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Diokno: Even social media posts could be considered terrorism under anti-terror law

Human rights lawyer Chel Diokno on Tuesday told the Supreme Court that even Filipinos who exercise their basic rights on social media may be considered as committing terrorism crimes under the assailed Anti-Terrorism Act of 2020.

Diokno, one of a handful of lawyers representing 37 sets of petitioners in oral arguments, said the law is worded in a way that gives law enforcers the power to infer the "intent" behind protests, work stoppages, and other exercises of civil and political rights.

The law exempts these activities from the definition of terrorism, but only as long as they are "not intended to cause death or serious physical harm to a person, to endanger a person's life, or to create a serious risk to public safety."

Diokno said this places the petitioners, many of whom are activists, at the risk of being arrested and prosecuted based on the "subjective impression" of law enforcers of what their intent was.

He claimed that ordinary citizens exercising their basic rights are also in peril.

"Anyone therefore who tweets for people to attend a peaceful rally could be arrested for engaging in acts intended to endanger a person's life due to the danger of COVID infection," he said.

"Anyone who posts on Facebook for the people to boycott a digital services company owned by someone close to the president or who engages in a transport strike could be arrested for engaging in acts intended to cause extensive interference with critical infrastructure since the term includes telecommunications and transportation," he added.

Diokno said that if the law had existed in 1986, the year the EDSA People Power Revolution took place, "Archbishop Cardinal Sin's call for people power would easily qualify as inciting to terrorism."

"By exhorting the people to gather at EDSA, Cardinal Sin incited them to engage in acts intended to cause extensive interference with critical infrastructure and to endanger people's lives," he said.

"People Power brought Metro Manila to a standstill, disrupted essential public services and had a debilitating impact on national defense, security and public safety," he added.

During interpellation, Associate Justice Rosmari Carandang asked Diokno whether a social media influencer who tells his one million Twitter followers that they must overthrow government by bombing Malacañang could be considered an act of inciting to terrorism.

Carandang asked this in line with the test set by the landmark United States Supreme Court decision in Brandenburg vs Ohio.

In that case, the US SC ruled that speech advocating violence or a violation of the law cannot be punished unless it is "directed at inciting or producing imminent lawless action" and is “likely to produce such action.”

"The problem with Section 9 of the law (inciting to terrorism) is that it does not incorporate the requirements of Branderburg," Diokno replied.

"While there was an attempt by the implementing rules to include that, that is an essential element that should only be made by Congress," he said.

The perceived detrimental impact of the anti-terrorism law on the right to protest is a common argument against it. The petitioners have also questioned the law's provision on warrantless arrests and the powers of the executive Anti-Terrorism Council.

The government has made assurances that the law does not target activists but these did not stop the petitions from piling up at the SC. With 37 petitions seeking its nullification, the anti-terrorism law is one of the heavily challenged Philippine laws. —KBK/RSJ, GMA News