FAQs on the Human Security Act
By Jose Manuel Diokno
updated 06:47am (Mla time) 07/15/2007
(Editor’s Note: The antiterror law takes effect today, raising fears among bishops and human
rights advocates that authorities would use it to crack down on political enemies. But Malacañang claims that the law was
enacted to protect the people from terror. To help the public understand the implications of the law, we are featuring here
the frequently asked questions [FAQs] prepared by a lawyers’ group. The group warns against abuses that could be committed
in the name of the new law.)
Q. What is the Human Security Act of 2007?
A. The “Human Security Act of 2007,” or Republic Act No. 9372, is a law that Congress
enacted “to protect life, liberty and property from acts of terrorism, to condemn terrorism as inimical and dangerous
to the national security of the country ... and to make terrorism a crime against the Filipino people, against humanity, and
against the law of nations.”
While well-intended, the Human Security Act (HSA) is one of the most incoherent, disorganized and
disjointed laws our Congress has ever passed. A mix-and-match collection of 62 sections, the law has no discernible structure,
no headings or subheadings, and no groupings of sections. Provisions follow one another without logical connection; some sections
contradict each other; while others simply make no sense.
Worse, the HSA is a dangerous law. It authorizes preventive detention, expands the power of warrantless
arrest, and allows for unchecked invasion of our privacy, liberty and other basic rights. Persons merely suspected of engaging
in terrorism may be arrested without warrant and detained without charges.
They may be placed under house arrest, prohibited from using their cell phones, computers and any
other means of communication, even when they are granted bail on the ground that evidence of guilt is not strong. They may
also be subjected to surveillance and wiretapping, as well as examination, sequestration and freezing of bank deposits and
other assets, on mere suspicion that they are members of a “terrorist organization.”
Defining the crime
Q. How does the HSA define the crime of ‘‘terrorism?”
A. It defines the crime as follows:
“Sec. 3. Terrorism—Any person who commits an act punishable under any of the following
provisions of the Revised Penal Code:
A. Art. 122 (Piracy in General and Mutiny);
B. Art. 134 (Rebellion or Insurrection);
C. Art. 134-A (Coup d’Etat), including acts committed by private persons;
D. Art. 248 (Murder);
E. Art. 267 (Kidnapping and Serious Illegal Detention);
F. Art. 324 (Crimes Involving Destruction); or under
(1) P.D. 1613 (Law on Arson);
(2) R.A. 6969 (Toxic Substance and Hazardous and Nuclear Waste Control Act);
(3) R.A. 5207 (Atomic Energy Regulatory and Liability Act);
(4) R.A. 6235 (Anti-Hijacking Law);
(5) P.D. 532 (Anti-Piracy and Anti-Highway Robbery Law); and
(6) P.D. 1866, as amended (Decree Codifying the Laws on Illegal and Unlawful Possession, Manufacture,
Dealing in, Acquisition or Disposition of Firearms, Ammunition or Explosives)
Thereby sowing and creating a condition of widespread and extraordinary fear and panic among the
populace, in order to coerce the government to give in to an unlawful demand shall be guilty of terrorism and shall suffer
the penalty of 40 years of imprisonment, without the benefit of parole...”
For the crime of terrorism to be committed, therefore, four elements are essential:
The commission of one or more of the crimes specified in Section 3 above,
That sows and creates a condition of “widespread and extraordinary fear and panic” among
For the purpose of coercing the government,
To give in to an “unlawful” demand.
Vague, susceptible to abuse
In FLAG’s view, the law’s definition of terrorism is vague, ambiguous and highly susceptible
to abuse. When does a condition of “widespread and extraordinary fear and panic” exist? Does the “populace”
refer to the public in general, those who live in the same city or town or those who live in the same barangay? What is an
With no objective standards to guide our law enforcers, the HSA in effect bestows on our law enforcers
the unfettered discretion to decide if a person is engaged in terrorism or conspiracy to commit terrorism. And that is very
In the words of Martin Scheinin, the United Nations’ Special Rapporteur on the Promotion and
Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, “... there are some positive aspects
of the definition of terrorist acts in the Human Security Act but the end result is an overly broad definition which is seen
to be at variance with the principle of legality and thus incompatible with Article 15 of the International Covenant on Civil
and Political Rights.”
Q. How does the HSA define “conspiracy to commit terrorism?”
A. Section 4 provides that a conspiracy to commit terrorism is committed “when two or more
persons come to an agreement concerning the commission of the crime of terrorism as defined in Section 3 hereof and decide
to commit the same.” The law, in short, defines a terrorist conspiracy as an agreement between two or more persons to
commit the crime of terrorism and a decision to commit it.
The basic principle in conspiracy is that the act of one is the act of all. As an American lawyer
has observed, however, modern criminal organizations operate on an entirely different principle:
“... Conspiracy laws make all conspirators equally liable for all the crimes, when clearly
that just is not the case. In fact, criminal organizations are structured specifically to place the greatest risk on the people
with the least to gain from the enterprise. That’s how you rise in those organizations.
... Criminal conspiracies don’t happen amidst open forum discussions. I can’t imagine
that many criminal organizations have large group meetings ... Quite the opposite. Mostly, conspiracy convictions are based
on disparate, separate and barely if at all coordinated acts by the conspirators. Meetings are one on one, or (in) tiny minimal
groups. Almost none of the typical conspirator even knows what the whole scheme is, let alone the harmful effects...”
In FLAG’s view, criminalizing terrorist conspiracies is a useless, impractical and ineffective
way of addressing the problem. It may result in the arrest of lots of “small fry,” but will never stop the “big
fish” behind these organizations.
Q. Does the HSA provide for the outlawing of “terrorist organizations?”
A. Yes. Section 17 provides that an organization, association or group of persons that is organized
for the purpose of engaging in terrorism, or, although not so organized, actually engages in acts of terrorism, may be outlawed
or proscribed as a “terrorist organization.”
In FLAG’s view, the outlawing of organizations on the ground they are “terrorist”
is not only vague and ambiguous; it is an open invitation to the authorities to muzzle free speech, to stifle the right to
peaceably assemble and petition the government for redress of grievances.
Q. What is the penalty for the crimes of terrorism and conspiracy to commit terrorism?
A. The penalty for the crime of terrorism is 40 years of imprisonment without benefit of parole.
This is a new penalty not recognized by the Revised Penal Code.
The penalty for conspiracy to commit terrorism is also 40 years of imprisonment without the benefit
The penalty for accomplices is 17 years, 4 months and 1 day to 20 years of imprisonment.
The penalty for accessories is 10 years and 1 day to 12 years of imprisonment.
Q. Can the rights and liberties of a person merely suspected of terrorism be curtailed under the
HSA? If so, in what manner can they be curtailed?
A. Yes. It contains many provisions that allow the rights of mere suspects to be curtailed.
Section 26 provides that persons who have been charged with terrorism or conspiracy to commit terrorism—even
if they have been granted bail because evidence of their guilt is not strong—can be:
Detained under house arrest;
Restricted from traveling; and/or
Prohibited from using any cellular phones, computers or other means of communicating with people
outside their residence.
Section 19 provides that in the event of an actual or imminent terrorist attack, persons suspected
of terrorism may be arrested and detained without charges for as long as the detention is approved by a judge of the municipal
or regional trial court, the Sandiganbayan or a justice of the Court of Appeals nearest the place of the arrest or by “a
municipal, city, provincial or regional office of a Human Rights Commission.” It is not clear whether the “Human
Rights Commission” mentioned here is the same as the constitutionally established Commission on Human Rights.
FLAG believes that these and other similar provisions violate the right to liberty, to be presumed
innocent, to due process of law, to equal protection under the law, to a fair trial, to travel and to privacy of communication
Q. What is “custodial detention” and what are the rights of persons under custodial
A. Section 21 uses the term “custodial detention” but does not expressly define it.
It would appear from the wording of this section, however, that “custodial detention” begins the moment a person
is arrested and detained. Section 21 provides:
“The moment a person charged with or suspected of the crime of terrorism or the crime of conspiracy
to commit terrorism is apprehended or arrested and detained, he shall forthwith be informed, by the arresting police or law
enforcement officers or by the police or law enforcement officers to whose custody the person concerned is brought, of his
or her right: (a) to be informed of the nature and cause of his arrest, to remain silent and to have competent and independent
counsel preferably of his choice. If the person cannot afford the services of counsel of his or her choice, the police or
law enforcement officers concerned shall immediately contact the free legal assistance unit of the Integrated Bar of the Philippines or the Public Attorney’s Office, who are
duty-bound to immediately visit the detainee and provide legal assistance. These rights cannot be waived except in writing
and in the presence of counsel of choice; (b) informed of the cause or causes of his or her detention in the presence of counsel;
(c) allowed to communicate freely with his legal counsel and to confer with them at any time without restriction; (d) allowed
to communicate freely and privately without restrictions with the members of his family or with his nearest relatives and
to be visited by them; and, (e) allowed freely to avail [himself or herself] of the services of a physician or physicians
Violations of Section 21 by law enforcers are punishable by imprisonment of between 10 years and
1 day to 12 years.
Under Section 24, persons under investigation for the crime of terrorism or conspiracy to commit
terrorism have the right to be free from torture, threat, intimidation, coercion or any act that inflicts physical pain or
torment or mental, moral or psychological pressure that vitiates free will; any evidence obtained as a result thereof is not
admissible in any judicial, quasi-judicial, legislative or administrative investigation or proceeding.
The penalty for those who commit torture or any of the other acts mentioned above is imprisonment
of between 12 years and 1 day to 20 years.
Q. What procedure must law enforcers follow before detaining a person they have arrested without
warrant under the HSA?
A. The second paragraph of Section 18 provides that the law enforcers must, before detaining arrested
persons, present them before a judge at the latter’s residence or office nearest the place of arrest, at any time of
the day or night.
The judge, among other things, must:
Ascertain the identity of the arresting officer;
Ascertain the identity of the arrested person;
Inquire into the reasons for the arrest;
Determine, by questioning and personal observation, whether the arrested person was subjected to
any physical, moral or psychological torture, by whom, and why; and
Within three calendar days from the time the arrested person was brought before him or her, submit
a report to the court with jurisdiction over the arrested person, stating in detail what he or she observed when the arrested
person was brought to him or her.
The third paragraph of Section 18, however, provides that “(i)mmediately after taking custody
of a person charged with or suspected of the crime of terrorism or conspiracy to commit terrorism, the police or law enforcement
personnel shall notify in writing the judge of the court nearest the place of apprehension or arrest; Provided, that where
the arrest is made during Saturdays, Sundays, holidays or after office hours, the written notice shall be served at the residence
of the judge nearest the place where the accused was arrested.”
In FLAG’s view, the two provisions are contradictory. While the first provision requires personal
delivery of the arrested person to the judge nearest the place of arrest, the second provision appears to negate this requirement
by requiring only a written notice to the judge nearest the place of arrest.
Dangers of wiretapping
Q. Can government place suspects under surveillance, or tap into their private conversations and
communications? How may this be done?
A. Yes, if authorized by the “authorizing division” of the Court of Appeals. In FLAG’s
view, surveillance and wiretapping operations infringe on the rights to be presumed innocent and to privacy. Why should these
rights be sacrificed because the investigating officers are incompetent, ineffective or unable to gather evidence in a lawful
manner? Added to this, with current technology, the danger of fabricated recordings, spliced tapes and conversations taken
out of context is real. The potential for abuse is frightening.
Anyone who undertakes surveillance or wiretapping operations against terrorism suspects, without
authority from the “authorizing division” of the Court of Appeals, shall be punishable by imprisonment of between
10 years and 1 day to 12 years.
Q. Will the subject of surveillance or wiretapping be informed about it?
A. While the HSA states that it upholds the “right to be informed of the acts done by law
enforcement authorities,” the subject of surveillance or wiretapping will only be informed of the surveillance or wiretapping
if no case is filed against him or her. If the applicant fails to notify the subject of surveillance or wiretapping in writing
within 30 days from the expiration of the operation, he or she shall be punished with imprisonment of between 10 years and
1 day to 12 years.
FLAG believes that this provision violates due process, since those under surveillance or wiretapping
are barred from participating in the proceeding to the detriment of their life and liberty; they are not to be informed of
the application or any such authorization order against them; they are not allowed to contest such application or any evidence
that may be brought against them; neither are they allowed to present evidence on their own behalf.
They will be subjected to invasion of their privacy rights without due process for up to 60 days
by a battery of law enforcement officers, and any recordings made or evidence obtained in violation of their privacy and due
process rights may be used in evidence against them.
Q. Can government examine bank deposits and finances, and seize, sequester or freeze assets of persons
suspected or charged under the HSA?
A. Yes. Under Section 27, bank deposits and finances may be examined if judicially authorized. Under
Section 39, assets of (1) any person suspected of or charged with terrorism or conspiracy to commit terrorism before a competent
regional trial court, (2) a judicially declared terrorist organization, and (3) members of a judicially declared terrorist
organization “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.” Unlike Section
27 however, Section 35 does not expressly require judicial authorization and is silent on which office or agency may authorize
and implement such seizure, sequestration or freezing of assets.
License to look into bank deposits
In FLAG’s view, the power to examine bank deposits and finances of persons or entities suspected
of involvement in terrorism or conspiracy to commit terrorism is particularly alarming. Law enforcers are armed with the widest
license to inquire into the bank deposits of persons who are merely assumed or perceived to be terrorists.
Anyone could easily be assumed or perceived or suspected of being a terrorist. Even worse, these
examinations could lead to incidents of extortion, blackmail or even be the basis for kidnapping committed by erring law enforcers
Anyone who examines the bank deposits and finances of terrorism suspects, or members of outlawed
terrorist organizations or outlawed terrorist organizations without authority from the “authorizing division”
of the Court of Appeals, shall be punishable by imprisonment of between 10 years and 1 day to 12 years.
Q. Who authorizes government’s inquiries into bank deposits and finances of terrorism suspects
or members of outlawed terrorist organizations or outlawed terrorist organizations?
A. The justices of the Court of Appeals “designated as a special court to handle antiterrorism
cases” are authorized to allow government to inquire into the bank deposits and finances of terrorism suspects, if they
are “satisfied” that probable cause exists to warrant such examination. They may authorize:
The examination of the deposits, placements, trust accounts, assets and records in a bank or financial
The gathering of any relevant information about such deposits, placements, trust accounts, assets
and records in a bank or financial institution.
Q. Will the subject of the examination be informed that it is being done?
A. Persons whose bank deposits and finances are being examined will only be informed about it if
no case is filed against him or her after the period of examination. If the applicant fails to notify the subject of the examination
in writing within 30 days from the expiration of the examination, he or she shall be punishable by imprisonment of between
10 years and 1 day to 12 years.
FLAG reiterates that this provision violates the due process and property rights of those whose
bank deposits and finances are under examination.
Payment of damages
Q. Does the HSA penalize law enforcers and government officials who misuse the law?
A. Yes. Section 50 provides that any person accused of terrorism who is later acquitted by the court
shall be entitled to the payment of P500,000 in damages for every day that he or she has been detained or deprived of liberty
or arrested without a warrant as a result of such an accusation. The amount of damages shall be automatically charged against
the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges
against the accused. The payment of damages must be released within 15 days from the date of the acquittal. In addition, the
award of damages shall be without prejudice to the filing of criminal or administrative charges against those responsible
for the unproven charge.
Section 41 provides that persons whose properties are seized, sequestered or frozen, but who are
later acquitted or the cases against them dismissed, are entitled to P500,000 a day for the period in which their properties
were seized, sequestered or frozen. The amount shall be taken from the appropriations of the police or law enforcement agency
that caused the filing of the charges.
Other sections of the Act—for instance, Sections 11-16 and 35—provide various penalties
for acts committed by law enforcers in violation of the law. While most of these sections impose a penalty of imprisonment
for a certain period of time, a few sections provide that evidence seized as a result of illegal police actions may not be
used against the accused.
Q. Why should I care about the Human Security Act? It’s only for terrorists.
A. The HSA is so vague that it can be used against just about anyone, including you or me. The law
is so sweeping that it can be used to curtail the rights of persons merely suspected of terrorism, even if they have been
granted bail because evidence of their guilt is not strong. And the law is so dangerous that, unless repealed, it will destroy
the Bill of Rights of the Constitution and rip apart the very fabric of our democratic system.
Jose Manuel I.
Diokno is chairperson of the Free Legal Assistance Group (FLAG).