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Righting Wrongs: Criminal Law Provisions in the Philippines related to
National Security and their Impact on Human Rights Defenders
The UN Special Rapporteur on human rights and counter-terrorism considered that it is only when these
three conditions exist that an act may be criminalized as a terrorist act.241
The HSA defines terrorism by linking to acts that are punishable under the RPC and other domestic laws,
including acts under Article 134 on rebellion and insurrection, which, as has been highlighted earlier,
violate the principle of legality in criminal law, given the vagueness and broadness of the definitions of
these crimes.
This concern was also highlighted by the UN Special Rapporteur on human rights and counter-terrorism
in his communication to the Government of the Philippines in 2007. He expressed concern regarding the
definition of “terrorism” under the HSA, explaining that the principle of legality in criminal law “implies
that the requirement of criminal liability is limited to clear and precise provisions in the law”, to ensure
that the law shall not be subjected to arbitrary interpretation and thereby broaden the scope of proscribed
conduct.242
Crimes that are defined so ambiguously that they may cover a wide range of acts of different gravities
and are punished with disproportionate penalties, violate the rule of proportionality enshrined by Article
15 of the ICCPR.243
The HSA’s vague definition of terrorism is incompatible with international law, as it prevents individuals
from knowing whether their actions constitute terrorists acts under the law and this does not conform
to the principle of legality and infringes upon Article 15 of the ICCPR.
Furthermore, as noted by the UN Special Rapporteur, the definition of what constitutes terrorism under
the HSA is overbroad as it is not consistent with the first of the three cumulative conditions he set out,
which is the condition that the crime committed is with “deadly” or “serious violence” against members
of the general population or segments of it, given that the crimes it refers to do not all necessarily involve
serious or deadly violence or hostage taking.244 For instance, the elements of Article 134 (on rebellion)
do not require that such public uprising or taking arms against the government is “deadly” or causes
“serious violence” against members of the general population or segments of it.
Moreover, the definition of terrorism under the HSA does not meet the third cumulative condition specified
by the UN Special Rapporteur in that it does not require that the criminal act be carried out with the aim
of “furthering an underlying political or ideological aim”.
The TFPSA, meanwhile, in defining what constitutes “terrorist acts”, incorporates the vague and overbroad
definition of the HSA.
In addition, the TFPSA definition is linked to treaties that have been ratified by the Philippines that do
not fulfill the three cumulative criteria set out by the UN Special Rapporteur on human rights and counterterrorism. For instance, the TFPSA defines as “terrorist acts” those acts under the 1988 Protocol for the
Suppression of Unlawful Acts against the Safety of Fixed Platforms located on the Continental Shelf,245 a
treaty which describes offences that are committed on fixed platforms and determines which State Party
may establish jurisdiction over these offences. Not all the acts described in this Protocol satisfy the three
cumulative conditions set out by the UN Special Rapporteur. First, the acts prohibited in this Protocol
may be executed without using means that are deadly or constitutes serious violence. Second, the acts
241 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering
terrorism, UN Doc. A/HRC/6/17/Add.1 (2007), para. 67.
242 Ibid. at para. 66.
243 UN Special Rapporteur on the independence of judges and lawyers, Report on the mission to Peru, UN Doc. E/CN.4/1998/39/Add.1
(1998), para. 129; Human Rights Committee, Comments on Egypt, UN Doc. CCPR/C/79/Add.23 (1993), para. 8. The UN Special
Rapporteur on counter-terrorism and human rights defenders also expressed concern that the punishment of 40 years imprisonment
without parole under the HSA, applicable to all crimes within section 3 in an undiffentiated manner could result in disproportionate
punishment in some cases and limited judicial discretion to take into consideration a defendant’s acts and circumstances. Report of
the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN
Doc. A/HRC/6/17/Add.1 (2007) at para. 70.
244 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering
terrorism: Communication with Governments, UN Doc. A/HRC/6/17/Add.1 (2007) at para. 69.
245 Section 3(3)(h) of the TFPSA.
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