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Criminal Law Provisions in the Philippines Related to National Security and Their Impact on Human Rights Defenders

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Criminal Law Provisions in the Philippines Related to National Security and Their Impact on Human Rights Defenders Righting Wrongs: Criminal Law Provisions in the Philippines related to National Security and their Impact on Human Rights Defenders Composed of 60 eminent judges and lawyers from all regions of the world, the International Commission of Jurists promotes and protects human rights through the Rule of Law, by using its unique legal expertise to de- velop and strengthen national and international justice systems. Established in 1952 and active on the five continents, the ICJ aims to ensure the progressive development and effective implementation of international human rights and international humanitarian law; secure the realization of civil, cultural, economic, political and so- cial rights; safeguard the separation of powers; and guarantee the independence of the judiciary and legal profession. © Copyright International Commission of Jurists The ICJ permits free reproduction of extracts from any of its publications provided that due acknowledgment is given and a copy of the publication carrying the extract is sent to its head- quarters at the following address: International Commission of Jurists P.O. Box 91 33, rue des Bains Geneva Switzerland Righting Wrongs: Criminal Law Provisions in the Philippines related to National Security and their Impact on Human Rights Defenders This report was written by Emerlynne Gil, International Legal Adviser, with the research assistance of John Holschuh, legal intern. It was reviewed by Jill Heine, Senior Legal Adviser, Ian Seiderman, Legal and Policy Director, and Sam Zarifi, Regional Director for Asia and the Pacific. The ICJ thanks Attorneys Ricardo Sunga and Gregorio Tanaka Viterbo of the Free Legal Assistance Group (FLAG), Libertás Philippines, the Philippine Alliance of Human Rights Advocates (PAHRA), Alliance for the Advancement of People’s Rights (Karapatan), the Commission on Human Rights of the Philippines (CHRP), and Assistant Secretary Geronimo Sy of the Department of Justice of the Philippines. This report will be made available on ICJ’s website. RIGHTING WRONGS: CRIMINAL LAW PROVISIONS IN THE PHILIPPINES RELATED TO NATIONAL SECURITY AND THEIR IMPACT ON HUMAN RIGHTS DEFENDERS I. INTRODUCTION 5 II. HUMAN RIGHTS DEFENDERS, THEIR RIGHTS, THEIR ROLE IN SOCIETY, AND THE CHALLENGES THEY FACE 7 III. THE PHILIPPINE LEGAL FRAMEWORK 9 IV. LAWS LIMITING FREEDOM OF EXPRESSION OF HUMAN RIGHTS DEFENDERS 11 A. Laws in the Philippines limiting freedom of expression 11 B. Examples of cases limiting the freedom of expression of human rights defenders in the Philippines 13 C. International standards on freedom of expression 14 D. Analysis of provisions in the light of international standards on the right to freedom of expression 16 a. Article 154 of the RPC (unlawful use of means of publication and unlawful utterances) 16 b. Criminal libel provisions in the RPC and the Cybercrime Prevention Act 17 E. Recommendations 19 V. THE PRINCIPLE OF LEGALITY AND THE PROVISIONS ON REBELLION AND SEDITION 20 A. The crimes of rebellion and sedition in Philippine law and jurisprudence 20 B. Cases of rebellion and sedition filed against human rights defenders 21 C. The principle of legality and international law regarding rebellion and sedition laws 22 D. Recommendations 23 VI. THE RIGHT TO PEACEFULLY ASSEMBLE: THE LAWS ON ILLEGAL ASSEMBLIES 24 A. Batas Pambansa 880 (B.P. 880) and Article 146 of the RPC on illegal assemblies 24 B. B.P. 880 and Article 146 of the RPC are inconsistent with international standards safeguarding the right to freedom of peaceful assembly 25 C. Recommendations 27 VII. THE RIGHT TO FREEDOM OF ASSOCIATION: ARTICLE 147 OF THE RPC 29 A. Article 147 on illegal associations 29 B. Article 147 vis-à-vis international standards on freedom of association 29 C. Recommendation 30 VIII. COUNTER-TERRORISM LAWS OF THE PHILIPPINES: THE HUMAN SECURITY ACT (HSA) AND THE TERRORISM FINANCING PREVENTION AND SUPPRESSION ACT (TFPSA) 31 A. The Human Security Act (HSA) 31 B. Terrorism Financing Prevention and Suppression Act (TFPSA) 34 C. Analysis of the HSA and TFPSA provisions in the light of international standards: 34 a. Vague and overbroad definitions of terrorism 35 b. Sharing information with other States’ intelligence agencies 37 c. Unlawful authority of the Commission on Human Rights of the Philippines (CHRP) and length of detention under the HSA 38 D. Recommendations 40 IX: CONCLUSION AND RECOMMENDATIONS 41 Righting Wrongs: Criminal Law Provisions in the Philippines related to 5 National Security and their Impact on Human Rights Defenders RIGHTING WRONGS: CRIMINAL LAW PROVISIONS IN THE PHILIPPINES RELATED TO NATIONAL SECURITY AND THEIR IMPACT ON HUMAN RIGHTS DEFENDERS I. INTRODUCTION Following the attacks in the United States of America on 11 September 2001, many countries all over the world declared “national security” as a priority on their agendas and adopted counter-terrorism legislation or re-examined and strengthened their existing laws related to national security. Indeed, as the UN Security Council has repeatedly underscored, it is the responsibility of the State to adopt measures to protect people from terrorist acts, in a manner that is consistent with its obligations under international law, in particular human rights, refugee and international humanitarian law.1 Unfortunately, as observed by the UN Special Representative of the Secretary-General on the situation of human rights defenders, laws related to national security have been used to persecute human rights defenders and hinder them from pursuing their work promoting and protecting human rights. More often than not, the scope of these laws exceeds the legitimate objective of strengthening security. Many of these laws use vague and imprecise definitions that allow varying interpretations, unduly limit judicial review, and infringe upon other guarantees for the protection of human rights.2 In the Philippines, the principal counter-terrorism legislation that criminalizes acts of terrorism is the Human Security Act (HSA),3 which was adopted after the 9/11 attacks. The Terrorism Financing Prevention and Suppression Act (TFPSA), which was adopted in 2012, criminalizes providing funds that contribute to acts of terrorism.4 Prior to the enactment of the HSA and the TFPSA, the Philippines already had national-security laws, many of which are included in the Revised Penal Code (RPC),5 which was originally enacted under the American colonial government. Over the years, the Philippines has accumulated a large and complex body of criminal laws ranging from provisions in the RPC and special penal laws to those promulgated by various presidents in the form of Executive Orders or Presidential Decrees. A number of these laws have been criticized as being detached from present day realities, as well as not being consistent with fundamental principles of international human rights law. The RPC, in particular, has been described in the bill proposing its amendment as defining “archaic” crimes and has been “largely ineffective in addressing organized crime, transnational crime, and cybercrime.”6 The enactment of special penal laws has also been described in the bill proposing amendments as “unsystematic”, thereby creating difficulties and confusion among justice sector workers.7 Thus, in April 2011, the Government of the Philippines initiated a process to review and revise the country’s criminal laws. To this end, the Department of Justice constituted the Criminal Code Committee,8 which is mandated to develop a new Criminal Code of the Philippines that is “updated, modern, simplified, responsive, and truly Filipino.” It is intended that the new Criminal Code reflect international best practices and be anchored in human rights.9 In drafting this new Criminal Code, the Committee is to engage in a process that is “inclusive and consultative” and which includes activities such as consultations and 1 UN Security Council Resolution 2178, UN Doc. S/RES/2178 (24 September 2014), preambular paragraph 7. 2 Report of the UN Special Representative of the Secretary-General on the situation of human rights defenders, UN Doc. E/ CN.4/2005/101 (13 December 2004), para. 37. 3 An Act to Secure the State and Protect our People from Terrorism, Republic Act No. 9372, Thirteenth Congress (2007) [hereinafter Human Security Act or HSA]. 4 The Terrorism Financing Prevention and Suppression Act of 2012, Implementing Rules and Regulations of Republic Act No. 10168, Fifteenth Congress (2012) [hereinafter TFPSA]. 5 An Act Revising the Penal Code and other Penal Laws, Act No. 3815 (1930) [hereinafter RPC]. 6 Explanatory Note of House Bill No. 2300, An Act Instituting the Philippine Penal Code of Crimes to Further Strengthen the Criminal Justice System, Repealing for the Purpose Book One of Act No. 3815, As Amended, Otherwise Known as The Revised Penal Code of the Philippines and Other Special Laws on Crimes (2013). 7 Ibid. 8 The Criminal Code Committee members are representatives from the Senate, House of Representatives, Supreme Court, Philippine Judicial Academy, and the Philippine Judges Association, Office of the Solicitor General, the Office of the Government Corporate Counsel, the National Bureau of Investigation, the Bureau of Immigration, Bureau of Corrections, the National Prosecution Service, the Philippine National Police, and the Public Attorney’s Office, the Philippine Association of Law Schools, Transparency International, the Integrated Bar of the Philippines, and the Philippine Bar Association. (See Republic of the Philippines Department of Justice, Executive Summary:
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