Press Release
July 2, 2020

Speech by

Rotary Club of Manila Meeting
July 2, 2020

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Good afternoon.

It is good to once again see familiar faces, virtually at least. I am certain that moving from physical meetings and events to the digital realm is something that is new to all of us. Nevertheless, I find comfort in knowing that this pandemic could not shake the dedication of a Rotarian spirit in living up to its overarching motto: Service above self.

Your invitation says I have 30 minutes to speak. Since there are many points to cover in our virtual discussion today, I will cut to the chase and go straight to the issues at hand.

For the past couple of weeks, among the trending topics that have been dominating the mainstream and social media platforms is the Anti-Terrorism Bill, which as we speak, is awaiting the signature of the President. Unfortunately, the ongoing campaign against this proposed measure, heavily influenced by massive misinformation and disinformation, unfairly devalues the importance of this legislative measure on many fronts.

Hence, as the principal sponsor and one of the authors of the bill, it is incumbent upon me to take every available platform to shed light on the legislative intent and merit of the Anti-Terrorism Act of 2020, as proposed.

As a Rotarian myself, I believe that nothing could better validate the ideals and virtue of the proposed Anti-Terrorism Act than subjecting it to Rotary's guiding principles and moral code of the Rotary's Four-Way Test, which every Rotarian knows by heart.

Allow me to begin with probably the most controversial provision under the Anti-Terrorism Bill, which is now being challenged as unconstitutional by former Supreme Court Associate Justice Antonio Carpio as well as IBP President Domingo Egon Cayosa. Both of them are asserting that Section 29 of the bill gives the Anti-Terrorism Council the power to order the arrest without judicial warrant of a suspected terrorist.

Now you may ask -- IS IT THE TRUTH? My answer is a resounding NO. Let me tell you why.

To be clear, the written authority issued by the ATC under Section 29 of the proposed bill is to be directed to its duly designated deputies such as law enforcement agents and military personnel specially tasked and trained to handle the "custodial investigation" involving violations of the Anti-Terrorism Act of 2020 as proposed, considering the complexities and nature of terrorism. Not all police officers are trained interrogators and investigators, especially involving a crime as complex and complicated as an act of terrorism. These specially-trained law enforcement officers and military personnel shall need a written authority to be deputized by the ATC to perform such tasks.

The term "custody" in Section 29 of the Anti-Terrorism Bill pertains to the lawful custody after a valid warrantless arrest pursuant to Section 5, Rule 113 of the Revised Rules of Court. It is only after a valid warrantless arrest that the law enforcement agent or military personnel, authorized in writing by the ATC, may conduct a custodial investigation. Section 29 does not - does NOT - amend the Rules on Warrantless Arrest. Section 29 seeks to amend the reglamentary periods stated in Article 125 of the Revised Penal Code with regard to the crime of terrorism.

To clarify this issue, I even wrote to IBP President Atty. Cayosa to correct his misconceptions on the authority of the ATC. In his letter-reply, he said that "Section 29 could not refer to allowable warrantless arrest under Rule 113 because anyone can actually effect a warrantless arrest under Rule 113 without any need for any written authority from anyone." Make no mistake. I am saying exactly the same thing. While it is true that anyone can effect a warrantless arrest, I was trying to make him understand that not everybody is trained to properly conduct a custodial investigation particularly of a crime as complex as terrorism. Atty. Cayosa, however, remains adamant in his own interpretation of Section 29 of the ATB notwithstanding receipt of my letter addressing his concerns.

To belabor this point as I must, the Anti-Terrorism Bill strictly complies with lawful warrantless arrest by virtue of the in flagrante delicto and hot pursuit rule under the Revised Rules of Court - in both cases, the arrests are immediate in nature. That said, it is illogical, inconsistent and even absurd to think that the ATC will issue a "written authorization" to an arresting officer before effecting the warrantless arrest granting the immediacy and spontaneousness of the circumstances leading to the arrest. In fact, when we asked Director General Alex Monteagudo of the National Intelligence Coordinating Agency (NICA) which is the Secretariat of the ATC, he said that never, since the passage of the Human Security Act in 2007, has the agency released a "written authority" to law enforcers to arrest or detain suspected terrorists. Isn't that enough proof that the written authority mentioned in Section 18 of the Human Security Act of 2007, as similarly written in Section 29 of the Anti-Terrorism Bill, is never intended to authorize the ATC to order an arrest?

The TRUTH is - records of the Senate archives tell us that the phrase "having been duly authorized in writing by the Anti-Terrorism Council..." was originally an amendment introduced by an acknowledged legal eagle and an unquestionably experienced legislator in the person of the Senator Franklin Drilon in the Human Security Act of 2007, accepted by another giant in the legal profession, then sponsor of the Human Security Act of 2007, former Senator Juan Ponce Enrile. This phrase, which has been the subject of recent debates, is merely being retained in the proposed Anti-Terrorism Act of 2020. Mind you -- the same phrase contained in Section 18, entitled "Period of Detention Without Judicial Warrant of Arrest" of the Human Security Act of 2007, and which has the same language of Section 29 of the Anti-Terrorism Bill entitled "Detention without Judicial Warrant of Arrest," was voted favorably by a number of distinguished legal experts and luminaries both in the Senate and the House of Representatives. Justice Carpio has declared in a webinar organized by the Management Association of the Philippines that Section 18 of the HSA, similarly worded as Section 29 of the ATB, was never declared constitutional by the Supreme Court.

If such statement does not have the trimmings of malicious intent to achieve a purpose known only to its author, it may be assumed Justice Carpio overlooked existing jurisprudence and the presumption of constitutionality. Let me explain. No less than the Supreme Court ruled on the matter of presumption of constitutionality in Tano vs Socrates (GR No. 110249 dated August 21, 1997), to wit:

"It is of course settled that laws (including ordinances enacted by local government units) enjoy the presumption of constitutionality. To overthrow this presumption, there must be a clear and unequivocal breach of the Constitution, not merely a doubtful or argumentative contradiction. In short, the conflict with the Constitution must be shown beyond reasonable doubt. Where doubt exists, even if well-founded, there can be no finding of unconstitutionality. To doubt is to sustain."

That is the SC talking about presumption of constitutionality. Still, for the life of me, I cannot understand why a former senior magistrate of the SC would disregard such basic and significant jurisprudence. In any case, to allay any fears, Section 29 ensures safeguards to avoid abuses by requiring a written notification to be immediately given to the judge of the court nearest to the place of arrest, copy furnished the Anti-Terrorism Council. We have also included in the proposal for the same notification to be provided to the Commission on Human Rights - a requirement not present under the Human Security Act of 2007. I can only assume that perhaps some, if not most of you, have expressed concerns pertinent to the false assertions of the likes of Justice Carpio and Atty. Cayosa that a person may be arrested or detained on mere suspicion alone.

Again you may ask -- IS IT THE TRUTH? Again, my response is NO. The legislative intent of the bill is clearly to premise Section 29 on a valid warrantless arrest "or what we also refer to as a citizen's arrest," as also lawfully allowed in other crimes that are not related to terrorism. The provision is compliant with Rule 113, Section 5 of the Revised Rules of Court. Under the proposed Anti-Terrorism Law, a warrantless arrest is allowed under the same circumstances as in any other crime, by virtue of: One, in flagrante delicto arrest or when the person to be arrested has committed, is actually committing, or is attempting to commit terrorism; and Two, in a hot pursuit arrest. It was never the intention of Congress to amend the rules on warrantless arrest.

Oppositions to this proposed measure went the extra mile by citing my statement during a Senate deliberation. Unfortunately, their extra mile was headed in the wrong direction at top speed. For instance, Justice Carpio quoted me by saying: "In the exact words of the principal author of the law, even if hindi naman siya nag-commit ng crime, hindi pa nangyari, puwede na natin arestuhin."

Taking his word for it unjustly resulted in undue public fear and hysteria. Hence, let me be clear: the statement in question was in reference to acts preparatory to the commission of terrorism. In my response to Sen. Gordon, I made it understandable that we never intend to amend the rules on warrantless arrest or citizen's arrest, and hence, safeguards are still in place. During the roundtable discussions that we had for this measure, among the key recommendations from the representatives of the Australian embassy was the need to adopt proactive measures that will prevent even the planning phase of the crime. Thus, I explained that under the proposal, we included the proposition to penalize "inchoate offenses," or preparatory acts that are deemed criminal even without the actual harm being done, provided that the harm that would have occurred is one the law tries to prevent, such as terrorism. Preparatory acts, as a rule, are not punishable unless - I repeat, UNLESS - Congress, as a collegial body, includes in the law a provision to make preparatory acts punishable as independent crimes.

By way of example, the Revised Penal Code defines and penalized conspiracy and proposal to commit rebellion, treason, insurrection and coup d'etat. We added planning, training, preparing and facilitating the commission of terrorism under Section 6 as INCHOATE OFFENSES punishable under the bill because these acts are being performed towards the accomplishment of the desired purpose that is -- terrorism. No less than the United Nations Security Council, in UNC Resolution No. 1373, declares that planning and preparation, among others, are established as serious criminal offenses in domestic laws and that the punishment should duly reflect the seriousness of such terrorist acts.

Let me cite a likely scenario: Kung makakita ang ating kapulisan o tropa ng militar habang nagpapatrulya sa isang liblib na kagubatan sa Basilan ng mga nagtitipon at nagsasagawa ng pagpaplano ng sabay sabay na pagpapasabog ng iba't-ibang pasilidad ng irigasyon at tore ng linya ng kuryente, pati ang ilang simbahang katoliko at mga palengke, kumpleto ng kani-kanilang sketches sa mapa kung saan ang mga lokasyon ng targets nila, kasama na ang improvised suicide vests at detonating devices -- gusto ba nating mangyari na hintayin muna ng awtoridad na may mangyaring aktwal na pagsabog at pagkitil ng buhay ng maraming inosenteng sibilyan bago nila isagawa ang panghuhuli sa mga taong halos nasa harapan na nila? Hindi pa ba maituturing na krimen ang ganung gawain kahit hindi pa nagaganap ang malawakang pagpapasabog? Iyun po ay isa lamang halimbawa ng INCHOATE OFFENSE na hinahangad na maparusahan sa ilalim ng panukalang Anti-Terrorism Bill. Kayo na po ang humusga.

Another wrongful assumption about the Anti-Terrorism Council is its alleged authority to detain suspected terrorists and to fix the period of detention to 14 days, extendible to another 10 days. I strongly and insistently refute this. Again, ATC has no authority to detain suspected terrorists. Ang mga nasabing probisyon ay policy decision ng Kongreso na naaayon sa saligang batas.

First, we can find the allowable periods for detention in Article 125 of the Revised Penal Code. Let me emphasize that the Revised Penal Code is a general law which Congress can amend. That said, the 14 day period of detention under the proposed Anti-Terrorism bill, being a later law once signed, will be treated as an amendment to the allowable periods stated in the Revised Penal Code.

Looking back at the deliberations of the Constitutional Commission in 1986, records would show that the ConCom delegates did not have any intention of restricting the powers of Congress to fix the allowable period of detention arising from an arrest. Clearly, the three-day limitation was incorporated in the provisions of Article VII Section 18 of the Constitution as a "safeguard" in case the President, in the exercise of his powers, suspends the privilege of the writ of habeas corpus.

Article 125 of the Revised Penal Code on the other hand mandates the law enforcer to deliver an arrested person to the proper judicial authorities through the inquest prosecutor within the allowable periods of detention.

Moving on, as we test the proposed measure through the Rotary's overarching dictum, let us try to resolve the question--IS IT FAIR TO ALL CONCERNED? Let me be clear that we urge public discourse on all social and political policy decisions, particularly, on a matter as important as the Anti-Terrorism Bill. We encourage openness and civil engagement for conflict resolution. But I dare ask you: when misinformation and disinformation erode the fundamentals of our debates, do we trust that fairness will gain ground? Do our public discourses - widely marred by fake news and misconceptions - remain fair in appreciating the merits and intent of the law? Does it remain fair to all concerned, more importantly to the greater Filipino masses?

As an example: oppositors are calling the bill a "draconian measure" because of the alleged coercive powers granted to the Anti-Terrorism Council. I would like to correct the mistaken notion that the Anti-Terrorism Council is a new feature under the Anti-Terrorism Bill. Let me emphasize that the ATC is a creation of the HSA in 2007 as a central policy-making, supervising, coordinating, and monitoring body of the government's anti- terrorism efforts. Under the proposed bill, the ATC will function as it does since its creation. To say the least, ATC is not given any judicial or quasi-judicial authority, contrary to the widely disseminated fake news.

To be fair, under this proposed measure, the police and military will be held accountable in the implementation of the law. In fact, the bill provides that the penalty of 10 years will be imposed to any law enforcement agent or military personnel who will violate the rights of a detainee, together with an administrative charge that carries a penalty of dismissal from the service, cancellation of civil service eligibility, forfeiture of retirement benefits and perpetual absolute disqualification from running for any elective office or holding any public office, as expressed in the proposed Anti-Terrorism Bill.

The Rotarian moral code also demands that, in times of doubt, we ask-- WILL IT BUILD GOODWILL AND BETTER FRIENDSHIP? A key to Rotarians' unique approach to addressing conflicts is fellowship -- the process of building relationships and openness to resolve a point of conflict. As legislators, we adhere to the principle of fellowship by forging international understanding and peace among our community of nations. This includes harmonizing our laws with global standards against terrorism. Our present Anti-Terrorism Law or the Human Security Act restricts us from doing so. I ask you: do we build better friendships with other nations by harboring terrorists within our borders? Do we build goodwill by consciously allowing our lands to be the safe haven of terrorism? Lest we forget, as we speak, our country ranks 9th among countries in the world that were most negatively impacted by terrorism based on the Global Terrorism Index released in 2019.

Fact is, our present law is weak because we do not have targeted financial sanctions to stop the flow and use of funds or assets of terrorist groups. We have strategic deficiency in terms of the domestic designation process of terrorist individuals and organizations as provided by the United Nations Security Council Resolution 1373. Hence, the proposed measure intends to address this gap through the provisions laid down by Section 25, entitled "Designation of Terrorist Individual, Groups of Persons, Organizations or Associations."

Designation serves as a mechanism to trigger the enforcement of targeted financial sanctions currently lacking in our present law. This mechanism, made possible only through an order issued by the Anti Money Laundering Council (AMLC), not the Anti-Terrorism Council - I repeat, not the Anti-Terrorism Council -- could stop the flow and use of funds or assets to terrorist organizations or associations.

More so, "freezing of assets" under this proposed measure is also actually consistent with the existing provisions of Section 11 of RA 10168, otherwise known as the Terrorism Financing Prevention and Suppression Act of 2012. The provision also complies with the United Nations Security Council Resolution 1373 and for the purpose of preventing designated terrorists from accessing their funding by freezing their accounts so the same cannot be used to carry out a terrorist attack. A designated person is allowed under this measure to question the freeze order by filing the necessary petition with the Court of Appeals. We even added a provision under this bill to allow partial withdrawal of frozen funds/assets for humanitarian reasons as well as for reasonable family needs and sustenance of the designated person.

Justice Carpio has many times referred to this provision by saying, and I quote: "once so designated, the individual can now be arrested upon order of the ATC because the individual is engaged in terrorism." This is plain and simple - wrong.

Arrests, same with detention, are not the intended consequences of "designation." As I explained earlier, designation is purely an executive and administrative process intended to trigger the issuance of a "freeze order" of properties and assets of designated terrorist individuals or terrorist organizations or associations. I do not simply understand where the honorable magistrate based his arguments considering that not a single mention of the word "arrest" is found under Section 25 of the bill.

Justice Carpio must have confused "designation" with "proscription" of terrorist groups, organizations or associations. Designation is administrative and not criminal in nature. To effect an arrest, a designated terrorist group or organization must first be proscribed.

Proscription under Section 26 requires court intervention where a full blown hearing will take place before an organization may be considered a terrorist organization. It may be done only upon an application filed by the DOJ before the Court of Appeals, with due notice and opportunity to be heard given the suspected terrorist groups or organizations or associations. Even membership in a proscribed terrorist organization goes through the same due process of law where the burden is on the DOJ to prove.

Last, but definitely not the least - the Rotarian way of life compels us to examine the things that we think, say, or do based on a prevailing question, that is: WILL IT BE BENEFICIAL TO ALL CONCERNED? My fellow Rotarians, let me emphasize: Terrorism knows no timing nor borders. Terrorism in all forms and manifestations constitutes one of the most serious threats to any nation's peace and security. It sows fear and violence so broad and indiscriminate that everyone --literally you and me -- could fall prey to these heinous acts of terror.

Over and over, we have heard critics saying that the Anti-Terrorism Bill is a threat to legitimate political dissent and freedom of speech. Please do not fall for this misconception. Let me show you that in defining "Terrorism" in the proposed Anti-Terrorism Bill, we included a proviso under Section 4 to guarantee the constitutionally protected right to free speech. It reads:

"xx terrorism as defined in this Section shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create a serious risk to public safety."

In all of our discourses in understanding the definition of "terrorism", we should bear in mind that ACT + PURPOSE should be the guiding principle. We should bear in mind that "terrorism" refers to both the commission of any of the terrorist ACTS in order to fulfill any of the PURPOSES mentioned under the bill.

Paulit-ulit kong sasabihin sa mga nagbibingi-bingihan na: ang Anti-Terrorism Bill ay para labanan ang mga terorista, hindi ang mga nagpoprotesta. This proposed measure is meant not to be beneficial for anyone else but the Filipino citizenry. It is a dismay that when misconceptions erode the very value of our public discourse, many jump into the wagon and lose sight of logic and reason.

Just to illustrate: known activist and lawyer Neri Colmenares said at a June 12 rally that "the Abu Sayyaf would continue killing regardless of whether there is an anti-terrorism bill in place." Terrorists may think that way, but it remains the duty of the State to protect the people from such threat. And wouldn't we be remiss in our duty as legislators and public servants, if we would just sit and wait until the next bombing or senseless beheading takes place? If there is one thing that I truly admire about the Rotarians, it must be every member's unyielding commitment to the club's philosophical cornerstone - Service above self.

Amidst the myriad of issues on Anti-Terrorism Bill, we have to keep in mind the principles of Rotarians' conflict transformation -- that is, empathy, truth, accountability, and fellowship. As active members of the society, let us be more discerning on our national issues and be drivers of meaningful laws for the best interest of the people -- our shared commitment towards the ideal act of service.

Now more than ever, there remains the challenge before us to stand up for what we know passes Rotary's ethical guide in achieving beneficial, sustainable, and scalable outcomes.

History will speak of how you have decided for the interest of our people. Let it be a transformational turn to speak clearly and resoundingly against terrorism.

The Anti-Terrorism Act of 2020 as a proposed law has one clear message: To terrorists who commit crimes against the Filipino people, against humanity, and against the Law of Nations, our policy will be one that is swift, effective and constitutional.

Again, I wish to thank the Rotary Club of Manila for this opportunity. Mabuhay po tayong lahat.

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