What makes a rebel different from a terrorist

The new Anti-Terrorism Act, which takes effect tomorrow, July 19, is being challenged before the Supreme Court by eight petitions so far filed by different groups.

It should open an interesting debate, involving not just the activists and the political commentators but more so the general public which has often suffered the disastrous consequences of actions by a government that keeps pointing an accusing finger at critics of various stripes.

For the veteran jurist Antonio T. Carpio, retired senior associate justice of the Supreme Court, it is important to resolve that, under the ATA, communists, specifically members of the Communist Party of the Philippines and the New People’s Army – “whose intent is clearly rebellion” – cannot, either individually or as a group, be declared or proscribed as terrorists.

He has announced his intent to file his own petition questioning the new law, mainly on constitutional grounds. If he takes up this specific matter in his prospective petition, and the Supreme Court agrees with him, two things could be achieved:

1) Avert, or at least allay, the heightened threats posed by the ATA to the freedom of expression, movements, and exercise of the civil, political and other rights of activists and organizations that the state authorities and security forces have been arbitrarily accusing/ tagging as members or “fronts” of the CPP-NPA; and 2) enhance the prospects of resuming the GRP-NDFP peace negotiations, which Duterte had arbitrarily ended via Proclamation 360 in November 2017; but last December, he directed his chief negotiator to work out the talks’ revival with his NDFP counterpart.

 In his third analysis-commentary on the ATA, published in the Inquirer last Thursday, Carpio took off from Duterte’s statement on state television last Tuesday that the CPP-NPA “are terrorists because I finally declared them to be one [referring to his Proclamation 374 on Dec. 5, 2017]” and from the reaction of Sen. Panfilo Lacson, ATA principal author, who averred that under the ATA “only the Court of Appeals can order proscription – not the Anti-Terrorism Council, nor the President.” 

“Mr. Duterte and Lacson are both mistaken,” wrote the retired jurist, “because under the ATA rebels are not terrorists and cannot be declared as terrorists.” But because Carpio wrote (perhaps compelled to be brief due to space limitation) that “proscription means the designation of a group or association as engaged in the crime of terrorism,” Lacson yesterday called him out for seeming to miss the difference between “designation” and “proscription”.

Lacson’s office wrote to the Inquirer, pointing out: “Designation is an administrative act that can be exercised by the executive branch through the ATC [Anti-Terrorism Council]; proscription is judicial which only the courts – the Court of Appeals under the (ATA) – can decide, with the burden of proof with the DOJ.” 

I’m sure Carpio is well aware of the distinction.  But missing to state “designation by the court” doesn’t lessen the weight of his analysis-commentary.  He briefly discussed four arguments, backing them up with references to a Supreme Court ruling and the Senate’s recorded deliberations on the ATA bill.

First, the ATA, as a replacement for the Human Security Act of 2007 (the old anti-terror law), “in [re]defining terrorism deleted all the predicate crimes, like rebellion and coup d’etat, listed in the definition of terrorism in the (HSA),” Carpio pointed out. Thus in the ATA, terrorism “is now a separate and distinct stand-alone crime, unlike in the HSA where the predicate crimes, like rebellion and coup d’etat, were the means of committing the crime of terrorism,” he elaborated.

Moreover, Carpio added, in the case of Lagman v. Medialdea, the Supreme Court ruled that under the HSA rebellion is “absorbed in terrorism” because rebellion is one of the predicate crimes of terrorism. “This is no longer the case since the ATA has repealed and replaced the HSA,” he emphasized.

Second, referring to the Senate deliberations on the ATA bill, Carpio observed that the new law has been carefully worded “to differentiate terrorism from coup d’etat, rebellion, and sedition.” He cited an exchange between Sen. Franklin Drilon and Lacson, thus:

Sen. Drilon: “We are proposing to delete the phrase ‘or the public to do or to abstain from doing any act’, as this phrase makes it difficult to distinguish this [act] with political crimes under the Revised Penal Code… the use of the phrase… will make this also an act of rebellion. And, therefore, the amendments are aimed to differentiate terrorism from coup d’etat, rebellion, and sedition. That is the only purpose, Mr. President.”

The [Senate] President: “All right. So, what does the sponsor say?”

Sen. Lacson: “It is accepted, subject to style because of the comma (,).”

The [Senate] President: “Is there any objection? [Silence] There being none, the amendment is approved.”        

For his third argument, Carpio pointed out that under the ATA, whether an act is rebellion, coup d’etat, or terrorism “depends on the intent of the person committing the offense.” He cited Sen. Risa Hontiveros’ queries to Lacson, first about the Reform the Armed Forces Movement (RAM) as having been treated in an earlier administration as a terrorist movement, to which Lacson riposted: “Iba po yung intent. Kasi iyon (RAM), ang intent nila is to overthrow and it is a criminal act called coup d’etat. So iba po iyon. So, we will just go back to the definition of a terrorist act, On Hontiveros’ inquiry if the bill’s sponsor had contemplated to include the Magdalo Group (of soldiers) in the definition of a terrorist group, Lacson replied: “Ang jurisprudence naman po rito ay iyong Lagman v. Medialdea. May mga existing naman pong Supreme Court rulings na puwede ring gawing reference, Mr. President.”

On the two instances, Carpio asserted, “Clearly, the intent determines whether the acts constitute rebellion, coup d’etat, or terrorism.”

That the House of Representatives adopted entirely, “without amendment or discussion,” the Senate version of the ATA bill means, Carpio said that (as his fourth argument) the House also adopted the Senate’s intent and interpretation of the bill’s provisions.

“There can be no dispute that the ATA does not criminalize as terrorism acts that constitute rebellion. If the acts constitute rebellion, then the crime committed will be rebellion and not terrorism,” he concluded.

Again writing briefly to differentiate rebellion from terrorism, the retired jurist wrote:

“The intent of rebels is to remove any territory or military force of the Philippines from allegiance to the Government or its laws, or to deprive the President or Congress of any of their powers. The intent of terrorists is to intimidate the public and the Government, create fear, or destabilize the political, economic, and social structure of the country.”

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