Towards an Orwellian Regime: Analyzing the Philippines' New Anti-Terror Legislation

By Rishabh Chhabaria and Abhigyan Tripathi

On the 3rd of July, 2020, President Rodrigo Duterte of Philippines signed and brought into force the highly contentious Anti Terrorism Act of 2020 “the Act.” This controversial piece of legislation replaced the Human Security Act of 2007 and seeks to prohibit any and all forms of terrorism in the country. The move by the Philippine government has been perceived as a measure to clamp down on the political freedom of citizens and ideological dissent.

The country has had a troubling history of terrorism, which exposed the glaring weaknesses in the previous legislation. Thus, in an attempt to address the terrorist threat in the state, the said Act was furthered by the Duterte administration. The Act, however, grants overarching powers of preventive detention and arbitrary surveillance to the executive due to the broad yet vague terminology contained therein.

The Act sets an increasingly wide definition for the acts of terrorism, as defined under Section 4, which stipulates that even engaging in acts that may pose a threat to life of a person and causing extensive damage to a public or private property would be considered as terrorism. Moreover, it also seeks to criminalize acts that are performed with the purpose to intimidate or provoke the government or which may create an atmosphere of fear.

It would also be pertinent to note here that the Act explicitly provides that instances of advocacy, protest, or dissent would not be considered to be acts of terrorism under Section 4 provided that they do not create a serious risk to public safety. However, the statute leaves it in the hands of the administration to classify what may be considered a ‘serious risk’ under the Act. Thus, despite the present safeguard, any opposition to the ideology of the government could be construed as an act of terrorism if such an activity is held to be against public safety. The law further adds that any person deemed to be a terrorist under this broad definition would face life imprisonment without parole.

A flagrant issue present in the Act is that the crime of incitement carries a punishment of up to 12 years’ imprisonment. The sole determiner of whether any such act of protest against the Government is the Anti-Terrorism Council “ATC,” a presidentially constituted body for the purposes of enforcing this Act. Such a law, by implication, works in the detriment of not only an individuals’ freedom of speech but also against the freedom of press and journalistic expression. Any media outlet which attacks the policies of the government or sparks public opposition can be brought within the purview of the act and charged as a terrorist organization by the ATC.   

One of the most egregious provisions of the Act is that it empowers the ATC to arrest the people it may suspect of partaking in terrorist activities for up to 24 days without a judicial arrest warrant. This stands in brazen disregard of the due process as Article VII, Section 18 of  the Constitution of the Philippines, which expressly provides that a person so detained should be judicially charged within 3 days or be released, even when martial law is in place. Additionally, the ATC also has the power to arbitrarily surveil any persons, merely suspected for the aforementioned whimsical definition of “terrorist activities” for up to 90 days and thereby restrict their civil liberties, including but not limited, to their right to privacy as provided by the Philippine Constitution.

The legislation has further flouted the internationally accepted standards of reasonable restrictions on individual freedoms laid down under UDHR. Furthermore, the present law also stands in clear and blatant violation of Article 9 of ICCPR that provides for fairness in detention and custody.

Despite several assurances of the State administration to uphold the rights of the Filipino people, the Act has come in for heavy criticism by scholars, legal experts, and activists alike. Several petitions challenging the validity of the law have been filed before the Supreme Court of Philippines, which is testament to the fact that the Act has the potential to completely deface the pillars of liberty, equality, and fairness while simultaneously silencing the voices of peaceful dissent in the name of countering terrorism. The passing of the Act can, therefore, be viewed as a travesty of justice that marks the dawn of a dark age for the Philippine Republic.

Rishabh Chhabaria is a third year law student at the Rajiv Gandhi National University of Law  Punjab, India. His areas of interest include Constitutional, Criminal and Human Rights Law.

Abhigyan Tripathi is a third year law student at the Rajiv Gandhi National University of Law Punjab, India. His areas of interest include Constitutional and Criminal Laws.

Shields is by Robert Moranelli and is licensed under CC BY-NC-ND 2.0.