Wednesday, August 15, 2007

Understanding the Definition of Terrorism Under the Human Security Act


ABSCBN's Maria Ressa reports on growing proof that the MILF has been harboring Jemaah Islamiyah terrorists,
including Bali Bombers Umar Patek and Dulmatin, and Zulkifli Abdhir. This perhaps presages the addition of the MILF to Foreign Terrorist Organization lists maintained by the US and EU.

Congressman Pabling Garcia, considered to be an outstanding legal mind in the House of Representatives, disappoints with a Privileged Speech in which he presents a very shallow and superficial interpretation of the definition of terrorism as found in the Human Security Act of 2007, which leads him to the entirely erroneous conclusion that such obvious terrorist crimes as the Superferry 14 Bombing, the Basilan Beheadings and even September 11 attacks in the U.S. do not qualify as terrorist acts under the HSA.

REP GARCIA: The HSA requires that such an act sow and create a condition of widespread and extraordinary fear and panic, that the act is done “in order to coerce the Government to give in to an unlawful demand.”

“Unless and until these two additional essential elements are present, there is no crime of terrorism. The act may constitute an ordinary crime of murder, kidnapping or arson, etc. but certainly not terrorism,” Garcia said.

Garcia said the 9-11 attacks, the London bombings in 2005 and most of the bombings in Iraq do not constitute terror under the Philippine definition.

“Why not? These bombings were not done in order to coerce the American, the English or the Iraqi governments to give in to an unlawful demand,” he said.

Garcia said the killing of 14 Marines and the decapitation of 10 of them in Al-Barka, Basilan last July also did not suffice as a terrorist act under the HSA.

“Oh, yes, it was a terrorist act, but not under the Human Security Act. It caused widespread fear but there was no demand [made on the government],” Garcia said.

Neither could the Super Ferry bombing in February 2004 be considered an act of terror under the HSA, he said.

With all due respect, I think that Rep. Garcia imposes a requirement on the definition that it does not in fact make. I assert that the ATTEMPT of terrorists to sow or create a condition of widespread fear and panic NEED NOT SUCCEED for the element of INTENT to sow and create such a condition to be present. Indeed, the authorities certainly do not WANT the Public to react with fear and panic, no matter how terrible some terrorist act is. So, the second element of using as a tactic the sowing of fear and panic can be present EVEN IF IT DOESN'T WORK.

Now, as Prof. Clarita Carlos of the National Defense College told me, it is very difficult to prove INTENT when it comes to criminal cases. I agree, but that is why the crime of terrorism is not a "simple crime" to prove and cannot easily be applied willy nilly to just anybody.

But let me present a new point. I think there are certain ACTS that fall under Element One of the definition, which, by the specific nature of the acts themselves inherently imply just such a criminal intent as specified in Element Two to sow fear and panic. Suppose for example that a terrorist team tries to poison the Manila water supply with highly toxic chemical or biological agents; or to cause widespread suspicion of the food supply by poisoning rice and flour stocks; or the use of nuclear, biological and other unusual weapons of mass destruction. Such hypothetically heinous and deadly acts, I think most reasonable people would agree, by their very nature imply the INTENTION to sow and create widespread fear and panic.

I think that is really what the Second Element refers to: that the component criminal act, which is already punishable under the Revised Penal Code and other laws, is nonetheless of such a perhaps spectacular or otherwise inherently terrible nature in its use of weapons, its scale, or its sheer lethality and cruelty, that the second element is self-evidently present.

The Basilan Beheadings fall under this category of heinous crimes and clearly contain Element Two of the Crime of Terrorism.

Rep. Garcia also falls prey to what I call "the Colmenares Fallacy" after the NUJP lawyer who claimed early on that if a suicide bomber runs into a Jollibee Restaurant and detonates himself killing dozens, but without shouting out some kind of unlawful demand, then it is not an act of terrorism.

This addresses Element Three of the definition: the goal of "coercing the government to give in to an unlawful demand."

What "unlawful demands" were the perpetrators of the Basilan Beheading and the SuperFerry 14 Bombing trying to coerce the government to give into by undertaking those acts?

First, who WERE the perpetrators of the Super Ferry Bombing and the Basilan Beheadings. Well, the Abu Sayyaf in both cases, and together with MILF rebels in the case of Basilan.

What DEMANDS have the ASG-MILF been making on the government? Well, they want the government to SURRENDER most of Philippine sovereign territory south of the Visayan Islands to a subsidiary of Al Qaeda, Jemaah Islamiyah and local warlords. They have been actively consorting with, getting training from, and harboring the persons, girlfriends, wives and children of such illustrious personalities as Dulmatin, Umar Patek and Zulkifli Abdhir in "closed boxes" and "MILF territory" in Cotabato, Basilan, Jolo and elsewhere in Mindanao.

Thus, every violent criminal act these organized political crime syndicates commit, which by their savage and unusually terrible nature satisfy both Elements One and Two, may indeed be regarded as done in order to achieve their over-arching political goals of separatism, secession and overthrow of the present Republic as duly constituted.

It is the very Constitution and democratic form of government that the ASG-MILF terrorists want the government to violate, compromise and surrender to their essentially insane demands. I think they want to create Bangsamorostan in Mindanao for their friends in The Base, and I fear that the government of President Arroyo is actually about to give them what they want.

Either the definition truly is terrible or Rep. Garcia does not see how it is in fact applicable to all of his examples.


Here in Section 3 of Republic Act 9372 (The Human Security Act) which contains the definition of the crime of terrorism:
SEC. 3. Terrorism. – Any person who [ELEMENT ONE] commits an act punishable under any of the following provisions of the Revised Penal Code:

1. Article 122 (Piracy in General and Mutiny in the High Seas or in the Philippine Waters);
2. Article 134 (Rebellion or Insurrection);
3. Article 134-a (Coup d‘Etat), including acts committed by private persons;
4. Article 248 (Murder);
5. Article 267 (Kidnapping and Serious Illegal Detention);
6. Article 324 (Crimes Involving Destruction,

or under

1. Presidential Decree No. 1613 (The Law on Arson);
2. Republic Act No. 6969 (Toxic Substances and Hazardous and Nuclear Waste Control Act of 1990);
3. Republic Act No. 5207, (Atomic Energy Regulatory and Liability Act of 1968);
4. Republic Act No. 6235 (Anti-Hijacking Law);
5. Presidential Decree No. 532 (Anti-piracy and Anti-highway Robbery Law of 1974); and,
6. Presidential Decree No. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition or Disposition of Firearms, Ammunitions or Explosives)

[ELEMENT TWO] thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, [ELEMENT THREE] 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 three elements of the crime of terrorism as defined in the law:

[ONE] Criminal ACTS under one or more of a specified list of existing laws (piracy, rebellion, murder, arson, kidnapping, etc.) ;

[TWO] Used as TACTIC ("thereby") to sow and create of a condition of widespread and extraordinary panic among the populace.

[THREE] With the GOAL ("in order to") of coercing the government to give in to an unlawful demand.


I hope it becomes clearer to important minds like Rep. Pabling Garcia that groups like the Abu Sayyaf and their cohorts in the MILF and MNLF, and outfits like the CPP-NPA, who are all already on Terrorists lists of the US and the EU, are really the only ones that have a chance of qualifying as terrorists under the HSA, precisely because of such a STRINGENT definition.

I hope he will see how all three elements indeed apply to the Basilan Beheadings, the Super Ferry Bombings, and Sept. 11 (ferchrissakes!)

12 comments:

manuelbuencamino said...

The three elements of the crime of terrorism as defined in the law:

[ONE] Criminal ACTS under one or more of a specified list of existing laws (piracy, rebellion, murder, arson, kidnapping, etc.) ;

[TWO] Used as TACTIC ("thereby") to sow and create of a condition of widespread and extraordinary panic among the populace.

[THREE] With the GOAL ("in order to") of coercing the government to give in to an unlawful demand.

Notice how all of them answer to WHAT?

Notice how you change WHAT to WHO just so you can fulfill the Third Element?

It's about the rule of law DJ, not whimsy.

DJB Rizalist said...

MB,
The transition from WHAT to WHO is a completely natural one, considering that it has been those opposing the law that have raised the issue of WHO does the Law consider a terrorist under its definition.

The point I have made is that the three elements together tightly restrict the POSSIBLE suspects of terrorism to a rather small though unknown set of folks that are capable of only the most heinous acts.

It is a strength of the definition that it is hard to QUALIFY as a real terrorist under this law. But boy it hits the nail on the head as far as the targets I believe do qualify.

In other words MB, once you understand the law the way the Supreme Court will be forced to, then it becomes clear that journalists, activists and ordinary anti govt people have nothing to worry about.

YOU will never be mistaken for a terrorist MB. I am metaphysically certain of that!

manuelbuencamino said...

DJ,

It's not about me. It's about your futile defense of a histrionic law. It's unenforceable under current definitions.

The transition from the rule of law to one of whimsy is not completely natural. The WHO in this case will be determined by their equally fanatical ideological enemies, an equally dangerous group of WHOs.

It's not about whose side you're one DJ. It's about the rule of law, the only thing everybody should be fighting for

DJB Rizalist said...

MB,
As far as I know, this Law was 11 years in the making! It was first proposed by JPE in 1996, five years before Sept 11.

It is a validly enacted piece of legislation. Is it not our duty to ensure that it is properly interpreted and implemented?

But first we must understand what the zone of legitimate application of it is. I have spent a great deal of energy trying to understand it. I find it to be defensible, even though you know I have a more simple definition that I much prefer.

But until proven otherwise the Rule of Law demands that we make it work according to our best lights.

All's I'm saying about the definition is that you folks are wrong who say it will be easy to accuse just about anyone of terrorism. It won't.

Unless the authorities want to spend a lot of time in jail and pay heavy fines.

manuelbuencamino said...

So where is the IRR?


Is the commission and law enforcers going to wing it?

DJB Rizalist said...

mb,
HSA 2007 is a Criminal Statute. It does not require IRR as such. It is only in the case of VAGUE laws, ie noncriminal statutes that require IRRs. HSA 2007 is crystal, even though I don't agree with all the crap Pimentel put in. But I can live with it.

manuelbuencamino said...

DJ,

Alam ko yan. Pero you know very well na maraming bagay dyan sa batas, lalong lalo na yun elements, na hindi klaro and are left to the discretion of the enforcer.

Kaya in this case kailangan ng IRR. para klaro kung ano nga ba ang ino enforce.

Para may rule of law at hindi rule of whimsy.

DJB Rizalist said...

mb,
when i was in high school and BEFORE i mastered trigonometry, i used to complain to my teacher that the whole area was jumble of formulae that only taxed our ability to memorize them.

Then I discovered something called the Euler Equation which explained everything and contained in it the whole secret of trig.

I think laws are similar to trig. You have to find the mainspring of the law, like I said, find the way that the Supreme Court will interpret the law.

In the case of the HSA, everything does revolve around the definition. All its various provisions are really dictated by the complex set of 3 elements that define the crime.

IRR's are for BOT projects and election automation reform.

Brevity is the soul of a criminal statute.

But You are wrong to say that enforcers can just apply the law willy nilly.

That's just an uhmm whimsical notion that I ascribe to the Liberal Left's need to be persecuted. Because if they are not persecuted, nothing validates what they are doing about all the ills of society, which is nothing much more than complaining, protesting and demonstrating.

Isn't that the only idea the Left has? To protest everything?

But now they aren't the baddest asses in town. The jihadists are more radical even than the communists, who are all at least secretly petit bourgeois.

manuelbuencamino said...

DJ,

Don't shift to that crap about the Liberal Left again. That's not the issue.

The enforcers can enforce the law willy nilly and it has nothing to do with your biases towards those who don't share your neoconservative ideology.

We were talking about you moving from WHAT to WHO. Just so you could force fit your ideological enemies in your interpretation of the law.

The IRR would have been the Euler Equation.

Why should we have to read the Supreme Court's mind?

It's the job of the executive to say in no uncertain terms how it intends to implement the law and it is the Supreme Court's job to say whether or not the executive is acting legally and constitutionally.

Why are you muddling something that's so simple and clear?

DJB Rizalist said...

MB,
It is simple and clear. A criminal statute does not require an IRR at all. Take the statute against Rape or Murder or Kidnapping. Do they have IRR's.

Yet do you want them repealed too?

As for the definition of terrorism it seems to be self evident that this matter involves both WHO and WHAT, inextricably linked with the crime is the criminal.

The designation of terrorist suspects and terrorist organizations is the next logical step that proceeds from the definition.

So I do not have to force fit my ideological enemies into the definition. They ARE my ideological enemies BECAUSE they fit the definition to a TEE.

I claim this is a very small set, as I have very few enemies, thank you. You claim that all sorts of people will be accused of terrorism.

manuelbuencamino said...

The legal definition of rape is clear, the legal definition of terrorism is not. Under the law, the beheadings in Basilan do not constitute terrorism because one of the elements is missing - demands.

Now you argue those demands are implied because of WHO committed those acts. Well that's you extending the meaning of the law.

So you want certain individuals designated terrorists because of their membership or association with certain organizations that YOU call terrorist. And that would make the element of demand automatic via membership.

So we're right back to one side pointing to the other side and calling them terrorists. WHIMSY, CAPRICE, IDEOLOGICAL BIAS.

It's not WHO it's WHAT when the third element is discussed.

I feel like I'm arguing with Joma. Ideology trumps common sense.

You have to rewrite the law's definition of terrorism.

DJB Rizalist said...

mb,
The demands are not implied! The demands are explicitly to dismember the Philippine Republic and agree for them to secede and establish their own Fundamentalist Islamic Republic.

I am merely refuting the entirely naive suggestion that "demands" mean the beheaders are supposed to be shouting demands for ransom other illegal policy changes WHILE they are sawing a soldier's head.

The beheadings would be ordinary nonterrorist crimes of murder IF they weren't being done as part of a politically motivated movement to separate from the Philippine republic.

That is all the third element actually means, that the component crime is done as part of an attempt to force on the govt a plainly illegal and unconstitutional condition.

If they did it purely to get the soldiers cellphones and wedding rings, then it would not be terrorism.

Why is WHO did it impt. Because those who owned up to the murders were members of the MILF, not exactly the Oxo sigue sigue gang, di ba?

So it is WHO and WHAT they do and WHY that make up the definition.

Terrorism is as terrorism does.