03 November 2006

Members of the Senate
Financial Center, Roxay Blvd.
Republic of the Philippines

Dear Senators,

The International Commission of Jurists (ICJ) has been following with great interest the debate on a new counter-terrorism law in the Philippines. As the Senate will consider this week the adoption of a counter-terrorism bill, we would like to take the opportunity to bring a number of remaining concerns over its compatibility with international human rights law to your attention.

The ICJ is a leading international non-governmental organization consisting of jurists who represent all the regions and legal systems in the world, working to uphold the rule of law and the legal protection of human rights. The ICJ unequivocally condemns acts of terrorism and expresses its solidarity with the families of the victims of terrorist attacks. Such acts are clearly prohibited under international law, and the perpetrators must be held criminally accountable. Indeed, in international law, the Philippines have the right and the duty to protect the security of persons under its jurisdiction and to take effective measures against acts of terrorism.

However, the ICJ emphasises that, as reiterated by the UN Security Council, General Assembly and Commission on Human Rights this legitimate fight against terrorist acts must be in full accordance with international law, in particular human rights, humanitarian and refugee law.[1] In this respect, the human rights principles that must be respected when countering terrorism have been articulated in the ICJ Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism adopted by 160 leading jurists from all regions of the world.[2] For your perusal, the ICJ Berlin Declaration is annexed to this letter.

The ICJ recognizes a number of positive provisions in the most recent Senate Bill (?An act to define and punish the crimes of terrorism and conspiracy to commit terrorism and other acts incident thereto, and for other purposes?), such as: the exclusion of any evidence obtained not only by torture but also other forms of coercion; the explicit reference to the right to communications to lawyers, family and doctors upon arrest; the requirements to maintain detention log-books and the various provisions criminalizing violations of such rights; the need to apply for a judicial determination before an organisation can be proscribed as ?terrorist organisation?; and the absence of any provisions reversing the burden of proof ? as contained in previous drafts.

However, there remain a number of concerns that risk resulting in serious human rights violations and that may well undermine important principles of the rule of law. I would like to bring the most important concerns to your attention:

1. Arrest and detention without judicial warrant

The ICJ is particularly concerned at provisions in Section 19 allowing for the detention of a terrorist suspect for up to 15 days before being brought before a judge or a judicial authority. If adopted this would violate Article 9, paragraph 3, of the United Nations International Covenant on Civil and Political Rights (hereinafter ICCPR), which requires that a person arrested be ?brought promptly before a judicial authority?. Under international law the term ?promptly? does not exceed a few days, usually 48 hours, even if national security concerns are involved.[3] The extension to up to 15 days clearly violates the obligations under the ICCPR.

The right of a detainee to be brought before a judge helps to ensure that the detention is lawful and necessary. It also provides a vital safeguard against torture and enforced disappearance, as the judge can physically see the detainee and any noticeable signs of ill-treatment and can consider allegations made by the detainee. While the law provides for other important safeguards against abuse, such as access to lawyers, family and doctors, it fails to recognize this important right under article 9, paragraph 3 ICCPR.

2. Law enforcement powers to the military

The law authorises in Sections 7, 19, 26 not only law enforcement officials, the police, but also the military to arrest and detain, and to wire-tape or request seizure of bank records, etc.. The ICJ considers that this shift in powers exacerbates the potential risk of abuse of the present law. This is even more so, as the bill is silent about the circumstances under which the military is entitled to exercise such powers. The use of military forces, in particular if there are insufficient limits on the exercise of their powers, gravely increases the risk of human rights violations, as the armed forces are not trained to act as an investigating body, as law enforcers or prison officials or as investigators examining bank records or monitoring communications. The United Nations Human Rights Committee, which is tasked to oversee the implementation of the ICCPR, has for these reasons expressed its concern in the past, that providing for judicial police functions to the military could lead to violations of the ICCPR.[4]

3. Criminal offences

The ICJ recognizes that the criminal offences contained in its most recent draft have been improved in comparison to some previous drafts. However, a number of concerns remain:

The definition of ?terrorism? and ?conspiracy to commit terrorism? in Section 3 and 4 contain some terminology that may be too vague and imprecise, such as causing ?anxiety? in the population, and which will consequently raise concerns over its compliance with the principle of legality in article 15 ICCPR, that is the requirement to define criminal offences in precise, unequivocal and unambiguous terms. Most notably, however, the ICJ is concerned over the breadth of the definition in Section 3, as to ?paralyzing water supply?, the ?electronic power system or communications systems? if ?to advance or promote religious or political ideas? in order ?to coerce the government to give in to a given demand?. The ICJ urges the Senate to ensure that the definition of terrorism could not be understood to cover industrial strikes or protest affecting the energy, water supply or communications sector or other infrastructure as ?acts of terrorism?. This could unjustifiably interfere into the right to freedom of assembly and association or the right to strike (Articles 21, 22 ICCPR) and could - even if such protest were to be unlawful in a given situation - unjustifiably qualify such acts as acts of terrorism.

Finally, the ICJ is also concerned about the breath of certain elements of the offence of being ?accessory? in Section 6 to terrorism, which could lead to criminalizing family members for ?neutral acts? such as for providing food to a person suspected of terrorism.

4. Death penalty, life long deprivation of right to vote

The ICJ is taken aback by proposals to reintroduce the death penalty in the Philippines in the counter-terrorism bill in Sections 3 and 25 only five months after Parliament had outlawed the imposition of the death penalty in the Philippines. The abolition of the death penalty has been widely acclaimed internationally and the ICJ is of the view that the death penalty as such constitutes a violation of human rights.

In this regard, I would like to draw your attention to the practice of the United Nations Human Rights Committee, which considers that the reintroduction of the death penalty by state parties would contradict the countries progressive obligation under article 6 of the ICCPR (right to life).[5]

With regard to the crime of membership in a terrorist organization, the ICJ welcomes the improved procedure requiring a judicial determination to prescribe an organization. It is fundamental to ensure that criminalization of membership in an organization respects that criminal responsibility is individual and not collective. The ICJ is concerned that the offence of membership in a terrorist organisation in Section 18 carries a livelong ban of holding any public office and the right to vote. Such a mandatory ban without any limitations and exceptions seems to be a disproportionate interference into the right to vote, even more so, as the crime of membership in a terrorist organisation as presently defined may not necessarily require any major substantial active contribution to the organization or substantial support to any specific terrorist acts.

5. Surveillance and remedies

Under international law, surveillance is a legitimate method for counter-terrorism operations, provided it is regulated by law, pursues a legitimate aim and is necessary in a democratic society. The latter requirement in particular calls for sufficient safeguards against abuse. Moreover, it is essential that the person affected by such surveillance have an effective remedy against such interference into his or her rights.

The ICJ recognizes that the bill includes some safeguards, most notably the need to have judicial authorization over surveillance by the Regional Trial Courts with a detailed description of the documentation required. However, this safeguard alone may not be sufficient to guard against abuse. In particular, the counter-terrorism bill does not foresee any obligation to notify the person placed under surveillance at the end of the operation and both the original ?request for authorization? and the ?data collected? in such surveillance will be considered classified information. In this situation, it will be almost impossible for the person affected to challenge the legality of the interference into his right to private life (Article 17 ICCPR). It should be noted that the United Nations Human Rights Committee has considered the right to an effective remedy in Article 2, paragraph 3 ICCPR, to apply even in times of an emergency and that such right implies an effective tool to challenge state violations.[6]

6. Immunity for witnesses/witness protection

The bill provides for far-reaching rules on legal immunity for ?any? person providing testimony in counter-terrorism cases without any specific requirements of the importance of the testimony for the prosecution of the case, or regarding the level of the persons? own involvement in major crimes.

The ICJ is concerned about the unqualified nature of this provision, which may contradict the principle of legality and the positive obligation of the Philippines under human rights law to prevent, investigate and punish persons for violations of the right to life and other gross human rights abuses. This may particularly be the case if - as the law suggests in its ?declaration of policy? in Section 2 ? it concerns immunity for crimes against humanity. Impunity for crimes against humanity would indeed breach the Philippines obligation under international law.

In this regard, the ICJ notes that Section 2 of the counter-terrorism bill declares as its principle objective the establishment of ?terrorism and conspiracy to commit terrorism as crimes against humanity, crimes against the law of nations?. Indeed, acts of terrorism may constitute crimes against humanity provided they meet the special requirements of these crimes, amongst others, that they are part of a widespread or systematic attack on civilians. On the other hand, not all of the conduct that is covered and criminalized in the new counter-terrorism law would qualify as crimes against humanity. This concerns in particular the offences of conspiracy to commit terrorism, being an accessory and the crime of membership in a terrorist organisation. Such conduct may be the subject of criminalization in a given domestic legal system but does not fulfil the criteria of a crime against humanity under international law.

7. Role of the Anti-terrorism Council

Finally, I would wish to draw your attention to some concerns with the role of the Anti-Terrorism Council in Section 48, which would be composed of the President, Vice-president and a number of key ministries and is to be served by the National Intelligence Agency as its operational Secretariat. The ICJ fully recognizes the desire to ensure effective coordination of counter-terrorism laws and policies as a legitimate objective that is presently pursued in many countries around the world.

However, the ICJ is seriously concerned about the lack of specific regulation with regard to a number of its far-reaching powers, which will considerably impact on human rights and fundamental freedoms, such as the power to ?establish and maintain comprehensive data-base information systems on terrorism, terrorist activity and terrorist operations?. The collection of data and information, the sharing and use of such data within different national agencies and its exchange with other countries raise very important human rights and data protection issues, that need to be properly regulated and reflected in any legislation on such powers. The absence of any substantive legislation or regulations creates a serious risk for disproportionate and arbitrary interferences in the right to privacy (Article 17 ICCPR) and any future regulation of such powers must be strictly scrutinized for its compliance with international human rights law.

Moreover, the ICJ is concerned that the powers and functions of a ?well-supported special composite action force? to be ?created, maintained and used to combat terrorists? are not further specified. The ICJ urges the Senate as a matter of urgency to ensure that any special or ad hoc anti-terrorism force ? should such force be necessary - be properly regulated, its powers and competencies be clearly defined by law and full accountability be ensured to avoid any serious human rights violations in the fight against terrorism in the future.

The proposed Anti-Terrorism Council has also far reaching competencies with regard to arrest, detention, wire taping and monitoring and freezing of bank accounts. The ICJ notes that its structure may unduly increase possible political influence and that of the intelligence services over the actual investigations of terrorist acts under the law, in particular through the power to ?direct the speedy investigation and prosecution of all persons detained for the crime of terrorism or conspiracy to commit terrorism?. It should be considered that the crime of terrorism or conspiracy of terrorism as a rule should be prosecuted within the ordinary justice system and should be guarded from political influence the same way as other grave crimes.

The ICJ respectfully requests the members of the Senate to take these considerations into account and to ensure through amendments to the present bill that any counter-terrorism law in the Philippines fully complies with its obligations under international human rights law.

We thank you for your prompt attention to these requests. We look forward to hearing from your office as soon as possible.

Please accept the assurances of my highest consideration.

Yours sincerely,

Gerald Staberock
Director, Global Security and Rule of Law Programme
Attached:

ICJ Berlin Declaration on Upholding Human Rights and the Rule of Law in Combating Terrorism

[1] See UN Security Council resolution 1456 of 20 January 2003; UN General Assembly resolutions 57/219 of 18 December 2002, 58/187 of 22 December 2003 and 59/191 of 20 December 2004; and UN Commission on Human Rights 2003/68 of 25 April 2004, 2004/87 of 21 April 2004 and 2005/80 of 21 April 2005.

[2] The declaration is also available at www.icj.org.

[3] The UN Human Rights Committee, which is entrusted to interpret the ICCPR, as well as the UN Special Rapporteur on Torture have recommended that the time by law to obtain a judicial arrest warrant should in any case not exceed 48 days. See for example: Concluding Observations on Zimbabwe, UN Doc (1998) CCPR/C/79/Add.89; see also Concluding Observations on Lesotho, CCPR/79/add.106, para.18; Report of the UN Special Rapporteur of the Commission on Human Rights on the question of torture and other cruel, inhuman or degrading treatment or punishment, A/57/173 of 2 July 2002, para.19 and 21.

[4] See for example UN Human Rights Committee, Concluding Observations on Colombia , CCPR/Cadd.76, par.23.

[5] See United Nations Human Rights Committee, Judge versus Canada , CCPR/C/78/D/829/1998, par.10.4/10.5.
[6] United Nations Human Rights Committee, General Comment No. 31, CCPR/C/21/Rev.1/Add.13; United Nations Human Rights Committee, General Comment No.29, CCPR/C/21/Rev.1/Add.13, par.14.