|
The definition of the crime of terrorism under the
Human Security Act (HSA) has been criticized for being vague as well
as ambiguous and, as a result, highly susceptible to governmental
abuse. In truth, the definition is clear enough, albeit
ill-conceived. For it is guilty both of under-inclusiveness and
over-inclusiveness. Under-inclusive classifications do not embrace
within its scope all those intended to be considered guilty of the
crime; while over-inclusive classifications encompass within its
breadth those intended to be innocent. Hence, the criticism that it
is susceptible to abuse is correct. More significantly, since the
definition includes those who are not similarly situated under an
intended classification and excludes those who are, it may also be
criticized for violating the equal protection clause of the
Constitution.
There exist three elements to the
crime of terrorism under the HSA: (i.) a person must commit any of
various specified acts punishable under our criminal law, the more
important of which constitute piracy or mutiny, rebellion or
insurrection, coup d’état, murder, kidnapping, crimes involving
destruction, arson, illegal or unlawful possession, manufacture,
dealing in or acquisition of firearms, ammunitions or explosives;
(ii.) such an act “thereby [sows] and [creates] a condition of
widespread and extraordinary fear and panic among the populace,”
and (iii.) the act is committed “in order to coerce the government
to give in to an unlawful demand.”
It is instructive to examine some
paradigm examples of terrorism in our historical experience in order
to test the suitability of the above definition. In the late 70s and
early 80s, members of the Light-A-Fire Movement issued threats of
arson and committed crimes involving destruction in an attempt to
overthrow the Marcos government. These crimes included making
numerous calls warning government offices of imminent bombings or
fires and actually bombing some buildings, such as the Philippine
International Convention Center. More recently, the bombing of
certain buses or railway trains was allegedly committed by the MILF
in order to compel the government to recognize an independent Muslim
state.
If the above examples are indeed
paradigmatic, then the definition is flawed by several
misconceptions. First, they indicate that an essential element of
acts of terrorism involves the willingness of the terrorist to
actually harm, kill, damage or destroy civilians or non-military
targets as part of strategy. That is precisely why such acts result
in widespread and extraordinary fear and panic. Hence it is not
actually the commission of any of the crimes enumerated in the first
element of the definition, along with the second and third elements,
which renders an act one of terrorism; rather, it is the commission
of these or other acts in fulfillment of the above strategy which
does.
The failure to appreciate the
first misconception results in the anomaly of prosecuting and
punishing the traditional rebel for the crime of terrorism instead
of rebellion. Whereas the terrorist uses methods such as the
sacrifice of innocent civilians in pursuit of his cause, the
traditional rebel refrains from doing so. After all, in his attempt
to overthrow the government, the traditional rebel desires to win
over the populace to his cause. And yet, if the rebellion is
reasonably successful so that widespread and extraordinary fear and
panic results, he would, under the HSA, be guilty of terrorism, and
not simply of rebellion or insurrection. The definition, as a
result, is over-inclusive.
Next, the second element of the
crime indicates that the “condition of widespread and
extraordinary fear and panic among the populace” is merely an
effect of the criminal act. This is counterintuitive. On the
contrary, the very intent of the act must be to create that
condition. This distinction is critical.
Clearly, the intent of the
Light-A-Fire or MILF terrorist, in the paradigm examples above, was
to create widespread and extraordinary fear and panic; however that
was not realized, since most of the populace went about their daily
lives largely unaffected. Consequently, their crimes would not,
under the HSA, be classified as acts of terrorism. The definition,
as a result, is also under-inclusive.
The point just made needs further
emphasis and clarification. It is not necessary to the crime of
terrorism that widespread and extraordinary fear and panic are
successfully sown and created; it is enough that the fear and panic
were intended by the terrorist for the crime to have been committed.
Otherwise, acts normally considered terrorist in character would not
be punished as acts of terrorism.
(Due to space constraints, the
rest of the article will be printed next Saturday.)
For comments, email: eqfernando@hotmail.com.
|
