ANALYSIS OF COMPLIANCE OF THE ANTI-TERRORISM ACT OF 2020 OF THE PHILIPPINES WITH THE INTERNATIONAL LABOUR STANDARDS
Republic Act 11479 of 2020 (or the Anti-Terrorism Act, ATA) was signed by President Duterte on 3 July 2020 and effectively replaced the Human Security Act of 2007 on 18 July 2020. This Act gravely undermines civil liberties and endangers rights at work by placing workers, trade union activists and other human rights actors and defenders under pressure from the police, the military and other security forces and expose them to more arbitrary arrests, harassment and intimidation.
1. Overbroad and ambiguous definition of terrorism
Section 4 ATA offers a broad definition of “terrorism” that includes ambiguous terms such as “to provoke… the government”, “seriously destabilize or destroy the fundamental pollical, economic or social structures of the country”, seriously undermine public safety”, and “engage… in acts intended to cause extensive interference with….infrastructure”. Evaluation of whether acts fall under these unclear standards is left to the discretion of the Anti-Terrorism Council (ATC) and devolved law enforcement. The Act also defines terrorism as acts, which cause “extensive damage to public property… to create an atmosphere or spread a message of fear.” This legal standard potentially encompasses acts that do not fall within the agreed international boundaries of terrorist acts. The offences criminalized under this section carry punishment of life imprisonment without parole.
2. Criminalization of threatening, proposing or inciting to commit terrorism
Section 9 ATA prohibits “incit[ing] others” to commit terrorism “by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end”, but does not further define incitement, therefore it is not clear what kind of expressions would constitute prohibited speech. The level of intent is not specified and there is no requirement that the alleged incitement to commit terrorism causes an objective danger that such offence may be committed. In a similar broad and unprecise way Sections 5 and 8 criminalize a number of accessory offences such as – respectively – threatening or proposing to commit terrorism. None of these prohibited acts are further defined, creating a clear challenge of legal certainty under law. The offences criminalized under these sections carry punishment of imprisonment of 12 years.
3. Criminalisation of planning, training, preparing, facilitating the commission of terrorism and criminalization of conspiring to commit terrorism
Section 6 ATA prohibits “any person [from] participat[ing] in the planning, training, preparation and facilitation in the commission of terrorism, possessing objects connected with the preparation for the commission of terrorism, or collecting or making documents connected with the preparation of terrorism” while Section 7 criminalizes conspiracy to commit terrorism. Neither Section 6 nor Section 7 further specify or define the acts that qualify under these provisions, contrary to the principle of legality. Such insufficiently precise prohibitions may functionally operate to criminalize pre-criminal acts. Additionally, no level of intent is required for acts under these sections. The offences criminalized under these sections carry punishment of life imprisonment without parole.
4. Expansion of Executive Branch Authority
Section 25 ATA relates to the recognition of organizations, materials and individuals as “terrorist”. Accordingly, such determination lies with the executive branch through the Anti-Terrorism Council (ATC). The ATC is to be chaired by the President’s Executive Secretary and composed of presidential appointees such as the Secretary of National Defense, Secretary of the Interior and Local Government, Secretary of Finance, Secretary of Justice, Secretary of ICT and the Executive Director of the Anti-Money Laundering Council. The ACT’s secretariat is to be run by the National Intelligence Coordinating Agency (NICA), the Government’s main intelligence body composed primarily of security force officials. Section 25 empowers the ATC to unilaterally “designate an individual, groups of persons, organization, or association, whether domestic or foreign, upon a finding of probable cause that the individual, groups of persons, organization, or association commit, or attempt to commit, or conspire in the commission of the acts defined and penalized under…[the] Act”. The provision relies primarily on the judgement of the ATC and does not provide any judicial oversight in the process of designation.
5. Arrest and detention without judiciary review for up to 24 calendar days
Under Section 29 ATA law enforcement agents and military personnel may take into custody any person suspected of committing terrorist acts – as defined by Sections 4-12 of the Act – per authorisation from the ATC, and without a judicial warrant. Apprehended individuals may then be held for a period of up to 24 calendar days in law enforcement or military custody. The proposed amendments also do not reference anywhere how persons detained under this provision can challenge the lawfulness of their detention.
6. Surveillance of suspects and interception and recording of communications
Section 16 ATA provides that individuals that are mere suspects may be secretly wiretapped and their private data can be accessed with a written order from the Court of Appeals. The section permits the use of “any mode, form, kind or type of electronic, mechanical or other equipment or device or technology” to surveil members of a designated terrorist organization, “between members of a designated person” or “any person charged with or suspected of committing any of the crimes … penalized under the provisions of the Act”. Law enforcement is permitted to surveil a wide spectrum of communications including “private communications, conversations, discussions , data, information, message in whatever form, kind or nature, spoken or written words”. Section 17 permits the issuance of a written order based on “personal knowledge of facts or circumstances that the crimes defined and penalized under … [the] Act ha[ve] been committed, or [are] being committed, or [are] about to be committed”. Section 18 deems such enforcement applications and written orders classified information, accessible only to applicants, members of the ATC, and court personnel. Section 19 specifies that written orders permit surveillance on suspects for 60-90 days.
7. Freezing assets of individuals and organizations designated as “terrorist” and investigation of property and funds
Section 25 ATA prescribes that the assets of the individual, groups of persons, organization or association designated by the ACT as “terrorist” are subject to the authority of the Anti-Money Laundering Council (AMLC) to freeze, pursuant to Section 11 of the Act. No. 10168 (Financing of Terrorism). Accordingly, the AMLC is authorized (upon the request of the ATC or upon its own initiative) to immediately freeze any property or funds of such individuals or organizations. Section 35 permits members of the ATC to investigate “any property or funds that are in any way related to financing of terrorism” or “property or funds of any person … [for] whom there is probable cause to believe that such person…. [is] committing or attempting or conspiring to commit, or participating in or facilitating the financing of” terrorist activities as defined in the Act. This section further permits the ATC to enlist the assistance of any “instrumentality of the government”, including government-owned and controlled corporations in “undertaking measures to counter the financing of… terrorism”. The section also permits inquiry into banking records without a court order.
IMPACT OF THE LAW ON FUNDAMENTAL LABOUR RIGHTS
1. LEGITIMATE TRADE UNION ACTIVITIES AS “TERRORIST ACTIVITIES”
Overbroad and vague prohibition of terrorism and numerous accessory crimes in Sections 4-12 of the Act carry extremely dangerous implications for the freedom of organization and collective bargaining protected under ILO Conventions Nos. 87 and 98, they infringe on the principle of legality contained in the international human law and on the agreed international boundaries of terrorist acts.
The principle of legality contained in Article 15(1) of ICCPR and Article 11 UDHR and interpreted by the supervisory bodies requires that the offence be clearly defined in law, so that it is clear for the individual what types of behaviour and conduct constitute a criminal offence and what would be the consequence of committing such an offence. Of note, no derogation from Article 15 ICCPR may be made in time of public emergency which threatens the life of the nation. The principle of legality recognizes that ill-defined and/or overly broad laws are open to arbitrary application and abuse. The UN SR on the promotion and protection of human rights and fundamental freedoms while countering terrorism has specifically highlighted the dangers of overly broad definitions of terrorism in domestic law that fall short of international treaty obligations. Further, the international community has recognized that the definition of terrorism and related offences should be confined to acts that are “genuinely” terrorist in nature. The UN Security Council in its resolution 1566 (2004) has identified the core elements of such definition. Accordingly, to categorize an offence as a “terrorist act” consistent with good practice in international law, the means used must be deadly (eg. acts or threats of lethal violence); the intent behind the act must be to provoke a state of terror among the population or to compel a government or international organization to do or refrain from doing something and the action must correspond to all elements of a serious crime defined by national law.
In contrast, the ATA offers an overbroad and ambiguous definition of “terrorism”, creating a legal standard that potentially encompasses acts that do not fall within the agreed international boundaries of terrorist acts, including acts constituting legitimate trade union activities protected under ILO Conventions Nos. 87 and 98. For example, exercising civil and political rights, including explicitly mentioned in the ATA “advocacy, protest, dissent, stoppage of work, industrial or mass action” – if involving “extensive” damage to public or private property” – may fulfil the definition of terrorism from Section 4 ATA and therefore may result in the penalty of life imprisonment without parole. Workers organizing or participating in a trade union training or planning of a protest action or demonstration that ended in a damage of property could be charged with accessory crimes under Section 6, without the need to substantiate any intent on their part. Any call for a trade union action, if the action is deemed to carry the risk of resulting in damage to public or private property, can be qualified as incitement or proposal to commit terrorism under Sections 8 or 9 of the Act, carrying the penalty of imprisonment of 12 years.
Application of the law to legitimate trade union activities is unacceptable under international labour standards. ILO Member States are under obligation to ensure, in law and in practice, that workers can engage in legitimate trade union activities. Further, the ILO supervisory bodies have unceasingly stressed the interdependence between civil liberties (protected under ICCPR and UDHR) and trade union rights, emphasizing that a truly free and independent trade union movement can only develop in a climate free from violence, pressure and threats of any kind against the leaders and members of such organizations. Such interdependence implies, in particular, that the public authorities cannot interfere in the legitimate activities of organizations by means of arrests or arbitrary detention, nor use the pretext of alleged criminal conduct against workers in view of their membership or legitimate trade union activities. By contrast, the ill-defined and imprecise definition of “terrorism” and accessory crimes – as proposed in the ATA – carries an inherent risk for deliberate misuse of the term – including as a response to legitimate trade union claims and movements. The overbroad and vague definition does not enable trade unions to regulate their conduct according to the law while allowing that they are penalized by decisions that are groundless. Therefore, the law is destined to create a climate of insecurity and fear which may affect the exercise of trade union rights. In such conditions it is not possible for a stable industrial relations system to function harmoniously in the country. As such, the imprecise and overly broad criminalization of “terrorism” in the Act not only contradicts the principle of legality contained in Article 15(1) of the ICCPR and Article 11 UDHR but also constitutes a serious infringement of the principles of freedom of association protected by ILO Conventions Nos. 87 and 98.
2. VIOLATION OF TRADE UNION RIGHT TO FREEDOM FROM ARBITRARY ARREST AND DETENTION
Section 29 ATA allows law enforcement agents and military personnel to take into and keep in custody any trade union member or leader suspected of committing terrorist acts – as defined by Sections 4-12 of the Act – per authorisation from the ATC, without a judicial warrant, and without possibility to challenge the lawfulness of their detention, for a period of up to 24 calendar days.
Such provisions are in violation of the fundamental human right to liberty and security of person under Article 9 of the ICCPR. Article 9(3) of the ICCPR holds that: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release”. The Human Rights Committee (CCPR) elaborated in its General Comment No. 35 that the meaning of “promptly” as used in Article 9 ICCPR means that “delays should not exceed a few days from the time of arrest” and that “48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; and delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. The right to trial within a reasonable time or to release – contained in Article 9(3) ICCPR – “applies specifically to periods of pretrial detention” and pretrial detention “shall be the exception rather than the rule”. Further, Article 9(4) ICCPR affirms the right to take proceedings before a court to decide, without delay, on the lawfulness of detention. This right should not be diminished by a State party’s decision to derogate from the ICCPR, because, as articulated by the CCPR, “certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict”, so there is no justification for derogating from this and other guarantees even during emergency situations.
Section 29 ATA appears to be in direct contravention of Article 9(3) and (4) ICCPR but it also infringes on a trade union right to freedom from arbitrary arrest and detention, protected by the principles of freedom of association contained in ILO Conventions Nos. 87 and 98. The ILO constituencies as well as supervisory bodies have unceasingly stressed that freedom and security of person and freedom from arbitrary arrest and detention are a sine qua non for the exercise of freedom of association. The ILO CFA has observed that even brief deprivation of liberty in connection with activities in defense of the interests of workers constitutes a serious obstacle to the exercise of trade union rights since it makes possible to repress activities of a trade union nature and therefore constitutes an infringement of the principles of freedom of association – in other words, a serious interference with civil liberties in general and with trade union rights in particular. The arrest and detention of trade unionists even for reason of internal security if not attended by appropriate judicial safeguards – for example, without any charges being laid or court warrants being issued or without a possibility to challenge the lawfulness of detention – may lead to abuses. The absence of guarantees of due process of law in such cases constitutes violation of the principles of freedom of association.
Accordingly, provisions contained in Section 29 ATA, allowing for arrest and detention of trade unionists suspected of committing terrorist acts – as defined by Sections 4-12 of the Act – without judiciary review for up to 24 calendar days – not only contravene prohibition of arbitrary deprivation of liberty under Article 9 ICCPR but are also incompatible with protection of trade union right to freedom from arbitrary arrest and detention under the principles of freedom of association contained in ILO Conventions Nos. 87 and 98.
3. CRIMINALIZATION OF LEGITIMATE STRIKE ACTIONS
Under Section 4 ATA only exercise of civil and political rights that is not intended to cause death or serious physical harm to a person, to endanger a person’s life or to create a serious risk to public safety is explicitly excluded from the definition of “terrorism”. As such, Section 4(b) may allow for extending the definition of “terrorism” to “stoppage of work, industrial or mass action” if involving “extensive” damage to public or private property. Calling for such a strike action could be prosecuted under the crimes of incitement, threat or proposal to commit terrorism under Sections 5, 8 or 9, without the need to prove intent. Any trade unionist suspected of organization or incitement to a strike action involving the risk of property damage could be arrested with the authorization of the ATC for up to 24 calendar days, without access to any appeal process.
This overbroad criminalization of strike actions under anti-terrorism provisions carries very serious implications for the legitimate right to strike protected under ILO Convention No. 87. Strikes are used as the last resort as its consequences are serious, not only for employers, but also for workers, their families and organizations and in some circumstances for third parties. However, strikes are essential means available to workers and their organizations to protect their interests and a legitimate means of defending their economic and social interests. Therefore, participation and organization of a peaceful – even if disruptive and costly – strike, public meeting or procession, constitutes a legitimate trade union activity. The CFA has observed that “no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike”. and that “the preventive detention of trade unionists on the ground that breaches of the law may take place in the course of a strike involves a serious danger of infringement of trade union rights.” Therefore, criminalization under Sections 4-12 of the Act of participation or organization of a peaceful strike, in case it is deemed intended to damage public or private property, under the penalty of life imprisonment without parole, and a possibility of arrest and detention without judicial review for up to 24 calendar days of suspected trade unionists contravenes the right to strike protected under ILO Convention No. 87.
4. SURVEILLANCE OF PROTECTED TRADE UNION DATA
Section 16 ATA may allow that members and leaders of trade union organizations that are merely suspected of “terrorist activities” as defined in the Act are to be secretly wiretapped and their private data can be accessed with a written order from the Court of Appeals. Law enforcement is permitted to surveil a wide spectrum of communications including “private communications, conversations, discussions, data, information, message in whatever form, kind or nature, spoken or written words”.
The broad scope of surveillance powers granted in Section 16 ATA does not align with the principle that any interference with the right to privacy is only permissible if iti is neither unlawful nor arbitrary. The ILO CFA has repeatedly recalled that the inviolability of trade union premises and property, including its mail, is a civil liberty which is essential to the exercise of trade union rights. Particular attention should be given to the inviolability of trade union correspondence and telephonic conversations. Notably, confidentiality of trade union membership should be ensured. Any surveillance operations must observe strict observance of due process guarantees, given extremely serious risk of interference in trade union activities. Investigations on trade unions and members should never be based on duly founded accusations, given the risk of trade unions, their officials and members being stigmatized, a situation that could pose a threat to their lives or safety.
As such, provisions regulating surveillance of suspects of terrorist acts create not only serious risk of interference with protection against arbitrary or unlawful interference with one’s privacy and home and protection of reputation under Article 17 ICCPR, but also with protection against disclosure of information on the membership and activities of trade union organizations, protected under ILO Convention No. 87.
5. FREEZING OF TRADE UNION ASSETS
Section 25 may allow for the freezing of assets of a trade union organization merely suspected of terrorist activities and designated by the ACT as “terrorist”. Section 35 permits inquiry into bank records without a court order.
The CFA has repeatedly observed that provisions which give the authorities the right to restrict the freedom of a trade union to administer and utilize its funds as it wishes for normal and lawful trade union purposes are incompatible with the principles of freedom of association. Acts of confiscation and occupation of property of leaders of employers’ or workers’ organizations are contrary to freedom of association if they are taken as a consequence of their activities as representatives of such organizations. As a rule, The authorities should not have the power to carry out inspections and request information at any time. Financial audits and investigations should be applied only in exceptional cases when justified by grave circumstances. Provisions of Sections 25 and 35 allowing for freezing the assets or bank inquiries without a court order create serious risk of interference by the authorities in trade union activities.
6. RESTRAINING PROTECTED TRADE UNION SPEEECH
Section 9 ATA prohibits “incit[ing] others” to commit terrorism “by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end”, but does not further define inciting terrorism, therefore it is not clear what kind of expressions would constitute prohibited speech. The level of intent is not specified and there is no requirement that the alleged incitement to commit terrorism causes an objective danger that such offence may be committed.
Broad prohibition of inciting terrorism contained in Section 9 ATA carries potentially significant implications for the right to freedom of opinion and expression protected under Article 19 ICCPR since it does not limit criminalization to direct incitement to terrorism. In line with the 2008 observations of the UN Secretary General laws should only penalize speech that directly encourages the commission of the crime, intended to result or likely to result in criminal action. According to the Johannesburg Principles, the government should also be required to demonstrate that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence. Further, the lack of definition of “inciting to commit terrorism” in Section 9 ATA does not comply with the requirements of legality of restrictions on the freedom of expression contained in Article 19(3) ICCPR. Article 19(3) ICCPR requires that any restrictions on freedom of expression must be provided by law, and they need to be necessary and proportionate. As observed by CCPR, such restrictions must be also compatible with the ICCPR as a whole.
Section 9 ATA affects the right to freedom of expression protected under Article 19 ICCPR but it also infringes on a protection of legitimate trade union speech. The principle that freedom of opinion and expression is a sine qua non for the exercise of freedom of association. On numerous occasions the ILO CFA has underlined the importance of freedom of public officials’ trade unions to express their views publically on the wider economic and social policy questions which have a direct impact on their members’ interest. The CFA has also explicitly recognized that “the freedom of expression which enjoyed by trade unions and their leaders should also be guaranteed when they wish to criticize the governments economic and social policy.” The publication and distribution of news and information of general or special interest to trade unions and their members is in itself a “legitimate trade union activity”.
The vague prohibition of incitement from Section 9 ATA does not allow trade unionists and labour activists to forsee to a reasonable extent the application of the law and to regulate their conduct to avoid breaching the law. As such, the law is likely to restrict them from voicing legitimate dissent and criticism, including reporting on the anti-terrorist operations. Provisions of Section 9 ATA implicate both serious concerns regarding protection of freedom of expression under Article 19 ICCPR as well as protection of legitimate trade union speech under the principles of freedom of association.
The ATA raises serious concerns regarding the protection and promotion of a number of fundamental labour and human rights. We urge the Government of the Philippines to urgently review key aspects of the ATA in order to ensure that any new counter-terrorism legislation is in compliance with the human and labour rights treaties and standards as well as with the Philippines’ international human rights obligations.