The Human Security Act (R.A. 9273) went into effect yesterday, amidst anxiety on the part of many as to how it will be implemented. So as not to further add to the din, allow me to give my two cents worth after which I will keep silent on the subject for the nonce and observe how things unfold.
The argument against the HSA is that it will threaten our basic civil liberties and will be used by the Arroyo administration against its political enemies. This concern is well founded. There are many worrisome provisions in it, some of which I discussed earlier.
Moreover, contrary to what Justice Secretary Gonzales wants us to be believe, the most constitutionally problematic portions of the law are not the provisions on surveillance but Section 18, which allows for detention of persons “charged with or suspected of the crime of terrorism” for up to three (3) days upon the sole authorization of the Anti-Terrorism Council (ATC) and; Section 19, which provides that “[I]n the event of an actual or imminent terrorist attack, suspects may not be detained for more than three days” unless authorized by a judge or justice of the Court of Appeals or “a municipal, city, provincial or regional official of the Human Rights Commission”. In other words, a local judge or official of the toothless Commission on Human Rights can authorize detention indefinitely. This can be abused, especially in far-flung provinces where warlords hold sway.
As pointed out by Atty. Florin Hilbay of the U.P. College of Law in his Commentary piece published in the Inquirer:
“Article III, Sec. 2 of the Constitution is clear – no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge. Under the Constitution, no one other than a judge is authorized to order a person’s arrest. It is a testament to our commitment to physical integrity and security that we compel the authorities to establish, through judicial proceedings, the need to restrain and detain. This fundamental rule is trumped by Section 18 which authorizes the Anti-Terrorism Council, all of whose members are cabinet officials, to order the arrest of people charged with or suspected of terrorism. How Congress could have forgotten the Bill of rights truly amazes, considering that many of its members are lawyers. This oversight is all the more disappointing because it indicates a failure to remember, and an alarming capacity to conveniently forget the lessons of the recent past”.
Amnesty International has expressed the same concern about various anti-terrorism measures undertaken by governments worldwide, namely that their implementation has undermined the independence of the judiciary and the rule of law by arrogating to the executive powers and prerogatives that are properly those of the judiciary.
And speaking of the failure to heed the lessons of history, the HSA has made the National Intelligence Coordinating Agency (NICA) the Secretariat of the ATC. The powers, functions and duties of the NICA are yet to be defined by the ATC, but giving the NICA broader authority is cause for concern in the light of the role its precursor played under the Marcos dictatorship. The National Intelligence and Security Authority (NISA) was a national intelligence network and a crucial element in Marcos’ dirty war against the political opposition. Its wings were clipped when Aquino came to power and, as the NICA, concentrated more on counter-insurgency. It is now poised to expand its operational capabilities and to take on a new mission as the command center of the war on terror.
That said, the reality of political extremism and terrorism cannot be wished away. The Abu Sayyaf, for example, should not be dismissed as mere bandits. However murky their political agenda, the fact remains that it is capable of heinous acts of mayhem. This goes for other groups that have long been a feature of our political landscape. And even the most radical among us will acknowledge the right of the State to protect itself, to take measures to prevent and protect against attacks on civilians, to investigate such crimes and to bring to justice those responsible. Terrorism is an international concern, and we must be capable of doing our share in addressing the problem. As it is, the Philippines is perceived to be the training ground and R & R station for a number of terrorist groups, who then export their murderous skills abroad. We need the HSA, or some version of it, if we expect to be effective in fighting this scourge and be taken seriously in this part of the world.
But in our zeal and eagerness to be counted, we must be careful not to sacrifice the fundamental rights guaranteed by the Constitution. Our commitment to the Bill of Rights should be non-negotiable. We must keep in mind that respect for human rights is not antipathetic to a strong stance against terrorism. In the words of former U.N. Secretary General Kofi Annan:
“Human rights law makes ample provision for strong counter-terrorist action, even in the most exceptional circumstances. But compromising human rights cannot serve the struggle against terrorism. On the contrary, it facilitates achievement of the terrorist’s objective – by ceding to him the moral high ground, and provoking tension, hatred and mistrust of government among precisely those parts of the population where he is most likely to find recruits.
Upholding human rights is not merely compatible with a successful counter-terrorism strategy. It is an essential element in it.”