"This is not really about the communist insurgency but a suppression of dissent to avoid accountability."
Last Tuesday, I was a resource person of the Senate Committee on National Defense and Security, Peace, Unification and Reconciliation. Senator Panfilo Lacson presided over a hearing on Senate Resolution No. 559, which directed the Senate Committee to exercise its oversight authority over the defense sector on the issue of red-tagging/ red-baiting of certain celebrities, personalities, institutions, and organizations.
I want to commend Senator Lacson for his good and fair stewardship of the hearings. He gave the concerned authorities time to air their accusations while also allowing people and organizations who have been red-tagged an opportunity to rebut the allegations, successfully in my view.
The best definition of red-tagging is the one proposed by Justice Marvic Leonen in Zarate v. Aquino: “The act of labelling, branding, naming and accusing individuals and/or organizations of being left-leaning, subversives, communists or terrorists (used as) a strategy…by State agents, particularly law enforcement agencies and the military, against those perceived to be ‘threats’ or ‘enemies of the State’.”
As counsel of the Kabataan Party List and other youth organizations as well as Lumad youth from Mindanao who have been unfairly accused, this much was clear to me. Red-tagging is not only wrong; it is dangerous and as I proposed to the Senate, it must be criminalized when done by government officials and people allied with the organizations.
I do not make this proposal lightly as I am a strong advocate of the great freedoms, of speech, expression, press, assembly, and association. But as I have taught generations of law students, the test on prior restraint and subsequent punishment of speech is clear and present danger.
Justice Oliver Wendell Homes’ statement of the clear and present danger test in Schenck v. United States (1919) is classic and applies to red-tagging: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.”
Red-tagging produces such a clear and present danger that the state must absolutely prevent, the worst kind of danger as red-tagging has fatal consequences. For example, prior to the killing of activists and peace consultants Zara Alvarez, Randall Echanis, and Randy Malayao, their names were included in the proscription petition filed with the Department of Justice in 2018, where over 600 individuals were identified with the CPP and NPA, and sought to be legally declared as terrorists. They were also red-tagged to both online and offline publics; in the provinces, there would be posters would be put up bearing their names and faces and calling them terrorists.
My friend and fellow human rights lawyer, Ben Ramos, was also red-tagged in Negros island before he was assassinated in 2018. His wife and my fellow Jesuit Volunteer Clarise Ramos was also red-tagged and had to take asylum in Europe so she would not suffer the same fate as her husband.
When public funds are used by the government officials to red-tag individuals and organizations, it becomes even more condemnable. Indeed, if red-tagging is criminalized, such use of funds should be considered aggravating and a higher penalty should be imposed. And if death results from such accusations, the highest penalty of reclusion perpetua should be considered.
According to Representative Sarah Elago, in a complaint she filed against several government officials with the Office of the Ombudsman yesterday: “The consequences of red-tagging are grave: ranging from the chilling of speech (as individuals will now be extra wary of expressing legitimate dissent in fear of being red-tagged) to concerns regarding life, liberty, and security (as it has been shown that many individuals who have been red-tagged by the Philippine government have been killed), three rights which are fundamental in every human being and are enshrined in the Philippine Constitution.”
Elago has been included in posters and hand-outs that red-tag her and others as communist-terrorist and that has caused increasing anxiety over her security every time she is attacked by state officials no less, and portrayed to the public as an “enemy” of the state. The sole basis of the attacks against is her being the representative of the Kabataan PartyList. But, as she correctly points out, neither fighting for the advancement of the welfare of the youth, nor dissenting against policies that further marginalize those she represent makes her a member, much less a recruiter, of the CPP-NDF-NPA. According to her: “I may be critical of government, but the KPL mandate is to help build this nation, not destroy it.”
Next Tuesday, I will write more broadly about the red-tagging attacks against the Makabayan bloc, other organizations, and even on a popular mayor like Isko Moreno. It will be clear that this is not really about the communist insurgency but a suppression of dissent to avoid accountability.
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