“Indigenous peoples should not be victims of a tug-of-war between the State, non-State armed groups and business interests.”
The recent UN report, showcases 'a damning indictment of the Philippine's war on drugs'. This report came after the UN Human Rights Council’s resolution 41/2. It paints a grave picture of human rights violations in the country: more than 8,600 people executed with impunity, killing of 157 green activists, and 248 human rights defenders. Meanwhile, the government has labelled the report as ‘travesty.’ The country which often openly employs red-tagging has passed a new Anti-Terrorism Law, the cryptic legislation being sanctioned by the infamous head of the state who claims of killing three men himself. Now wielded with a formal legal weapon, it becomes pertinent to understand how this would affect the various rights activists across the country.
Anti-Terrorism Act, 2020: A critical Analysis of the provisions
The Anti-Terrorism Act, 2020 consists of numerous problematic provisions. The first being the definition of a terrorist under Section 3(l). A terrorist includes any individual who commits an act thereafter defined and penalised under Sections 4 to 12.
The subsequent sections penalise threatening (Section 5), conspiring (Section 7), proposing (Section 8), or inciting (Section 9) to commit ‘terrorism’. What makes these provisions particularly dangerous is the vagueness of the wording and a lack of specificity as to what actions would amount to terrorism. Secondly, not only does it give way to the unfair arrest of individuals but also acts as legal equipment for the government to curb dissent, of which it has been heavily criticized for in the past. The imprisonment for 12 years provided for an individual who incites others by way of “speeches, writings, proclamations,” among others is a blatant violation of the right to freedom of speech and expression recognised under Article 19 of the Universal Declaration of Human Rights, 1948. Additionally, it also breaches Section 4(Article III) of the Bill of Rights of the Constitution of the Philippines which states that no law shall be passed that abridges the right to freedom of speech and expression alongside the right to assemble peacefully.
Section 4 (b) mandates that a person is said to commit terrorism when one engages in acts intended to cause damage or destruction to the government or public facilities, public place, or private property. Considering that harm to public property usually occurs in protests, this risks the detention of protestors by categorising them as ‘terrorists’.
Section 45 enunciates the constitution of the Anti-Terrorism Council. It shall consist of nine members, mostly government officials ranging from the National Security Advisor to the Secretary of Foreign Affairs. The Council, which is supposedly mandated to coordinate national efforts to suppress and eradicate terrorism in the country, is surprisingly not held accountable to anyone. Where Section 46(m) requires government agencies, non-government organisations, and private entities to assist if needed, no provision within the Act provides for the Council to be accountable to the Judiciary of the state or the general public. This lack of liability confers the Council with unbounded power. Even the Joint Oversight Committee (Section 50) set up to oversee the working of the Act and the Anti-Terrorism Council only has the power to summon the members of the Council to answer questions concerning the implementation of the Act. The legislation, hence, becomes arbitrary and lopsided.
The excessive power bestowed upon the Council can be assessed as per Section 29 of the Act. According to the same individuals suspected of terrorism by the Anti-Terrorism Council can be arrested by law enforcement bodies without any judicial warrant. Although the section provides for maximum detention of 14 days before the individual is presented in front of a proper judicial body, the Anti-Terrorism Council has the power to extend this time period by 10 days on (unreasonable) grounds such as completion of the investigation, to conduct investigation ‘properly and without any delay’ and so on. Meanwhile, the previous 2005 Act provided for a three day time period that could only be extended for a further three days. This is a desecration of the democracy that the country claims to be, apart from a stringent violation of an individual’s right to be heard before being arrested. Nationally, it seems to counter Section 2 (Article III) of the Bill of Rights of the Constitution of the Philippines which ensures people’s right against the unreasonable warrant of arrest. Furthermore, Section 15 of the same also guarantees an impartial and speedy trial. Internationally, this stands in contravention to Article 9 and Article 14 of the International Covenant on Civil and Political Rights ( ICCPR). The principles contravened are, firstly the right to be presumed innocent until proven guilty and secondly, the right to be tried without undue delay. The grounds for detention mentioned in the Act are rather ‘arbitrary’ thereby violating the right against arbitrary detention as provided in Article 9 of ICCPR. This right has been recognised to be a part of customary international law. This is also in breach of the civil rights guaranteed to people under the ASEAN Human Rights Declaration, of which the Philippines is a member. Considering the draconian powers the Act vests with the government, it is imperative for us to consider the effect of such provisions on activists. Being the primary dissenters of the government, it is safe to assume that, it is this group that may ultimately bear the brunt of the inadvertent application of this act. The current onset of the controversy regarding the mining operations and indigenous people makes it necessary to study this Act in light of environmental or green activists.
Repercussions on Indigenous Rights: Background
The Philippines’s Mines and Geosciences Bureau (MGB) had identified a high mineral potential area of nine million hectares and in 2012 had capped the worth of the untapped mineral wealth of the nation at $840 billion. Such mining-related activities concomitantly affect the indigenous peoples’ rights to self- determination as most of these projects are often carried out on the ancestral lands of indigenous people. This is also in stark contrast to Section 2(b) of The Indigenous Peoples’ Rights Act which obligates the State to protect the rights of indigenous people to their ancestral domains.
Indigenous people in the Philippines like the Lumad of the southern Mindanao region have traditionally followed