Points to ponder on Proclamation 374

By signing Proclamation No. 374 last Dec. 5, President Duterte has formally declared the Communist Party of the Philippines-New People’s Army as a “designated/identified terrorist organization” under RA No. 10168, or the Terrorism Financing Prevention and Suppression Act of 2012. 

Legally speaking, however, the 49-year-old revolutionary organization which has engaged the government in a protracted armed struggle, cannot, by such proclamation, automatically be considered “terrorist” either under Philippine laws or under relevant United Nations Security Council resolutions.

That point was made amply clear by President Duterte’s spokesperson and human rights adviser, Harry Roque, when he announced the signing of the proclamation earlier this week. He said:

“It is not automatic that just because the executive has classified the group as a terrorist organization, it will be considered a terrorist organization under the domestic law and under relevant [UN] Security Council resolutions.”

To legally establish the category of the CPP-NPA as a terrorist organization, the Department of Justice must first file a petition for such purpose before a Regional Trial Court, as required under RA 9372, or the Human Security Act of 2007.

The court will have to conduct a public hearing on the petition – called proscription proceedings – wherein the CPP-NPA has to be given the opportunity to present its side before a decision is made.  How that can be done remains to be seen. And given the slow pace of judicial proceedings in this country – unless the proceedings are railroaded and thus put to a challenge – that will take some time.

But take note: Whereas the filing of the petition had yet to happen, Roque said the President had already directed the Department of Foreign Affairs to publish the designation of the CPP-NPA as a terrorist organization. This is an unfair move, to say the least.

Worse, Roque said state security forces would now be able to go after the CPP or NPA members for terrorism if they were committing “predicate crimes” listed in RA 9372, and the government would also go after those providing financial support to the NPA in pursuance of RA 10186. 

“Take note,” Roque stressed, “that the domestic statute [RA 10162] and the UN Security Council prohibit the giving of funds to terrorist organizations. This will enable law enforcement agencies to run after individuals who will, in any way, provide financial support to the NPA now that it has been described [but not proscribed] as a terrorist organization.”

Let’s look closely at Proclamation 374. It cites, as premises for declaring the CPP-NPA as a designated/identified terrorist organization, the following provisions of RA 10162:

1. The law criminalizes the “financing of terrorism and dealing with property or funds of designated persons/organizations, and prevents or suppresses the commission of such offense through freezing and forfeiture of property or funds of designated person/organization…”

2. Section 3(e)(1) of RA 10168 defines designated person as “any person or entity designated and/or identified as a terrorist, one who finances terrorism, or a terrorist organization or group under the applicable United Nations Security Council Resolutions or by another jurisdiction or supranational jurisdiction.”

In addition, the proclamation cites that on Aug. 2, 2002, the United States government designated the CPP-NPA as a “foreign terrorist organization” (FTO) and to date continues to include it in its list of FTOs.

It also invokes Article VII, Section 17 of the 1987 Constitution, which provides that the President “shall ensure that the laws are fully executed.”

It needs pointing out that the “applicable” UNSC resolutions invoked by RA 10168 are Resolutions 1267, 1988, 1989 and “successor resolutions.” All these pertain to the designation as terrorists of Osama bin Laden and associates – they who were tagged as responsible for attacking, on Sept. 21, 2001, the World Trade Center in New York and the Pentagon – and to the establishment of a “sanctions regime” to cover them, along with their organization, Al Qaida, and the Taliban of Afghanistan. 

By no material basis whatsoever and by no stretch of reason can the UNSC resolutions be validly invoked to apply to the CPP-NPA.

On the other hand, even if the US government has included the CPP-NPA in its list of foreign terrorist organizations as targets of its borderless “war on terror” since 2002, that action cannot be deemed to have legal effect in the Philippines. Which was why, upon American imperialist pressures, the Philippine Congress had to enact the Human Security Act in 2007 and the Terrorism Financing Prevention and Suppression Act in 2012.

But neither legislation explicitly identifies the CPP-NPA as a terrorist organization . 

President Duterte therefore owes it to the Filipino people to clarify whether he issued Proclamation 374 upon the behest of the Donald Trump administration.  Recall that when he first threatened to declare the CPP-NPA as a terrorist organization he hinted at following after the US action. The implication cannot be escaped: Proclamation 374 manifests the Duterte administration’s support for expanded American imperialist intervention/aggression in the AFP counterinsurgency plan against the CPP-NPA.

Going back to the proscription proceedings, it would be interesting to watch how the state prosecutors would build up their case against the CPP-NPA based on the provisions of the Human Security Act. And it would be more interesting to find out how Harry Roque would stand on the issue.

You see, on Oct. 29, 2007, Roque (then director of the Institute of International Legal Studies at the UP Law Center), came out with a legal brief highly critical of the Human Security Act. In sum, he wrote that “due to the inherent problems in defining terrorism” – there is no universally agreed-on definition until now – many provisions of the law violate due process, equal protection of the law,  free association, free speech, and other international human rights standards. Moreover, Roque concurred with the same concerns expressed by then UN Commission on Human Rights Special Rapporteur Martin Scheinin.

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