Humanitarian work is crucial for a country like the Philippines – prone to natural disaster, with a long history of waging campaign against armed conflict posed by communist insurgency and violent extremism.  Its importance cannot be  overemphasized in times  of civil strife, natural and man-made disasters and pandemic.  International humanitarian organizations, their national counterparts, community-based NGOs and peoples’ organizations all form part of a system that enables the flow of emergency aid to needy communities, facilitates the rebuilding of  disaster-affected villages, provides education and capacity-building to various grassroots sectors, assists in the attainment of the United Nations Sustainable Development Goals, and strengthens capacities to meet the challenges of climate change.^[1]

International humanitarian activities, however, are not undertaken in a vacuum, unhampered by  political, economic, socio-cultural and legal undercurrents. One such factor undermining global humanitarian efforts is the “global war on terror.” The legal and policy component of this “war” derails humanitarian efforts at both the supply and demand side. Both humanitarian work and the global effort by states to address  terrorism through the adoption of national legislation are aimed at protecting lives.

Oddly, the proposed Anti-Terrorism Bill by the Philippine Congress is faced with opposition from various sectors, notably human rights organizations and civil society organizations (CSOs).[2] Even the business sector, a major contributor  in humanitarian action, strongly opposed the bill  for being highly divisive in the context of the COVID-19 pandemic, and downplayed the need for it because the  current threats to national security can be adequately addressed by existing laws.[3]

Humanitarian aid organizations, both local and international, working in the Philippines may soon face a constricted safe space in helping people and saving lives  during or after a crisis, should the Anti-Terrorism Bill^[4] proposed by Philippine Congress composed of the Senate and the House of Representatives, become law.

Normalizing the terrorist tag

According to the declared policy of House Bill 6875 and Senate Bill 1083 in Sec. 2, the State is to protect life, liberty, and property from terrorism. Thus, the same bill defines nine acts related to terrorism that it also prohibits: committing acts of terrorism ( Sec. 4); threatening to commit terrorism (Sec. 5); planning, training, preparing, and facilitating the commission of terrorism  (Sec. 6); conspiring to commit terrorism  (Sec. 7); proposing the commitment of terrorism (Sec. 8); inciting to commit terrorism (Sec. 9); recruiting to and becoming a member of a terrorist organization (Sec. 10); identifying as a foreign terrorist (Sec. 11); and providing material support to terrorists (Sec. 12).

These acts so criminalized seek to strengthen the current anti-terrorism law in the Philippines, the Human Security Act, that was considered by the proponent law makers as inadequate since its effectivity in 2007.^[5] However, since its third reading in the House of Representatives, there have been criticisms expressing how the provisions of the proposed measure may infringe on basic human rights, calling for a critical reading of the bills.^[6] Apart from this worry is the one expressed by humanitarian organizations that it may hamper their legitimate activities.

A close perusal of how the prohibited acts defined yields the suggestion that there are certain threats to humanitarian interventions in a target community. Foremost in the prohibited acts that must be reviewed is the commission of terrorism under Sec. 4 of the Anti-Terror Bill. Said provision defines what terrorism is, and prohibits such acts. Thus, “terrorism”:

“… is committed by any person who within or outside the Philippines, regardless of the stage of execution:

 

(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 place 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 structures 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, otherwise known as ‘An Act Amending Articles 29, 94, 97, 98 and 99 of Act No. 3815, as amended, otherwise known as the Revised Penal Code’: Provided, That, 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”

The fact that the provision itself had to clarify that terrorism shall not include advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, suggest that these acts mentioned may be considered to be terrorist acts, if not for the clarification inserted in the provision.

In the Human Security Act, which is the current anti-terrorism law in effect, a defined act is considered a terrorist act when it is done “in order to coerce the government to give in to an unlawful demand”^[7] This element of having a political motive has been omitted in current versions of the Anti-Terror Bill, rendering the new definition vague compared to the current standard. Critics have been emphasizing that this problematic definition expands the current law by allowing the provision to be subject to a variety of ambiguous interpretations that may lead to abuse in implementation.^[8] This redefinition can affect the operations of humanitarian intervention in the community.

The problem mainly revolves in Sections 11 and 12 of the Anti-Terror Bill. Section 11 provides that:

“Sec. 11. Foreign Terrorist. – The following acts are unlawful and shall be punished with the penalty of life imprisonment without the benefit of parole and the benefits of Republic Act No. 10592:

 

(a) For any person to travel or attempt to travel to a state other than his/her state of residence or nationality, for the purpose of perpetrating, planning, or preparing for, or participating in terrorism, or providing or receiving terrorist training;

(b) For any person to organize or facilitate the travel of individuals who travel to a state other than their states of residence or nationality knowing that such travel is for the purpose of perpetrating, planning, training, or preparing for, or participating in terrorism or providing or receiving terrorist training; or

(c) For any person residing abroad who comes to the Philippines to participate in perpetrating, planning, training, or preparing for, or participating in terrorism or provide support for or facilitate or receive terrorist training here or abroad.”

Paragraph (c) of Section 11, prohibits providing support for terrorist training in the Philippines or abroad. What makes the definition difficult to interpret is the fact that it does not clearly define what is included in the act of providing “support.” In conjunction with how “terrorism” is understood in section 4, a law enforcer can argue that any form of basic support provided to someone who facilitates or receives training for the problematic definition of terrorism may be identified as a foreign terrorist. Those in danger of being labeled as such are representatives or members of foreign international humanitarian organizations who come to the Philippines to provide support for beneficiaries in the communities continually exposed to disasters both natural and man-made.

Chilling effects and the risks of being left in the cold

Humanitarian work largely relies on sustained correspondence with local communities and through online channels. Data and confidential information may be exchanged as an integral part of providing assistance. The threat of secret state surveillance will undoubtedly produce a chilling effect on these interactions, for fear that certain words or messages could be misconstrued as terrorism. Authorized state surveillance is broad and shall cover any private communications, conversation, discussion/s, data, information, messages in whatever form, kind or nature, and spoken or written words.

The proposed legislation states, under its definition of terrorism, that advocacy, protest, dissent and other similar exercises of civil and political rights may be considered terrorism unless the person can prove that his intent was not to cause death or serious physical harm to a person, or to endanger a person’s life or risk public safety.^[9] This reverses the burden of proof which is counter to the rules of criminal procedure and the Constitution. It could  stifle the rights to freedom of speech and petition the government for redress of grievances.

The Anti-Terrorism Bill likewise allows the Anti-Terrorism Council (ATC) to designate any person or group as a terrorist without even giving the aggrieved party an opportunity to submit countervailing pieces of evidence. As most aid recipients live in conflict-affected areas or likewise served by domestic entities involved in advocacies of social and political issues, the danger of being labelled as terrorists or supporters of terrorism is more real than imagined for actors in the field of humanitarian assistance.

Sec 12 of the Bill provides

 

Sec. 12. Providing Material Support to Terrorists. — Any person who provides material support to any terrorist individual or terrorist organization, association or group of persons committing any of the acts punishable under Section 4 hereof or knowing that such individual or organization, association, or group of persons is committing or planning to commit such acts, shall be liable as principal to any and all terrorist activities committed by said individuals or organizations, in addition to other criminal liabilities

Similar provisions in anti-terrorism laws of various jurisdictions have the following effect: (i) humanitarian funding from donor governments and other sources is increasingly being made conditional on assurances that it is not benefiting individuals or  organizations catgorized as terrorist; (2) greater security checks are being placed on local partners and implementing actors;  (3) humanitarian actors are coopted into the counter- terrorism efforts thus undermining the principles of impartiality and neutrality; (4) laws on counter-terrorism have increased operating costs, slowed down administrative functions and operational response, curtailed funding and undermined humanitarian partnerships; and (5) laws on counter-terrorism have prevented access to aid recipients and altered the quality and coordination of assistance. As a result, regulatory frameworks and contracts for humanitarian assistance may now include counter-terrorism guarantees and measures designed to prevent any potential disruption in the work of both donors and recipients.^[10]

Because of counter-terrorism laws, tensions may arise between  local and international organizations, with international organizations including counterterrorism clauses in agreements with sub-grantees that may not have the capacity or resources to set up measures in compliance with the agreements.^[11]

Moreover, counterterrorism “can also impede transparency and coordination among humanitarian organizations as… uncertainty and concerns over legal liability may lead to reluctance to share information with other organizations.” ^[12]

Humanitarian organizations and workers are likewise susceptible to the “chilling effect” of anti-terrorism policy measures.^[13] The perceived and actual reputational and legal risks of being associated with terrorism and terrorists  may prompt them to “self-regulate and self-censor,” sometimes even beyond what is legally or contractually required.^[14]

In Mindanao, the concern of the community is ethnic profiling. Due to the ongoing Moro conflict, many regions face much unrest and need much humanitarian aid. This counterterrorism measure could incite further violence towards this embattled community historically stereotyped as terrorists.^[15] Workers on the ground constantly communicate with community members. All parties may be put at risk with the passage of this bill. Lawmakers are also concerned that it could further embolden the violent extremists. While providing material support to those designated as “terrorists” by the ATC is punished under the bill^[16], humanitarian organizations are exempt from liability.^[17] However, this does not prevent the individuals from being designated as terrorists themselves when doing acts in their private capacity.

Humanitarian work in a box

If the Anti-Terror Bill becomes a law, the Anti-Terror Council may designate as a terrorist an individual, groups of persons, organization, or association, whether domestic or foreign, if they have probable cause that said entities commit, attempt to commit, or conspire in the commission of the prohibited acts mentioned in the bill.^[18] By mere weight of “probable cause” the assets of the entity so designated may be frozen by the Anti-Money Laundering Council as an effect.^[19] There is no need for a judicial determination based on proof beyond reasonable doubt for the Anti-Terrorism Council to deprive a designated entity of its assets. Consequently, if an organization is mistakenly designated as one that is associated with terrorism, then such erroneous designation can cripple the operations of the humanitarian intervention.

In order to avoid this, however, the Anti-Terror Bill provides in Sec. 13 that:

 

“Sec. 13. Humanitarian Exemption. – Humanitarian activities undertaken by the International Committee of the Red Cross (ICRC), the Philippine Red Cross (PRC), and other state-recognized impartial humanitarian partners or organizations in conformity with the International Humanitarian Law (IHL), do not fall within the scope of Section 12 of this Act.”

It would appear therefore that under the bill, humanitarian organizations shall be exempt from becoming principal to the crime of terrorism. Notwithstanding this, caution should be exercised because this is the exemption to the general rule and as such, entitlement to its benefits may need to be proven prior to its enjoyment effectively adding another layer of inconvenience. As with the exemption of  exercises of civil and political rights in the new definition of “terrorism,” it appears that without this clarification, it is possible that humanitarian organizations still runs the risk of being tagged as  a “terrorist” organization. Just like many parts of the Act, the phrase “state-recognized impartial humanitarian partners or organizations” is vague and open to many self-serving interpretations.

Lowering the bar of State accountability

To safeguard from abuse in the implementation of the provisions of the Anti-Terrorism Bill, the same specifically penalizes certain acts that are deemed harmful to a suspected terrorist.

First among these features is Sec. 24, which penalizes unauthorized or malicious interceptions and/or recordings. It provides that law enforcers who conduct surveillance without judicial authorization shall be imprisoned for ten years, and all information maliciously procured should be made available to the aggrieved party. This penalty is less than what the Human Security Act provides for the same offense, which, according to Sec. 16 of the same, is imprisonment of ten years and one day to twelve years.

Sec. 29 of the Anti-Terrorism Bill mandates the notification of a judge regarding the details of the detention of an arrested suspect. Failure to notify a judge as provided in the Anti-Terrorism Bill warrants the imposition of a ten-year imprisonment as penalty to the law enforcer. In the Human Security Act, the penalty of ten years and one day to twelve years is imposed on a law enforcer who fails to notify a judge, according to Sec. 18 of the same.

If a law enforcer violates the rights of a detainee as defined in the Anti-Terrorism Bill, Sec. 31 provides that said law enforcer shall suffer a penalty of ten years imprisonment, which is also a reduction from the one imposed in Sec. 22 of the Human Security Act. The latter imposes a ten years and one day to twelve year imprisonment for the same violation.

If any person furnishes false evidence, forged document, or spurious evidence in any investigation or hearing conducted in relation to violations under the Anti-Terrorism Bill, Sec. 43 provides that said person shall suffer six years of imprisonment. This is a substantial downgrade from the Human Securities Act, which sets the penalty for the same act at twelve years and one day to twenty years under Sec. 47.

It would seem that by these new provisions, the accountability of law enforcers have been relaxed compared to the current law in effect. Based on these changes, it would appear that the new Anti-Terrorism  measures proposed by the House and Senate Bills have placed a premium in favor of law enforcers while broadening the definition of terrorism and legalizing acts that would otherwise violate human rights.

Constricting safe spaces for compassion and cooperation

Political leaders and stakeholders from conflict-affected communities in Southern Philippines have voiced out their concerns regarding the Anti-Terrorism Act. Basilan Rep. Mujiv Hataman of Basilan, Rep. Yasser Alonto Balindong of the 2nd District of Lanao del Sur, and Anak Mindanao Rep. Amihilda Sangcopan voted against the Act. Hataman expressed alarm that the proposed bill focuses more on widening the definition of who can be tagged as terrorists, rather than crafting measures to ensure that the true threats land in jail. Anak Mindanao Rep. Amihilda Sangcopan believes that the Moro and Lumad communities are victims of Islamophobia and are the most affected sectors during terrorist attacks. She said the situation may become worse as this bill can incite “sheer terrorist tagging” based on their beliefs. Rep. Balindong of Lanao del Sur (where Marawi is located) said that the bill may lead to abuse of power.^[20]

Humanitarian organizations whether local or international will be in a difficult bind as they have to toe the vague definition of what terrorism means under the proposed bill. States bear the primary responsibility for ensuring that the basic needs of civilians and civilian populations under their control are met. Should a State be unable or unwilling to discharge this duty, international humanitarian law mandates relief action to be undertaken by others, such as humanitarian organizations, subject to the consent of the State concerned. But rapid and unimpeded access to the affected people is a requisite before non-state actors can deliver humanitarian assistance. ^[21]

Even well-meaning individuals or communities  inspired by the Filipino spirit of bayanihan would be discouraged or apprehensive to extend help, notably financial or material support. Law enforcement agents need only allege that acts are done with the intent to cause death or harm to a person or to the public and flip the presumption of innocence. The people are now burdened with proving that the acts did not carry that intent.

Ultimately, the people needing help and support in times of crisis will be at the receiving end.

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[1] https://www.responsiblebusiness.com/sdg-action/people-news/five-reasons-humanitarian-work-important-ever/

[2] https://www.onenews.ph/lawyers-other-groups-terrified-by-anti-terror-bill-here-s-why

[3] https://www.rappler.com/business/263035-business-groups-oppose-anti-terror-bill-june-5-2020

[4] The Senate Bill 1083 was finalized first, it having completed third reading in the Philippine Senate as early as 26 February 2020. It was then transmitted to the House of Representatives for their consideration the day after.  Among the Senate Bills consolidated to create the current Senate Bill 1083 are Senate Bill Nos. 6, 21, and 630. Committee Report No 9 of the Senate, filed on 30 September 2019 substituted the early drafted Anti-Terrorism Acts with the creation of Senate Bill 1083 entitled, “The Law on the Prevention of Terrorist Acts of 2020.” The two bills are hereinafter referred to as the Anti-Terrorism Bill

[5] Explanatory Note of SB No. 6, available at https://senate.gov.ph/lisdata/3022227050!.pdf  (last accessed 14 June 2020); Explanatory Note of SB No. 21, available at https://senate.gov.ph/lisdata/3023727066!.pdf  (last accessed 14 June 2020); Explanatory Note of SB No. 630, available at https://senate.gov.ph/lisdata/3097727859!.pdf  (last accessed at 14 June 2020).

[6] Lian Buan, IBP to Duterte: Veto non-judicial arrests and 24-day detention in anti-terror bill, RAPPLER,  9 June 2020, available at https://www.rappler.com/nation/263292-ibp-asks-duterte-veto-non-judicial-arrests-24-day-detention-anti-terror-bill (last accessed 14 June 2020); Human Rights Watch, Philippines: New Anti-Terrorism Act Endangers Rights, available at https://www.hrw.org/news/2020/06/05/philippines-new-anti-terrorism-act-endangers-rights (last accessed 14 June 2020); Tetch Torres-Tupas, IBP: Do Not Muddle Questions on Legality of Anti-Terror Bill, PHIL. DAILY INQ., 9 June 2020, available at https://newsinfo.inquirer.net/1288866/do-not-muddle-questions-on-legality-of-anti-terror-bill  (last accessed 14 June 2020).

[7] An Act to Secure the State and Protect Our People from Terrorism [Human Security Act of 2007], Republic Act No. 9372, Sec. 3 (2007).

[8] University of the Philippines: Department of Political Science, Position Paper on the Anti-Terror Bill (SB 1083/HB 6875), available at https://polisci.upd.edu.ph/position-paper-on-the-anti-terror-bill/ (last accessed 114 June 2020).

^{[9] Sec. 4, House Bill 6875}

[10] https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/7347.pdf

[11] “Pilot Empirical Survey Study on the Impact of Counterterrorism Measures on Humanitarian Action,” Harvard Law School Program on International Law and Armed Conflict, March 2017, available at http://blogs.harvard.edu/pilac/files/2017/03/Pilot-Empirical-Survey-Study-2017.pdf.

[12] Ibid.

[13] Chilling effect refers to self-imposed restrictions, inhibition or discouragement of the exercise of a legitimate act due to threat of punishment or legal sanction.

[14] https://www.ipinst.org/wp-content/uploads/2018/05/IPI_April-26-workshop_Background-paper-2.pdf

^{[15] https://www.rappler.com/nation/262816-mindanao-lawmakers-anti-terror-bill-further-incite-violence-not-end-terrorism}

^{[16] Sec. 12, House Bill 6875}

^{[17] Sec. 13, House Bill 6875}

[18] HB No. 6875, Sec. 25, 18^th Cong. (2020); SB No. 1083, Sec. 25, 18^th Cong. (2020).

[19] An Act Defining the Crime of Financing of Terrorism, Providing Penalties therefor  and For Other Purposes [Terrorism Financing Prevention and Suppression Act of 2012], Republic Act No. 10168, Sec. 11 (2012).

[20] https://www.cnnphilippines.com/news/2020/6/4/House-anti-terror-bill-Mindanao-Muslim-Moro-Lumad.html?%3F%3F%3F%3F%3F%3F&fbclid=IwAR3CTQpMpPrC2BWq__Ii6azUJelJhfdMxepMxECfdjbzYoowBLnRzq0sx4s

[21] https://blogs.icrc.org/ilot/2017/08/14/what-does-ihl-provide-for-in-terms-of-humanitarian-access-and-assistance/