Tuesday, July 27, 2021

Seares: What Anti-Terrorism Act safeguards for journalists. What it does not.

Medias Public

WHAT Republic Act #11479, or Anti-Terrorism Act of 2020, specifies for journalists in some kind of protective gesture is found in the provision on surveillance of suspected terrorists.

Communications between journalists and their sources are lumped with those between lawyers and clients, doctors and patients, and confidential business correspondence: They cannot be the subject of "surveillance, interception and recording."

Wiretapping, other snooping

Under the law -- which President Rodrigo Duterte signed last July 3 and would impose the penalty of up to 12 years in prison -- law enforcers may apply with the Court of Appeals for a court order to "secretly wiretap, overhear and listen to, intercept, screen, read, surveil, record or collect," with the use of any kind of equipment or technology, any private communication, conversation, discussion, data or messages in whatever form, spoken or written, between charged or suspected terrorists as defined and penalized in the said law.

All other individuals and groups can be snooped or spied on in their private communication. Not journalists and their sources.

Silent on telecom records

Law enforcers can also apply for a court order that compels a telecommunication service provider (TSP) and internet service provider (ISP) to produce all customer information and ID records and call and text data records of any suspected or charged terrorist. Here, the law is silent if records of journalists-news sources, with the other exempted metadata, are also covered.

Perhaps the IRR, or implementing rules and regulations of the law, will clarify that. And the definition of journalists, given the disagreement among media practitioners, teachers and the public on what a journalist is. Unlike doctors and lawyers, who are licensed, journalists do not submit to government examination or accreditation.

Who are deemed journalists

Are those who write blogs deemed journalists. Blogger Mocha Uson, defending her violations of standards before the Senate, said she is not a journalist. Would she be exempted from being spied on by government enforcers?

Not that she would be snooped on, given her known loyalty to the national leaders. But what about bloggers and internet commentators who may be suspected of "terrorizing" the government?

Would definition of journalists be left to the court? And who could foil an ex-parte process, in which the journalist to be spied on is not, but of course, informed?

Criticism 'not terrorism'

Another safeguard, which applies not just to journalists but to everyone else, is found in the definition of who is not a terrorist and what is not terrorism.

Terrorism, the law says, does not include "advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights, which are 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."

Journalists, particularly the opinion writers and writers of news stories that expose abuse or other wrongdoing, wage an advocacy. They criticize and disagree with some facets of public policy or official act.

The law assures that such exercises of journalism are not covered by the definition of terrorists and terrorism. Between the law's words of comfort and actual enforcement of the law is a chasm of distrust, given the mechanism where a panel of Cabinet secretaries and security officials beholden to the executive department, not an independent judge, decide whether a journalist could be a terrorist and his criticism and dissent constitute terrorism.

Punishable acts

A media practitioner can fall under the definition of "terrorist individual" if he commits any of the host of criminal acts under the new terrorism law, which replaces the Human Security Act of 2007.

Namely: terrorism; threat to commit terrorism; planning, training, preparing and facilitating the commission of terrorism; conspiracy to commit terrorism; proposal to commit terrorism; inciting to commit terrorism; recruitment to, and membership in, a terrorist organization; and providing material support to terrorists.

One must wonder how one act is divided into several acts in relation to the same pursuit or end. Would each constitute a separate count of the crime: from planning to inciting, to preparing and conspiring, and all those other acts before actually committing terrorism?

Media can 'incite' terrorism

What a journalist can commit, which has direct relation to his job, is inciting others to the execution of any of the offenses listed as terroristic "by means of speeches, proclamations, writings, emblems, banners or other representations tending to the same end." A news story, opinion column, or even a comment in social media could qualify as "inciting" to terrorism, depending on the judgment of those who order the arrest.

What anyone who does any public writing or speaking, through any of the media platforms, may fear more is the prospect of being detained for almost a month without being charged in court.

Terrorist-tagging, detention

The Anti-Terrorism Council is given by the law the power to label or designate any person or group as a terrorist group. Composed of Cabinet members and security officials, the ATC can tag any person or group a terrorist on finding of "probable cause" and the Court of Appeals issues a preliminary order of proscription within 72 hours from the DOJ's filing, on ATC and Nica (the intelligence agency) recommendation.

But here's the part that's scary: the ATC may empower any law enforcement agency or military personnel to arrest any person suspected of committing any of the "proscribed" acts.

And the arrested person may be detained, without any warrant, for a period of 14 days, subject to a 10-day extension, or a total of 24 days. The arresting officers have no duty to turn over the accused to judicial authorities. They are only required to notify the nearest judge about the arrest and location of the suspected terrorist, with copy of the notice to ATC and Commission on Human Rights.

Citizens' dissent

That certainly can be more frightening than any libel suit. Thus, a petition questioning the legality and constitutionality of the law has been filed before the Supreme Court.

Not just for journalists but for any citizen who could not be sure that the law would be used solely against terrorists and terrorism, not against citizens and legitimate dissent.


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