The definition of terrorism under the HSA
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.
