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.”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.
“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.
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:The three elements of the crime of terrorism as defined in the law:
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,
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.
[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!)