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Human Security Act at home in the ASEAN

(Article published in the August 1, 2007 issue of Manila Standard Today)  

 
          At the current senior-level meetings of the ASEAN, the Philippine’s  Human Security Act (R.A. No. 9372) ought to find (if it has not done so yet by the time this piece gets into print) its proper  place in the sun.  Denied a fair airing at the State of the Nation Address (SONA) last week, the law, barely over two months effective, ought to be able to rise and shine at the ASEAN and show its mettle and the metal it is made of. 

 Two Mondays ago, on 23 July 2007, R.A. No. 9372 was completely overshadowed by the Super Regions.  President Gloria Macapagal Arroyo, perhaps wary of how the noisy and rambunctious crowds being held back from the Batasan Complex by her armed men might react, mentioned the word “terror” only in passing.  If my hearing at age 63 is still accurate, the only portion of the SONA on the subject consisted of a few sentences.  She was reported to have only said:

 “We fight terrorism.  It threatens our sovereign, democratic, compassionate and decent way of life.  Therefore, in the fight against lawless violence, we must uphold these values.  It is never right to and always wrong to fight terror with terror.” 

 The Human Security Act, which obviously was what the President was referring to as the proper modo de proceder against terrorism (my apologies to the followers of St. Ignatius of Loyola for using their bonding slogan in vain), was incognito at the SONA. But this week, it is time for R.A. No. 9372 to occupy center stage and hug the lime light. Unlike the hardened  hearts of the demonstrators at the Batasan who were bent on rejecting all that was human glory, the conditioned ears of the delegates to the ASEAN meetings (i.e. the 40th ASEAN Ministerial Meeting, the Post Ministerial Conference and the 14th ASEAN Regional Forum) are sure to unconditionally listen to all that is state security. 

   










     

         Ambassador Rodolfo C. Severino who was ASEAN‘s Secretary General from 1998 to 2002, in his book, Southeast Asia in Search of an ASEAN Community, points out that, even before 9/11, ASEAN had already been concerned with terrorism. Terrorism was listed as early as December 1997 by the ministers in charge of law enforcement as a transnational crime they intend to cooperate against.  The 9/11 simply intensified that concern into a rallying point. One day after the World Trade Center attacks (but still the same day in the West), the ASEAN Economic Ministers then meeting in Hanoi, issued a joint statement condemning the terror assaults in the US.  At the 2001 summit in Phnom Penh, the leaders resolved “to intensify our efforts, collectively and individually, to prevent, counter and suppress terrorist groups in the region.”  The joint communiqués coming out of the foreign ministers annual meetings in 2002, 2003, 2004 and 2005, likewise articulated similar sentiments.  Cambodia hosted an antiterrorism  regional conference in 2006.  And the ASEAN Convention on Counter Terrorism was signed in Cebu, Philippines, on 13 January of this year.  Indeed, terrorism is ASEAN’s favorite topic.

 What has our Human Security Act to add to ASEAN’s already strong stand against terrorism?  I submit that R.A. No. 9372 brings to the table a new tactic, one that is far better than that of the other laws in the region.  It is the tactic of confusing obfuscation that beats the terrorists at their own game of surprises and deception.  Nowhere is this more evident than in R.A. No. 9372’s provisions on how to deal with terrorist financing.

         Other laws in the region are colorless and unexciting.  Item 1 of Section 29 of Indonesia’s Government Regulation in Lieu of Legislation No. 1, series of 2002, very simply says that “. Investigators, public prosecutors or judges shall be authorized to order banks and other financial institutions to freeze the assets of any individual whose assets are known or reasonably suspected to be the proceeds of any criminal act connected to terrorism.”  That’s it? The regulations of the Monetary Authority of Singapore, issued also in 2002, for their part, say that “Except with the written approval of the Authority, no financial institution in Singapore shall (a) make available any funds or other financial assets or economic resources; or (b) make available any financial or other related services, for the benefit of any” terrorist.  Okay, maybe a bit flexible with the phrase, “except with the written approval of the Authority,” but still, it is too abrupt and has the subtlety of a British gunship that by its mere presence in the straits kept that city state as pacific as the ocean.

In contrast, watch how the Philippine law, like the plot of a canned telenovela, weaves its web.  First, it begins with the statement that in implementing the policy of the law, “the State shall uphold the basic rights and fundamental liberties of the people as enshrined in the Constitution.”  I know that will not sit too well with some of our friends in the region, especially those seen as wonderful models by Washington Sycip, but all that is needed is to say it, not mean it.

 Then, the law proceeds to serious business.  Slowly, the fight against terrorism rears its ugly head;  it  unfolds gradually, creeps surreptitiously, and comes out victorious after a sequence of deceit and obfuscation.

 Life begins to stir with a simple statement of what the Anti-Terrorism Council could do to bank funds.  Section 54, subsection 5, gives the Anti-Terrorism Council the authority to “freeze bank accounts…pursuant to R.A. No. 9160, otherwise known as the Anti-Money Laundering Act of 2001, as amended.”  The word “pursuant”  is defined by my dictionary as “proceeding from and conformable to; in accordance with.”  One would therefore expect, from the use of the phrase, that in R.A. No. 9160 there are provisions which from which the Anti-Terrorism Council can derive its authority to freeze, or in accordance with which the Anti-Terrorism Council can conform its behavior in the exercise of its power to freeze. But that is just an illusion.

 The Anti-Terrorism Council was just a gleam in the legislators’ eyes when the Anti-Money Laundering Act of 2001, as amended, became a law.  Hence, the Anti-Terrorism Council could not claim to have any power that flows or proceeds from it or that it was intended to conform to. More significantly, R.A. No. 9160 actually does not give the counterpart of the Anti-Terrorism Council, namely the Anti-Money Laundering Council, the power to freeze.  What the Anti-Money Laundering Council can do is merely to “to apply before the Court of Appeals, ex parte, for the freezing of any monetary instrument or property alleged to be the proceeds of any unlawful activity…” 

 How can the Anti-Terrorism Council “freeze” funds as the Anti-Money Laundering Council does, when in fact the AMLC cannot by itself freeze funds. So, which is which? May or may not the Anti-Terrorism Council freeze bank accounts?  Thereafter, the plot is allowed to thicken.

 Section 27 requires the Anti-Terrorism Council to authorize a law enforcement officer to apply ex parte with the Court of Appeals for authority to (a) examine bank accounts; and (b) gather relevant information about those accounts from a bank.  Ah so, like the Anti-Money Laundering Council, the Anti-Terrorism Council is required by Section 27 to seek judicial authorization to touch the bank accounts. But please note,  the authority to be sought from the Court of Appeals is only to examine and gather information.  There is no mention of any request for authorization, in addition, to freeze the accounts examined.

 That silence notwithstanding, however, Section 28 provides that the authorization from the Court of Appeals to examine and gather information can be granted only after the Court of Appeals conducts an examination under oath of the applicant and his witnesses “to establish the facts that will justify the need and urgency of examining and [voila!] freezing” the bank accounts.  Not just examining and gathering, as talked about in Section 27.  What must be considered, according to Section 28, is the need for examining and freezing.

 To assuage fears that Section 28 may have engendered, Section 29 comes to the rescue and, in a proviso purportedly for purposes of transparency, says that the person whose bank accounts “have been examined, frozen, sequestered and seized by law enforcement authorities has the right to be informed of the acts done by the law enforcement authorizes in the premises and to challenge, if he or she intends to do so, the legality of the interference.”  You see, the account owner can go to court.

 But, notice, now the accounts are not described as just examined and  “frozen”, they are also assumed to have been with court authority also “sequestered and seized” by law enforcement officers. 

 Where did these two stooges, sequestration and seizure, come from?  The answer is nowhere near Section 29.  You have to hop, skip and jump, ten sections later, to Section 39 which says that bank accounts, among other properties of the terrorists, “shall be seized, sequestered, and frozen in order to prevent their use, transfer, or conveyance for purposes that are inimical to the safety and security of the people or injurious to the interest of the State.”  Section 39 is phrased in the passive voice.  Consequently, we are not told by whom and in what manner the seizure and sequestration are to be effected.

 At last, the dramatis personae are all on stage.  The moro moro can begin. There will be the noise of swords clashing with sword and shields banging on shields.  But in the end, the law is able to say what was intended in the first place, that the Anti-Terrorism Council can examine, gather information, freeze, sequester and seize bank accounts.  Without your knowledge, until every thing is said and done.  That, ASEAN neighbors, is what I call a terrorist law.

    

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