Rights are for everyone, even dissidents, says court

AT GROUND LEVEL - Satur C. Ocampo - The Philippine Star

“Efforts on the part of the present government to counter insurgency should include respect for the right to dissent, to due process and to the rule of law. Just as the respondent organizations [the Communist Party of the Philippines and the New People’s Army] are uncompromising in their ideals, so must the government be uncompromising in safeguarding the Constitution it is sworn to uphold.”

The quotation comes from the 135-page decision by the Manila Regional Trial Court Branch 19, penned by Presiding Judge Marlo Magdoza-Malagar. It dismissed the petition, filed by the Department of Justice in 2018, asking the court to declare the CPP and the NPA as terrorist organizations under the Human Security Act of 2007 (HSA, amended/replaced by the Anti-Terrorism Act of 2020).

In dismissing the petition – which originally listed 600-plus names as alleged CPP-NPA members but subsequently reduced to only two – the court said the DOJ failed to meet the requirements to prove as “terrorism” the acts it attributed to the CPP-NPA in nine incidents of alleged atrocities.

“Not having met the stringent requirements of the HSA,” the decision said, the nine incidents presented in court “can only qualify as incidents of ‘rebellion’.” The unmet requirements were: an intention to cause “widespread and extraordinary fear and panic” among the populace and to force the government into complying with any demand to do or refrain from doing an act.

Dated Sept. 21, but made public Thursday, the decision in sum said the accused organizations were waging a rebellion and not fomenting terrorism. The conclusion was backed by a lengthy examination of historical facts, documents and jurisprudence.

Among the significant points raised in the decision are the following:

• While rebellion is one of the predicate crimes of terrorism, one cannot absorb the other as they have different elements.

(Back in 2007, during the Senate-House conference committee deliberations on the HSA in which I personally participated as Bayan Muna representative, I recall that then Senate president Juan Ponce Enrile and former Senate president Aquilino Pimentel made clear practically this same point: that the HSA does not apply to the CPP-NPA, because the latter was engaged in rebellion, a political offense defined by the Revised Penal Code.)

• Although former president Duterte affixed the terrorist label on the CPP and the NPA, the designation was merely an “administrative act” by the executive branch, whereas proscription is a “judicial proceeding” to be made by a trial court, as required by both the HSA and the ATA. The DOJ must present proof to justify proscription – which has a higher legal validity than designation.

• Having reviewed the CPP’s plan of actions/10-point program, the court concluded that the party did not exist for the purpose of engaging in terrorism, contrary to what the DOJ claimed. At face value, the court noted, the CPP program’s contents were “reasonable aspirations of any civilized society” and devoid of any “unlawful demand.”

• Red-tagging is dangerous because it threatens the safety of activists. The court cited the Council of Europe’s definition of an activist as “someone who actively campaigns for change, normally on political and social issues… (via) the network they use in order to bring about the desired change.” In essence, it added, activism is an “important part of the democratic process – where individuals and communities exercise their right to shape government policy and ultimately society.”

Unequivocally, the court asserted:

“Rebellion is rooted in discontent of the existing order which is perceived to be unjust and inequitable to the majority and favorable to the wealthy, ruling few. Rebels are usually compelled to resort to violence simply for a lack of avenues to be heard and in order to be in a position to significantly change the status quo.”

And how should the government respond to rebellion?

The court quoted former Chief Justice Enrique Fernando reiterating the earlier view of Justice Jose Bengzon – expounded upon many decades ago – about upholding the constitutional rights of each and every citizen:

“x x x x “(O)ne of the surest means to ease the uprising is a sincere demonstration of the Government’s adherence to the principles of the Constitution, together with an impartial application thereof to all citizens, whether dissident or not. Let the rebels have no reason to apprehend that their comrades now in custody are being railroaded into Muntinlupa [referring to the National Penitentiary] without benefit of those fundamental privileges which the experience of ages have deemed essential to the protection of all the persons accused of crime before the tribunal of justice.

“Give them the assurance that the judiciary, ever mindful of its sacred mission, will not, through faulty cogitation or misplaced devotion, uphold any doubtful claims of governmental power in diminution of individual rights, but will always cling to the principles uttered long ago by [US] Chief Justice [Thurgood] Marshall that when in doubt as to the construction of the Constitution, the courts will favor personal liberty.

“As for the view that an observance of the dissidents’ constitutional rights will jeopardize the security of the state, the exhortation is that the existence of danger is never a justification for courts to tamper with the 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.’”

On terrorism, the court found “heartening” that the State “recognizes that the fight against terrorism does not only entail meeting force with force, but rather necessitates a comprehensive approach comprising of political, economic, diplomatic, military and legal means, duly taking into account the root causes of terrorism without acknowledging these as justifications for terror and/or criminal activities.”

“Indeed,” it adds, “measures that seek to include conflict management and post-conflict peace-building addressing the roots of conflict, by building state capacity and providing equitable economic development, will hopefully stamp out terrorism and eradicate its seeds.”

Could the people be as hopeful?

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