The proposed Anti-Terrorism Act of 2020 is hard to understand. Yet a criminal statute must be clearly and precisely drawn so that it can give adequate guidance to those concerned.
Section 4 of the law provides that any person, who
(a) Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life;
(b) Engages in acts intended to cause extensive damage or destruction to a government or public facility, public or private property; (c) Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;
(d) Develops, manufactures, possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological or chemical weapons; and
(e) Release of dangerous substances, or causing fire, floods or explosions
when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structure of the country, or create a public emergency or seriously undermine public safety, shall be guilty of committing terrorism and shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592.
It is not clear whether the phrase “when the purpose of such act, by its nature and context, is to intimidate the general public or a segment thereof, create an atmosphere or spread a message of fear, to provoke or influence by intimidation the government or any international organization, or seriously destabilize or destroy the fundamental political, economic, or social structure of the country, or create a public emergency or seriously undermine public safety,” qualifies the acts separately described in (a), (b), (c), (d), and (e), or only paragraph (e), which refers to the “release of dangerous substances, or causing fire, floods, or explosions,” to which the phrase is attached.
Understood as qualifying only paragraph (e), paragraph (a) could apply to soldiers shooting at rebels or to civilians working in gun factories, while paragraph (d), referring, among other things to the possession of explosives, could apply to party celebrators lighting firecrackers. Section 4 is the heart of the proposed law. It must state what terrorism is and who are guilty of it in clear and precise terms.
And what is meant by “serious bodily injury,” “extensive damage or destruction,” “extensive interference,” “seriously undermine public safety,” and “seriously destabilize or destroy the fundamental political, economic, or social structure”?
Confounding the ambiguity and overbreadth of Section 4 are provisions on extraordinary rendition, the dreaded practice of transferring a suspected terrorist or supporter to a foreign country for detention and interrogation on behalf of the transferring country. While Section 3 (c) states that extraordinary rendition may be done “without framing formal charges, trial or approval of the court,” implying thereby that it is allowed, Section 48 prohibits it—without, however, providing penalty for the violation of the prohibition.
What should the conscientious citizen make of these provisions, one of which says no formal charge, trial, or even court approval is necessary to carry out extraordinary renditions, but another says extraordinary rendition is prohibited?
The fact is that Section 4 badly needs a rewriting. A statute whose terms are so vague that persons of common understanding must necessarily guess at its meaning or differ as to its application offends due process. And a statute that sweeps unnecessarily broadly both prohibited and protected conduct is overbroad and likewise offends due process.
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Vicente V. Mendoza is a retired associate justice of the Supreme Court.