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FAQs on HB No. 6875 “The Anti-Terrorism Act of 2020”

FAQs on HB No. 6875 “The Anti-Terrorism Act of 2020”

by Atty. James A. Alminar

House Bill No. 6875 “The Anti-Terrorism Act of 2020”

 

HB No. 6875 is made in substitution of several house bills numbers: 551, 2082, 2847, 3103, 3413, and 5710.

 

Primary sponsors of the bill are: Representatives Narciso R. Bravo, Jr., Raul C. Tupaz, Rozzano Rufino B. Biazon, Jericho Jonas B. Nograles, and Luis Raymund F. Villafuerte.

 

The full title of the bills is: “AN ACT TO PREVENT, PROHIBIT, AND PENALIZE TERRORISM, THEREBY REPEALING REPUBLIC ACT NO. 9372, OTHERWISE KNOWN AS THE HUMAN SECURITY ACT OF 2007.

 

  1. What is the State Policy provided in this bill?

 

The bill refers to the State’s policy to protect life, liberty, and property from terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the Law of Nations.

 

  1. What approach should the government use in its implementation when it becomes a law?

 

The State recognizes that the fight against terrorism requires a comprehensive approach, comprising political, economic, diplomatic, military, and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorists and/or criminal activities.

 

The measures shall include conflict management and post-conflict peacebuilding, addressing the roots of conflict by building state capacity and promoting equitable economic development.

 

In Section 2 of the law, it is said that “the exercise of the constitutionally recognized powers of the executive department of the government shall not prejudice respect for human rights which shall be absolute and protected at all times.

 

The State shall also uphold the basic rights and fundamental liberties of the people enshrined in the Constitution when it comes to its implementation.

 

  1. The Act mentioned “critical infrastructure”, what does it mean?

 

It shall refer to an asset or system, whether physical or virtual, so essential to the maintenance of vital societal functions or to the delivery of essential public services that the incapacity or destruction of such systems and assets would have a debilitating impact on national defense and security, national economy, public health or safety, the administration of justice, and other functions analogous thereto.

 

  1. What/who is a “designated person”?

 

It shall refer to any individual, group of persons, organizations, or associations designated and/or identified by the UN Security Council, or another jurisdiction, or supranational jurisdiction as a terrorist, one who finances terrorism, or a terrorist organization or group.

 

The Anti-Terrorism Council (ATC) may also designate an individual, group of persons, organizations, or associations, upon finding of probable cause that the individual, group of persons, organization, or association to commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under the bill. (Section 25, HB No. 6875)

 

The ATC shall automatically adopt the United Nations Security Council Consolidated List of designated individuals or groups identified as a terrorist.

 

  1. What is “terrorism” as defined in the proposed bill? (Section 4 of HB No. 6875)

 

It is an act committed by any person who, regardless of the stage of execution:

 

  1. Engages in acts intended to cause death or serious bodily injury to any person, or endangers a person’s life;
  2. Engages in acts intended to cause extensive damage or destruction to a government or public facility, public place or private property;
  3. Engages in acts intended to cause extensive interference with, damage or destruction to critical infrastructure;
  4. Develops, manufactures possesses, acquires, transports, supplies or uses weapons, explosives or of biological, nuclear, radiological, or chemical weapons; and
  5. 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;
    • seriously destabilize or destroy the fundamental political, economic, or social structures of the country; or
    • create a public emergency or seriously undermine public safety.

 

  1. What is the penalty for engaging in the acts of terrorism?

 

Life imprisonment without the benefit of

  1. Parole;
  2. Deduction of preventive imprisonment from term of imprisonment;
  3. Partial extinction of criminal liability;
  4. Allowance for good conduct;
  5. Special time allowance for loyalty.

 

  1. What acts are not considered as acts of terrorism?

 

It 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.

 

  1. When a person threatens to commit another to commit terrorism, is he liable? (Section 5, HB No. 6875)

 

Yes. Any person who shall threaten to commit any of the acts of terrorism shall suffer the penalty of imprisonment of 12 years.

 

  1. A person did not commit any act of terrorism under Section 4 of the bill, can he/she still be held liable for violation of this act? (Section 6, HB No. 6875)

 

Yes, provided that such person:

  1. participated in the planning, training, preparation and facilitation in the commission of terrorism;
  2. is possessing of objects connected with the preparation for the commission of terrorism; or
  3. collecting or making documents connected with the preparation of terrorism.

 

  1. “Training” was mentioned above, what does it refer to?

 

“Training” shall refer to the giving of instruction or teaching designed to impart a specific skill in relation to terrorism, as opposed to general knowledge.

 

  1. Is mere conspiracy to commit terrorism punishable? (Section 7, HB No. 6875)

 

Yes. Any conspiracy to commit terrorism as defined under Section 4 shall be punishable. The persons who committed such shall be punished with life imprisonment without the benefit of parole and RA 10592.

 

There is conspiracy when two or more persons come to an agreement concerning the commission of terrorism as defined and decide to commit it.

 

  1. Is mere proposal to commit terrorism punishable? (Section 8, HB No. 6875)

 

Yes. Any person who proposes to commit terrorism shall suffer the penalty of imprisonment of 12 years.

 

There is proposal when the person who has decided to commit any of the crimes defined and penalized under the provisions of this Act proposes its execution to some other person or persons.

 

  1. How is inciting to commit terrorism committed?

 

It is committed when any person, without taking any direct part in the commission of terrorism, shall incite others to the execution of terrorism by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end.

 

  1. What does “recruit” mean?

 

It shall refer to any act to encourage other people to join a terrorist individual or organization, association or group of persons proscribed under Section 26 of this Act or designated by the UN Security Council as a terrorist organization, or organized for the purpose of engaging in terrorism.

 

  1. Who/what are proscribed terrorist organizations, association, or group of persons?

 

They are group of persons, organizations or associations which commits any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12 of this Act, or organized for the purpose of engaging in terrorism declared as a terrorist and outlawed group of persons, organization or association, upon application of the DOJ before the Court of Appeals with due notice and hearing.

 

  1. How should the application be done?

 

The application shall be filed with an urgent prayer for the issuance of a preliminary order of proscription.

 

The application for proscription shall always be filed before the Court of Appeals, authorizing division, with the authority of the Anti-Terror Council upon recommendation of the National Intelligence Coordinating Council.

 

  1. In proscription of terrorists, after the finding of probable cause and the application is sufficient in form and substance, what should the Court do?

 

The Court shall issue a preliminary order of proscription declaring that the respondent is a terrorist and an outlawed organization, within 72 hours.

 

  1. What should the court do after the issuance of the preliminary order of proscription?

 

It shall immediately commence and conduct continuous hearings, which should be completed within 6 months from the time the application has been filed.

 

  1. What is the purpose of the hearing?

 

To determine whether:

 

  1. The preliminary order should be made permanent;
  2. A permanent order should be issued in case no preliminary order was issued; or
  3. A preliminary order of proscription should be lifted.

 

  1. Until when is the validity of the order of proscription?

 

It shall be valid for a period of 3 years after. After which, a review of such order shall be made and if circumstances warrant, the same shall be lifted.

 

The order of proscription shall likewise be published in a newspaper of general circulation.

 

  1. What is the penalty for recruitment in a terrorist organization?

 

Any person who shall recruit another to participate in, join, commit or support terrorism or a terrorist individual, proscribed organization or designated persons, shall suffer the penalty of life imprisonment without the benefit of parole and the benefits of RA No. 10592.

 

  1. Is mere joining in a proscribed organization or designated association punishable?

 

Yes. Any person who shall voluntarily and knowingly join any proscribed organization or designated association or organized for the purpose of engaging in terrorism, shall suffer the penalty of imprisonment of 12 months.

 

  1. How is facilitation of travel of individuals to a state other than their state of residence or nationality for purposes of recruitment committed?

 

  1. Recruiting another person to serve in any capacity in or with an armed force in a foreign state, whether the armed force forms part of the armed forces of the government of that foreign state or otherwise;
  2. Publishing an advertisement or propaganda for the purpose of recruiting persons to serve in any capacity in or with such an armed force;
  3. Publishing an advertisement or propaganda containing any information relating to the place at which or the manner in which persons may make applications to serve or obtain information relating to service in any capacity in or with such armed force or relating to the manner in which persons may travel to a foreign state for the purpose of serving in any capacity in or with such armed force;
  4. Performing any other act with the intention of facilitating or promoting the recruitment of persons to serve in any capacity in or with such armed force.

 

  1. Who are considered “foreign terrorist”?

 

Any person, for the purpose of perpetrating, planning, or preparing for, or participating in terrorism, or providing or receiving terrorist training:

 

  1. to travel or attempt to travel to a state other than his/her state of residence or nationality;
  2. to organize or facilitate the travel of individuals who travel to a state other than their states of residence or nationality.

 

Those persons 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.

 

  1. What does “material support” mean?

 

It shall refer to any property or service, including currency or monetary instruments or financial securities, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, and transportation.

 

  1. How is “providing material support to terrorist committed”? (Section 12, HB No. 6875)

 

It is committed through providing material support to any terrorist individual or terrorist organization or group of persons committing any of the acts punishable under Section 4. Knowledge that such individual or organization or group of persons is committing or planning to commit such acts is required for the violation of this provision.

 

The person giving material support shall be liable as principal to any and all terrorist activities committed by said individuals or organizations, in addition to other criminal liabilities he/she may have incurred in relation thereto.

 

  1. Are there any exemption to this provision?

 

Yes. Humanitarian activities undertaken by the International Committee of the Red Cross, and other state-recognized impartial humanitarian partners or organizations in conformity with the International Humanitarian Law.

 

  1. When is a person considered as an accessory? (Section 14, HB No. 6875)

 

One can be considered as an accessory when, having knowledge of the commission of any crimes defined and penalized under Section 4 of this Act, without having participated therein, takes part subsequent to its commission in any of the following manner:

 

  1. By profiting himself or assisting the offender to profit by the effects of the crime;
  2. By concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; or
  3. By harboring, concealing, or assisting in the escape of the principal or conspirator of the crime.

 

  1. Is relationship or affinity of the accessory with the principal an exempting circumstance?

 

No person, regardless of relationship or affinity, shall be exempt from liability as an accessory.

 

  1. What is the penalty if the one who committed a violation of this Act is a public official or employee?

 

The public official or employee shall be charged with:

  1. administrative offense of grave misconduct and/or disloyalty;
  2. penalty of dismissal from service with accessory penalties of cancellation of civil service eligibility, forfeiture of retirement benefits and perpetual absolute disqualification from running for any elective office or holding any public office.

 

  1. What does “surveillance of suspects and interception and recording of communication” mean?

 

Notwithstanding Anti-Wiretapping Law, a law enforcement agent or military personnel, upon written order of the Court of Appeals, secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect, with the use of any mode, form or kind of equipment or device or technology, or with the use of any other suitable ways and means, any private communications, conversation, discussion/s, data, information, messages in whatever form, kind or nature, spoken or written words:

  1. Between members of a judicially declared and outlawed terrorist organizations, as provided under Section 26;
  2. Between members of a designated person as defined under the Section 3(e) of RA 10168;
  3. Between any person charged with or suspected of committing any crimes defined and penalized under this Act.

 

  1. Are there any exception to the surveillance of suspects?

 

Yes. The surveillance, interception and recording of communications between lawyers and clients, doctors and patients, journalists and their sources and confidential business correspondence shall not be authorized.

 

  1. What is the duty of the law enforcement agent or military personnel in this surveillance or interception of communication?

 

He/she shall be obligated to:

 

  1. File and ex-parte application with the Court of Appeals for the issuance of an order, to compel telecommunication service providers to produce all customer information and identification records as well as call and text data records, content and other cellular or internet metadata of any person suspected of any crime/s defined and penalized under this Act; and
  2. Furnish the NTC a copy of said application.

 

  1. What are the requisites to issue written order to conduct surveillance and interception of communication?

 

  1. Filing of an exparte written application by law enforcement agent or military personnel, who has been duly authorized in writing by the Anti-Terrorism Council;
  2. Examination under oath or affirmation of the applicant and the witnesses he may produce;
  3. The issuing court determines:
    1. That there is probable cause that the crimes defined and penalized under Sections 4-12 of this Act has been committed, or is being committed, or is about to be committed; and
    2. That there is probable cause to believe that evidence, which is essential to the conviction of any charged or suspected person for, or to the solution or prevention of, any such crimes, will be obtained.

 

  1. What is the nature of the written order of the authorizing division of the Court of Appeals?

 

It is declared as “classified information”

 

 

  1. What should the written order contain?

 

  1. Identity, such as name and addresses, if known, of the persons whose communication, messages, conversation are to be tracked down, tapped, listened to, intercepted and recorded. If the person or persons suspected of committing any of the crimes defined under this Act are not fully known, such person or persons shall be subject of continuous surveillance;
  2. Identity of the law enforcement agent or military personnel, including the individual identity of the members of his team, judicially authorized to undertake surveillance;
  3. Offense or offenses committed, being committed, or sought to be prevented; and
  4. Length of time within which the authorization shall be used or carried out.

 

  1. What is the duration of effectivity of the Judicial Authorization?

 

It shall only be effective for the length specified in the written order which shall not exceed a period of sixty (60) days from the date of receipt of the written order.

 

  1. Can it be extended?

 

Yes. The Court of Appeals, authorizing division may extend or renew the said authorization to a non-extendible period, which shall not exceed thirty (30) days from the expiration of the original period.

The issuing court should be satisfied that such extension or renewal is in public interest.

The ex-parte application for extension or renewal must be filed by the original applicant has been duly authorized in writing by the ATC.

 

  1. What if the original applicant dies or has been physically disabled to file the extension?

 

The one next in rank to the original applicant among the members of the team named in the original written order shall file the application.

 

  1. When should the appropriate case be filed?

 

The applicant law enforcement agent shall have thirty (30) days after the termination of the period granted by the Court of Appeals, within which to file the appropriate case before the Public Prosecutor’s Office for any violation of this Act.

 

  1. What should the issuing court require from the law enforcement agent?

The issuing court shall require the applicant law enforcement agent to inform the court, after the lapse of the 30-day period of the fact that an appropriate case for violation of this Act has been filed with the Public Prosecutor’s Office.

 

  1. What will happen now to the intercepted and recorded communications?

 

The tapes, discs, notes, other storage devices and all copies thereof shall be deposited with the issuing court within 48 hours after the expiration of the period fixed in the written order or extension granted thereafter.

The deposit shall be accompanied by a joint affidavit of the applicant law enforcement agent.

 

  1. What if the tapes, discs, and other storage devices were removed, deleted, expunged, incinerated, shred or destroyed in any manner?

 

The person who did such shall suffer the penalty of imprisonment of ten years.

 

  1. What are the contents of the joint affidavits?

 

  1. Number of tapes, discs, and recordings that have been made;
  2. Dates and times covered by each of such tapes, discs, and recordings; and
  3. Chain of custody or the list of persons who had possession or custody over the tapes, discs and recordings.

 

  1. What if the law enforcement agent did not accompany in the deposit his joint affidavit?

 

He/shall suffer the penalty of imprisonment of 10 years.

 

  1. What if he interception and recording of the communication was not in accordance with the provisions of the Act?

 

They shall be inadmissible and cannot be used as evidence against any body in any judicial, quasi-judicial, legislative, or administrative investigation, inquiry, proceeding or hearing.

 

  1. The law enforcement agent intercepted and/or recorded a communication, what will happen to him?

 

Any law enforcement agent who conducts surveillance activities without a valid judicial authorization shall be guilty of “Unauthorized or Malicious Interceptions and/or Recordings”

 

  1. Can there be an arrest and detention of suspected person without judicial warrant of arrest? For how long?

 

Any law enforcement agent who, having been duly authorized in writing by the ATC, has taken custody of a person suspected of committing any of the acts defined under Sections 4-12 of this Act, shall, without incurring any criminal liability for delay in the delivery of detained persons, deliver said suspected person to proper judicial authority within a period of 14 calendar days counted from the moment the said suspected person has been apprehended, arrested or detained.

 

  1. Can the period of detention be extended?

 

It may be extended to a maximum period of ten (10) calendar days if it is established that:

 

  1. Further detention is necessary to preserve evidence related to terrorism or complete the investigation;
  2. Further detention of the person is necessary to prevent the commission of another terrorism;
  3. Investigation is being conducted properly without delay.

 

  1. What should the arresting officer do after taking custody of the person suspected of committing terrorism?

 

Immediately after taking custody of the person, the law enforcement agent shall notify in writing the judge of the court nearest the place of apprehension or arrest of the following facts:

  1. Time, date and manner of arrest;
  2. Location of the detained suspect/s;
  3. Physical and mental condition of the detained suspect/s.

 

The law enforcement agent shall likewise furnish the ATC and CHR of the written notice given to the judge.

 

  1. What if the law enforcement agent fails to notify the judge?

 

He shall be liable for imprisonment of 10 years.

 

  1. If the suspected person/s is arrested, does he have any rights?

 

He is afforded the rights of a person under custodial investigation enshrined in our Constitution.

 

  1. The rights of the person detained were violated, who shall be held liable?

 

The law enforcement agent shall be liable for imprisonment of 10 years if he/she violated the rights of persons under their custody.

 

  1. What are the other rights of the person detained?

 

He/she has the right against the use of torture and other cruel, inhumane and degrading treatment or punishment, defined under the Anti-Torture Act, at any time during the investigation or interrogation.

 

  1. Can the right to travel of the suspected person/respondent be restricted?

 

Prior to the filing of an information, the investigating prosecution shall apply for the issuance of a precautionary hold departure order upon a preliminary determination of probable cause in the proper RTC.

 

Upon filing of the information, the prosecutor shall apply with the court having jurisdiction for the issuance of a hold departure order against the accused.

 

  1. Can the person arrested apply for bail?

 

YES, in cases where the evidence of guilt is not strong.

 

  1. If the person is granted bail, can his right to travel still be limited?

 

When the person charged is granted bail and is granted, upon application by the prosecutor, shall limit the right of travel of the accused within the city or municipality where he resides, or where the case is pending.

Travel outside the municipality or city shall be deemed a violation of the terms and conditions of bail.

 

  1. Can he be placed under house arrest?

 

Yes. While under house arrest, he/she may not use cellphones and other means of communication with people outside the residence until otherwise ordered by the court.

 

  1. What now if the evidence of guilt is strong?

 

The court shall immediately issue an HDO and direct the DFA to initiate a proceeding to cancel the passport of the accused.

 

  1. What is the role of the AMLC in the implementation of this Act?

 

Upon issuance by the court of a preliminary order of proscription or designation, the AMLC is authorized to:

 

  1. Investigate any property or funds that are in any way related to financing of terrorism, or violation of Secs. 4, 6, 7, 10, 11, or 12; and
  2. Investigate property or funds of any person or persons in relation to whom there is probable cause to believe that such person or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of the aforementioned sections of this Act.

 

  1. In the investigation of the AMLC of the properties or funds, what is the relevance of Bank Secrecy Law, Foreign Currency Deposit Act, General Banking Law?

 

Notwithstanding these laws, the AMLC is authorized to inquire into or examine deposits and investments with any banking institution or non-bank financial institution and their subsidiaries and affiliates without a court order.

 

  1. When should the freeze order be issued?

 

Upon issuance of a preliminary order of proscription or in case of designation, the AMLC, upon initiative or request of ATC, is authorized to issue an ex-parte order to freeze without delay:

 

  1. Any property or funds that are in any way related to terrorism; and
  2. Any property or funds of any person in relation to whom there is probable cause to believe that such person or persons are committing or attempting or conspiring to commit, or participating in or facilitating the financing of the acts of terrorism.

 

  1. How long should the freeze order be effective?

 

It shall be effective for a period of not exceeding 20 days. It may be extended up to a period not exceeding 6 months upon order of the Court of Appeals, through a petition filed by the AMLC before the expiration of the period.

 

  1. The law mentions of “safe harbor”, what does it mean?

 

It means that no administrative, criminal or civil proceedings shall lie against any person acting in good faith when implementing the targeted financial sanction as provided under pertinent UN Security Resolutions.

 

  1. Inspection of bank accounts has been authorized by the court, but the bank officials refused to allow the examination. Are they liable?

 

Yes. An employee, official, or a member of the board of a bank or financial institution, after being duly served with the written order of authorization, refuses to allow the examination of deposits, etc. of a terrorist, shall suffer the penalty of imprisonment of 4 years.

 

  1. How is the course of the trial of cases?

 

The case shall be set for continuous trial on a daily basis from Monday to Thursday or short-term trial calendar to ensure compliance with the accused’s right to speedy trial.

 

  1. What are the programs that the Anti-Terrorism Council shall formulate and adopt?

 

  1. Preventing and countering violent extremism program – this will address the conditions conducive to the spread of terrorism.
  2. Preventing and combating terrorism program – this shall focus on denying terrorist groups access to the means to carry out attacks to their targets and formulate response to its desired impact through decisive engagements. It shall also focus on operational activities to disrupt terrorism, its logistics and finance.
  3. International affairs and capacity building program – this shall endeavor to build the State’s capacity to prevent terrorism by strengthening the collaborative mechanisms between ATC and support agencies.
  4. Legal affairs program – this is to ensure respect for human rights and adherence to the rule of law as the fundamental bases of the fight against terrorism.

 

Nothing shall be interpreted to empower the ATC to exercise any judicial or quasi-judicial power or authority.

The ATC shall exercise its functions with due regard for the rights of the people as mandated by the Constitution.

 

  1. What is the role of the Commission on Human Rights?

 

It shall give the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act.

 

  1. Does the law apply outside the territory of the Philippines? When?

 

Yes, subject to the provision of any treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application.

The law may be applied extraterritorially:

 

  1. To a Filipino citizen who commits the acts under Sections 4-12 outside the territorial jurisdiction of the Philippines;
  2. To individuals who, although physically outside the territorial limits of the Philippines, commit any of the crimes under Section 4-12 of this Act inside the territorial limits of the Philippines;
  3. To individuals who, although physically outside the territorial limits of the Philippines, commit any of the crimes under Section 4-12 of this Act on board Philippine ship or airship;
  4. To individuals who commit said crimes within any embassy, consulate, or diplomatic premises belonging to or occupied by the Philippine government in an official capacity;
  5. To individuals who, although physically outside the territorial limits of the Philippines, commit any of the crimes under Section 4-12 of this Act against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime;
  6. To individuals who, although physically outside the territorial limits of the Philippines, commits said crimes directly against the Philippine government.

 

  1. What is the rule with respect to the person not a citizen of the Philippines?

 

The Philippines shall exercise jurisdiction only when such individual enters or is inside the territory of the Philippines.

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