(First part of a series)
“The perversion of the mind is only possible when those who should be heard in its defense are silent.” – Archibald MacLeish
“Courage is what it takes to stand up and speak; courage is also what it takes to sit down and listen. – Winston Churchill
“Power tends to corrupt and absolute power corrupts absolutely.” – Lord Acton
“A constitution is framed for ages to come, and is designed to approach immortality as nearly as human institutions can approach it.” – Cohens v. Virginia
It is unusual for me to start a column with four quotations. But times are unusual so it should be rational to start with something new and different. The purpose of this unusual entry is to provoke people to think on the messages in the quotes from authorities on different times and circumstances before the readers start analyzing the views presented in a series of articles – and test their applicability to our current situation.
The title is also unusual. It is taken from the title of a famous novel by Vladimir Nabocov – An Invitation to a Beheading. I like the title because it is provocative and it challenges your imagination just like Gabriel Garcia Marquez’ – Love In the Time of Cholera. The stories webbed in these novels have already escaped me with the passing of the years but the titles are embedded in my memory to last forever.
The Constitution: The title of the write-up has nothing to do with a beheading of a person. It involves the beheading of the Constitution and our constitutional rights – if the anti-terror bill becomes a law. Now, it is still in the hands of President Duterte giving the impression he is thinking on whether to sign it or not. This is the impression of many people who want to give him the benefit of the doubt. I do not share that impression because I do desire to give the President any benefit nor do I want to have any share of the doubt.
The terrorist: The first question involves a matter of definition. Who is a terrorist? Section 4 of the enrolled bill, as approved by both Houses of Congress and submitted to the President for his signature or veto, states for a beginning:
“Section 4.Terrorism. Subject to Section 48 of this Act, terrorism is committed by any person, within or outside the Philippines, regardless of the stage of execution:
(a) Engages in an act intended to cause death or serious bodily injury to any person or endangers a person’s life.”
Based on this definition, who are the known terrorists in the Philippines? The first persons who come to anybody’s mind based on what is happening in the country are President Duterte, the police and the military, Why? President Duterte in so many occasions told the people to rob and kill the bishops, kill the drug users and drug lords. As a result of his speeches and interviews repeating the same lines, over and over, thousands of drug users and pushers have been killed – labeled by media and human rights advocates as extra-judicial killings. This means killings of people outside of the law. Since the killings continue up to this day, this clearly makes President Duterte and the killers terrorists based on the afore-quoted definition.
Duterte and his police intended to lay a trap for their perceived opponents, enemies and critics by the passage of this anti-terrorism legislation but ended trapping themselves by their own definition. It is the case of the trappers victimized by their own traps.
Dangerous definition: This show how dangerous is the definition of terrorism under the intended law. The proponents of this measure did not think about the dangers of this definition. If President Duterte will be indicted under the law, the legislators who voted for this legislation may also end up as co-conspirators with the President by their invented perverted irrational definition.
If the definition poses a danger to the President and his confederates, then why use such definition if it is even risky for him and his boys? The answer is quite simple. The President under current jurisprudence is free from any suit. So it is not disturbing for him because though the protection is not a constitutional provision, there is no way the existing jurisprudence can be reversed by the Supreme Court. It takes wildest hallucination to imagine it can be done.
What about those who will implement the definition, will they be as safe as the President? Of course not! They could be charged with arbitrary detention, violation of the pertinent provisions of Republic Act Nos. 3019 and 6713 as well as administrative charges which will hound them beyond the life and term of President Duterte. During Duterte’s term, they can enjoy some kind of disturbed safety. Beyond that, it is entirely a different story. To quote a favorite line of President Duterte when he bullies and threatens his enemies, opponents and critics – “There is always a time for reckoning.” Unfortunately for the President, he cites a rule which also binds him and his confederates.
Coverage: The definition is really designed for the perceived enemies, opponents and critics of the President – to terrorize and silence them. This could be effective in a city like Davao all the time. But in a country with a population of more than a hundred million, I am afraid the Abraham Lincoln historical reminder may be operative with us. It runs like this with some editing to apply to our current situation – ”You can terrorize all the people some of the time, some of the people all the time, but you cannot terrorize all the people all the time.”
This is a good reminder for the President and his confederates before they plunge this country into a very uneasy and disturbing situation with this unconstitutional measure. It is even uneasy and disturbed now when the measure has not yet become a law, how much more would it be when the implementers of the law go on a rampage as they probably will, knowing their current behavioral patterns.
Unconstitutional: Why is the definition unconstitutional? It violates Section 1, Article III of the Constitution which provides that – “No person shall be deprived of life, liberty and property without due process of law, nor shall any person be denied equal protection of the laws.” The definition violates substantive due process since it is too broad and expansive, it could cover anything. It is like a shotgun that has a number of pellets flying in different directions the moment it is fired. Terrorism as defined being criminal in nature should not be threat to life and liberty. As defined in the legislation, it is. It also violates equal protection of the law since the President, his confederates and the enforcers whether the police or military are beyond the pale of the law. It makes them more powerful than the ordinary person which is prohibited by the equal protection clause.
As Lord Acton wrote, “Power tends to corrupt and absolute power corrupts absolutely.” The President and his enforcers are powerful enough now, with this legislation, they will have absolute uncontrollable power over the life and limb of any person, not just the citizen.
The President will commit another constitutional violation, if he signs the legislation or allows it to become a law by not signing it within the required fifteen-day period since he will contravene his oath of office under section 5 of Article VII of the Constitution which requires him to “to preserve and defend the Constitution…and do justice to every man.” The legislators who authored and voted for the measure are equally guilty of constitutional violation since they are also sworn to preserve and defend the Constitution. They will not be answerable during Duterte’s watch but thereafter, they will be liable for violation of pertinent provisions of Republic Act Nos. 3019 and 6713 as well as pertinent provisions of the Revised Penal Code, since they are principals by inducement and direct participation.
Solution: This definition is creating problems for the administration and those who are concerned with the Constitution and human rights in the Philippines. There are already pockets of demonstrations, from the University of the Philippines in Diliman to the University of the Philippines in Cebu City as well as the brave ones who have gone into the parliament of streets in Metro Manila. The denunciation of this legislation in social media is tremendous and overwhelming. More than these, there are hundred lawyers representing various lawyer organizations from many areas in the world who wrote a letter to President Duterte requesting him to veto the measure.
Will he or will he not as in Hamlet – that is the question. It may be prudent and wise of the President to consider this poetic line before he does anything with the controversial legislation – “On the plains of hesitation bleach the bones of countless millions.”
Series: Why am I writing a series on the anti-terrorism legislation? I want to dissect the measure before the President signs it into a law. Why? So the President and the concerned legislators will know what they are going into and the people will be well informed not by generalizations but by detailed analysis of the provisions. The definition is scary enough and that is just the beginning. The specific provisions in implementation of the definition are comparable a horror movie or a nightmare with a difference – the horror movie or nightmare will blow over after you’ve seen it or experienced it, this legislation, if it becomes a law, will haunt and terrify you every living moment of your life.