Legal and Judicial Actions Against Terrorism

Terrorism is generally understood as the extreme use of violence or intimidation intended to create a widespread fear for ideological, religious, political, or social purposes. Whatever the case may be, terrorism is universally condemned due to its devastating impact on individuals, communities, and societies. Governments and international organizations work collaboratively to combat terrorism through various legal, diplomatic, and military measures.

In the Philippines, the Supreme Court recently advanced the promulgation of the Rules on Anti-Terrorism Cases (A.M. No. 22-02-19), unpacking a formidable arsenal of legal tools designed to eliminate terrorism. This judicial framework introduces a range of potent orders each accompanied by a specific set of procedures to facilitate their implementation.

In this legal update, we embark on a journey to delve into the various legal measures that may be undertaken by the Government in its overarching objective to impede terrorist activities and maintain national security.

JUDICIAL PROSCRIPTION

At the forefront of this legal arsenal is the concept of Judicial Proscription, a mechanism which apparently has a dual purpose aimed at deterring the activities of individuals, groups, or organizations suspected of committing acts of terrorism under the Anti-Terrorism Act of 2020.

Firstly, proscription has the power to declare such entities as outlawed terrorist, casting a legal net to ensnare those who pose a threat to the security of the State. Second, proscription empowers the Anti-Money Laundering Council to dive into comprehensive investigations, launch inquiries, and meticulously examine the financial web of these alleged terrorists. Such an authority even extends to freezing their assets and properties, meant to paralyze the financial underpinnings that sustain and fuel acts of terror.

The second purpose serves more as a preventive measure rather than a punitive one, ensuring that no acts of terrorism can be employed by suspected terrorists while their case is pending.

JUDICIAL AUTHORIZATION TO CONDUCT SURVEILLANCE

One of the most important parts of counterterrorism is intelligence gathering. To achieve that, surveillance and wiretapping serve as vital tools in exploiting terrorist networks, their planned activities, and their supporters. Obtaining information concerning their tactics and movements is the key to pre-empting the dire ramifications of terrorism.

Conducting strategic surveillance is an effective method that can intercept communications between and among suspected terrorists and their affiliates. However, before law enforcement agents or military personnel are allowed to do so, they must first secure a Judicial Authorization to Conduct Surveillance from the Court of Appeals.

This critical legal safeguard ensures that the intrusion into private communications is not employed arbitrarily, taking into account the perennial objective of the State to strike a delicate balance between the imperatives of national security and the preservation of individual rights.

DATA PRESERVATION ORDER

Directly in conjunction with the conduct of surveillance is the preservation of data or information gathered by service providers, such as telco and social media companies. Data they gather is essential for monitoring and addressing threats to national security. Analyzing communication can help intelligence agencies identify potential threats, track the movement of individuals associated with illicit activities, and thwart plans that pose risks to the country’s safety.

But before these service providers can be compelled to retain data pertaining to the subscriber information, traffic data, and communication content of persons subject of surveillance, the Anti-Terrorism Council (ATC) must first apply for the issuance of a Data Preservation Order with the Court of Appeals. The active involvement of the courts of justice in data preservation likewise ensures the preservation of individual rights to privacy in communication.

EXTENDED PERIODS OF DETENTION WITHOUT JUDICIAL WARRANT

Detention of individuals accused of terrorism often extends beyond the typical periods seen in other criminal cases, primarily due to the intricate nature of terrorism investigations involving complex networks and international connections. This prolonged detention is based on necessary factors allowing authorities additional time to thoroughly investigate the extent of the terrorist plot, identify co-conspirators, and gather sufficient evidence to build a strong case.

Generally, persons arrested without judicial warrant should be delivered to the judicial authorities for criminal prosecution within the periods set by Article 125 of the Revised Penal Code which ranges from 12 to 36 hours. However, the Rules on Anti-Terrorism Cases allows a detention period for suspected terrorist for up to fourteen (14) calendar days, extendible for a maximum period of ten (10) more calendar days, provided that this prolonged detention is authorized in writing by the ATC.

Notably, authorization for longer detention periods should not be issued lightly as it must be contingent upon the finding of probable cause by the ATC that the person arrested and detained is suspected of or is committing any acts of terrorism under the Anti-Terrorism Act of 2020 (ATA).

Throughout the course of the detention, the designated Regional Trial Court assumes a significant role since the RTC Judge may motu proprio take jurisdiction of the place of detention for inspection and visitation, hear and resolve summary proceedings on all complaints for violation of the detainee’s rights, and take all necessary actions to ensure that the objectives of the ATA are achieved. Most notably, the RTC Judge has the responsibility to ensure that the detainee is not being subjected to torture or any other form of cruel, inhumane, degrading treatment or punishment.

PRECAUTIONARY HOLD DEPARTURE ORDER

Another weapon that the State can wield is the power to prevent any attempt by a suspected terrorist from leaving the country.According to the Rules on Anti-Terrorism Cases, before the filing of an information in court, an investigating prosecutor may file an ex parte verified application for a Precautionary Hold Departure Order with a designated RTC within whose territorial jurisdiction the alleged crime was committed.

The basis for such an application must be grounded on three (3) factors: (i) there is probable cause that the suspected person is committing any of the acts of terrorism under the ATA; (ii) there is a high probability that the person concerned will depart from the Philippines to evade arrest and prosecution; and (iii) that the Order is required in the interest of national security and public safety.