QUEZON CITY, PHILIPPINES — The University of the Philippines (UP) Law Complex hosted the Capacity Building for Legal and Social Advancement in the Philippines (CALESA) Conference on International Law and Counter-Terrorism, Piracy, and Maritime Security Threats at Sea on February 6-10 2023. Around 150 delegates from various government agencies such as the DOJ, DND, DICT, DILG, CHR, NPC, and PNP, as well as members of the academe, private practitioners, and other security sector stakeholders attended the opening day of the 5-day conference, in-person and virtually, to discuss the impact of terrorism and security on international cooperation. Notable guests include PHILJA Chancellor Justice Rosmari Carandang who penned the landmark decision on the Anti-Terrorism Act of 2020 and Former Chief Justice Reynato Puno who is the chair of the Supreme Court’s Ad Hoc Committee for the Formulation of the Special Rules of Procedure on Anti-Terrorism cases.
The conference topics are timely because it is widely known that the responses of governments and international institutions to terrorism raise some of the most controversial issues of the twenty-first century. In particular, attempts to balance the desire to achieve security with the safeguarding of human rights and other aspects of the rule of law have proved to be highly contentious.
February 6, 2023 (Day 1)
For the first lecture, Dr. Alejandro Sanchez Frias from the University of Malaga discussed the basic aspects of international cooperation in criminal matters which served as a proper introduction to the general topic of international law and counter-terrorism. He presented his framework on international cooperation in criminal matters against terrorism vis-a-vis the common elements of jurisdiction and extradition in the UN Conventions against terrorism.
For the second lecture, Dra. Ana Salinas de Frias who is currently serving as Ad Hoc Judge at the European Court of Human Rights on behalf of Spain, zoomed in on the difficulties of respecting human rights while countering terrorism. Her research focused on the challenges the European States face in balancing their international human rights obligations with their efforts to combat terrorism.
For the last session of the day, NOVA School of Law’s Dr. Felipe Pathe Duarte encouraged the participants to adopt a holistic perspective of terrorism and to consider the actors, by analyzing the victims, the degree of violence exercised, and the temporality and purpose of the terrorist action from a social science perspective.
Dean Sedfrey Candelaria started his reaction by sharing his personal experience in the peace process negotiations. He remarked that the foremost challenge in countering terrorism is coming up with a definition of terrorism. Ideally, the starting point is the political science and philosophical perspectives before the legal definition, and the need to look at the relationship between the State and the citizens, who delegated their fundamental power to the State. In Calleja, he said that the decision highlighted the need for political space – such political space has to be backed up by fundamental remedies and freedom of expression. He said, “If there was anything that really saved the decision in Calleja and the Anti-Terror Law was the fact that freedom of expression was protected by the decision. Reading the decision from a constitutional perspective, the decision affirmed the very core of a democratic society – to provide political space and respect fundamental freedom.”
In summary, Dean Candelaria cautioned that the Philippine Anti-Terrorism Act will still face a difficult journey, and in very specific cases it will be tested on actions of people whether such fundamental freedoms will still be protected. He asked “How do we address the root causes of armed conflicts in the country?” It is a continuing narrative for the Philippines, and is an evolutionary process for the country which is why the definition of terrorism is very important, beyond the legal definition. Finally, he thanked the speakers for sharing the EU experience in the fight against terrorism and balancing human rights.
Professor Michael T. Tiu, Jr. of the UP College of Law facilitated the Q&A portion of the plenary session, which produced valuable insights. Topics covered were the problem of jurisdiction in terrorism and transnational crimes, state-backed terrorist groups, and ways of detecting potential terrorist threats or preparatory acts.
February 7, 2023 (Day 2)
Under the Duterte presidency, the Anti-Terrorism Act of 2020 or known as the Anti-Terror Law (ATL), was enacted. Many Filipinos assailed its constitutionality and argued that the ATL is void for vagueness and overbroad, in violation of constitutional rights to due process, free speech and expression and information among others. In Calleja v. Executive Secretary, the Supreme Court of the Philippines en banc upheld its constitutionality; however, the Court struck down one provision for being an impermissible restraint on the freedom of speech or expression. The Philippines continues to face the threat of terrorism following the Marawi siege in 2017, which forcibly displaced the city’s population and its neighboring municipalities. Up to this day, Marawi continues to rebuild itself from severe supply shortage and declining economic conditions amidst the pandemic and rising threat of terrorism.
During the second day of the CALESA conference, international law experts discussed counter- terrorism on the international sphere and its impacts on criminal law at a domestic and regional level, particularly in the European Union (EU). Prof. Elena Avilés Hernández from the University of Málaga presented her findings on the impacts of global counter-terrorism on domestic criminal regulation in Spain. These include the lack of definition of the crime of terrorism and its consequences at a national level, the role of security in the regulation of terrorist phenomenon, the basis and origin of the reforms of the Spanish penal code in line with international norms, the Spanish penal and penitentiary reality in figures, and the problems and limitations of the current penitentiary instruments in the prevention and fight against Islamist terrorism.
Prof. Athina Sachoulidou from the NOVA School of Law in Lisbon discussed the harmonization of terrorist offenses at the EU level. She examined the legal basis and how the EU overall framework of the EU came to be, as well as the progressive intensification of counter-terrorism initiatives from the lens of substantive criminal law.
Prof. Theodore Te, human rights lawyer and Assistant Professor from the UP College of Law, in his reaction, stated that criminalizing terrorism as a global phenomenon cannot be entirely captured in statutes. Terrorism is not simply a criminal act while it may trench on criminal behavior; terrorism is much broader than just a mere legal concept. Many times, political expression is even considered terrorism. He agreed that the idea of “subjectivity” gives a wide space for discretion in criminal law, unless standards are put in place allowing decision makers to exercise judgment. He also commended Prof. Aviles’ presentation on the evolution of terrorism, the new versus the old idea of terrorism, which demonstrated the maturity of legal systems taking into account paradigm shifts when addressing the problem. At the end of his reaction, Prof. Te called for the ultimate preventive measure in addressing the global phenomenon of terrorism – to tilt the balance in favor of a more stable system, which is a rights-based system underscoring adherence to our fundamental rights.
Retired Supreme Court Justice, Hon. Rosmari Carandang, ponente of Calleja, invited the participants to take part in the formulation of the special rules of procedure on anti-terrorism cases. She remarked that the Calleja case is not an open-ended case, but it is rather “open” as it did not define the stages of terrorism. A comparison on the data of conviction of terrorist offenses versus conviction of other common crimes was raised. In her response, Prof. Aviles said that said articles were classified as terrorist.
Terrorist convictions also decreased during the pandemic; but caution must be taken against rampant online radicalization and attacks. With technology advancements, governments must employ means of administrative law that enhances indiscriminate data retention and geographical limitation.
February 8, 2023 (Day 3)
Terrorism does not only happen on land and air but also at sea and it is a significant threat to the safety and security of global maritime transportation. On the third day of the CALESA Conference, the international law of the seas, in relation to terrorism, piracy, law enforcement, and human rights, was highlighted. The session was moderated by Prof. Jacqueline Espenilla, Director of the UP Law Center’s Institute for Maritime Affairs and the Law of the Sea.
The first speaker was Prof. Vasco Becker-Weinberg, founder and president of IPDM–The Portuguese Institute of the Law of the Sea, Editor-in-Chief of the Portuguese Yearbook of the Law of the Sea, and a professor at the Faculty of Law of the Universidade Lusófona and the NOVA School of Law. In a two-part discussion, Prof. Becker-Weinberg talked about the multi-jurisdictional challenges facing law enforcement at sea in the context of maritime security and the intersection between the law of the sea and human rights law, and the means to overcome them.
Prof. Richard Collins, Professor of Law and Dean of Internationalisation and Engagement, Arts, Humanities and Social Sciences in Queen’s University Belfast, was the next and last speaker of the day on the topic of international law of the seas and piracy. In his talk, Prof. Collins set out the local context in relation to threats from piracy, terrorism, and related areas of maritime security with a particular focus on the Sulu-Celebes Sea. He also talked about the recent local and regional initiatives in the piracy and maritime security space.
As a reaction, Prof. Jay Batongbacal, a professor of the UP College of Law and one of the most prominent maritime law experts in the Philippines, discussed two cases to bring down the theories discussed to practical and real-world cases: the very recent incident involving the Chinese vessel FV KAI DA 899, which rescued by the Philippine Coast Guard in Eastern Samar, and the 1952 case of People v. Lol-lo and Saraw, which provided the Philippines with expansive and liberal jurisdiction when it comes to piracy cases. He then emphasized the importance and need for maritime domain awareness in the Philippines.
Associate Dean Solomon F. Lumba of the UP College of Law capped off the three-day lecture series at the Malcolm Theater of the UP College of Law with his closing remarks where he stated that no one’s life is perfect and people tend to act differently, or in ways that do not reflect who they really are, when afraid. Notably, Associate Dean Lumba stated that our destination, as a society, is to build a world where no one is afraid, including terrorists.
February 9, 2023 (Day 4)
The fourth day of the CALESA Conference was a Legislative Briefing conducted at the House of Representatives, Batasan Hills, Quezon City. Legislators present were Rep. Gerville Luistro, Rep. Maria Angela Garcia, Rep. Dan Fernandez and Rep. Jernie Jette Nisay, attending in their capacities as members of the committees on justice, public order and safety, and the West Philippine Sea. For the Senate, official representatives from the offices of Senator Win Gatchalian, Senator Koko Pimentel and Senator Imee Marcos were also present.
Rep. Luistro delivered her opening remarks and stated that the presentation of findings of terrorism and piracy before the legislators is timely and relevant given that the 18 th Congress of the Philippines passed R.A. No. 11479, or the Anti-Terrorism Act of 2020, which expressly repealed the Human Security Act of 2007. She underscored that Philippine laws recognized that the fight against terrorism required a comprehensive approach, while also recognizing that this should not be used as an excuse to forgo respect for human rights. Rep. Luistro also recognized that legislating Terrorism is still a new and largely uncharted territory for Filipinos. She expressed her excitement to learn from expert researchers whose legal experiences and policies are more equipped and well-developed.
Dr. Jose Manuel De Torres Perea delivered his introduction on the history of CALESA, its vision and how it further enhanced the international relations of the Philippines and Spain in the realm of international law. International experts Dr. Athina Sachoulidou, Prof. Elena Aviles Hernandez, Dr. Richard Collins presented their findings on terrorism before the legislators.
Dr. Sahoulidou ended her presentation by stating that criminal law is not a panacea, but rather the opposite and it is the harshest means to exercise social control. The illusion that criminal law can replace health and educational policies should be changed; instead, the root source of terrorism should be understood and that policies should invest in solving societal problems that lead to criminality including terrorism among others. Preventive mechanisms should be well-established in the laws by enhancing the role of intelligence in counter-terrorism rather than enacting broad legislation to criminalize terrorism.
Dr. Aviles underscored the importance of providing for empirical data as a basis in crafting legislation criminalizing terrorism. Based on the statistics on criminal regulation in Spain, there is a huge discrepancy in arrests vis-à-vis convicted terrorists because the subjective element of intent is very difficult to prove in court. As a result, those who have been arrested are labeled as terrorists from the very beginning violating their fundamental right to liberty stemming from prolonged delays in adjudication.
At the end of the discussion, Rep. Nisay commended the experts and the UP College of Law for organizing the CALESA Conferences since the information is very vital for them as legislators.
February 10, 2023 (Day 5)
On the last day of the CALESA Conference, the experts were welcomed by Executive Secretary Lucas P. Bersamin at the Presidential Guest House, Malacanang Palace Complex for an Executive Briefing with the Anti-Terrorism Council – Program Management Center (ATC-PMC). In attendance were former Chief Justice Reynato S. Puno, representing the Supreme Court Ad Hoc Committee for the Formulation of the Special Rules of Procedure on Anti-Terrorism Cases, and PHILJA Chancellor, former Supreme Court Associate Justice Rosmari D. Carandang, along with members from the judiciary, ATC member agencies, and representatives from the United Nations Office on Drugs and Crime.
In his welcoming remarks, Sec. Bersamin lauded his mentor, Chief Justice Puno, who was responsible for the establishment of the writ of amparo, as the extraordinary remedy available to any person whose right to life, liberty, and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity. He also thanked the ATC’s foreign partners who are very involved in the human rights movements in the Philippines.
During the discussion, Dra. Ana Salinas de Frias remarked that terrorism cases are very complex, but complexity is not an excuse and this should not be taken against the accused. Obtaining evidence proving terrorism offenses is difficult, but this should not justify infringing on the rights of the accused. It is recognized that in certain instances, the State may limit the enjoyment of human rights but she reminded the government officials present about the proportionality principle – there should be a balance between the State’s drive to counter-terrorism and ensuring that human rights are protected.
Dr. Alejandro Sanchez Frias, on the other hand, emphasized mutual recognition and harmonization during his lecture on international cooperation in criminal matters. Since the EU States have differing criminal laws, some ways to combat terrorism is through harmonization of laws, where an EU state recognizes the criminal laws of another EU state and finds the common ground, as well as assistance in extraditing to EU states so that a national of that EU state shall have precedence to prosecute according to their domestic laws.
About the Conference
The Capacity Building for Legal and Social Advancement in the Philippines (CALESA) Conference on International Law and Counter-Terrorism, Piracy, and Maritime Security Threats at Sea was borne out of the collaboration between the UP Law Faculty and the experts from the University of the Malaga highlighting the ongoing discourse and need for counter-terrorism measures and international cooperation, especially with the passage of Republic Act No. 11479 or the Anti-Terrorism Act of 2020. CALESA aims to be a platform for the delegates to discuss the European Union experience of combating terrorism vis-à-vis the Philippine experience. Named after the horse-drawn carriage that was brought by Spain to the Philippines, the calesa, the CALESA project symbolizes the historic ties between the two countries and the continuing partnership towards building a better tomorrow.