosed down a protest rally heading towards Malacañang, slightly hurting former vice president Teofisto Guingona and some opposition legislators.
A burst of water stopped protesters from proceeding to Mendiola in the fifth violent dispersal of anti-government rallies since the calibrated preemptive response (CPR) policy went into effect on September 21.
"Water cannons were fired towards us even without negotiations,” said an indignant Guingona. “This is a clear violation of human rights. They have no right to do this to us."
Footage from GMA7 “24 Oras” evening newscast showed Guingona, former Pangasinan vice governor Oscar Orbos, Senator Ana Consuelo "Jamby" Madrigal, party-list Representatives Satur Ocampo and Risa Hontiveros and several other protesters being hit by the water jets along Recto Avenue, as they marched near presidential palace.

"The Anti-Terrorism Bill can be made safe for human rights."
This second argument is raised by pro-administration supporters of the bill as a way of reassuring the nervous public and the even more nervous leftists and human rights activists.

Anonymous poster Toro wrote on the same thread:

"The legislators must be careful in making a clear distinction in defining that word so that its application cannot be misconstrued and used to violate human rights."

But is it really possible to define terrorism with such precision and distinction that the law cannot be used to violate human rights when no one has yet given a universally acceptable definition of terrorism.

If I were the government, I would not indulge in such false promises of an inviolable law, because it is simply NOT fuzzy legal definitions that motivate tyrants to use the Law against their enemies and critics.

The government should tell the people "like it is:" that here we have this plague, this festering pandemic of mental viruses that could explode into a hundred car or tricycle bombs or a single big atomic bomb somewhere. It must convince the people to sacrifice certain personal and social freedoms that we have taken for granted but which are in real peril from global and regional terrorism.

The government must lay the basis for the Anti-Terrorism Law in the simple idea that we as a people and a nation are in fact AT WAR with certain malevolent forces that intend to exterminate us, disrupt our society and destroy our way of life. At least we should be at war with those forces.

The government must rally the people to wage a WAR on TERROR. If she does, the anti-terrorism law can be accepted as a small part of that entire effort, not just a useless body of fine legal distinctions and false guarantees that this law cannot be broken.

The Anti-Terror Law must not be only a product of legislation, it should also be a call to arms for national and international cooperation fighting a common enemy. It should be an integral part of that call to sacrifice and valor and creativity to secure our borders and malls and jeepneys and tricycles from the terrorists.
Ah, but there is the problem. Only legitimate leaders, those with the implicit trust and confidence of their people, can call upon them to make such sacrifices in the name of survival against an implacable and dangerous foe.

Only true, tested and trusted leaders can convince their people to suspend disbelief in the inherent malevolence of state power towards personal freedom.

Without such a leader to implement a law of such precise definition as you suggest and which I agree is needed, no amount of definition and distinction-making can possibly elicit the willing and eager support of the population for the temporary curtailment of the full ambit of their liberties and prerogatives.

Only a trusted and esteemed leader, can ask her people for the benefit of the doubt that their liberties will be safe in her hands.

Therein lies our present dilemma. The problem lies not in the Anti-Terrorism Law or its difficulty of formulation, but in the fact that the President is, wrongly or rightly, not trusted any more by 79% of the people--at least!

We will have to admit to other nations, to our friends and allies, that in our present condition, we may be endangering everyone else in the anti-terrorist enterprise. Because we have the weakest leader, daily in danger of being deposed by any number of unforeseeable circumstances, many of them self-inflicted, we are also consequently the WEAKEST link in a precarious chain that humanity cannot afford to be broken.

At the moment President Gloria Macapagal Arroyo is mortally wounded, paralyzed by the monumental effort it took to survive impeachment and ouster--temporarily. Having spent all her political capital with everybody, and then some, it is highly unlikely that she can effectively enlist the people into such a War and the sacrifices that come with it. Therefore, she cannot hope to easily get them to support an Anti-terror law. Too many of them believe it would be used against them.

UPDATE(1):Treating terrorism as a “crime” and making the fight against terrorism a matter of law enforcement, is what has run afoul of the strong civil libertarian tradition that has grown up in the Philippines since martial law.

I would rather we promoted the campaign against terrorism as a war against an enemy that has, by word of mouth and the most foul of deeds declared war on humanity.
If we decide that indeed we are already AT WAR or that we should be, then the whole context of the debate changes, doesn’t it? This point is being made at the blogspot, philippinecommentary and several other websites. People are willing to sacrifice many freedoms we enjoy in normal times IF they believe that the condition called “peace” does not and cannot exist until the enemy is defeated.

But our President, Gloria Macapagal Arroyo, has not made the case for war on terror. With Gloriagate her quagmire, she CANNOT rally people to any cause because she has demonstrated inconstancy, treachery and unreliability wherever she has stood on these weighty international issues.

As for the anti-terrorism bill, if it is sold as a pure anti-crime measure and not as part of a war-time mobilization, it’ll run into a buzz-saw of libertarian opposition. It will still be passed by the Congress of Trapos, but our international allies can look forward to the Philippines continuing to be the cradle of things like Operation Bojinka and the Bali Bombings.

The bill cannot be sold to the public purely as a crime-prevention measure, because we have a big fat Revised Penal Code that already lists all of them.

People only partially surrender their civil liberties when they are mobilized for war. That is already the situation in America, Britain, Australia, — they are all at war and gladly remove their shoes at airports to prove it. But they still argue–freely–over every instance of enforcement of their anti-terrorism laws.

UPDATE(2)

Dr. Victor Ramraj, Associate Professor at the University of Singapore was one of the speakers at a recent forum sponsored by the Lawyer's League for Liberty. PCIJ is carrying the PDF of his presentation.

I just got done reading through Prof. Ramraj's PDF. It's kinda heavy going, but provides a valuable technical reference into the complicated conceptual, legal and political issues involved. The academic approach is useful given our chaotic thinking on the subject.

I don't think an anti-terrorism law has much validity outside of a wartime context. Terrorism is not a quintessentially a "crime" though indiscriminate violence is its modus operandi. It is an enemy to be interdicted and if possible eradicated, like Avian Flu or HIV/Aids.

Approached like this, the Anti-Terror Law is the moral equivalent of a condom. Just as the existence of deadly AIDs curtails a former carefree lifestyle and naked freedom, so too does the existence of Al Qaeda require sacrifices and special precautions.

Considering terrorism to be an "enemy" in the same way that AIDS is an enemy has another advantage. It answers the argument implicit in "One man's terrorist is another's freedom fighter." No doubt there are true "terrorists" and true "freedom fighters" out there and it would only aid the one if we insist on having to make a theoretical-legal distinction from the other.

Perhaps, what has to be done is to select and explicitly designate who we consider to be the terrorist enemies and put them on a list that is transparently published, critiqued by the public, periodically reviewed and updated as necessary. That way, the opposition Liberal Party, for example, will not fear becoming "mistaken" as a terrorist under an anti-terrorism law, even though it has called for the President to resign and the president has conversely branded Sen. President Franklin Drilon a coup-plotter along with Cory Aquino. At worst they should fear being charged with rebellion. That would be bad and unjust enough but just for the sake of this discussion, at least they cannot be charged with terrorism, with its stiffer penalties and disrepute.

As long as the responsible State authorities and the public are one in identifying specific targets of a War on Terror, civil libertarian objections can be minimized.

Ramraj's concludes that at the end of the day, any anti-terrorism measure is by nature going to increase the power of the executive and curtail some degree of civil liberties. He sees ominous signs in the rise of the "security state" as nations are forced to adopt special measures against the terrorist threat.

As a lawyer, he does not step outside the legal box in trying to make anti-terror legislation more palatable to a dubious public. Rather he wants to smooth out its rougher edges by, for example, expunging specific references to ethnic and political minorities in the making of lists of terrorists and their supporters.

The latter might be counterproductive because without a definite list of terrorist targets, people in legitimate opposition to the administration would have a ground to suspect tyranny, or at least harassment. Better to say we are after Al Qaeda and any body who succors and aids them. Just because many actual terror groups are going to claim association with Islam, there is no confusion about the fact that terrorism defames Islam, and that the religion is not a target of the war on terror.

But the larger problem for the Philippines is not even technico-legal, it is political and ideological. I don't think the Filipino leadership is committed to a real War on Terror, whose needs are the only way to justify those special measures. It has not, and cannot rally the people to war, when the administration has demonstrated such inconstancy, for example in Iraq. Of course the people themselves are perfectly willing to let the Americans and/or Aussies do the job of hunting down Osama bin Laden and the Bali Bombers but that's a different matter.