"Detention without judicial warrant is a controversial provision."
Proscription is the process by which the court declares an organization, association, or group of persons as committing, threatening to commit, conspiring to commit, proposing to commit or inciting to commit terrorism, and recruiting terrorists or providing material support to terrorists (Sections 4,5,6,7,8,9,10,11and12, Anti-Terrorism Bill); or those organized for purposes of engaging in terrorism. Under the provision, the Department of Justice, upon the authority of the Anti-Terrorism Council (ATC), may apply with the Court of Appeals to declare certain groups of persons, organizations or associations as terrorists (Sec. 26, Anti-Terrorism Bill). The application shall be filed with notice to the persons concerned and they will be given the opportunity to be heard. This is unlike the designation of terrorist individuals, groups or associations by the ATC which requires no court action or declaration (Section 25, Anti-Terrorism Bill).
The Court of Appeals may issue a preliminary order of proscription within seventy-two (72) hours from the filing of the application, after a determination of probable cause that the respondent is a terrorist or an outlawed organization. This preliminary order may be made permanent or may be lifted after continuous hearings within six (6) months from the time of the application. Upon the issuance of the preliminary order of proscription or in case of a designation under Section 25, the Anti-Money Laundering Council (AMLC), either upon its own initiative or at the request of the ATC, is authorized to investigate: (a) any property or funds that are in any way related to the financing of terrorism; or (b) property or funds of any person or persons in relation to the respondent/s with whom there is probable cause to believe that these person/s are committing, attempting, conspiring to commit, participating in or facilitating the financing of terrorism (Section 35, Anti-Terrorism Council).
The AMLC is authorized without a court order to inquire into or examine deposits and investments with any banking institution or non-bank financial institution. This is notwithstanding the provisions of Republic Act No. 1405, otherwise known as the “Law on Secrecy of Bank Deposits”, as amended, Republic Act No. 6426, otherwise known as the "Foreign Currency Deposit Act of the Philippines”, as amended, and Republic Act No. 8791, otherwise known as “The General Banking Law of 2000.”
A very controversial provision is “Detention without Judicial Warrant,” which allows law enforcement and military personnel who have been duly authorized in writing by the ATC to take custody of persons suspected of committing any of the acts defined and penalized under Sections 4, 5, 6, 7, 8, 9, 10, 11, and 12 of the Anti-Terrorism Bill. The suspect may be detained for a period of fourteen (14) calendar days subject to further extension of ten (10) days if it is established that the further detention of the suspect is: (a) necessary to preserve the evidence, or to complete the investigation, (b) necessary to prevent the commission of another terrorism; and if (c) the investigation is being conducted properly and without delay (Section 29, Anti-Terrorism Bill).
Under Article 125 of the Revised Penal Code, the maximum detention before delivery of the suspect to the judicial authorities is only thirty-six (36) hours or one and a half days for crimes punishable by afflictive or capital penalties. While under the Constitution, if the privilege of the writ of habeas corpus is suspended by the President the detained suspect will have to be judicially charged within three (3) days from apprehension, otherwise he shall be released (Section 18, Article VII of the 1987 Constitution). Consistent with the constitutional mandate, the Human Security Law of 2007 requires delivery of the detained suspect to the judicial authorities within three (3) days from arrest. It therefore appears that the period of detention under the Anti-Terrorism Bill is inconsistent with the Constitution and the existing penal laws.
It is the duty of the arresting officer to notify, in writing, the judge of the court nearest to the place of apprehension or arrest showing the following facts: (a) the time, date, and manner of arrest; (b) the location of the detained suspects; and (c) the physical and mental condition of the detained suspects. The law enforcement agent or military personnel shall likewise furnish the ATC and the Commission on Human Rights (CHR) of the written notice given to the judge. The head of the detaining facility shall ensure that the detained suspect is informed of his rights as a detainee and shall ensure access of the detainee to his counsel.
The arrested and detained suspect shall be informed of the nature and cause of his arrest and detention, and of his right to remain silent and to have competent and independent counsel of his choice. If he cannot afford one, the law enforcement agent or military personnel concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney's Office (PAO). These rights cannot be waived except in writing and in the presence of his counsel (Section 30, Anti-Terrorism Bill). Failure of the law enforcement officer or military personnel to notify the judge and observe the rights of the suspect may expose him to a maximum prison term of ten (10) years (Sections 30 and 31, Anti-Terrorism Bill).
The right to travel of the suspect may be restricted even prior to the filing of the criminal information in court if the investigating prosecutor applies for a precautionary hold departure order (PHDO) (Section 34, Anti-Terrorism Bill). This is not a novel concept since this was taken from A.M. No. 18-07-05-SC of the Supreme Court. The investigating prosecutor may apply for a PHDO in the Regional Trial Court upon a preliminary determination of probable cause. The PHDO whether for terrorism or ordinary offenses ensures that the suspects cannot flee before the filing of the criminal information in court.
All told, the Anti-Terrorism Bill may be revisited on the following points: (a) the provision of “Terrorism” under Section 4 is suggested to be narrowed down to limit the discretion of the law enforcement officers and the military personnel in implementing it should it be passed into law; (b) there is no procedure as to how the ATC will determine probable cause in designating individuals, group of persons, associations or organizations as terrorists unlike the determination of probable cause during a preliminary investigation or application for a search warrant; (c) the detention period of 14 days for suspected terrorists should be shortened to 3 days to conform with the Constitution and the Anti-Terror Bill’s precursor, the Human Security Law of 2007; and (d) the composition of the ATC is suggested to include representatives coming from the judiciary, private and youth sectors to curb any misimpression that the ATC is the alter-ego of the President.