I. This memorandum provides a comparative analysis of Republic Act No. 9372, the “Human Security Act of 2007” (HSA), and its successor, Republic Act No. 11479, the “Anti-Terrorism Act of 2020” (ATA). It outlines the key provisions, salient differences, and prevailing constitutional challenges, concluding with practical remedies for individuals or entities potentially affected by the ATA’s implementation.
II. Legal Framework and Legislative Intent. The HSA was the Philippines’ first comprehensive anti-terrorism law, enacted with the stated purpose of securing the state and protecting people from terrorism. However, it was widely criticized for perceived inefficacy, leading to only one successful prosecution. In response, the ATA was enacted to provide law enforcement with more robust tools, aiming to address modern terrorist threats proactively. The legislative shift is from a restrictive, penalty-heavy regime under the HSA to a more expansive, prevention-oriented framework under the ATA.
III. Definition of Terrorism. The HSA defined terrorism narrowly, requiring the commission of specific predicate crimes under the Revised Penal Code and the intent to “coerce the government to give in to an unlawful demand.” The ATA adopts a significantly broader definition. Under Section 4 of the ATA, terrorism is committed by any person who engages in acts intended to cause death or serious bodily injury, extensive damage or destruction, or widespread interference with critical infrastructure, provided the act is done to intimidate the general public, create an atmosphere of fear, or coerce the government. Crucially, the ATA removes the requirement of a predicate crime and the element of a coercive “demand” to the government.
IV. Proscription and Designation Mechanism. The HSA lacked a clear administrative process for labeling groups as terrorist organizations. The ATA establishes a detailed regime: (1) Proscription is a judicial process where the Court of Appeals, upon application by the Department of Justice, may declare a group as a terrorist organization after a hearing where the group is accorded the right to be heard. (2) Designation is an administrative process by the Anti-Terrorism Council (ATC) based on United Nations Security Council resolutions, effectively freezing the assets of designated individuals/entities without prior judicial hearing. This administrative designation has been a primary source of constitutional challenge.
V. Surveillance, Detention, and Warrantless Arrest. The HSA imposed stringent requirements for surveillance (requiring written order from the Court of Appeals) and penalized law enforcement for wrongful detention. The ATA lowers these thresholds. Surveillance under the ATA may be authorized by a single judge of any regional trial court. Most controversially, Section 29 of the ATA allows the ATC to authorize in writing the detention of a suspected terrorist for up to 24 days without formal judicial charges. Warrantless arrest is also permitted under broader conditions than the Revised Penal Code, specifically for persons suspected of committing terrorism as defined in the law.
VI. The Anti-Terrorism Council (ATC). The ATA creates the ATC, composed of high-level executive officials. Beyond its designation power, the Council has the authority to order arrests (Section 29), issue freeze orders on assets, and generally implement the law. Critics argue this concentrates executive power without sufficient judicial oversight, effectively allowing the Council to exercise powers that are inherently judicial in nature.
VII. Constitutional Challenges and Supreme Court Ruling (G.R. Nos. 252741, et al.). The ATA was challenged before the Supreme Court on grounds of vagueness, overbreadth, and violations of freedoms of speech, expression, assembly, and due process. In the landmark decision Disini, et al. v. Executive Secretary, et al. (December 2021), the Court largely upheld the law but declared two provisions unconstitutional: (1) The qualifier in Section 4(e) which stated that “advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights” are not terrorism “when not intended to cause death or serious physical harm…” The Court found this still created a “chilling effect” and struck the entire qualifier, thereby absolutely shielding such activities from being branded as terrorism. (2) The portion of Section 25 allowing the ATC to adopt requests for designations by foreign jurisdictions. All other challenged provisions, including the 24-day detention period and the ATC’s arrest authorization power, were upheld.
VIII. Key Differences Summary.
Definition: ATA is broader, omitting predicate crime and specific coercive demand.
Detention: HSA had 3 days maximum detention without charge; ATA allows up to 24 days based on ATC written authorization.
Liability for Wrongful Acts: HSA imposed heavy penalties (Php 500,000 per day) on law enforcement for wrongful detention. The ATA removed this specific deterrent.
Council Powers: The ATC under the ATA has vastly more executive and quasi-judicial powers compared to the limited role of councils under the HSA.
Speech Protection: The Supreme Court’s excision of the problematic qualifier in Section 4(e) of the ATA provides stronger, absolute protection for legitimate dissent compared to the HSA’s framework.
IX. Practical Remedies. For individuals, activists, journalists, or organizations operating in an environment governed by the ATA, the following practical remedies and precautions are advised: (1) Documentation and Transparency: Meticulously document all activities, especially protests, assemblies, and advocacy work. Maintain clear records of purposes, speeches, and public statements to demonstrate lawful intent. (2) Legal Preparedness: Retain immediate access to legal counsel familiar with the ATA. Know the names and contacts of organizations like the Free Legal Assistance Group (FLAG) or the Commission on Human Rights. (3) Asset Management: For entities, maintain clear, auditable financial records to swiftly contest any potential erroneous freeze order from the ATC. (4) Remedy for Warrantless Detention: If detained under Section 29, immediately demand to see the written authorization from the ATC and invoke the right to counsel. File a Petition for the Writ of Habeas Corpus immediately to challenge the legality of the detention. The 24-day period is a maximum, not a requirement; courts can order release sooner if detention is unjustified. (5) Challenge Designation/Proscription: An entity designated by the ATC may file a Petition for Certiorari under Rule 65 to challenge the constitutionality of the designation process itself. A group facing proscription proceedings before the Court of Appeals must actively participate in the hearing to assert its right to due process. (6) Criminal Defense: If formally charged, aggressively challenge the prosecution’s evidence on the specific intent (animus) required for terrorism, arguing the acts were legitimate exercise of civil rights as protected by the Supreme Court’s interpretation. (7) Continuous Monitoring: Stay informed on implementing rules and jurisprudence, as the legal landscape surrounding the ATA continues to evolve through ongoing court challenges and application.
