Court warns against dangers of red-tagging, calls govt to address social ills
MANILA — A Manila court has junked the Philippine government’s petition to declare the Communist Party of the Philippines (CPP) and the New People’s Army (NPA) as terrorist organizations, making clear that rebellion and political acts are not acts of terrorism.
In a 135-page resolution, Manila Regional Trial Court Branch 19 Judge Marlo Magdoza-Malagar said that the CPP-NPA was not organized for the purpose of engaging in terrorism.
"'Armed struggle' is only a 'means' to achieve the CPP's purpose; it is not the 'purpose' of the creation of the CPP,” she said, after examining the constitution and key documents of the CPP-NPA.
The Philippine government filed the proscription case against the two rebel groups in 2018, under the provisions of the Human Security Act of 2007 (Republic Act No. 9372), which was eventually repealed by the Anti-Terrorism Act of 2020 (Republic Act No. 11479).
A proscription case seeks a court ruling declaring as terrorists an organization, association, or group of persons supposedly organized to engage in terrorism, or which actually uses acts to terrorize or “to sow and create a condition of widespread and extraordinary fear and panic among the populace” to coerce the government to give in to an unlawful demand.
The case is filed by the Department of Justice with the regional trial court, under the Human Security Act, and with the Court of Appeals under the Anti-Terrorism Act.
In seeking to declare the CPP-NPA as terrorist groups, the DOJ cited nine incidents of killings, attempted killings and abduction from 2019 to 2020 in different areas in Agusan del Sur, Surigao del Sur, Bukidnon, Misamis Oriental and Cagayan de Oro City — all in Mindanao.
The Manila court said that while the nine incidents it examined can be considered terrorism under the Human Security Act, their authorship could not be traced to the CPP-NPA.
Eyewitnesses have only identified the perpetrators through their manner of clothing — wearing an all-black ensemble — which the court said, is not enough to determine membership in the rebel groups.
According to the court, no evidence was presented by those claiming to be former members of the NPA that there is an official party directive to commit the atrocities and that these were official acts of the CPP-NPA.
GUERRILLA WARFARE, REBELLION VS TERRORISM
It pointed out that none of the nine incidents the government cited caused "widespread and extraordinary fear and panic" among the Philippine populace, but only "pocket and sporadic occurrences" in limited and scattered areas in the country, which could be considered guerrilla warfare.
"Guerrilla warfare is not synonymous with terrorism,” the resolution said.
“[T]he 9 incidents of atrocities fall within the category of small-time, ‘hit-and-run’, sporadic acts of violence with no specified victims or targets,” it added.
The court said the government has also not shown that the cited incidents were meant to coerce the government to give in to a demand, as required under the Human Security Act.
"Sowing fear" is not a demand, it said.
Assuming that the demand for peace negotiations was implied, it is not unlawful, it added.
The court rejected other evidence presented by the government. The purging incidents, it said, were carried out in secrecy, which precluded the likelihood of "widespread and extraordinary fear and panic among the populace" for them to be considered acts of terrorism.
The court made clear as well that incidents such as collection of revolutionary taxes, the 1971 Plaza Miranda bombing, which took place before the Human Security Act was passed into law in 2007, could not be used against the CPP-NPA in the proscription case.
Magdoza-Malagar said the acts attributed to CPP-NPA should be considered "political crimes,” which are treated with leniency compared to regular crimes under the Revised Penal Code.
She pointed out that unlike a common bandit, an NPA member is steeped in ideology, as shown by a 3-tiered recruitment process — from being a member of a national democratic mass organization to joining the underground mass organization and finally the CPP-NPA.
"An NPA member engages in violence and employs force, not for violence’s sake but in pursuit of the higher ideals contained in the Constitution of the CPP,” she said.
The judge acknowledged the difficulty of defining terrorism, noting that the Supreme Court, in 2010, or 3 years after the enactment of the HSA, still had to grapple with the vague and broad definition of terrorism under that law.
But she made a clear ruling: Political crimes are not terroristic acts.
She distinguished rebellion from terrorism. While both may involve the use of violence, violence in rebellion is directed against agents of the State or the military or the police, while terrorism is directed against the civilian population, intended to cause “extraordinary and widespread fear and panic.”
While rebellion’s goal is to remove allegiance to a government, its laws or territory, or to deprive any of the three branches of government of its powers or prerogatives, terrorism is meant to force the government to give in to an unlawful demand.
Using the standard for determining terrorism in Lagman vs Medialdea, a 2017 Supreme Court case, the Manila court said the nine acts allegedly committed by the CPP-NPA were done to achieve a political purpose, directed at State agents and not against civilians. They could only qualify as "rebellion."
The judge also took pains to warn against the danger of red-tagging, saying it poses a threat to the security of activists.
"To automatically lump activists, mostly members of the above ground organizations as members of the CPP-NPA invariably constitute red-tagging,” she said.
“[P]utting the ‘communist label’ on one who may not be a member or on one who, even if a member, may not have participated in the actual act of taking up arms against the government, poses a serious concern,” she added.
The government's proscription case against the CPP-NPA became controversial when the DOJ submitted more than 600 names as alleged members of CPP-NPA.
But the Manila court found no evidence of their membership, except for two including CPP founder Jose Maria Sison.
As earlier clarified by a Manila court, they are not respondents but were only identified for the purpose of serving summons so that the court can gain jurisdiction over the CPP-NPA.
The DOJ's proscription case vs CPP-NPA was filed based on the 2007 Human Security Act which has been repealed by the Anti-Terrorism Act of 2020. The two laws have different definitions of terrorism. Not all the reasons for junking the case might apply under the new law.
Magdoza-Malagar gave this advice to the Philippine government in dealing with rebel groups:
"The CPP can only gain adherents for as long as the government remains insensitive to, and incompetent in addressing, the social realities of poverty and material inequality which bring with them the oppression of the marginalized."
Weighing in on the debate between upholding constitutional rights and defending State security, the judge said, “the existence of danger is never a justification for courts to tamper with fundamental rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called ‘judicial statesmanship.’”
Reacting to the ruling, BAYAN SecGen Renato Reyes, Jr said the government should “abandon the policy of terrorist labeling” and instead apply the framework of International Humanitarian Law to the armed conflict in the Philippines.
“Terrorist-labeling will not end armed conflict. The key take-away in Manila RTC decision to junk terrorist-labeling vs CPP, NPA is that those taking up arms based on political cause are not terrorists and that armed conflict is rooted in social ills,” he said.
“The Philippine government should pursue a policy of peace negotiations that address the social basis of the conflict in order to achieve a just and lasting peace.”
The Manila court ruling was promulgated on Wednesday, Sept. 21, the 50th anniversary of the declaration of Martial Law by the late President Ferdinand Marcos, Sr.
FROM THE ARCHIVE