National Security Laws: In Retrospect

In the Philippines, security laws exist to ensure the rights of

individuals to assurance and guarantee of safety. It provides oversight
and regulation over sectors for the protection and welfare of the people.
These laws are related to cybersecurity, national security, and human
security just to name a few.
The 1987 Philippine Constitution which is the supreme law of the
land, establishes the structure, policies, roles, and duties of the
Philippine government including the defense of national territory.
National security is embodied in Sec 5, Article II of the 1987
Philippine Constitution which states that “the maintenance of peace and
order, the protection of life, liberty, and property and promotion of the
general welfare are essential for the enjoyment by all the people of the
blessings of democracy”.
Section 4, Article II of the same, states that “the prime duty of
the Government is to serve and protect the people”. In line with that,
the responsibility for national security was vested in the Department of
National Defense (DND). The principal functions of the said Department
were to defend the State against internal and external threats and
through the Philippine National Police (PNP) and to maintain law and
order.
Aside from the government’s duty to protect its boundaries,
enshrined in the said Constitution is the Bill of Rights found in Article
III thereof which it sets out the State’s obligation to promote and
uphold social justice and human rights as further enunciated in Article
XIII.
Aside from the constitutional mandates for the safety and security
of the people, the State continues to enact statutes to respond to the
evolving threats that might affect the internal and external affairs of
the nation.
The nature of security challenges facing the Philippines is more
complex today than in the past. These challenges include decades of
old internal insurgencies that have hampered development and kept
the nation in a state of low level but debilitating conflict. The Mindanao
conflict, in particular, has assumed a more complex and menacing form
in recent years, triggered by the internal splintering in the Moro
movement and further fueled by Islamic State inspired radicalism.
Globalization and rapid advances in modern technology have
substantially altered the definition of national security, from an
exclusive or predominant focus on armed threats to sovereignty and
territorial integrity, to clear non-traditional threats
On the one hand, Philippines also continues to face the challenge
of effectively addressing the problem of illegal cyber activity and
cybercrime victimization, a challenge it shares among developing
countries in South East Asia and in other parts of the world.

Cybercrime Law

The changes in information and communications technology have

altered the way we live resulting to growing dependencies on these
technologies including systems at home, school and work. Cybercrime
is the outcome of high dependence on the Cyberspace or so called the
Internet World. Cybercrimes are unlawful acts where the computer is
used either as a tool or a target or both.
Every year, the number of cybercrime cases in the country
increases. Statistics from PNP Anti-Cybercrime Group showed that the
number of these cases increased by nearly 80% just last year.
Cybersecurity is defined as the protection of internet-connected
systems, hardware, software, and information from cyberattacks. It is
used to protect against unauthorized access to data centers,
computerized systems, and other forms of criminal act in the online
world.
On March 2016, the serve of the Philippine Voter’s Database was
reportedly hacked by an anonymous person in which at least 54 million
sensitive data was leaked in the internet, including 1.3 million passport
numbers of Filipinos working overseas. The alleged hacker was arrested
by the National Bureau of Investigation after the IP address was
discovered and tracked down. Instances like this cause a threat to the
security of the information of the Filipino people and ruins the trust
reposed by the people towards the government.
In another incident earlier this year, the Department of Foreign
Affairs also got involved in a passport data mess which put millions of
Philippine passport holders at risk of identity theft and possibly other
scams when the company that DFA contracted to print passports did
not turn over the data because it was allegedly pissed off when the
contract was not renewed.
 These events only convey the weakness of the cybercrime
prevention measures of the government.
Hacking group Pinoy LulzSec hacked several websites, including
military servers with database of Filipino soldiers, as an April Fool's joke
last April 2019. This same group of hackers hacked into the database
of the Armed Forces of the Philippines and leaked information, including
files on military personnel. The group also managed to hack into
government websites, as well as websites of universities and private
companies, including Ateneo de Zamboanga and the Technological
University of the Philippines in Taguig. The group did not entirely deface
the sites that they hacked; instead, they uploaded a dedicated page to
the servers of the websites, containing a “congratulations” message for
the admins and owners making a complete mockery of the security
system held in place to protect numerous vital data and to demonstrate
the lack of cybersecurity measures in these sites. One of the hacked
pages even posted a message saying these can be easily hacked by 12-
year old kids.
Earlier this June 2019, hackers also broke into and defaced the
home page of the official website of the Bureau of Customs (BOC). The
agency’s website header read “Hacked by Ultimate Haxor.”
The Government must therefore make actions in order to address
the growing cybersecurity issues. Adversaries constantly targeting
these critical infrastructure sectors make security threats potentially
causing both cascading and crippling effects regionally, nationally, and
even internationally, as a result of the increased interconnectedness
and interdependency in our society.
The Philippine’s current external security environment has been
marked with an increased uncertainty and unpredictability.
Another issue right now that our country has been dealing with is
the rising tension in the South China Sea, which nestles the West
Philippine Sea. This has caused massive insecurity among the Filipino
lives involved through their livelihood.
Our country is the highest portion of a partly submerged
mountain chain and is made up of more than 7,500 islands. The
Philippine Baselines Law serve as the basis for a country’s maritime
jurisdiction and a means to establish maritime boundaries with
neighboring coastal states.
President Rodrigo Duterte insisted on the Philippine's sovereign
rights in the West Philippine Sea despite his decision to allow China to
fish in the country’s exclusive economic zone (EEZ). China, up to this
point, refuses to recognize the July 2016 United Nations arbitral ruling
invalidating Beijing’s sweeping claims.
The duty to protect the State and its people, as enshrined in the
1987 Philippine Constitution must be carried out earnestly and
effectively throughout the whole territory of the Philippines in
accordance with the constitutional provision regarding national
territory. The President of the Philippines, as the sole repository of
executive power, is the guardian of the Philippine archipelago, including
all the islands and waters embraced therein and all other territories over
which it has sovereignty or jurisdiction. These territories consist of its
terrestrial, fluvial, and aerial domains; including its territorial sea, the
seabed, the subsoil, the insular shelves, and other submarine areas;
and the waters around, between, and connecting the islands of the
archipelago, regardless of their breadth and dimensions (Saguisag v.
Ochoa, G.R. 212426, January 12, 2016)
The President also carries the mandate of being the sole organ in
the conduct of foreign relations. Since every state has the capacity to
interact with and engage in relations with other sovereign states, it is
but logical that every state must vest in an agent the authority to
represent its interests to those other sovereign states.
The conduct of foreign relations is full of complexities and
consequences, sometimes with life and death significance to the nation
especially in times of war. It can only be entrusted to that department
of government which can act on the basis of the best available
information and can decide with decisiveness. x x x It is also the
President who possesses the most comprehensive and the most
confidential information about foreign countries for our diplomatic and
consular officials regularly brief him on meaningful events all over the
world. He has also unlimited access to ultra-sensitive military
intelligence data.
In fine, the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of discretion in the
conduct of foreign affairs.(Vinuya v. Executive Secretary, 633 Phil. 538,
570 (2010)).
The role of the President in foreign affairs is qualified by the
Constitution in that the Chief Executive must give paramount
importance to the sovereignty of the nation, the integrity of its territory,
its interest, and the right of the sovereign Filipino people to self-
determination. (Saguisag v. Executive Secretary Ochoa, G.R. No.
212426, 2016)
Due to globalization and rapid advancement in the modern
technology, national security has been a challenge for the government.
As new weapons were created, our country has a very weak capability
to protect its territory from intrusions. No less than the Defense
Secretary Lorenzana admitted the “very weak” capability of the
Philippines to protect its territory from intrusions. Current news show
the recent and incessant intrusions of Chinese warships and vessels and
other incidents wherein the Filipino fishing vessels were harassed by
the Chinese Navy.
In light of the recent issues and controversies anent the South
China Sea, it is worthy to discuss another national security law which
bears essence to the aforementioned issues.

Philippine Baselines Law

RA 9522 or the Philippine Baselines Law essentially declares the

Philippines as an “archipelagic state” under the United Nations Law of
the Sea and uses the straight baselines method in delineating the
national territory.
In the case of Ermita v. Magallona G.R. 187167, the Supreme
Court found R.A. 9522 constitutional because it is a mere Statutory Tool
used to demarcate the country’s Maritime Zones and Continental Shelf
Under UNCLOS III, and contrary to the petitioner’s assertion, not to
delineate Philippine territory. It is a vital step in safeguarding the
country’s maritime zones. It also allows an internationally-recognized
delimitation of the breadth of the Philippine’s maritime zones and
continental shelf.
Additionally, the Court found that the conversion of internal
waters into archipelagic waters will not risk the Philippines as affirmed
in the Article 49 of the UNCLOS III, an archipelagic State has sovereign
power that extends to the waters enclosed by the archipelagic
baselines, regardless of their depth or distance from the coast. It is
further stated that the regime of archipelagic sea lanes passage will not
affect the status of its archipelagic waters or the exercise of sovereignty
over waters and air space, bed and subsoil and the resources therein.
Lastly, the Court further stressed that the baseline laws are mere
mechanisms for the UNCLOS III to precisely describe the delimitations.
It serves as a notice to the international family of states and it is in no
way affecting or producing any effect like enlargement or diminution of
territories. The enactment of UNCLOS III compliant baselines law for
the Philippine archipelago and adjacent areas, as embodied in RA 9522,
allows an internationally-recognized delimitation of the breadth of the
Philippines’ maritime zones and continental shelf. RA 9522 is therefore
a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national
interest.
Section 2 of RA 9522 states that "the baseline in the following
areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as "Regime of Islands" under the
Republic of the Philippines consistent with Article 121 of the United
Nations Convention on the Law of the Sea (UNCLOS) are The Kalayaan
Island Group as constituted under Presidential Decree No. 1596 and
Bajo de Masinloc, also known as Scarborough Shoal.
Despite the arbitral ruling in our country’s favor and the
corresponding Baselines Law, China still asserts ownership over the
Scarborough Shoal. To assert such rights, Chinese warships were seen
in the West Philippine Sea and Chinese fishermen continue to abuse the
natural resources prevalent in the shoal.
In addition to that, Chinese warships are claiming “innocent
passage” in the West Philippine Sea. China posits that it is indeed their
intention to ask for permission because China also moves for the
revision of UNCLOS about warships and seemingly absolute right of
innocent passage through foreign states' territorial waters. However,
China refuses to ask prior permission before making innocent passage
in the West Philippine Sea because it is not a requirement under
international law.
In Ermita v. Magallona, the Court ruled that the absence of
municipal legislation, international law norms, now codified in UNCLOS
III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treaty’s limitations and conditions for
their exercise (Articles 17 and 19 of UNCLOS III). Significantly, the right
of innocent passage is a customary international law, thus automatically
incorporated in the corpus of Philippine law following Section 2, Article
II of the Constitution: "Section 2. The Philippines renounces war as an
instrument of national policy, adopts the generally accepted principles
of international law as part of the law of the land and adheres to the
policy of peace, equality, justice, freedom, cooperation, and amity with
all nations." No modern State can validly invoke its sovereignty to
absolutely forbid innocent passage that is exercised in accordance with
customary international law without risking retaliatory measures from
the international community.
Thus, even with the Philippines’ own Baselines Law and the
Arbitral Ruling in favor of the Philippines, national security of our
country is still at stake.

Human Security Act

Another statute which gained criticisms from the public if the R.A.
9372 otherwise known as the Human Security Act of 2007.
Terrorism continues to plague the Philippines. From the earliest
terror attacks on May 23, 1976 wherein six hijackers tool control of a
commercial airlines and detonated grenades to the Maute Group
terrorist threats and siege of Marawi, the Philippine government
continued to respond to the growing terrorist problem with military
force. Prior to the passage of an anti-terror law, the government's fight
against terrorism was pregnant with many human rights abuses.
During the martial law period, RA 1700 or the Anti-Subversion
Law was expanded through Presidential Decree (PD) 885 in 1976 and
PD 1835 in 1981 which made it a subversive criminal act to be affiliated
with a group and attend a meeting or take part in any activity meant to
overthrow the government with the open or covert assistance and
support of a foreign power. However, said law has already been
repealed because of unconstitutionality.
The Human Security Act of 2007 (RA 9372) is a Philippine law
that took effect on March 06, 2007. This law is one of the most primary
anti-terrorism law that brings the Philippines in line with its Southeast
Asian neighbors battling Islamist militants. It is aimed at tackling
militants in the southern Philippines. Section 2 of the said statute
elucidates that the Philippines government has realized that a strict
military approach cannot be adequate solution when dealing with
terrorist groups. In this sense, the Philippines government has decided
to adopt a broader and more comprehensive approach rather than only
applicating a military approach. The law also provides for a clearer
definition of terrorism allowing police and security services a better
understanding of the crimes at stake. This statement can act as a
potential deterrent to future terrorists as they will know that it is no
longer possible to commit an attack and escape without being charged.
The law defines terrorism a crime by describing, "causes
widespread and extraordinary fear and panic among the populace" and
allows authorities to arrest terror suspects without warrants and
temporarily detain them without charges. Under the law, detained
terrorists are entitled to see a lawyer, a priest, a doctor, or family
members.
In the onset, the said statute stirred quite a handful of issues and
controversies like the issues raised in the case Southern Hemisphere
Engagement Network Inc. v. Anti-Terrorism Council G.R. 178552
October 5, 2010.
Before the Supreme Court were six petitions challenging the
constitutionality of Republic Act No. 9372 (RA 9372) facially challenging
the said statute on the grounds of vagueness and overbreadth
doctrines.
However, the Court dismissed said petition, ruling that A facial
invalidation of a statute is allowed only in free speech cases, wherein
certain rules of constitutional litigation are rightly excepted.
In Estrada vs. Sandiganbayan it was held that "A facial challenge
can be made to a vague statute and to one which is overbroad because
of possible “chilling effect” upon protected speech. The possible harm
to society in permitting some unprotected speech to go unpunished is
outweighed by the possibility that the protected speech of others may
be deterred and perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes."
This rationale does not apply to penal statutes. Criminal statutes
have general in terrorem effect resulting from their very existence, and,
if facial challenge is allowed for this reason alone, the State may well
be prevented from enacting laws against socially harmful conduct. In
the area of criminal law, the law cannot take chances as in the area of
free speech.
In the Executive Secretary vs Herminio Harry Roque, G.R. No.
204603, the Court held that the possibility of abuse in the
implementation of RA 9372 does not avail to take the present petitions
out of the realm of the surreal and merely imagined. Such possibility is
not peculiar to RA 9372 since the exercise of any power granted by law
may be abused. Allegations of abuse must be anchored on real events
before courts may step in to settle actual controversies involving rights
which are legally demandable and enforceable (Southern Hemisphere
Engagement Network, Inc. v. Anti-Terrorism Council).
However, in a sudden turn of events, the hypercritical views on
the said law and the many loopholes found in it, no longer matter as
politicians and law makers now clamor for stricter human security law.
Violence in Mindanao, specifically, the government's clash with
extremist affiliated with Islamic State-liked Maute Group and Abu
Sayyaf Group begs the question what has been done to fight protracted
terrorism in the Philippines. As the current terrorist conundrum in
Mindanao shows, there is lack of clear parameters for defining common
crimes as acts of terrorism. Rebellion or insurrection is a crime against
public order and is committed by rising publicly and taking arms against
the government — this would necessarily sow and create a condition of
widespread and extraordinary fear and panic among the populace. That
means the anti-terror law, in effect, should supplant rebellion and
insurrection in Philippine criminal laws. There is also this irony wherein
militant groups are branded as terrorist groups but are able to take
advantage pf the peace processes initiated by the Philippine
government.
Defense Secretary Delfin Lorenzana pushed for more liberal
powers for law enforcement agencies, believing that terrorism must be
considered as a special crime. Senator Lacson also expressed the same
sentiment stating that the Philippines has the "weakest law against
terrorism" among countries that are facing the same threat. In fact,
such statute bears little or no significance in eradicating the problems
caused by pesky terror groups.
To complement the “weakest law against terrorism,” the Chief
Executive proclaimed martial law in the Philippines through
Proclamation 216. Proclamation 216 caused massive backlash from the
people. Effective May 23, 2017, and for a period not exceeding 60 days,
President Duterte issued Proclamation No. 216 declaring a state of
martial law and suspending the privilege of the writ of habeas corpus
in the whole of Mindanao.
The 1987 Constitution gives the "President, as Commander-in-
Chief, a 'sequence' of 'graduated powers'. From the most to the least
benign, these are: the calling out power, the power to suspend the
privilege of the writ of habeas corpus, and the power to declare martial
law." It must be stressed, however, that the graduation refers only to
hierarchy based on scope and effect. It does not in any manner refer
to a sequence, arrangement, or order which the Commander-in-Chief
must follow. This so-called "graduation of powers" does not dictate or
restrict the manner by which the President decides which power to
choose.
These extraordinary powers are conferred by the Constitution
with the President as Commander-in-Chief; it therefore necessarily
follows that the power and prerogative to determine whether the
situation warrants a mere exercise of the calling out power; or whether
the situation demands suspension of the privilege of the writ of habeas
corpus; or whether it calls for the declaration of martial law, also lies,
at least initially, with the President. The power to choose, initially, which
among these extraordinary powers to wield in a given set of conditions
is a judgment call on the part of the President. As Commander-in-Chief,
his powers are broad enough to include his prerogative to address
exigencies or threats that endanger the government, and the very
integrity of the State. (SANLAKAS v. Executive Secretary Reyes, 466
Phil. 482, 510-511 (2004))
In Lagman v. Medialdea, G.R. No. 231658, July 2017, The
Supreme Court held that a plain reading of Section 18, Article VII of the
Constitution shows that the President’s power to declare martial law is
not subject to any condition except for the requirements of actual
invasion or rebellion and that public safety requires it. Besides, it would
be contrary to common sense if the decision of the President is made
dependent on the recommendation of his mere alter ego. Only on the
President can exercise of the powers of the Commander-in-Chief.
There is sufficient factual basis for the declaration of martial law
and the suspension of the writ of habeas corpus. By a review of the
facts available to him that there was an armed public uprising, the
culpable purpose of which was to remove from the allegiance to the
Philippine Government a portion of its territory and to deprive the Chief
Executive of any of his power and prerogatives, leading the President
to believe that there was probable cause that the crime of rebellion was
and is being committed and that public safety requires the imposition
of martial law and suspension of the privilege of the writ of habeas
corpus.
 Terrorism neither negates nor absorbs rebellion. Rebellion may
be subsumed under the crime of terrorism, which has a broader scope
covering a wide range of predicate crimes. In fact, rebellion is only one
of the various means by which terrorism can be committed.
Meanwhile, public safety requires the declaration of martial law
and the suspension of the privilege of the writ of habeas corpus in the
whole of Mindanao. For a declaration of martial law or suspension of
the privilege of the writ of habeas corpus to be valid, there must be
concurrence of 1.) actual rebellion or invasion and 2.) the public safety
requirement.
In his report, the President noted that the acts of violence
perpetrated by the ASG and the Maute Group were directed not only
against government forces or establishment but likewise against
civilians and their properties. There were bomb threats, road blockades,
burning of schools and churches, hostages and killings of civilians,
forced entry of young male Muslims to the group, there were hampering
of medical services and delivery of basic services, reinforcement of
government troops, among others. These particular scenarios
convinced the President that the atrocities had already escalated to a
level that risked public safety and thus impelled him to declare martial
law and suspend the privilege of the writ of habeas corpus.
Verily, the Court upholds the validity of the declaration of martial
law and suspension of the privilege of the writ of habeas corpus in the
entire Mindanao region.
The fact that the President needed Proclamation 216 to effectively
deter the criminal acts of many terror groups speaks a lot about the
weakness of the Human Security Act. Thus, more stringent application
must be done, and if truly needed, this law must be amended in order
to fully address the ever-growing issue on terrorism, rebellion and
insurrection.

Conclusion

The R.A. 9522 otherwise known as the Philippine Baselines Law,

Human Security Act and the Cybercrime Law are the good laws but lack
proper implementation. With national security as one of the prime
concerns of the government, it is adequate that these laws be modified
and used to its fullest extent, instead of relying on “grand strategies”
grounded on political interests.

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https://thediplomat.com/2017/06/marawi-siege-testing-the-
philippines-anti-terror-law/

Testing the Philippines’ Anti-Terror Law – The Diplomat

By Chester Cabalza for The Diplomat

"Analysis and review of the Philippines Human Security Act

2007"(March 16, 2007), Kenneth Pereire, Research Analyst of
International Centre for Political Violence and Terrorism Research