To financially paralyze any terrorist group is a serious endeavor towards the more challenging goal of fully-eliminating terrorism.” Words from former Sen. TG Guingona III, one of the authors and sponsor of the Anti-Terrorist Financing Law.
Full disclosure: Senator Guingona, a great Human Rights advocate, was my former boss. I was his chief legislative officer when he ably defended the Anti-Terrorist Financing Law, and the amendments to the Anti-Money Laundering Act. That took endless nights and countless memos from his team of lawyers, and the lawyers from the Anti-Money Laundering Council. Because of those two laws, the Philippines was not included in a potential blacklist from the Financial Action Task Force. A proud moment for us in 2012.
Eleven years later today, the Anti-Terrorist Financing Law is now being tested in a case involving the Community Empowerment Resource Network In. (CERNet), a Cebu-based NGO.
The allegation: Sometime in 2012, CERNet Inc. allegedly diverted project funds to the New People’s Army-Communist Terrorist Group (NPA-CTG). Based on the testimony of a former staff of the NGO, the Network allegedly gave 60 percent of its funds from foreign donors to the terrorist groups, and only used 40 percent for community projects.
Local NGOs, including even the Silliman University Center for Extension & Development, were mentioned in the Complaint, although the NGOs and Silliman are not being sued; only their representatives to the Council of CERNet Inc.
I hope the Department of Justice will assess this case based on the legislative intent, and the clear language of the law — a law that we passionately defended on the Senate floor.
The goal of the case should be to penalize those who financed, and will finance, terrorists and terrorist organizations. It should not be used to terrorize innocent NGO workers.
Here are some things that should be considered:
Year 2012: The terrorist financing acts alleged in this case are said to have occurred in 2012.
The Anti-Terrorist Financing Law was approved only on June 18, 2012. It became effective 15 days after its complete publication in the Official Gazette or in at least two newspapers of general circulation.
If the law was published on the day it was approved, it only became effective on July 3, 2012.
As a penal law, it also cannot be applied retroactively. The DOJ should then discard all allegations in relation to transactions made prior to July 3, 2012.
From a copy of the Complaint that I got, and the affidavits of the witnesses for the Complainant, at least five transactions definitely will not be covered because they occurred prior to the existence of the law.
With unlawful and willful intention that they should be used, or with the knowledge that they are to be used, in full or in part a) to carry out or facilitate the commission of any terrorist act; b) by a terrorist organization, association, or group; or c) by an individual terrorist. This is a critical element of the crime of ‘terrorist financing’.
To convict any of the accused of the crime of ‘terrorist financing’, the funds should have been given to a terrorist organization, association, or group, or to a terrorist individual.
So when did the NPA and the Community Party of the Philippines become terrorist organizations based on Philippine law?
There are two potential answers:
On Dec. 9, 2020, when the Anti-Terrorism Council designated the CPP-NPA as terrorist organizations through ATC Res. 12, issued pursuant to the Anti-Terrorism Act of 2020.
Giving money to the CPP or the NPA before Dec. 9, 2020 would then not be ‘terrorist financing’.
Or perhaps DOJ can use an earlier Proclamation issued by then President Duterte on Dec. 5, 2017.
The CERNet case involves transactions in 2012, when the NPA and CPP were still not designated as ‘terrorist organizations’. It would be very dangerous if this case will actually prosper despite this critical fact that the NPA and CPP only were labeled as terrorist organizations, based on Philippine law, in 2017 or in 2020.
Knowledge of the accused that the funds will be used for terrorist acts, or by terrorist individuals or organizations. This is a complicated case because it accuses CERNet staff, but it also accuses representatives of many NGOs to the CERNet Council. However, the affidavits of the witnesses do not at all discuss the role of the members of the Council in moving these funds to the CPP or the NPA.
In fact, the main witness was very clear in his testimony that depending on the amount set aside for a project, only the following are involved: the Executive Director, the members of the Project Committee, and the Board of Trustees.
I trust the DOJ to be thorough in their assessment of each and every Accused because it will be very dangerous to include all of them. One of the Accused is dead. Some did not even appear as Board members when the alleged transactions were said to have occurred. The witnesses did not present any evidence of any form of participation by many of those Accused.
I understand the pressure and the challenge faced by the military in filing cases under this law, but as a Human Rights defender myself, I also recognize the reality of how dangerous it is when one is accused of being a terrorist or being a financier of terrorists. Some people could die or get violently harassed because of wrongful accusations.
My own employer, Silliman University, has been silent so far. I think the University should issue a statement soon.
DOJ should get the statement from the foreign funders. I’ve worked for NGOs since I graduated from law school. US and European NGOs are particularly strict in monitoring and auditing funds they give to NGOs. Mas strikto pa sa Commission on Audit! Many send expert auditing staff every year to check on their NGO grantees.
That’s because their own laws are immensely strict when it comes to ensuring that funds are not diverted to illegal groups. Private dialogues with the funders, in coordination with their diplomatic missions, will help the government immensely in filing cases against the real perpetrators, and then dismissing cases against innocent community workers.
Final call to local legislators. I read from the issue of MetroPost last week (Oct. 15 issue) that the Provincial Board will look into this case more closely as it is about to provide financial support to one of the NGOs mentioned in this case. I hope the legislative Council’s scrutiny will not result in the withdrawal of a proposed P500,000 subsidy for one of the NGOs mentioned.
The Negros Oriental-based NGOs are not sued in this case. They are not included as Accused entities. They were simply mentioned as being members of the CERNet Council.
Withdrawing funds from non-government organizations would be unfair, and a denial of the basic principle: innocent until proven guilty.
In this case, the NGOs can not even be proven guilty because they are not accused of anything in the first place.
Sober, reasonable discussions will prevail — that is my hope.
It wasn’t easy to defend this law 11 years ago. I hope our efforts will not result in the Law now being weaponized against legitimate NGOs and NGO workers.
Note: Feel free to email me if you need copies of the laws and ATC Resolution cited in this column.
Author’s email: [email protected]