BEYOND
A DEFINITION OF TERRORISM
PHILCONSA
19 Nov 2002
Your
Honors, Senator Enrile, Justices Pine, Agnir, and Lazaro, Dr. Belagan…
and distinguished members and friends of the PHILCONSA
May I excuse myself at the outset by stating that I have not prepared a statement, preferring for this morning's purpose to simply raise a few points of reflection. This is indicative not only of a Congressperson's learned response of speaking lengthily on any subject under the academic sun without the benefit of too much thought, but also of the fact that terrorism having been reported ad nauseam, you would all now be far more concerned with the contents of our imminent constitutional lunch.
Some nasty man has said that terrorism, like pornography, need not be defined. Just like prurience and dirty pictures, terrorism was one of those things you " can't explain quite what it is… But, hey,you'll know it when you see it!" Unfortunately, the truth of the urgent matter is, millenial terrorism has become so insidious, so widespread and ambient today, indeed so banal that, most people do not always know terrorism when they see it, and that in fact, a great deal of present-day terrorism is hardly seen at all.
To begin with, the crime of terrorism remains unseen as it persists unpunished. There exists today a lacunae legis, a void in the law defining and criminalizing terrorism. Nullum crimen sine lege indeed, as there is as yet no law establishing any terrorist act as a crime in Philippine penology. Hence, even an arrest of Abu Sayyaf perpetrators would result merely in charges, such as would stick, of common crimes listed under the Revised Penal Code or other special laws. The usual issues of membership, association and the constant failure to link a mastermind to the operations of such syndicated crimes arise again and again for our law enforcers.
With the mention of syndicated and criminal networks at this juncture may I also submit our own sense that the nature of crime in the new millenium has changed so profoundly, so thoroughly as to render our traditional conceptions inutile, toothless and decrepit. The pathetic criminal individual conceived by the Revised Penal Code in an impasssioned, violent outburst is no longer the great perpetrator of crime in this new age. Rather it is the well-oiled, corporate and international criminal syndicates that undertakes organized crime for huge and continuing profit. No longer the deranged and murderous family member therefore, or the needy and illiterate thief, but in his stead, millenial crime fighters must confront a committed, well-financed operative of a large-scale borderless corporation, adept at the most advanced technologies and prepared to utilize weapons of mass destruction. Today the face of crime itself has been transformed.
Narcotics production and trafficking, human trafficking, arms and ammunitions manufacture and smuggling, piracy and large-scale copyright fraud across national borders, kidnapping for ransom, extortion and racketeering, arson and corporate fraud, energy, information and tax scams- these are the businesses of choice for international syndicated crime, these are also the terrorist's fund raisers. It is clear that our criminal and justice systems in the Philippines are uttterly unprepared, hardly equipped for this organized onslaught.
A legislative
response to a new criminality demands first and foremost a definition
of what it seeks to punish: what indeed is terrorism?
Many have said that the war against terrorism has been doomed at the outset
by the impossibility of arriving at a definition of terrorism. Indeed,
such a consensus on terrorism's definition has evaded even the United
Nations, even as agreement is widespread and vociferous that terroristic
attacks must not persist unabated and unpunished. A finite and universal
delineation of terrorism is hence unavailable, we must urgently determine
our own Philippine definition loyal to our criminal justice system and
consistent with our indigenous experience.
In the first place, thus, may I here posit that terrorism's first element should constitute "the actual or threatened commission of any unlawful activity or any threatened or actual use of serious violence or means of damage or destruction." Terror exists in the realm of action, in a single or series of acts, a means or a methodology of activity- and while truly it may have been motivated by ideology, religion, even the noblest and loftiest of intentions, it remains at root a punishable crime causing loss, destruction or legal damage. Under this rubric also the millenial or "super-terrorisms" of nuclear, biological, and cyberterrorism would also be punishable.
And let me make my position here even clearer: while it is vital to understand the reasons that cause and underlie terrorism, no reason, however righteous, self-determining, or democratic can justify a terrorist's attack against innocents and non-combatants. Such act of violence or threat thereof is by definition unconscionable, and should become criminal and punishable under this new law.
Issues arise at this juncture amongst lawyers and jurists regarding the limits of such an action- based definition when our penology has long punished specific acts even of mere advocacy in the political crimes of rebellion, or insurrection, treason, coup détat and sedition. Indeed, according to our present law, when 2 or more persons come to an agreement concerning the commission of the said political crimes, such conspiracy and the agreement or advocacy of such commission is a crime in and of itself. It is our argument thus that incitement, conspiracy to commit terrorism, the proposal to commit terroristic acts as well as the proposal to commit the same should be criminalized in a new law.
Similarly,
the question of stipulating in the new law a certain level of force to
constitute terrorism, what British law would call "serious violence."
The determination of the seriety of crimes constituting terrorism is perhaps
best established by an enumeration of acts described and punished by the
Revised Penal Code and special laws, such as assassination,;killing of
persons by means
Inundation, fire, poison, explosion, shipwreck, etc.;hijacking; kidnapping
for ransom; destructive arson under PD 1613. These crimes viz a viz terrorism
will be further discussed with the third element of intent to instill
a common fear in the public or the intent to coerce some government action.
As a second element of a new crime of terrorism, may I submit that the act of violence or its threat should be against non-combatants. As stated by the 1999 International Convention for the Suppression of the Financing of Terrorism, this would cover attacks against "a civilian, or to any person not taking an active part in the hostilities in a situation of armed conflict." Legally, an attack upon a military installation or acts against military personnel would constitute acts of war and cannot be encompassed by the crime of terrorism. Whether chosen selectively for the institutions they represent and the" oppressive power" they symbolize, or randomly, accidentally and opportunistically by the terrorist, the principal victims of terroristic activity are clearly noncombatant civilians.
While I am hardly Mr. Joma Sison's lawyer, an interesting argument could be made that the CPP-NPA, now the NDF, has seen itself as a principled fighting force and has never chosen as main targets innocent men, women and children in the manner of the Abu Sayyaf and the Pentagon gangs. Rather they have consistently selected political and military victims, arguably rendering them subject to the laws of war, belligerence and the Geneva conventions. Alternatively of course, there arises the question: do terrorists in the global war against terrorism have any rights at all? I posit that they do, and Malacanang photo-ops of suspect line-ups notwithstanding, the vilest terrorist suspect must still be accorded his human and political rights.
Which brings us to the third essential element of this new crime: "with the intention of a) instilling a common terror, fear, panic, or alarm in the public or a segment thereof or b) coercing, intimidating or influencing public or government policy or action." The terrorist's victimisation of non-combatants, while heinous and reprehensible, seeks far more that the persecution of these few isolated individuals: the terrorist's real target is all of society. He seeks to strike panic and fear throughout the community and the state in which his actions are undertaken.
For unlike the common criminal as reflected in the "People v.X" appelation of every criminal case, it is not the direct target of his chosen act of violence who is the main victim of a terrorist. He is far more ambitious than any other criminal, aspiring rather to lay the entire populace and nation to waste and paralysis. Terror seeks to reverberate and replicate, to echo and re-echo so that terror itself overtakes society, now taken hostage by a single terroristis act. The resultant collapse of security and freedom that is the aftermath of every terroristic act in a community cannot be measured merely by the violence utilized, the ensuing body count, even the suffering of the victims.Unlike common crime, therefore, it is this third element that underscores the insidious, subversive, and far-reaching power of terrorism, removing it from the logical balance of other penal violations.
Might I at this point respond to an inevitable question? Traditional descriptions of terrorism have included the ascription of "political ends", of social "purpose of advancing a political, religiousor ideological cause…" and the intention "…to intimidate a population or to compel a government or an international organizationj to do or abstain from doing an act." It is my personal concern that the realm of intent is so murky and so difficult to prove that this obscure requirement may simply provide refuge for terrorism and its lawyers. While we have no desire to author a law which shall be so broad and overreaching as to terrorize the people it claims to protect, neither should we pass legislation that sets impossible standards of evidence for the Filipino law enforcer fighting against the Abu Sayyaf whose singular political agenda appears to be sowing fear and reaping profit through the business of smuggling and illegal possession of firearms and ammunition, extortion, arson, kidnapping for ransom, traffickinhg of illegal drugs and other crimes hardly ascribed to political goals.
Also, several recommendations have arisen, fro
Beyond this paltry definition a tentative enumeration of crimes as already listed in the Revised Penal Code and other special laws. This laundry list of offenses concedes the endless ingenuity and innovation of evil, and the terrorist's ability to find and invent more horrific activities even as recent ones are reported and described.Even as there continues to rage a debate as to the definition of terrorism there is a growing area of consensus as to the various activities that constitute terrorism.
We end with the invocation that all of us must contribute to this crucial debate, for striking the balance between securtiy and liberty is a difficult and ongoing task, especially in this our young democracy. It is vital that as we seek to exercise the full force of law against terrorism, directly invoking the complete panoply of its strength, utilising the entire battery of the law's instruments and instrumentalities thoroughly and unison, we do not tread over human rights and the equal protection of law for all men and women.
For in this
war against terrorism ,we fight for humanity under the rule of law, and
unlike the terrorist we must never submit to extra-legal, oppressive and
violent means. As legislators, we have but one weapon, reason and its
manifest logic embodied in the law, and even in the direst circumstances
and in the face of intolerable and wholesale terrorim, we cannot surrender
. The rule of law is the only weapon against the illogic and depravity
of terrorism, it must prevail.