Human Security Act of 2007 Republic Act 9372: An Act to Secure the State and Protect Our People

from Terrorism

Declaration of Policy 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. To make terrorism a crime against the Filipino People, against humanity and against the law of nations.

What is Terrorism? Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustified, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious, or any other nature that may be involved to justify them. UN described terrorism as any act intended to cause death or serious bodily harm to civilians or non-combatants with the purpose of intimidating a population of serious bodily harm or compelling a government or an international organization to do or abstain from doing any act. Terrorism often thrives where human rights are violated, which adds to the need to strengthen action to combat violations of human rights. Terrorism itself should also be understood as an assault on basic rights. In all cases, the fight against terrorism must be respectful of international human rights obligations. The Human Rights Framework emphasize that States have a duty to protect those living within their jurisdictions from terrorism, while cautioning that this does not imply an absence of limits to the exercise of State power.

RA 9372 describe terrorism as: It is committed by any person who engages in any of the following acts punishable under the RPC and other special laws: RPC: Art. 122 (Piracy and Mutiny in the high seas or in the Philippine waters) Art. 134 (Rebellion and Insurrection) Art. 134-1 (Coup d Etat) Art. 248 (Murder) Art. 267 (Kidnapping and Serious Illegal Detention) Art. 324 (Crime Involving destruction)

Special laws: P.D. 1613, R.A. 6969, R.A. 5207, R.A. 6235, P.D. 532, P.D. 1866 as amended by R.A. 8294

Provided, the following requisites are present:

 The act committed sows and creates a condition of widespread and extraordinary fear and panic among the populace; It is committed in order to coerce the government to give in to an unlawful demand (motive of terrorism). N.B. Terrorism is a crime of result. Penalty: 40 years of imprisonment without the benefit of parole.

Three (3) Elements of the Crime of Terrorism The commission of one or more of the crimes specified in Section 3 above, That sows and creates a condition of widespread and extraordinary fear and panic among the populace, For the purpose of coercing the government to give in to an unlawful demand.

Conspiracy to Commit Terrorism When two or more persons come to an agreement concerning the commission of the crime of terrorism and decide to commit it. Conspiracy (as defined in the RPC) is not a felony. It becomes a felony only if there is a law punishing it. Mere conspiracy to commit terrorism is punishable. Penalty: 40 years of imprisonment.

Conspiracy as a Felony: Conspiracy to Commit Treason Conspiracy to Commit Coup d etat Conspiracy to Commit Rebellion Conspiracy to Commit Insurrection Conspiracy to Commit Sedition Conspiracy to Commit Arson Conspiracy to Commit Terrorism

Who are the persons liable for T and CCT? Principal by direct participation - any person who takes a direct part in the execution of a criminal act. Accomplices is any person who, not being a principal or a conspirator, cooperates in the execution of either T or CCT by previous or simultaneous act. Accessories is any person who having knowledge of the commission of the crime of T or CCT and without having participated therein, either as P or A, takes part subsequent to its commission in any of the following manner: a) by profiting himself or assisting the offender to profit by the effects of the crime; b) by concealing or destroying the body of the crime, or the effects, or instruments thereof, in order to prevent its discovery; c) by harboring, concealing, or assisting in the escape of the principal or conspirator of the crime.

Penalty for the crimes of terrorism and conspiracy to commit terrorism The penalty for the crime of terrorism is 40 years of imprisonment without benefit of parole. This is a new penalty not recognized by the Revised Penal Code. The penalty for conspiracy to commit terrorism is also 40 years of imprisonment. The penalty for accomplices is 17 years, 4 months and 1 day to 20 years of imprisonment. The penalty for accessories is 10 years and 1 day to 12 years of imprisonment.

What are the acts allowed by RA 9372? Tracking down, tapping, listening to, interception and recording of messages, communications, conversations, discussions, spoken or written words (TTLIR-MCCDSW) of any person suspected of the crime of T or CCT. Apprehension and detention without warrant of a person suspected of T or CCT. Judicial authorization to examine bank deposits, accounts and records.

Procedure to obtain order of surveillance 1. An ex parte written application for an order authorizing the TTLIR-MCCDSW of any person suspected of the crime of T or CCT shall be filed by any police or law enforcement official who has been duly authorized in writing by the AntiTerrorism Council (ATC) before the authorizing Division of the Court of Appeals. 2. The authorizing division of the CA shall examine under oath or affirmation the applicant and the witnesses that he may produce to establish. a. That there is a PC to believe based on personal knowledge of facts or circumstances that the crime of T or CCT has been committed, or is being committed, or is about to be committed; b. That there is PC to believe based on personal knowledge of facts or circumstances that the crime of T or CCT has been committed, or is being committed, or is about to be committed; and,

c. That there is no other effective means readily available for acquiring such evidence. (R.A. 9372) 3. Upon a written order of the authorizing division of the CA, a police or law enforcement official and the members of his team may listen to, intercept and record with the use of any mode, form, kind or type of electronic or other surveillance equipment or intercepting and tracking devices, or with the use of any suitable ways and means for that purpose, any communication, message, conversation, discussion or spoken or written words between members of judicially declared and outlawed terrorist organization, association, or group of persons or of any person charged with or suspected of the crime of T or CCT.

Surveillance and Interception of Communication What are the communication that are exempted? Lawyers and clients Doctors and patients Journalist and sources Confidential business correspondence

Classification of the Order of the Court (Judicial Authorization) The surveillance of suspects and interception and recording of communications is authorized by R.A. 9372 notwithstanding provisions of R.A. 4200 (Anti-wire Tapping Law). The written order granted by the Authorizing Divisions of the CA Any order of the authorizing division of the CA to extend or renew the above; The original application of the applicant including his application or extend or renew; Written authorization of the ATC

The Rights of Person Surveilled or Monitored The right to be informed of the acts done by the law enforcement authorities in the premises; To challenge the legality of the interference to the CA which issued the written order.

Effective period of Judicial authorization Effective for the length of time specified in the order which shall not exceed a period of 30 days from the receipt of the written order. Before the expiration, it can be extended or renewed for non-extendible period of 30 days from the expiration of the original period upon ex parte application by the duly authorized applicant.

When & where to file the case? The applicant police or law enforcement official shall have 30 days after the termination of the period granted by the CA within which to file the appropriate case before the Public Prosecutors Office. If no case was filed within the abovementioned period, the applicant shall immediately notify the person subject of the surveillance, interception and recording of the termination of the said surveillance, interception and recording. Failure to notify: penalty of 10 years and 1 day to 12 years of imprisonment.

Custody of Intercepted and Recorded Communications It shall be deposited with the authorizing division of the CA in a sealed envelop or sealed package, accompanied by a joint affidavit of the applicant police or law enforcement official and the members of his team within 48 hours after the expiration of the original period or any renewal or extension thereof. Any person who removes, deletes, expunges, incinerates, shreds or destroys the items enumerated above shall suffer the penalty of not less than 6 years and 1 day to twelve years imprisonment.

Disposition of the Deposited Materials Deposited materials are deemed classified information.

It shall not be opened and the content shall not be divulged, revealed, read, replayed or used as evidence unless authorized by a written order of the authorizing division of the CA. The written order shall be granted only upon the written application of the DOJ and the DOJ has been duly authorized in writing by the ATC to file the application. The written order shall be sent to the person subject of the surveillance, monitoring, recording, and interception to open, reveal, divulge and use the contents of the sealed envelop or sealed package as evidence. Penalty for who violates his duty to notify is 6 years and 1 day to 8 years imprisonment.

Admissibility of deposited material secured in violation of pertinent provision of R.A. 9372 They shall be absolutely not be admissible and usable as evidence against any person in any judicial, extrajudicial, legislative, or administrative investigation, inquiry, proceeding, or hearing. Penalty for unauthorized interception and/or recording is 10 years and 1 day to 12 years imprisonment. Penalty for maliciously obtaining an authority from the CA is 10 years and 1 day to 12 years and perpetual absolute disqualification from public office.

Right of the party aggrieved by malicious procurement of Judicial Authorization The right to access the sealed envelop or sealed package and the contents thereof for the prosecution of any police or law enforcement personnel who maliciously procure said authorization.

Does the HSA provide for the outlawing of terrorist organizations? Yes. Section 17 provides that 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 of terrorism, may be outlawed or proscribed as a terrorist organization.

Declaration (proscription) of terrorist and outlawed Organization, Association, or Group Upon application of the DOJ, the RTC, with due notice and opportunity to be heard, given to the outlawed OAG, may declare that such is a terrorist and outlawed OAG. The RTC not the CA has jurisdiction to act on motions or applications for proscription.

May a suspect of the crime of T or CCT be apprehended and detained without warrant? Yes. The ATC may authorize in writing any police or law enforcement personnel to apprehend, arrest and detain a mere suspect. Existing rule in warrantless arrest is applicable. Period of detention without warrant: a case must be filed within 3 days from arrest and detention of the suspect.

Duty of the police or law enforcer personnel prior detention of the suspect

Immediately after the arrest of the person charged with or suspected of the crime of T or CCT, the police or law enforcement personnel shall notify in writing the judge of the court nearest the place of arrest. If the arrest is made during Sat., Sun, or holidays or after office hours, the written notice shall be served at the residence of the judge nearest the place where the suspect was arrested. Present the said person before any judge at the latters residence or office nearest the place where the place at any time of the day and night before detaining him. Penalty: 12 years of imprisonment

May the 3 day period of detention be extended? Yes. In the event of an actual or imminent terrorist attack. There must be a written approval of the municipality, city or provincial or regional Human Rights Commissioner or Judge of trial courts, the Sandiganbayan or a justice of the CA nearest the place of arrest. The written approval shall be secured within 5 days from the date of detention of the person concerned. Provided, however, that within 3 days after the detention. The suspect, whose connection with the terror attack or threat is not established, shall be released immediately. Penalty: 10 years and 1 day to 12 years.

Rights of a person under Custodial Detention or one arrested or suspected as terrorist 1. Right to be informed of the nature and cause of his arrest; 2. Right to remain silent; 3. Right to have competent and independent counsel preferably of his choice; 4. Right to be informed of the cause of his detention in the presence of his legal counsel; 5. Right to be allowed to communicate freely with his legal counsel and to confer with them at any time without restriction; 6. Right to be allowed to communicate freely and privately without restrictions with members of his family or with his nearest relatives and to be visited by them; 7. Right to be allowed freely to avail of the services of a physician of his choice.

Additional Rights provided by jurisprudence (Pp vs. Mahinay, G.R. No. 122485, Feb. 1, 1999) Right to be informed that he has the right to waive any said rights provided it is made voluntarily, knowingly and intelligently and ensure that he understood the same; If the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insisted on his waiver and chooses to speak; Right to be informed that he may indicate in any manner at any time or state of the process that he does not wish to be questioned with the warning that once he makes such indication, the police nay not interrogate him if the same had not yet commenced, or the interrogation has begun; Right that his initial waiver of his rights does not bar him from invoking it at any time during the process, regardless or whatever he may have answered some questions or volunteered some information or statements;

Right to be informed that any statement or evidence, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence.

Penalty for violation of the rights of a detainee 10 years and 1 day to 12 years of imprisonment; Same penalty shall be imposed on the police officer or head or leader of the law enforcement unit having custody of the detainee at the time the violation was made, if the police or law enforcement personnel who violated the rights of a detainee is not duly identified.

Official Custodial Logbook and Certification The police or law enforcement custodial unit who has the custody of the person shall keep an official log book. A certified true copy of the entries of the logbook shall be issued by the police or custodial unit upon demand by the lawyer or members of the family or relatives within the 4th civil degree of consanguinity or affinity of the person under custody or his physician without delay or restriction or requiring any fees whatsoever including documentary stamp tax, notarial fees and the like. Penalty: 10 years and 1 day to 12 years.

Penalty for threat, intimidation, coercion, or torture in the investigation and interrogation 12 years and 1 day to 20 years. When death or serious permanent disability of the detained person occurs as a consequence, the penalty is 12 years and 1 day to 20 years.

Torture in Investigation and Interrogation Right to travel and its restriction Right to travel is a constitutional right. Restriction: a person charged with T or CCT even if granted bail because evidence of guilt is not strong can be: Detained under house arrest Restricted from traveling; and/or Prohibited from using cellular phones, computers, or other means of communications with people outside their residence.

N.B. Upon the application of the Prosecutor.

Judicial Authorization to Examine Bank Deposits, Accounts, and Records. Upon the application of a police or law enforcement official duly authorized by the ATC, the duly designated CA as special court to handle anti-terrorism cases which finds a probable cause may issue a judicial authorization to examine bank DAR against: A person charged with or suspected of the crime of T or CCT; Of a judicially declared and outlawed terrorist OAG; and

 Of a member of such judicially declared and outlawed organization; N.B. This is now an exception to R.A. 1405 as amended. Provided, the person whose bank DAR have been examined, frozen, sequestered and seized has been informed by the act done by the law enforcers and his right to challenge the legality of the interference. Effectivity: It shall not exceed 30 days and may be renewed or extended for non-extendible period of 30 days from the expiration.

Who may open the deposited materials? The DOJ after authorized by the ATC, may apply in writing to open the deposited materials before the authorizing division of the CA. The right of the party concerned are: to be notified in writing of the said application not later than 3 days before the hearing, and have the right to access to the sealed envelop or sealed package and the contents thereof as evidence for the prosecution. Penalty for failure to notify: 6 years and 1 day to 8 years. Penalty for unauthorized examination is 10 years and 1 day to 12 years. Penalty of Bank Official/employees: 10 years and 1 day to 12 years. N.B. The sequestered or frozen deposits may be withdraw by the depositor as may be reasonably needed by his family including medical needs and services of counsel and other legitimate reason upon permission of the court.

Nature of the seized, confiscated and frozen bank deposits They shall be held in trust by the bank or financial institution. If the person charged or suspected is found innocent, acquitted, or his case dismissed before arraignment, payment of P500,000.00 per day for a period in which his properties, assets or funds were seized, as liquidated damages by the investigating body, plus the release of all his funds. If convicted by final judgment, it shall be automatically forfeited in favor of the government. Penalty: 10 years and 1 day to 12 years.

Infidelity in the custody of detained person Any public officer who has direct custody of a detained person who by his deliberate act, misconduct, or inexcusable negligence, causes or allows the escape of such detained person. Penalty if the person has been convicted: 12 years and 1 day to 20 years. Penalty if not yet convicted: 6 years and 1 day to 12 years.

Continues Trial The judge shall set the case on continuous trial on a daily basis from Monday to Friday. Damages for unproven charge of terrorism is P500,000.00 for every day of detention or deprived of liberty or arrested without warrant.

Applicability of the RPC The basic principals of the RPC like circumstances affecting criminal liability and extension of criminal liability are applicable to R.A. 9372.

The Anti-Terrorism Council The members of the ATC are: 1. The Executive Secretary Chairperson 2. The DOJ Secretary Vice Chairperson 3. The DFA Secretary 4. The DND Secretary 5. The DILG Secretary 6. The DOF Secretary 7. The National Security Advisor, as its other members. 8. The National Intelligence Coordinating Agency shall be the Secretariat of the ATC. 9. The NBI, BI, OCD, IS of the AFP, AMLAC, PNP intelligence and investigative elements shall serve as support agencies.

What is the Role of the CHR? The CHR shall give the highest priority to the investigation and prosecution of violations of civil and political rights of persons in relation to the implementation of this Act; and for this purpose, the CHR shall have the concurrent jurisdiction to prosecute public officials, law enforcers, and other persons who may have violated the civil and political rights of persons suspected of, detained for the crime of T and CCT.

The Grievance Committee The Ombudsman chairperson Solicitor General member Undersecretary from the DOJ member Function: To receive and evaluate complaints against the actuations of the police and law enforcement officials in the implementation of this Act. The Sub-committee is comprised of the Deputy Ombudsmen, Asst. Solicitors General and Regional Prosecutors, shall assist the GC.

Extra-Territorial Application of this Act Subject to the provision of an existing treaty of which the Philippines is a signatory and to any contrary provision of any law of preferential application, the provision of R.A. 9372 shall apply: 1. To individual persons who commit any of the crimes defined and punished in this Act within the terrestrial domain, interior waters, maritime zone, and airspace of the Phil. 2. To individual persons who, although physically outside the territorial limits of the Phil., commit, conspire, or plot to commit any of the crimes defined and punished in this Act inside the territorial limits of the Phil.

3. To individual persons who, although physically outside the territorial limits of the Phil., commit any crimes on board Philippine ship or Philippine airship;

Extra-Territorial Application of this Act To individual persons who commit any said crimes within any embassy, consulate, or diplomatic premises belong to or occupied by the Philippine government in an official capacity; To individual persons who although physically outside the territorial limits of the Phil., commit said crimes against Philippine citizens or persons of Philippine descent, where their citizenship or ethnicity was a factor in the commission of the crime; and To individual persons who, although physically outside the territorial limits of the Phil., commit said crimes against the Philippine government.