Court rebuffs DOJ, strikes down terror tag on CPP-NPA
MANILA, Philippines — The Manila Regional Trial Court (RTC) has dismissed a 2018 petition by the Department of Justice (DOJ) to declare the Communist Party of the Philippines (CPP) and its armed wing, the New People’s Army (NPA) terrorist organizations, saying the rebel groups were waging a rebellion and not spreading terror.
In its Sept. 21 decision, released on Thursday, the Manila RTC Branch 19 ruled that the nine incidents of alleged atrocities by the CPP-NPA cited by the DOJ to back its petition did not meet the requirement for terrorism as defined by the Human Security Act (HSA) of 2007.
The incidents presented by the DOJ included five separate killings of multiple datus, an abduction, an ambush, a failed assassination attempt, and the burning of a chapel and houses in the provinces of Surigao del Sur, Agusan del Sur, Bukidnon, Misamis Oriental and in Cagayan de Oro City in 2019 and 2020.
The court said the incidents cannot have caused “widespread and extraordinary fear and panic” as they only occurred in limited areas in Mindanao.
It said the incidents were “pocket and sporadic,” only “ripples in a much larger pond,” not enough to force the government into complying with any demand.
“Not having met the stringent requirements of HSA of 2007, the nine (9) acts of atrocities committed by the NPA can only qualify as incidents of ‘rebellion,’” RTC Branch 19 Presiding Judge Marlo Magdoza-Malagar said in her 135-page ruling.
“While rebellion is one of the predicate crimes of terrorism, one cannot absorb the other as they have different elements,” the ruling said.
The HSA has been replaced by the Anti-Terrorism Act (ATA) of 2020.
However, under the “saving clause” of the ATA, all judicial decisions and orders prior to its passage on July 3, 2020, remained valid and effective as they were related to the HSA.
The court said that this implies that key parts of the repealed law, particularly its definition of “terrorism,” “terrorist acts,” or “terrorist groups” shall “hold sway” in actions that may be pending in the courts.
The DOJ petition also sought to place the terrorist tag on a UN special rapporteur, a former lawmaker, four former priests and at least 600 individuals.
But in August 2018, Malagar declared UN Special Rapporteur for Indigenous Peoples’ Rights Victoria Tauli-Corpuz; Jose Molintas, a former member of the UN expert mechanism on indigenous peoples’ rights; former Bayan Muna Rep. Satur Ocampo; and National Democratic Front of the Philippines (NDFP) peace consultant Rafael Baylosis “nonparties” to the DOJ proscription petition.
In two subsequent amendments to its petition, the DOJ reduced the number of “terrorists” for proscription to just two—CPP founding chair Jose Maria Sison and Antonio Cabanatan, the communist party secretary of the Mindanao Commission.
The court said that while former President Rodrigo Duterte designated the CPP and NPA terrorist organizations, proscription and designation were “two distinct processes.”
It noted that designation was an “administrative act” by the executive branch while proscription was a judicial proceeding before the RTC under both the HSA and the ATA.
The court said that despite the distinctions between designation and proscription, the consequences are the same. Under the ATA, both designation proscription makes the act of recruitment, knowledge and voluntary membership of designated or proscribed organization criminally punishable. Still, the DOJ carries the burden of proof to justify designation or proscription, it said.
1971 Manila bombing
The court said the only action allegedly taken by the CPP that came close to a “terrorist act” was the bombing of Manila’s Plaza Miranda in 1971, but this occurred before the HSA was legislated in 2007.
It also reviewed the CPP’s plan of action and concluded that the group did not exist for the purpose of engaging in terrorism.
It found the CPP’s ten-point program to be void of any “unlawful demand,” saying that at face value, these were “reasonable aspirations of any civilized society.”
“Any demand that the CPP-NPA may make on the government along with the foregoing ‘goals’ that comprise its program remains to be established as an unlawful demand,” it said.
In defense of activism
The RTC also said Red-tagging was dangerous and threatened the safety of activists. The court said members of national democratic mass organizations support “valid societal change” without necessarily considering “armed struggle” or violence to overthrow the government as means to achieve it.
It said activism was “an important part of the democratic process where individuals and communities exercise their right to shape government policy and ultimately, society.”
Rebellion is rooted, the court said, in discontent over the existing order seen to be “unjust and inequitable to the majority, and favorable to the wealthy, ruling few” and that the lack of avenues to be heard was what compelled rebels to resort to violence in an attempt to change the status quo.
It said the CPP can only gain more support as long as the government remains insensitive and incompetent in addressing the “realities of poverty and material inequality which bring with them the oppression of the marginalized,” the court said.
It called on the government to include respect for the right to dissent, due process and to the rule of law in countering insurgency and it must be “uncompromising” in safeguarding the Constitution it is sworn to uphold.
Addressing concerns of possibly endangering State security by observing constitutional rights of the CPP-NPA, the court said that the existence of danger is never a justification for courts to tamper with fundamental Constitutional rights.
“These rights are immutable, inflexible, yielding to no pressure of convenience, expediency, or the so-called ‘judicial statesmanship,’” the court said.
“Nothing is better attested by present realities than that terrorism does not flourish in a healthy, vibrant democracy,” the ruling concluded.
Justice Secretary Jesus Crispin Remulla said the DOJ would ask the court to reconsider its ruling.
“Then, if we have to, we’ll go to Court of Appeals. The State has to take care of itself when people are attacking the State. We have to move and we will use the law for this purpose. And we will obey the law whatever the case may be,” he told reporters on Thursday.
Asked to comment on the Manila court’s position that political acts and rebellion should not be considered terrorism, Remulla said: “It’s too early to judge on my own.”
The National Union of Peoples’ Lawyers (NUPL) on Thursday said it was “vindicated” by the court’s decision to junk the government’s petition, even though it did not represent the CPP-NPA.
“Yet, once again, the unmitigated weaponization of the law by the State is thwarted,” NUPL president Edre Olalia said in a statement.
“With all the remorseless impunity and arrogant madness exhibited by our political branches of government, it is quite reassuring and inspiring that exceptionally brave and admirably independent judges provide the checks and brakes on power gone berserk,” he added.
Olalia said the judge “expressed in no uncertain terms” her serious concern about the dangers of Red-tagging and lauded her “extraordinary courage and independence.”
While clarifying that the NUPL did not represent CPP-NPA, Olalia denounced the claim by one of the DOJ’s witnesses who named NUPL and its chair, Neri Colmenares, as having links to the rebels.
“This venomous slander is totally false, reckless and not worthy of belief as it is obviously contrived to suit the malicious narrative of the Red-tagging brigade in government,” he said. —WITH A REPORT FROM TINA G. SANTOS AND INQUIRER RESEARCH
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