(Article published in the
issue of Manila Standard Today)
The recently passed Republic Act No. 10168, known as The Terrorism Financing Prevention and Suppression Act of 2012, is a special law. Not just a “special law” as understood by Freshmen law students taking Criminal Law 101, meaning “not the Revised Penal Code.” But more, as the phrase is understood by non-legal persons, meaning outstanding.
The law is, without doubt, one of the most thorough pieces of legislation that was passed by this Congress during its last session. It has the tell-tale marks of serious deliberation, non-partisan approach, careful drafting and perfect suitability of the means selected to achieve the declared objectives.
Section 2, up
front, shows its merit in the way that it declares what the policy of the
law is. It begins with the recognition that the core duty of the state “to
protect life, liberty and property from acts of terrorism.” From there, it
proceeds to condemn terrorism and terrorists as offensive to the people not
only of the Philippines but also of the whole world. It subsequently
situates the measure in line with the country’s international commitments to
combat terrorism. Finally, it lays down the methods by which these
objectives are to be attained, namely, by recognizing the financing of
terrorism as a crime in itself, i.e. as a stand-alone offense and not just
an adjunct to another. And, demonstrative of its firm resolve to balance
state interest and individual rights, provides for the freezing and
forfeiture of the offensive funds and properties, only after the observance
of due process and insurance that at all stages with due respect is accorded
to human rights of everyone concerned.
The modes of commission of the newly declared crime of terrorist financing are spelled out in Section 4. The offense is committed by one who “directly or indirectly, wilfully and without lawful excuse, possesses, provides, collects, or uses property or funds or makes available property, funds or financial services or other related services, by any means, with the unlawful and wilful intention that they should be used or with the knowledge that they are to be used, in full and in part: (a) to carry out or facilitate the commission of any terrorist act; (b) by a terrorist organization, association, or group, or (b) by an individual terrorist.” It is vertically and horizontally inclusive, reaching up to both knowledge and intent and sprawling from actual possession to mere provision of what could otherwise be legitimate financial servicing.
Knowledge and intent are internal to the offender and thus not easy for a prosecutor to prove; but to the prosecutor’s rescue, the law allows these elements to either “be established by direct evidence or inferred from the attendant circumstances.” And to stress that the gravamen of the crime is the act of financing itself and not dependent on the use to which the funds are actually devoted, the law states that it is not “necessary that the funds were actually used to carry out the terrorist acts.” In other words, knowledge of the intended use for terrorist ends is sufficient to convict; the funds need not graduate into actual use before the crime of financing terrorism can be said to have been already committed.
Degrees of participation are also clearly marked out. Made liable are (a) all those who attempt or conspire to commit the crime; (b) those who know or ought to have known that the funds are terrorist funds but nevertheless deal with them with respect to said funds; and (c) those who make said funds available to them or provide them financial or other related services with respect to those funds. The obvious intent is to isolate the terrorist and his funds by denying him banking and other facilities that would facilitate the funds’ flow. There is a manifest objective to make the terrorist a pariah.
The onus of detecting that the funds are destined for terrorism is laid squarely on the shoulders of the Anti-Money Laundering Council. The AMLC, motu propio or at the request of the Anti-Terrorism Council, is authorized to investigate in order for it to ascertain that there is probable cause that the financing terrorism is being conducted or, even just being seriously planned or facilitated. To do that job well, it is authorized to secure the assistance of the government or any of its units in undertaking measure that are designed to counter the financing of terrorism.
For the avoidance of doubt, the bank secrecy laws, such as R.A. No. 1405, R.A. No. 6426, R.A. No. 8791, and other laws are made to yield to the AMLC’s inquiry into or examination of those deposits and investments that are in the possession of banks, including their subsidiaries and affiliates, and such inquiry or examination may be done “without a court order.” The inclusion of R.A. No. 8791, known as the General Banking Law of 2000 (which is generally not mentioned in discussion on bank secrecy) indicates that the legislators did not overlook a provision in that law, namely Subsection 55.1(b).
When the AMLC is satisfied that funds are for terrorist funding, it can issue an ex parte order to freeze without delay funds which it has “determined to be related to financing of terrorism or acts of terrorism” or, even if it is not that certain, that there is probable cause to believe that funds are to be used in connection with terrorist activities.
The exercise of such draconian powers, however, is, subject to several constraints designed both to prevent abuse by the AMLC of its investigative and freeze prerogative and to assure, as reiterated in the statement of state policies, respect for human rights.
More on these and other salutary features of R.A. No. 10168 in my future pieces in this corner.