“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 the practice of communal private property ownership. However, they are now facing militarization and displacement as their lands are being seized by the government and crony capitalists. This infringement of the locals’ rights dates back to Spanish colonization and more recently to the USA's Act 468, which bestowed the government with "the right to reserve mineral lands for its purpose."
The liberalisation policy then saw the implementation of the Philippine Mining Act of 1995 and the 2004 National Mineral Policy Agenda. The Act of 1995 had specially provided for 100% foreign ownership and control over mining operations, which exceeded the constitutionally mandated limit of 40%. The same was subsequently challenged in the island nation's Supreme Court on June 19, 1995, by La Bugal- B'laan Tribal Association. The Court initially ruled in favour of the petitioners by nullifying the provision which allowed for the operation of mines by foreign transnational corporations. However, it reversed its decision within eleven months in December 2004. The government and corporations have since made umpteen use of the legal leverage provided hereby.
The present Act only adds to the plight of indigenous people and environmental rights activists. When these people rise in masses to reclaim their identity which is inherently linked to their ancestral lands, they run a huge risk of the state agencies viewing such protests as acts of rebel and terrorism. Considering the broad definition of ‘terrorism’ and the incorporation of arrest for inciting such acts, it becomes an even more treacherous road to tread for the green activists. There is an increasing threat of warrantless arrests and detentions for speaking against the government’s actions. Interestingly, this contradicts Duterte’s threefold promises upon entering office- of decimating institutional corruption, protecting the environment, and uplifting the rural and indigenous people. Instances of the government shutting down community schools, arresting/ killing the Lumad pro-rights teachers and heavy deployment of the military in the Mindanao region are rife. This adds to the existing concerns of human rights violations. Recently the country has seen a spurt in the number of violent attacks on environmental defenders. As per the Global Witness Report 2020, the Philippines is now the second most- deadliest place for environmental activists with the number of murders rising to 43 in 2019 from 30 in 2018. The major sectors which contribute to these killings are mining, logging, agribusiness, and coal. Most of these are financed by the land grabbers who often have corporate support. It was also observed that about 90% of the murders related to agribusiness in Asia were documented in the Philippines. This has led to the formation of various united movements by the locals, fighting for self- determination, and establishment of peace. The formation of the Sandugo Alliance of Moro and Indigenous Peoples for Self-Determination (Sandugo) is one such example. With the increase in such pro-environmental uprisings and movements, the risks of the present Act being misused also increases manifold.
In view of the emerging anti- activists undercurrent in the nation, it becomes pertinent that the international community, companies, investors and international bodies should take proactive measures to support and protect the defenders, and ensure accountability. The Filipino government should take a cue from the UN Guiding Principles, the UN Declaration on Human Rights Defenders, the ICCPR, and the UN Declaration on the Rights of Indigenous Peoples for establishing a safe and enabling environment for defenders. Robust legal frameworks which espouse the implementation of existing international conventions should be put in place. The investing countries must also share the responsibility of ensuring that their corporations do not benefit from the exploitation of indigenous peoples’ rights. It is often observed that due to the lack of any international regulations on the trade of land or the kind of product that could be grown on it, there remains no incentive for corporations to ensure that they are not profiting from land grabbing. This ultimately precipitates into indigenous people losing agency over their ancestral lands and the kind of vegetation being grown on them. However, the said problem can be countered when either there is a multilateral framework for the same or when the investing countries hold their corporations liable to proper due diligence standards of conducting business. It is also quintessential that the host state, unlike the present case, should provide policy guidelines ensuring transparency and accountability, providing adequate grievance measures and representation opportunities to communities. It thus becomes the duty of every government to ensure that no innocent suffers because of its incorrectly or inadequately framed legislations. Hence, the Act should be revised to uphold recognised standards of arrest, investigation, and natural justice.
Title Image Source: The Rappler
This article has been written by Namrata Rawat & Rishav Devrani. They both are fourth year law students at Rajiv Gandhi National University of Law, Patiala. The authors have a keen interest in International Human Rights Law, International Humanitarian Law, Environmental Law and allied fields.