The rules set by the Supreme Court on the Anti-Terror Act of 2020 cannot cure the “horribly repressive” law that will be enforced by a “horribly repressive’’ council, lawyer Neri Colmenares said on Wednesday. 

Colmenares, who presented oral arguments against the law at the high court as counsel for the militant group Bayan Muna, said the law is problematic because of its “overbroad, vague” definition of terrorism that allows warrantless arrest and detention, and the designation of terrorists without any hearing.  

And the procedural rules issued by the Supreme Court do not cure this, he said.  

“While the Supreme Court’s efforts to make the antiterror law at least try to protect human rights are good, the Supreme Court cannot go beyond the law,” Colmenares, a former lawmaker, told CoverStory.ph in a Zoom interview.  

He predicted that the tribunal would encounter two “big problems.”

“The first is it will abide by a terribly horrible, repressive law. And second, the law is being implemented by a horribly repressive Anti-Terror Council,” he said.

‘Flurry of cases’

The Supreme Court should expect a flurry of cases to be filed questioning the constitutionality of the law, Republic Act No. 11479, once there are “actual live cases,” Colmenares said. 

Ahead of this, he said, four leaders of the Cordillera Peoples Alliance petitioned the Baguio Regional Trial Court last November to overturn their designation as terrorists by the Anti-Terrorism Council (ATC). 

The council claimed that the four leaders had key roles in the Communist Party of the Philippines and designated them terrorists last June. 

“Definitely, it will go up to the Supreme Court,” Colmenares said. “In that issue, it will be the law that will be challenged, not the IRR (implementing rules and regulations).” 

Lawmakers in the House of Representatives can also file a bill repealing the law but this may not prosper, according to Colmenares.  

Under the high court’s rules on the antiterror law, law enforcers need to obtain an order from the Court of Appeals to secretly conduct surveillance, including wiretapping of conversations, and intercepting, recording or collecting any private communications of suspected terrorist individuals or groups. 

But a person suspected of committing any acts defined in the law or any member of a group proscribed under the same law can be arrested or detained without a warrant of arrest, provided that their detention does not exceed the prescribed period in the Revised Penal Code. 

The rules take effect on Jan. 15. 

Broad and vague definition

These are hardly reassuring, Colmenares said, insisting that the law’s main problem stemmed from its broad and vague definition of terrorism. 

“The act doesn’t even have to be a crime. Unlike in the Human Security Act, there’s a predicate crime; you bomb, you kill, you commit arson. Here, it says ‘any act’,” he said, adding:  

“So if we hold a rally for four days, and we paralyze traffic on Edsa and in the entire Metro Manila, is that severe interference with critical infrastructure?” 

Under the law, a person commits terrorism when engaging in acts that intend to endanger someone or to damage public or private property, and certain other actions whose purpose is to intimidate the public, spread fear, destabilize structures of society, or create public emergency.  

Also, the law allows the detention of terrorism suspects for 14 days, which may be extended by another 10 days, before they have to be charged in court.  

“Why? It’s not explained by the law. It’s not explained by the IRR. What it is saying here is, ‘we need to gather evidence’. But you already arrested him without a warrant, meaning he was committing a crime in your presence. In flagrante delicto,” Colmenares said.  

“What evidence do you need? If you need evidence, file the case. But let’s not make him suffer in detention just because you’re looking for evidence. Where is justice here?” he said.  

This specific provision, he said, “wasn’t cured” by the high court. 

At the height of lockdowns  

Then President Rodrigo Duterte signed RA No. 11479 into law on July 3, 2020, at the height of the lockdowns during the Covid-19 pandemic.

At least 37 petitions were brought to the Supreme Court to declare the law unconstitutional. In December 2021, the tribunal declared it constitutional, except for two provisions—one equating protests with terrorism and another designating individuals or groups as terrorists on the request of other groups. 

The ATC can also designate individuals and organizations as terrorists without any hearing, as long as it sees “probable cause” that they commit, attempt to commit, or are part of a conspiracy to commit acts defined and penalized as terrorism.  

“It becomes the judge, jury and executioner. In the old law—the Human Security Act—if they want to proscribe or designate a group or a person, they go to court, they present their evidence and they let the court decide,” Colmenares said.

The antiterror law provides for court proscription, as well as administrative designation by the ATC, he said. 

“We were right with our prediction during the oral argument,” he said. “The moment you give them the power of designation, they won’t feel the need to go to court.”  

Worse, Colmenares pointed out, the law puts the burden on individuals or groups to question their designation as terrorists in courts.  

“The burden is on you. Why is the burden of proof reversed?” he said. 

On top of this, the individual or group is given only 20 days to file a petition for certiorari, according to Colmenares.  

“If you’re unable to file it within 20 days, you’re done,” he said. “The rule should be that if you’re designated, you can challenge it anytime. Why limit the designated person’s right to file to 20 days?”  

Colmenares maintained that activists, dissenters and members of the opposition are the targets of this law, and not terror groups such as the IS (Islamic State), Abu Sayyaf, or Maute.  

He recalled that government troops had managed to mount a “ruthless war” against terrorist groups without the need for an antiterror law. 

“So they don’t need this law for them. However, they would need this law for the dissenters, the activists, and the opposition. They need this law for people like us. It’s just that the Supreme Court declared the law constitutional,” he said.

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