THE LEGAL FRONT
The Anti-Terrorism Act of 2020 (ATA) has traveled a long way from the time it became a law. It had run a gauntlet of 37 petitions before it received the Court’s blessings, albeit with two objectionable provisions noted. A major portion of the internal debate was understandably related to the definition of terrorism, as no universally accepted definition currently exists; each country has its own, based on its own perceptions, interests, needs, and experience.
At this point, our ATA is at the homestretch – at the last turn before the final post: the Court is now preparing the procedural rules for its implementation. These rules, although not at the level of the ATA as a law, govern the process and precautions that must be observed to truly and responsibly implement it. They are intended to protect parties’ constitutional rights under the ATA, and are important to accord due respect to the rule of law and protect the rights of affected parties. For the judiciary, they are the procedural guides in handling the conflicts of rights that, given the misgivings and objections the petitioners raised, would expectedly arise.
In clear and enlightening terms, former Chief Justice Reynato Puno explained the Rules Committee’s contemplated approach and its underlying reasons, by alluding to history and to past analogous precedents. The ATA requires a novel approach as it is both new and different from the usual crimes the nation has addressed in the past; it presents a new paradigm to which the nation – the executive and the judiciary, in particular – must adjust in order to achieve the law’s purpose – the holistic protection of society and its individual members against terrorism.
Terrorism is a crime that indiscriminately touches both society and individuals. It disturbs societal peace, misaligns social order, and affects individuals as victims who may be injured, killed, or whose properties may be damaged. It also affects others in society who may be exposed to governmental actions in the course of addressing its different aspects or stages. For all these wide-ranging effects and potential harm, terrorists must not only be punished; the effects of their actions must be redressed, and – most importantly – they must be prevented from carrying out their nefarious deeds.
ATA’s combined deterrence, punishment, and remedial approaches establish a new paradigm that departs from the traditional mode of reacting to crime – through the punishment of criminals after the crime has been committed. The ATA, in contrast, does more as it also embodies a preventive act of self-defense. The deterrence it seeks is not solely by example, but by pro-active measures that would deny potential malefactors the opportunity to inflict harm. The law achieves this objective by addressing inchoate acts, i.e., acts indicative of or leading to terrorism, that, if left unacted upon, would lead to terroristic acts and the harm the ATA principally addresses.
Given the new paradigm and the approaches called for, the nation – in particular, the executive as ATA’s implementor, and the judiciary as the resolver of conflicts under ATA – must adjust. They must not only react to terrorism; they must be there, in preventive readiness, even before terror strikes.
The need for adjustment is most acute within the judiciary as it will require a change of mindset that must now include the will and discipline to adjust – to consider the effects on affected individual rights, weighed against the severity of contemplated, ongoing, or committed terroristic acts.
This approach, to state the obvious, is not an absolute guarantee of the fullest protection of constitutionally guaranteed rights, but only of a balanced protection given to all – to society, government, and affected individuals. In this measured sense, the rule of law adjusts to the circumstances of terrorism and, on the whole, prevails.
As a parting word, terrorism largely involves an emergency, perhaps a very temporary one. Adopted measures should likewise be of this nature unless a longer-term approach is really called for. The government, in particular, should not forget terrorism’s essentially temporal nature when it balances its different approaches to terrorism. Alternatively, I hope that sometime in the future, a rights-sensitive legislator would consider an amendatory law providing that when the emergency is past or has significantly waned, the most rights-intrusive provisions of ATA – as shown by field experience – would self-destruct, in the same way that emergency measures under the 1987 Constitution lapse. [email protected]