Points to danger of red-tagging, DOJ to appeal decision
A Manila City regional trial court has dismissed the proscription case seeking to declare the Communist Party of the Philippines (CPP) and the New People’s Army (NPA) as terrorist groups.
In a 135-page resolution, Presiding Judge Marlo Magdoza-Malagar of the Manila City RTC Branch 19 said a perusal of the CPP-NPA’s program shows that it is organized not for the purpose of engaging in terrorism.
“While ‘armed struggle’ with the ‘violence’ that necessarily accompanies it, is indubitably the approved ‘means’ to achieve the CPP-NPA’s purpose, ‘means’ is not synonymous with ‘purpose,’” the court said in a ruling promulgated on Sept. 21, 2022.
“Stated otherwise, ‘armed struggle’ is only a ‘means’ to achieve the CPP’s purpose; it is not the ‘purpose’ of the creation of the CPP,” it added.
Justice Secretary Jesus Crispin Remulla said the Department of Justice will file a motion for reconsideration.
“If we have to, we’ll go to the Court of Appeals,” Remulla said.
“As you know, it’s something that the state has to take care of when people are attacking the state. And we need to take action and we use the law for this purpose. And we will obey the law whatever the case may be,” the Justice chief added.
Press Secretary Trixie Cruz-Angeles said the Manila court’s ruling “is clearly not final and does not warrant a comment for now.”
National Security Council deputy director general Michael Eric Castillo declined to give a comment, saying the NSC has yet to receive a copy of the resolution.
“The decision of the lower court is appealable so relevant officials and offices must first meet to discuss the court ruling and decide on the next steps to be pursued,” Castillo told GMA News Online.
The Department of Justice filed the proscription case in 2018 seeking to declare the CPP-NPA a terrorist group under Section 17 of the Human Security Act (HSA) of 2007.
Citing the HSA, the court defined terrorism as the commission of certain acts, “thereby sowing and creating a condition of widespread and extraordinary fear and panic among the populace, in order to coerce the government to give in to an unlawful demand.”
The court listed nine incidents in Agusan Del Sur, Surigao del Sur, Misamis Oriental, and Cagayan de Oro City that the government alleged to be committed by the CPP-NPA against civilians.
But the court said it cannot give credence to the witnesses’ identification as they described the suspects to be wearing an “all-black ensemble” with high-powered firearms.
“This identification leaves much to be desired. Certainly, it takes more than a certain manner or mode of dressing to establish that one is a member of the CPP-NPA,” it said.
“Moreover, this identification is not exclusive, particularly in Mindanao where all the nine incidents have occurred. Mindanao is known as a place teeming with other rebel armed groups – the MNLF, MILF, Abu Sayyaf Group, Maute Group, and a scattering of brigands who may also be known to carry firearms.”
The court said the nine incidents can only qualify as rebellion, adding that none of it can be said to have caused “widespread and extraordinary fear and panic” among the Philippine populace and can be characterized as “pocket and sporadic occurrences.”
It also pointed out that said the nine incidents also are not “widespread” enough to “coerce” the government to give in to any demand.
The court cited a previous ruling that found that terrorism is larger in scope than rebellion, and that rebellion is only one of the various means by which terrorism can be committed.
The court noted that the government’s assertion that the attacks are done to push forward peace negotiations where the CPP-NPA may demand the release of their high-ranking members and allow them to regroup is not supported by evidence.
The court said the CPP-NPA’s chosen battle strategy, guerrilla warfare, is also not synonymous with terrorism.
It also said that other incidents of atrocities testified by the witnesses cannot be considered terrorist incidents under the HSA.
The court pointed to the danger of red-tagging, saying that while a CPP-NPA member may be a member of underground organizations or above-ground organizations, this is not true for all members, some of whom may think they joined an activist organization.
These members, the court said, may “espouse valid societal change, without necessarily giving thought to ‘armed struggle’ or ‘violence’ aimed at overthrowing the government, as a means to achieve the same.”
“To automatically lump activists, mostly members of the above-ground organizations as members of the CPP-NPA invariably constitutes red-tagging,” the court added.
The court further said that the petition named about 600 people, mostly known activists and members of various non-governmental organizations, as being members of the CPP-NPA.
“The framers of ATA (Anti-Terrorism Act) 2020, particularly Section 4 thereof have taken pains to expressly exclude, from the definition of ‘terrorism’—acts of advocacy, protest, dissent, stoppage of work, industrial or mass action, and other similar exercises of civil and political rights which are not intended to cause death or serious physical harm,” it said.
Former congressman and Bayan Muna chairman Neri Colmenares on Thursday said the Manila court’s decision “establishes that to dissent or not agree with the government is a right and must be respected.”
“The 135-page decision rightly pointed out that dissent is an inherent right of individuals, and people rebel because of the inequalities and oppression in society,” Colmenares said in a statement issued to reporters covering the House of Representatives.
“According to the court—and we agree with it—the right of people to bear arms should be respected and they should not be called terrorists,” he added in Filipino.
“It is in this sense that we are continuously pushing for the resumption of the peace negotiations between the government of the Republic of the Philippines (GRP) and the CPP-NPA-NDF. It is the roots of the armed conflict that have to be addressed and no amount of terror or red tagging can solve that,” he said.
Colmenares also said the decision also shows that “the courts are indeed better than the subjective, unilateral and self-serving administrative process of the Anti-Terror Council because evidence are scrutinized by a professional judge rather than biased military generals who are known to not respect the law.”
The former legislator also called for protection for Manila Regional Trial Court Judge Marlo Magdoza-Malagar as he issued a very brave decision.
“Judge Magdoza-Malagar should be protected from undemocratic and fascist elements because he may be attacked due to his decision. It also almost certain that he will be vilified and red tagged by state-backed trolls like what they did with Mandaluyong RTC Judge Monique Quisumbing-Ignacio when she dismissed the case filed against red-tagged journalist Lady Ann Salem and trade unionist Rodrigo Esparago,” he said.
“Our advice to Judge Magdoza-Malagar is just be strong and not be intimidated. We are with you,” Colmenares said.
Senator Ronald dela Rosa, a former police chief, said the fight was not over, and the DOJ could either file a motion for reconsideration or elevate the case to a higher court.
He also said he had no problem with Senator Imee Marcos’ recommendation for a total amnesty for communists and coup plotters.
But Senator Francis Tolentino said the proposal should be studied carefully.
Tolentino said the Constitution states that the Philippines is part of international organizations and treaties with nations that see the CPP-NPA as a terrorist organization.
“I believe that when it reaches the Supreme Court, the decision will be overturned,” he said.
Former senator Panfilo Lacson said the decision should not in any way be interpreted as a setback for the law itself.
“That is exactly the reason why “proscription” is designed to be the exclusive authority of the judiciary since it could involve possible detention of individuals and members of organizations suspected to be violating the Act,” said Lacson, also a former police chief.Because of this, he said due process of law must be strictly observed.