| SUBJECT: The Concept of ‘Human Security Act’ vs ‘Anti-Terrorism Act of 2020’ |
I. Introduction
This memorandum provides an exhaustive legal analysis comparing the repealed Human Security Act of 2007 (Republic Act No. 9372) and its successor, the Anti-Terrorism Act of 2020 (Republic Act No. 11479). The objective is to delineate the conceptual, procedural, and substantive evolution of the Philippines’ legal framework for combating terrorism. The shift from a law framed around human security to one explicitly centered on anti-terrorism represents a significant transformation in legislative approach, with profound implications for criminal law, procedure, and constitutional rights.
II. Statement of Facts
The Human Security Act of 2007 (HSA) was enacted on March 6, 2007, as the Philippines’ first comprehensive law specifically criminalizing terrorism. Throughout its 13-year effectivity, it was widely criticized by law enforcement for being “toothless” due to its stringent procedural safeguards and heavy penalties on law enforcement for wrongful prosecution. Only one successful conviction was secured under the HSA. In response to perceived legal handicaps and evolving security threats, Congress passed the Anti-Terrorism Act of 2020 (ATA), which was signed into law on July 3, 2020. The ATA expressly repealed the HSA and has since been the subject of numerous petitions before the Supreme Court challenging its constitutionality.
III. Statement of Issues
IV. Applicable Laws and Doctrines
V. Discussion of the Concept: “Human Security” vs. “Anti-Terrorism”
The HSA was conceptually anchored on human security, a paradigm that seeks to protect the individual from a wide range of threats, including but not limited to violent terrorism. Its preamble emphasized the protection of life, liberty, and property from acts of terrorism while underscoring that the law should not violate civil and political rights. This framing suggested a balance where state security measures were tempered by a primary concern for individual security and rights.
In contrast, the ATA adopts a direct anti-terrorism conceptual framework. Its primary stated policy is to protect life, liberty, and property from terrorism and to condemn it as “inimical and dangerous to the national security.” The conceptual shift is from a balanced, rights-sensitive approach to a more assertive, security-focused regime aimed at “preventing, prohibiting, and penalizing terrorism.” This is reflected in the law’s expanded state powers and reduced procedural hurdles for law enforcement.
VI. Comparative Analysis of Key Substantive Provisions
The core offense under both laws is the crime of terrorism. Under the HSA, terrorism was committed by any person who commits any of the listed predicate crimes (e.g., murder, kidnapping) “thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.” The purpose (coercion) and effect (widespread fear) were cumulative and strictly defined.
The ATA redefines terrorism more broadly. It is committed by any person who engages in acts intended to cause death or serious bodily injury, endanger a person’s life, or cause extensive damage to property, with the purpose of: (1) intimidating the general public; (2) creating an atmosphere of fear; (3) provoking or influencing by intimidation the government or any international organization; or (4) seriously destabilizing or destroying fundamental political, economic, or social structures. The act must also “create a serious risk to public safety.” Notably, the ATA introduces the crime of inciting to commit terrorism through means “without taking direct part in the execution of the act,” a provision heavily criticized for potentially chilling freedom of speech.
VII. Comparative Table of Procedural Mechanisms and Safeguards
| Procedural Mechanism | Human Security Act of 2007 | Anti-Terrorism Act of 2020 |
|---|---|---|
| Warrantless Detention | A person charged with terrorism could be detained without a judicial warrant of arrest for a maximum of three (3) days. | The law allows detention without a judicial warrant of arrest for a period of 14 calendar days (extendable by 10 more days in case of “extraordinary circumstances”). |
| Judicial Authorization for Surveillance | Required a written order from the Court of Appeals upon application by a police or law enforcement official. The order was valid for 30 days, renewable for another 30. | Requires a written order from a Court of Appeals justice upon application by a police or law enforcement official. The order is valid for 60 days, renewable for periods not exceeding 30 days. |
| Liability for Wrongful Accusation | Imposed staggering damages of PHP 500,000 per day of detention on law enforcement officials who wrongfully detained an accused who was later acquitted. | No equivalent provision. The ATA removed this punitive deterrent against law enforcement. |
| Preliminary Proscription of Groups | No express provision for preliminary or executive proscription. The process was purely judicial. | The Anti-Terrorism Council (ATC) can designate individuals and groups as terrorist based on “probable cause” for the purpose of freezing assets under the Anti-Money Laundering Act. This is an administrative act. |
| Proscription of Terrorist Organizations | Required a judicial hearing and a final order from the Court of Appeals to declare a group a terrorist organization. | Retains judicial proscription but introduces a streamlined process. The Court of Appeals must decide on the application for proscription within 6 months. The ATC’s written recommendation is prima facie evidence. |
| Examination of Bank Deposits | Allowed upon order of the Court of Appeals, but only for accounts specifically identified in the charge of terrorism or conspiracy to commit terrorism. | Allows examination upon order of the Court of Appeals for accounts of a “designated” person, entity, or organization, or those suspected of being related to financing of terrorism. |
VIII. Judicial Review and Constitutional Challenges
The Supreme Court, in its landmark decision of December 7, 2021 (Alvarez v. Alvarez), upheld the constitutionality of the ATA in large part but declared two specific phrases “void for vagueness”:
The Court upheld the 14-day detention period, the enhanced surveillance powers, and the designation mechanism (sans the voided phrase), ruling that the law contained sufficient safeguards such as reporting requirements and judicial review. The crime of inciting to commit terrorism was also upheld, with the Court interpreting it to require a direct incitement to commit terrorism and not mere advocacy of abstract doctrines.
IX. Implications for Criminal Law and Procedure
The ATA represents a paradigm shift towards a preventive model of criminal justice. By lowering thresholds for designation, extending detention periods, and enhancing surveillance, it empowers state agencies to act on suspicion and probable cause at an earlier stage, potentially before a predicate crime is committed. This contrasts with the HSA’s more reactive, criminal law-oriented model that required the actual commission of a predicate crime with a specific coercive purpose.
The removal of the HSA’s punitive damages for wrongful accusation significantly alters the risk calculus for law enforcement, potentially encouraging more aggressive application of the law. The introduction of administrative designation by the ATC, operating alongside judicial proscription, creates a parallel track with immediate financial consequences (asset freezing) without a prior court hearing, raising due process concerns.
X. Conclusion
The evolution from the Human Security Act to the Anti-Terrorism Act marks a decisive turn from a cautiously balanced statute to a robust, security-focused legal regime. Conceptually, the focus has narrowed from broad human security to targeted anti-terrorism. Substantively, the definition of terrorism has been broadened, and new inchoate crimes like incitement have been created. Procedurally, the state’s investigative and preventive powers have been significantly amplified, while several key safeguards from the HSA have been diluted or removed. While the Supreme Court has trimmed the ATA’s most overbroad provisions, the operational law today grants the state expansive tools to combat terrorism, placing a heavy burden on judicial review and post-facto remedies to protect constitutional rights. The long-term impact on criminal law practice and civil liberties will depend fundamentally on the law’s implementation and the judiciary’s continued vigilance.
