Anatomy of Despotism
Are we living in an Orwellian world?
Most legal experts, media practitioners, and media audiences, Arroyo critics or not, have asked this question the past few days.
Widespread protests greeted the controversial Republic Act 9372 (or an Act to Secure the State and Protect our People from Terrorism), otherwise known as Human Security Act of 2007, when it took hold on July 15, a day before the Commission on Elections proclaimed twelfth senatorial winner Juan Miguel Zubiri. It was also a day before the remains of the 14 marines who died in an ambush in Basilan, arrived in Villamor Airbase in Pasay City.
As expected, a number of big news hit newsstands on the very day the anti-terror act took effect like, apart from the proclamation of Zubiri and the heroes’ welcome to the marines killed in action, the news about the death of Rod Strunk, husband of murdered actress Nida Blanca, and the Supreme Court-led summit scheduled to kick off the next day.
Act not welcome
Instead of gaining the confidence of the people, the new law, which is the first of its kind in the country, raised qualms among the populace that it may be used by the Arroyo administration to stifle the opposition and other critical groups and organizations of the government and to silence dissent.
The government, through National Security Adviser Norberto Gonzales, who was linked to the controversial Venable contract, said that the signing of President Gloria Macapagal Arroyo of the law is timely now that the world is confronted by a “new kind of terrorists who seem to enjoy seeing innocent [people] murdered using weapons of mass destruction.”
The purpose of the law, authored by Senator Juan Ponce Enrile, is “to protect life, liberty, and property from acts of terrorism, to condemn terrorism as inimical and dangerous to the national security of the country and to the welfare of the people, and to make terrorism a crime against the Filipino people, against humanity, and against the law of nations.”
But a number of influential sectors like the Catholic Bishop Conference of the Philippines and members of the legal profession have appealed to the Arroyo administration to review first the Act and, since many of its provisions were vague, asked for the issuance of its implementing rules and regulations.
As of last week, at least 28 petitions were filed before the Supreme Court to question the constitutionality of the Act. The Malacanang palace, however, expressed its readiness to defend the Act in the highest tribunal.
The point of argument is not that this country does not need any law against so-called terrorists and terrorist groups but the vague and broad definition of terrorism and the hidden defects and dangerous provisions in the law that may be used to severe and trample upon the constitutional rights of the people.
Section 3 of the Act defines “terrorism,” which has three elements or requisites. First, the act is punishable under any of the following provisions of the Revised Penal Code: piracy in general and mutiny; rebellion or insurrection; coup detat, including acts committed by private persons; murder; kidnapping and serious illegal detention; crimes involving destruction; or under special laws, such as Law on Arson; Toxic Substance and Hazardous and Nuclear Waste Control Act; Atomic Energy Regulatory and Liability Act; Anti-Hijacking Law; Anti-Piracy and Anti-Highway Robbery Law; and the Laws on Illegal and Unlawful Possession, Manufacture, Dealing in, Acquisition, or Disposition of Firearms, Ammunition or Explosives;
Second, the act sows and creates a condition of widespread and extraordinary fear and panic among the populace,
Third, the purpose is to coerce the government to give in to an unlawful demand.
It is clear that the Byzantine law is just an enumeration of existing crimes under the penal code and other special laws, except that the lawmakers added the clause – thereby sowing and creating a condition of widespread fear and panic among populace – which makes the definition more complicated, sweeping and dangerous.
Legal doctrines vs. HSA
According to Free Legal Assistance Group (FLAG), the law’s definition of terrorism is vague, ambiguous and highly susceptible to abuse.
“When does a condition of widespread and extraordinary fear and panic exist? Does the ‘populace’ refer to the public in general, those who live in the same city or town or those who live in the same barangay? What is an unlawful demand?” the FLAG asks.
One thing that makes the law more susceptible to abuse is that it has no implementing rules and regulation. The President defends that the law does not need any IRR because it is self-executing; this was seconded by her top legal adviser, Department of Justice Secretary Raul Gonzales, who said that the law is clear, therefore, there is no need for an IRR.
Every law student knows that a law that is unclear and ambiguous needs an IRR. HAS, indeed, is one for the books, or – one for the next bar examinations.
But such a dangerous elusiveness of the law may be countered by the existing jurisprudence in the country, thanks to the two established doctrines, which have been restated by the Supreme Court to safeguard and protect the civil liberties of the people. The first is the “Overbreath Doctrine,” which restrictively states that a governmental purpose many not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedom.
This doctrine was reiterated in the case of Randy David vs. President Arroyo regarding the declaration of state of national emergency under Presidential Decree 1017 and General Order No. 5. Here the Supreme Court declared some portions of the law unconstitutional particularly the phrase “acts of terrorism,” which had not yet been defined and made punishable by Congress.
The second is the “Void-for-Vagueness Doctrine,” which makes a law void if men of common intelligence must necessarily guess at its meaning and differ as to its application.
A vague and ambiguous law has a negative corollary especially to the right to due process. History tells us that the government cannot be trusted in the implementation of its powers because much of the abuses sprang from the misuse, circumvention, and distortion of laws that are vague and ambiguous.
Conspiracy to commit terror
Another provision of the Act that caught the attention of most legal experts is found in Section 4, which provides that a conspiracy to commit terrorism is committed when two or more persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide to commit the same.
Most legal experts contend that conspiracy is rarely punished because a decision to commit a crime is largely different from actually engaging in it.
For example, those who conspired to burn a house down can still change their minds, while those who have already consummated the same are already guilty of the crime of arson.
The act of one is the act of all – this is the basic principle of conspiracy. But most legal experts say that modern criminal organizations operate in an entirely different way. So-called terrorist organizations do not involve all its members in the planning stage. Meetings are usually done one on one and that most of the small fry members are not aware of the conspiracy. American experts also observe that it is now hard to determine organized terrorists from unorganized. They noticed that most terrorist activities were done in a very abrupt, unplanned way, making the so-called terrorists more dangerous and more difficult to track.
In the end, government efforts result in the arrest of the pawns or the small fry and not the big fish of the organizations.
Power to outlaw organizations
HSA also provides for the outlawing of “an organization, association or group of persons that is organized for the purpose of engaging in terrorism, or, although not so organized, actually engages in acts or terrorism. The entities mentioned may be outlawed or proscribed as “terrorist organizations.”
The United States, which leads the so-called global war on terror, tagged the New People’s Army and the Abu Sayyaf group as local terrorist organizations.
FLAG asserts that outlawing of organizations on the ground that they are terrorists is not only vague and ambiguous, it is also an open invitation to the authorities to muzzle free speech, to stifle right to peaceably assemble and petition the government for redress of grievances.
Government authorities said there is no need to outlaw said organizations (NPA and ASG) because they were already labeled as terrorists by the US.
Criticism of the anti-terror law does not only spring from the definition of “terrorism” but also from other provisions that may violate the rights of every suspected terrorist.
Section 23 provides that persons who have been charged with terrorism or conspiracy to commit terrorism, even if they have been granted bail because the evidence of guilt is not strong, can be – (1) detained under house arrest; (2) restricted from traveling; (3) prohibited from using any cellular phones, computers or other means of communication.
Ironically, these restrictions are utterly violative of the fundamental and inalienable rights of the people and in contrast to that seemingly “disclaimer” in paragraph 2 of Section 1, which states, “In the implementation of the policy stated above, the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the constitution.”
Said provision runs counter to constitutional guarantees, such as right to liberty, to be presumed innocent, to due process, to equal protection of the law, to a fair trial, to travel and to privacy of communication and correspondence.
What is custodial detention
There also exists a new creature or Newspeak in the law – the “custodial detention,” which was not clearly or sufficiently defined in Section 21 of the Act. Legal experts construe that custodial detention begins the moment a person is arrested and detained.
Section 21 provides: The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines (IBP) or the Public Attorney’s Office (PAO).
The problem with the law is that it is wrought with sheer contradiction. While the provision of Section 21 seems protective of the rights of the accused, which requires personal delivery of the arrested person to the judge, the third paragraph of Section 18 negates the so-called protective mantle, as it only requires a written notice to the judge located in the nearest place of the arrest.
To ensure that suspected terrorists and terrorist groups can be easily tracked, the law also authorizes law enforcers to surveil or wiretap suspected terrorist elements. But this can be done only with the authorization to be given by the “authorizing division” of the Court of Appeals. Again, the use of this authority, though it appears to be noble in its intention, runs counter to our rights to be presumed innocent and to privacy. There is a hidden danger in this provision since, despite the fact that the HAS states that it upholds the right to be informed of the acts done by law enforcement authorities, the subject of surveillance or wiretapping will only be informed that he/she is being watched or monitored if no case is filed against him or her.
Most of the controversial and unconstitutional provisions of the law were patterned with the USA-PATRIOT Act, a controversial law enacted by the US Congress in 2001, although the difference is that the latter contains sunset clause. HSA also authorizes the examination of bank deposits and finances if judicially authorized.
Section 27 provides: “xxx the justices of the Court of Appeals designated as a special court to handle anti-terrorism cases after satisfying themselves of the existence of probable cause in a hearing called for that purpose that (1) a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, (2) of a judicially declared and outlawed terrorist organization, association, or group of persons, and (3) of a member of such judicially declared and outlawed organization, association, or group of persons, may authorize in writing any police or law enforcement officer and the members of his/her team duly authorized in writing by the anti-terrorism council to: (a) examine, or cause the examination of, the deposits, placements, trust accounts, assets and records in a bank or financial institution; and (b) gather or cause the gathering of any relevant information about such deposits, placements, trust accounts, assets, and records from a bank or financial institution.”
Another Newspeak is the term “Anti-Terrorism Council,” which “shall implement this Act and assume the responsibility for the proper and effective implementation of the anti-terrorism policy of the country. The Council is also in charge of keeping records of its proceedings and decisions, and “all records of the Council shall be subject to such security classifications as the Council may, in its judgment and discretion, decide to adopt to safeguard the safety of the people, the security of the Republic, and the welfare of the nation.”
And who shall comprise this so-called Council? Unsurprisingly, they are all members of the Cabinet, who were personally appointed by the President.
The members of the Council are: (1) Executive Secretary Eduardo Ermita, who shall be its chairperson; (2) Secretary of Justice Raul Gonzales, who shall be its Vice Chairperson; and (3) Secretary of Foreign Affairs Alberto Romulo (4) Secretary of National Defense Norberto Gonzales (5) Secretary of the Interior and Local Government Ronldo Puno (6) Secretary of Finance Margerito Teves; and (7) National Security Advisor Norberto Gonzales, as its other members.
Said cabinet members form part of the metallic military-socio-political machinery of the President.
Newspaper reports said that the government’s crackdown on communism began as early as 2001 when the President replaced former President Joseph Ejercito Estrada through people power revolution. The overwhelming victory of Bayan Muna, a left-leaning party list organization, in 2001 allegedly alerted some shadowy government officials to lay down a blueprint that would neutralize communist organizations.
The so-called Nazi-inspired crackdown was laid down in a purported government paper titled “Proposed Politico Military Strategies and Tactics to Counter the Local Communist Movement and Bayan Muna Using Total Government Approach.” The paper called for the passage of the anti-terrorism bill as a means to further neutralize the insurgency.
“[An anti-terrorism law] can serve as a legal measure to address internal security problems like subversion and terrorism,” it said.
Goal to neutralize the left
The goal is to neutralize or to totally eradicate the left in order to ensure the continuity of the Arroyo administration. Norberto Gonzales admitted that there was such a proposal but “it was never acted upon.”
It can be said that the mounting luster of the Arroyo administration to obliterate internal communists defeats the efforts of past administrations in allowing the Left to participate in parliamentary struggle. While the government claims that it is the good guy, its Nazi-approach cancels out the purpose of the Constitution, or the wisdom of its framers, which is to build a constitutional bridge that allows for a partnership between the rightists and the leftists in running the government.
The Arroyo administration ruled beyond 2004 via what was described as “garcillanic victory.”
President Arroyo was nearly toppled at the first quarter of her second term after allegations of cheating erupted. Militant groups, the opposition, religious sectors and even the formerly friendly civil society called on the President to relinquish her post in order to restore the trust and confidence of the Filipino people in the government. Former President Corazon Aquino also advised Arroyo to make a “supreme sacrifice,” while former President Fidel V. Ramos made a half-cooked statement, as he might have been keen on the political impact of a Gloria ouster – “No Gloria, No Glory” – on his ambition to be the next prime minister.
After recovering from the Hello Garci controversy, the President issued Executive Order No. 464, which barred high-ranking officials, most of whom were linked to the controversial Hello Garci tapes, from appearing in any congressional inquiry.
The Arroyo administration, as a result of the controversy, then suffered from political myopia, as it failed to determine the innocent from the guilty, the accused from the whistle-blowers, and the cheaters from the honest. Those who risked their career, life and limb just to prove that there was indeed rampant and disgusting cheating in May 2004 elections were accused and detained, while those who worked on and ensured the victory of the President were awarded with lofty and honorable positions in the government.
Damage control – this prompted Mrs. Arroyo to issue E.O 464. This resulted in government officials snubbing legislative inquiries in aid of legislation. Disgraced Agriculture Secretary Joc-Joc Bolante, the favorite economics student of Mrs. Arroyo in Ateneo, who was involved in the over P700-million fertilizer scam, escaped accountability by taking refuge in the United States.
The government also allowed the use of “calibrated preemptive response” in dealing with protesters. Both E.O 464 and CPR were used to silent dissent.
Not content with her previous undemocratic edicts, as most of their substantial portions were declared unconstitutional by the Supreme Court, President Arroyo issued P.D. 1017 that put the entire country under state of emergency in the wake of Edsa celebration in 2005. This resulted in the arrest of protesters, including Inquirer columnist Randy David and the Batasan Five, who were accused of rebellion committed about 20 years ago.
Almost all government instrumentalities, including the Manila City Hall, conspired against popular dissents and criticisms of the Arroyo Administration. Former Manila Mayor and now Environment Secretary Lito Atienza closed the streets of Mendiola, C.M. Recto and Plaza Miranda to protesters.
Several critical publications were raided, signaling the return of Marcosian despotism.
All of these fascistic edicts, including the recent HSA, work to meet the following goals: (1) to place our Constitutional rights to freedom of speech, to privacy, to peaceably assemble, to be informed in jeopardy by creating a broad new crime of domestic terrorism; (2) to increase ethnic and religious profiling; (3) to decrease government accountability and citizens’ access to government information; (4) to discourage the proliferation of free thought; (5) to grant the government enhanced surveillance powers; (6) to authorize the examination and freezing of bank accounts and deposits of suspected terrorists; (7) to stifle political activists who are critical of the government; (8) to create a climate of suspicion and self-censorship; (9) and to create political codes and newspeaks in favor of the government and against suspected terrorists and political minorities.
This situation gives legal experts and government critics the impression that the HSA is worse than George Orwell’s 1984.
Most of them agreed that we are indeed living in an Orwellian world, where thoughts and acts not acceptable to government are considered thoughtcrimes (an Orwellian Newspeak). Nineteen Eighty-four, the prophetic novel of George Orwell, a British novelist, is about the life of Winston Smith who lives in a totalitarian state, where people are overtly monitored by the government through cameras and other hi-tech surveillance apparatuses. At the end of the story, Smith was the last man in Europe to be destroyed by the Big Brother, a powerful body in charge of surveillance and eavesdropping operation.
Locally, the Anti-terrorism Council is the real-life version of Orwellian Big Brother.
Unknown to many, the danger that lies in the anti-terror act is more than legal. Its legal aspect is just the means to attain the ultimate goal of the government.
It appears now that the goal of those in power – the superstructure – is to corrupt or deconstruct the language. Language, which is man’s very means to communicate with other people, is more powerful than the most destructive weapon on Earth.
“Sowing and creating a condition of widespread and extraordinary fear and panic among the populace” is not the very act this administration would like to save the people from. It is the act – sowing and creating a condition of widespread and extraordinary fear among the populace (by the media, the leftists, and the critics) towards the government. It is widespread and extraordinary fear for the government that the Council is mandated to prevent.
Authorities might be very aware of the Aristotelian concept – that if the so-called terrorists (to be branded by the government) succeeded in “sowing fear among the populace” for this administration, the feeling of hatred and contempt comes in to destroy a rising tyranny.
Local Big Brother
Despotic governments nowadays have become shrewd at preserving their power. Material weapons have been edged by a more powerful weapon – the Language. Language, like any other machine, can be used to serve the purpose of its user.
What the government is doing is corrupting the language, removing all shades from language, leaving simple dichotomies (sad and happy, pleasure and pain, rebel and reactionary) which strengthen the total primacy of the state. This is also related to the concept of binary opposition which involves a pair of theoretical opposites.
Through this concept, the government can easily reduce the meanings of a word into two, or more precisely, it can simply pinpoint who are pro-government and who are not. So if you criticize the government, you would be labeled as communist or worse, as terrorist, even if you do not believe in the left-leaning ideology. Or, if you criticize the President, you can be considered a pro-Erap.
The government is now engaging in Orwellian Newspeak in order to easily sort out its enemies. It will also use surveillance apparatuses, tracking devices and hi-tech eavesdropping equipment so to easily track and monitor suspected terrorists.
The intent of the government in passing the law may be noble, but the means sought to realize its goal runs counter to the fundamental rights of men, thus, sacrificing the rationale of man’s existence for the sake of security.
Now we hear newspeaks like terrorist evils, Islamofacists, radical left, weapons of mass destruction, religious fundamentalists, etc. To most people, these are just new additions to their everyday vocabulary, but to the one who concocted these words, their meaning means a lot.
An anti-terror law authored by Sen. Enrile, interpreted by DOJ Sec. Gonzales, approved by Arroyo, and implemented by the likes of Ronaldo Puno, Norberto Gonzales and their cohorts means something. The signifier may appear simple, pleasing and noble, but the signified really means – be very afraid.
One day, don’t be surprised if you see big posters in the streets bearing the words: BIG BROTHER IS WATCHING YOU!