Philippine Anti-Terrorism Law: Critical Reflections

Posted by CenPEG
03 April 2021

On July 3, 2020, at a time when death toll continued to rise due to the COVID-19 pandemic and President Duterte’s “war on drugs” campaign, the highly contentious Republic Act No. 11479 or Anti-Terrorism Act (ATA) repealing Human Security Act of 2007, was signed into law. At this time when local laws can seem to hardly safeguard human rights which now are at stake, can international law and treaty be used as a recourse? Or will it further legitimize the order?

A virtual forum shedding light on these issues was hosted on March 20, 2021 by the policy think tank Center for People Empowerment in Governance (CenPEG). Entitled “International Counterterrorism Law and the Challenge to the Revised Philippine Anti-Terrorism Law: Critical Reflections,” the forum had three human rights lawyers and academics in the panel: Atty. Jayson Lamchek, PhD, as the main speaker, with former Bayan Muna Representative Atty. Neri Colmenares, and Commission on Human Rights (CHR) Director Francis Tom Temprosa as reactors.

Dr. Lamchek is an Honorary Fellow at Australian National University’s (ANU) College of Law. He obtained his PhD also at ANU’s Asia Pacific College of Diplomacy. He has two MA degrees: M.A. in Human Rights Practice (Erasmus Mundus) (Distinction), University of Roehampton (UK); and M.A. in Public Administration (Peace and Conflict Studies concentration), International Christian University Tokyo. Lamchek is an alumnus of the University of the Philippines where he took up law and BA in Philosophy (magna cum laude).

Dr. Lamchek began his presentation by disclosing that various concepts found in the ATA are adopted from international sources, particularly the United Nations Security Council (UNSC) Resolution 1373, as previously reiterated by ATA author Sen. Panfilo Lacson justifying its passage. The same was also cited by the Supreme Court during a series of oral arguments in the wake of petitions questing its validity.

International counterterrorism law, as Dr. Lamchek posited, is a sprawling, transnational body of laws that counters terrorism as a national and global security concern. Its main resources are the UNSC resolutions under UN Charter Chapter VII, which are furthered by the concurrence of regional (e.g. European Union), and informal organizations (e.g. Financial Action Task Force), clubs (e.g. Global Counterterrorism Forum), and foreign national legal systems.

Due to the vastness and complexity of international laws related to counterterrorism, reactor Atty. Temprosa regarded international counterterrorism as fragmented, from which Dr. Lamchek dissented due to the order it is able to create and maintain.

To concretize counterterrorism, soft measures or “Human Rights-Compliant Counterterrorism” underscoring other forms of terrorism such as community policing and ordinary legal system, were introduced as an alternative to hard measures (military operation). In his recently published book “Human Rights-Compliant Counterterrorism: Myth-making and Reality in the Philippines and Indonesia,” Dr. Lamchek emphasized that human rights, while being recognized, is not comprehensively underscored in the global discourse. Firmly distinguished from non-state sponsored terrorism, state violence is always justified in the name of state security. By disregarding and derogating constitutional rights and values, the international counterterrorism is deemed “anti-constitutionalist,” he said.

In reality, a treaty on global counterterrorism, a potential mitigating measure against the human rights violations on both local and global levels, is non-existent. This problematic nature of counterterrorism, as Atty. Temprosa pointed out, stems from the lack of a universal definition of terrorism, which, for Atty. Colmenares, can be attributed to the framers – UN Security Council member states – the same governments practicing “legitimate” terrorism and are responsible for the proliferation of terrorist groups.

Smaller and weaker states, CenPEG Chair Dr. Temario Rivera added, while in theory are represented in the UN General Assembly, are generally “voiceless” as compared to dominant states occupying highest positions in the decision making body, such as the case of UNSC. This “hegemonic order” and the weak participation of other stakeholders will make any efforts of human rights protection futile, Atty. Colmenares argued.

This legitimacy descending from the international milieu makes the Supreme Court “caught up” which in turn will make the legal challenge to the ATA a risky move, according to Dr. Lamchek. However, for Atty. Colmenares, the “push back,” of this body of laws, as evidenced by foreign domestic terror laws flagged down by UN agencies and courts, can also be used as a bullet against the state-protected ATA. This is not to mention the International Covenant on Civil and Political Rights, and international tribunals’ decisions on top of the 1987 Philippine Constitution, which after all, as Atty. Colmenares underscored, will be the main source of all argumentations. In the end, Dr. Lamchek advised to exhaust all the means to defend human rights guided by a critical perspective.

As terrorism sabotages state security, state prerogative to safeguard itself at the expense of citizens’ rights is permitted through the lens of the international community. But human rights and the battle against terrorism are “mutually reinforcing and complementary.” Hence, the perspective that “the state should really espouse international values at the altar of sacrificing human dignity and morals” should never be embraced, according to Atty. Temprosa.

As a band-aid solution that jeopardizes basic human rights, the Anti-Terrorism Law will not deter or eradicate terrorism. It is the “conditions conducive to terrorism” – poverty, inequality, and injustice – that deserve a critical look, if and only if there is a miniscule of truth behind the government’s pledge to address the issue. And creating laws respectful of human rights, as well as reviving the disrupted peace process can potentially jumpstart the pursuit of a just and humane society.

Moderating the forum was Dr. Temario C. Rivera, CenPEG’s Board chair. It was attended by more than 100 participating, with Facebook streamlining.