Many injustices call for outrage: using the pandemic, for instance, as a pretext to further isolate Sen. Leila de Lima while in detention. And many outrages call for justice: the failure, for example, to provide sufficient public transport on the first day of general community quarantine, after more than two months of enforced lockdown.
But let us, for now, focus on one outrage: the bill that is quickly making its way through the chambers of Congress known as the proposed “Anti-Terrorism Act of 2020.” The just thing to do is to prevent its passage into law.
Of the many infirmities in the proposed law, the gravest is a political pathology: It suffers from a debilitating hallucination, that anti-democratic means must be used to serve and save a democracy. All too often, this disorder shows itself through a familiar symptom: the urge to amass—or to use a Deboldian term, to aggrandize—power.
Senate Bill No. 1083, which the House of Representatives is adopting in toto to speed its passage, seeks to give even more power to the Executive.
Consider Section 29 (I am using the 3rd Reading Copy found on the Senate website). It provides for detention without any judicial warrant of arrest. That a judge—not a policeman, or a prosecutor, or any other member of the Executive — should issue an arrest warrant is one of the most important rights guaranteed by the Constitution.
Section 29 reminds me of the dictator Ferdinand Marcos’ attempt to retain his power to arrest anyone at will, even after ostensibly lifting martial rule on Jan. 17, 1981.
The day before, he signed Presidential Decree No. 1836. Section 1 of the short decree gave him the authority to continue ordering the arrest of anyone even without judicial intervention. “During a state of martial law or when the privilege of the writ of habeas corpus is suspended, the President may issue orders of arrest or commitment orders as to any person whose arrest or detention is, in the judgment of the President, required by public safety and as a means to repel or quell an invasion, insurrection or rebellion, or imminent danger thereof.” Months later, Marcos also issued Letters of Instruction 1125-A and 1211, formalizing the presidential commitment order or PCO.
In 1983, after the Supreme Court uncharacteristically ruled against Marcos and found the PCO unconstitutional, Marcos issued PD 1877 — it was again an attempt to allow him to order arrests without judicial intervention. The conditions for exercising the power, now called the preventive detention action or PDA, were much more detailed and stringent than for the PCO. The language too was much less peremptory. The new decree provided “That should a military commander or the head of a law enforcement agency ascertain that the person or persons to be arrested has/have committed, is/are actually committing or is/are about to commit the above-mentioned crimes, or would probably escape or commit further acts which would endanger public order and safety as well as the stability of the state before proper warrant could be obtained, the said military commander or the head of law enforcement agency may apply to the President of the Philippines for a preventive detention action against the person or persons ….”
The PDA also set a time limit on detention: “not exceeding one year.”
In both the PCO and the PDA, it was clear that the (unconstitutional) authority to order arrests without any judicial warrant lodged in one person: Marcos himself.
The proposed anti-terror law of 2020 vests this awesome power in a nine-person Anti-Terrorism Council (ATC), and it does so in an almost incidental manner, through Section 29, rather than through Section 45, which creates the ATC, or Section 46, which defines its functions.
Section 29, which begins by stating that the decades-old provisions on arbitrary detention do not apply in terrorism situations, blithely declares that “any law enforcement agent or military personnel, who, having been duly authorized in writing by the ATC has taken custody of a person suspected of committing any of the acts defined and penalized under” the proposed law, shall “deliver said suspected person to the proper judicial authority within a period of fourteen (14) calendar days,” extendible by a maximum of 10 calendar days.
In other words, a mere designation from the ATC (composed mainly of Cabinet secretaries, and whose secretariat will be the National Intelligence Coordinating Agency) will be enough to detain someone suspected of terrorism, or of any of the different degrees of participation outlined in the bill, for as long as 24 days. This is a civil rights calamity—and as we should have learned from bitter experience under Marcos, can very quickly become a weapon, a continuing act of terror, against the people themselves. To serve and save democracy, don’t turn public officials and police officers into terrorists.
On Twitter: @jnery_newsstand, email: jnery@inquirer.com.ph