Saturday, July 28, 2007

Basilan Beheadings Were Terrorist Crimes Under the Human Security Act of 2007

Now’s the time to understand the definition of the crime of terrorism

The Human Security Act of 2007
defines a new category of criminal activity called terrorism. In the local punditry and bloggerdom, the definition of terrorism has been a long-running controversy. Generating much of, and then pointing to these widespread disagreements, some here are saying that the definition in the law itself is VAGUE.

This point is being repeated by a lot of people in columns, broadcasts and editorials. Whereupon they usually say something that often suggests to me they’ve never READ the effin Law, but knowing most of their audience hasn’t either, they think they can get away with saying something stupid. Well, they can, with most people. This simple statistical truism is the Trade Secret of pundits and journalists in the Philippines.

I know why some of these folks are saying that the definition in HSA 2007 is vague. It is because terrorism is not a SIMPLE crime that we are already familiar with. But--and this IS the confusing part for most people—the first element of the COMPLEX crime of terrorism is a precisely defined set of just such “simpler” crimes: piracy, rebellion, insurrection, coup d’etat, murder, kidnapping, destruction, arson, illegal use of toxic and radioactive substances, hijacking, and illicit dealing in firearms, ammo and explosives.

After calling the definition vague, many critics usually segue into the line of argument that the anti-terrorism law is UNNECESSARY because we can already prosecute these component crimes under the Revised Penal Code and other laws cited in H.S.A. 2007.

But the argument is facile. One could say the exact same thing about other COMPLEX crimes like Plunder and the Organized Crime statutes, which also defined new categories of criminal activity that were themselves made up of such simpler crimes. For example the Plunder Law being used to prosecute former President Joseph Estrada is defined as “series or combination or clear pattern” of such acts as corruption, graft, estafa, embezzlement, theft of public funds, etc. Yet none of these same critics of 2007HSA would call the plunder law “unnecessary” just because we could prosecute for the component crimes. Indeed as Estelito Mendoza recently explained on tv, plunder is NOT just those component crimes, but the series or combination of them. In other words, the whole of the crime of plunder is more than the sum of its parts. Take a complex mechanical contraption, like an automobile. It is clearly more than just the engine, tires, doors and electronics put together. It is the entire assembly we call a car that is the whole thing. Likewise terrorism is more than just the odd train bombing in Manila, or blown up super ferries, or disappeared ideological rivals, or the occasional beheading or ten.

But here is the definition of terrorism from HAS-2007, without the long list of component crimes:
SECTION 3. Terrorism. – Any person who [1] commits an act punishable under any of the following provisions of the Revised Penal Code:
[…enumeration of laws punishing the component crimes of terrorism…]
[1] thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, [2] in order to coerce the government to give in to an unlawful demand shall be guilty of the crime of terrorism and shall suffer the penalty of forty (40) years of imprisonment, without the benefit of parole as provided for under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.
The items [1], [2] and [3] are nowadays referred to as the elements of this new crime of terrorism and I am sure there will be much more discussion of the definition in the months and years ahead.

One of the interesting controversies that will surely arise in regard to Element [2] is whether or not a crime of terrorism exists if the intent to sow and create a condition of widespread and extraordinary fear and panic among the populace, fails.

For surely, it is in the public interest that no matter what chaos or mayhem or destruction some future terrorist causes, that the populace not succumb to fear and panic.

So my answer to the question is NO, it is not necessary that there actually BE a reaction of widespread fear and panic to some terrorist act. It is enough that the intent to cause such fear and panic be proved. In general this would seem to be a very difficult thing to do. But I’ve come to realize that it might not be so hard in certain cases in which the acts themselves evince the presence of such evil intent. For example, if someone threatens to poison the water supply or disseminate radioactive waste, or to release a deadly biological agent, that would suggest to most reasonable men an intention to sow widespread fear and panic.

Element [3] is even more clearly about intent and motive as being a defining characteristic of the crime of terrorism (which makes the crime very difficult to prosecute and prove, UNLESS, it becomes obvious in the outrageous nature of the act itself that there is a clear intent to coerce the government to give in to an illegal demand.

This element is the political or ideological element of the complex crime of terrorism. Taken in the abstract, this may seem like a sticky subject, again unless the acts and context involved are redolent of political coercion of the government, such as in the cases of insurgents (CPP-NPA), secessionists (MILF), and global jihadists (Abu Sayyaf, JI, AQ).

As with most laws, it is not theoretical disputation over HSA2007 that will settle things and make them clearer. It is real events involving real people that will clarify what the polity shall make of its Law and the definitions therein.


Counterterrorism Blog has an excellent background summary on this incident which occurred on Tuesday 10 July 2007 near Tipo-tipo on Basilan Island in southern Philippines:
On 10 July, a group of 80 Philippine Marines were patrolling Guinanta village in the Tipo Tipo area of Basilan, Island, just south of Zamboanga, when they were ambushed by members of the Moro Islamic Liberation Front (MILF) and quite possibly members of the Abu Sayyaf Group (ASG). 14 marines were killed, 10 of those were decapitated, and nine more were wounded. That the MILF and the Armed Forces of the Philippines (AFP) clashed is not in doubt and both have acknowledged the conflict. But those are about the only facts the two sides agree.
ABSCBN NEWS lists the names of the Philippine Marines killed and mutilated:
The Marines killed in that clash were Privates First Class Emmanuel Beup, Reuben Doronio Jr., Freddie Palma Jr., Elizar Semeniano, Arjorin Alezar, Jhonard Allanza and Wilfredo Lamban; Pvt. Emilio Lachica Jr.; Cpl. Russel Panaga; Sgts. Rey Callueng, Gerardo Licup and Cayetano Simbangon; S/Sgt. Bernard Abes and T/Sgt. Noel Bautista.
This crime qualifies as good test case for Human Security Act. Many of those who have opposed the Act on political and ideological grounds are really at at a loss about how to deal with the Basilan Beheadings. I think most them realize it IS an almost ideal case to test the validity and Constitutionality of the HSA, and that the beheadings really ARE terrorist crimes.

But if such a terrorist crime were to be successfully prosecuted this close to the HSA coming into effect, it would surely refute many of the arguments of those who oppose it.

I think this is precisely why they refuse to admit the obvious, that the Basilan Beheadings were terrorist crimes, and why they want the whole thing dealt with again in the quagmire and quicksand of PEACE TALKS.

They cannot bring themselves to admit how RIGHT the law is on terrorism.

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