How the government sets a balance between promoting civil liberties and protecting the security of the state defines the foundations of our democracy.
Mr. President, distinguished colleagues of this venerable chamber, I have the honor to report the result of the public hearings, in aid of legislation, conducted by the Committee on National Defense and Security, Peace, Unification and Reconciliation, on the issue on “red-tagging or red-baiting” as embodied in Committee Report No. 186.
Without any exaggeration, I must say that this has been one of the most complex Senate inquiries that this representation has presided. For it involved parties from the opposite poles that defy the law of magnetism in that not only would never attract each other, but in fact ready to cut each other’s throat. Nonetheless, the profuse bashing and criticisms from both political spheres – trolls included — that your committee and its Chairman endured during and after the conduct of the three-day-long public hearings may probably be a testament that we did our best to objectively hear both sides, to ensure that we extract the best available information for the Senate and the public to digest and come up with well-informed decisions.
The history of political activism in the Philippines has taken its course for more than a century, starting with the first recorded protest in 1903, staged by workers’ union calling for an eight-hour working day and for the recognition of May 1st as a national public holiday. To say the least, the long narrative of our nation’s revolts, protest actions and social movements, both peaceful and violent, has defined the character of the Filipino people. In our generation alone, Mr. President, we have witnessed how activists from various sectors and strata – from peasants, farmers, workers, women, LGBTQIA, media personalities, politicians, religious leaders, and students, among others–have taken to the streets to protest against poverty, injustice, disease, hunger, inequality and other social ills.
Undeniably, such peaceful mass actions, driven by our people’s right to dissent, freedom of speech, and free will, reflect the very fundamentals of democratic governance. No less than the 1987 Constitution guarantees free speech and free press, together with the right to organize and form associations, peacefully assemble, and petition the government for the redress of grievances.
That said, the freedoms we enjoy should not infringe on the rights of others and should not be injurious to the welfare of the community or society. Hence, we recognize the sovereign “police power” to regulate these constitutional and civil rights and fundamentally, to promote the general welfare of the people.
At the extreme end of the spectrum is the Communist Party of the Philippines (CPP), with its armed wing, the New People’s Army (NPA), and its political wing, the National Democratic Front (NDF). Founded in 1968, the Communist Party of the Philippines has been seeking to overthrow the government and establish a new democratic state led by the working class and devoid of United States’ influence. A year later, the New People’s Army (NPA) was organized. Thereafter, it has since been known as the CPP-NPA, founded by Jose Maria Sison who led the Maoist-oriented youth faction within the Partido Komunista ng Pilipinas (PKP) which was originally established in 1930.
In 1973, a commission created by the CPP-NPA established the National Democratic Front (NDF) in an attempt to unify and coordinate various leftist groups. The NDF later served as the umbrella organization for the CPP-NPA and other mass revolutionary groups. Since the CPP-NPA was still illegal under the now repealed RA 1700 or the Anti-Subversion Act of 1957, the NDF was presented as the CPP-NPA’s political wing.
For over five decades, the CPP-NPA, with all the atrocities of its armed struggle, has earned the reputation of being the longest-running insurgency in the world. To put an end to the conflict with the communist insurgency in the Philippines, the government engaged the CPP-NPA-NDF in peace negotiations during the 1986 Aquino administration. However, the peace talks between the Philippine government and the NDF have been intermittent and inconclusive since then.
Fast forward, by virtue of Executive Order No. 70 issued by President Rodrigo Roa Duterte in December 2018, the current administration introduced a whole-of-nation approach that aims to address the root causes of insurgencies, internal disturbances and tensions, and other armed conflicts and threats in pursuit of the country’s peace agenda. Henceforth, the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) was created “to synchronize the utilization of the government’s instrumentalities of power with the capabilities of private sector stakeholders to finally end the 50-year long deceit, lies, and atrocities committed by the communist terrorists against the people.”
Mr. President, without doubt, the NTF-ELCAC has been making headway in the performance of its mandate, which is centered on a clear “consolidate-hold-develop” approach geared towards the efficient delivery of housing, education, social protection, health, and basic utilities services to identified areas cleared of the presence and influence of the communist insurgents especially in the countryside. In fact, if I may boldly state, among the different programs under the Duterte administration, I consider the NTF-ELCAC’s whole-of-nation approach as the most effective thus far.
The controversy surrounding the issue of red-tagging was precipitated by the pronouncements made by Lt Gen. Antonio Parlade Jr., spokesperson of the NTF-ELCAC and Commanding General of the AFP Southern Luzon Command, when he urged high-profile celebrities Liza Soberano and Catriona Gray to abdicate the activist women’s group GABRIELA, which he believed will lure them to join the CPP- NPA. And if they did not, they will suffer the same fate as Josephine Anne Lapira. It will be recalled that 22-year-old Josephine was killed in an encounter with the military in Nasugbu, Batangas on November 28, 2017.
Further, Lt. Gen. Parlade’s statements include:
(1) his claim that former Bayan Muna Rep. Colmenares, as well as members of the Makabayan bloc in the House of Representatives, are under surveillance using the Anti-Terrorism Act as its legal cover;
(2) naming 18 universities, later expanded to 38, as recruitment hubs of the CPP-NPA;
(3) calling out Tetch Torres-Tupas of the Philippine Daily Inquirer to be “aiding the terrorist by spreading lies” and a “propagandist” relative to her article about the two Aeta men who were the first to be accused of violating the Anti-Terrorism Act of 2020;
(4) public rebuke of Petitioners against the Anti-Terrorism Act in his apparent intimidating Facebook post which in part states: “The Day of Judgment is upon you and the Filipino people xxx Very soon, blood debts will be settled.”; and
(5) contending in his article published by the Manila Times dated 12 February 2021 that “whosoever wishes the demolition of the anti-terror law must be a friend, if not actually a supporter or member, of the communist and terror groups xxx.”
Donning a military uniform in his interviews and other public appearances, Lt Gen Parlade stands for the Armed Forces even in his capacity as the Spokesperson of NTF-ELCAC. Hence, his pronouncements are inevitably and instinctively attributable to the military sector in the same manner that these represent the policies of NTF-ELCAC.
Mr. President, this Representation, as well as the other members of the Committee, have urged the officials of the NTF-ELCAC to bring their accusations before the courts should they have enough evidence to secure a conviction or at least get past the level of probable cause, which they agreed convincingly. Prominent officials of the security sector notably the NSA, SND, SILG and DG-NICA asserted during the public hearings that red-tagging is in no way part of the government’s policies.
This Committee recognizes the duty of the NTF-ELCAC to raise awareness against the CPP-NPA, considering the increase of child recruitment and deaths of young Filipinos in armed encounters between the military and police on one side, and the NPA guerrillas on the other. However, we stand our ground that such should not be construed as a justification for any arbitrary actions against the freedom of expression, which is protected under Section 4, Article III of the 1987 Constitution.
Mr. President, if there is even just a single point that the security sector and the progressive groups must mutually agree in this course of public inquiries, it is the condemnation of the acts of aggression of the CPP-NPA-NDF in the strongest possible terms.
The communist insurgency in pursuit of their cause propagates the notion that a people’s war – comprising the toiling masses of people and peasants – should be waged against the government to achieve an independent, just, and prosperous Philippines. They capitalize on the ideal communist society with the machinery of armed struggle. This is how they influence and incite people to violence. This is how they recruit our youth into wielding arms.
Mr. President, we have learned of the reported cases of students who were killed during encounters between the members of the CPP-NPA and the country’s security forces in recent years. Their profiles bear similarities: all were promising students of state universities who became impassioned student-activists, later found in the midst of conflict areas, far from their homes, and at the forefront of the NPA’s fighting force.
The CPP-NPA-NDF has long been emphasizing the instrumental role of the youth in advancing the cause of the armed struggle. In a statement posted online by the Kabataang Makabayan, the CPP’s youth wing, the group acknowledged the death of the following in pursuit of their revolution, and I quote: “xxx nagbibigay-pugay ang KM sa mga kabataang inialay ang kanilang buhay, panahon, at lakas para sa pagsusulong ng rebolusyon. xxx Walang anumang pangyuyurak ang babahid sa buhay na inialay nina Jo Lapira, Pamela Peralta, Justine Vargas, Zyra Ligad, Jevilyn Cullamat, Jay Ar Mercado, Andrea Rosal, at ng libo-libo pang kabataang tumangan ng armas upang pabagsakin ang paghahari ng mga panginoong maylupa at malalaking komprador.”
With due diligence, the Committee deemed it necessary to request from the heads of the security sector the official records that would validate their information that indeed, these students were associated with the universities mentioned in their testimonies and report. We also sent letters to the identified universities of the victims to either authenticate or invalidate the statements of the security sector.
As of today, the Mindanao State University, West Visayas State University, University of the Philippines Manila, and University of the Philippines Los Baños, and UP Visayas verified through official documents that Ms. Kemberly Jul L. Luna, Mr. Remy J. Beraye, Ms. Josephine Anne Lapira, Mr. John Carlo Capistrano, Ms. Rona Jane Manalo and Mr. Malvin Christian Cruz were either former students or graduates of their universities. We wish to put on record that we have yet to receive any statements or responses from the DND Secretary, AFP Chief of Staff, and the other schools.
The narratives of the former rebel returnees on the circumstances of their recruitment to the CPP-NPA also serve as a “cautionary tale.” All of these student-activists hailed from state universities, save for Ms. Lady Desiree Miranda alias “Ka Shane” who was then an out-of-school youth. She bared that they were recruited by legitimate progressive organizations such as the College Editors’ Guild of the Philippines (CEGP), League of Filipino Students (LFS), and Sandigan ng Mag-aaral para sa Sambayanan to join the Kabataang Makabayan, and later as members of the NPA guerillas.
On the issue raised by the Makabayan bloc on the admissibility of testimonies presented by the security sector and their witnesses, Mr. President, we wish to reiterate that, as a rule in the conduct of inquiries in aid of legislation, the technical rules of evidence applicable to judicial proceedings which do not affect substantive rights need not be observed by the Senate Committees.
To contextualize, the accounts of the alleged former rebel returnees were considered by this Committee because they revolved around the circumstances of their recruitment, what they personally knew about, and how they participated in both the legal and revolutionary fronts of the CPP-NPA. After all, our resource speakers from both parties had sworn their oaths to ensure that all testimonies elicited were made under the pain of perjury.
We cover the same ground in our appreciation of the Makabayan bloc’s testimonies, counter-arguments, and documentary submissions to this Committee.
Mr. President, of these disputes, one thing is unassailable – the CPP-NPA’s grave violations no longer demand the protection of freedom granted by the Constitution. Inarguably, their actions should not be abetted, condoned, or rationalized by any peace-loving Filipino.
This Committee recognizes that the Makabayan bloc has no legal responsibility to disown and denounce the CPP-NPA, as freedom of expression includes the right not to speak. Yet, as elected representatives of a duly constituted government and as Filipinos who have moral obligations to our countrymen, they should work in unison with the national government and its duly constituted authorities, at the very least, in publicly condemning the atrocities perpetrated by the CPP-NPA. The people expect no less; especially at a time when they were alleged to be associated with these armed insurgents.
To disassociate themselves from the violent recourse in pursuit of their legitimate advocacies, the progressive groups whose young members were killed during NPA encounters should be able to address the issues squarely with a strong rebuke of the violent armed struggle. They should also investigate and hold accountable those who were involved in the alleged rigorous recruitment of their members by the NPA, as testified by no less than the former leaders of these progressive organizations who later served as cadres of the CPP-NPA. Else, they would be remiss in their mandates as public servants in pursuit of reforms by way of peace such as legal protest, related mass actions, and participatory governance.
Mr. President, in all important respects, the Committee exhaustively considers the possible damage brought about by the massive information campaign of the security sector. We sought to determine if the individuals and organizations subjected to the wrongful claims of being associated with the CPP-NPA have, in fact, no legal recourse. Considering the claims of the Makabayan bloc on the acts of the government officials that constitute the alleged “red-tagging,” the Committee determines that sufficient legal remedies are already in place for the supposed aggrieved parties to avail of any of the following:
a. Relative to the verbal or written statements released by the NTF-ELCAC that appear to be false and maliciously made which presumably would cause dishonor to a person, criminal cases for libel, slander, and cyber-libel, as the case may be, can be availed by the alleged victims.
b. On speculations that red-tagging results in threats, illegal detentions and arrests, there are legal remedies available such as the filing of criminal cases for acts defined and punished under the Revised Penal Code such as grave threats, arbitrary detention, delay in the delivery of detained persons to the proper judicial authorities, among others.
c. On the assertions that red-tagging violates human rights, we refer to the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity under RA 9851, a breakthrough in the enforcement of International Humanitarian Law and human rights.
d. On the assertion of the Makabayan bloc that their reputations have been tarnished and they have been subjected to discrimination, they can seek recourse by filing a complaint on the violation of the Anti-Graft and Corrupt Practices Act under RA 3019. The law considers as corrupt practice any act that causes undue injury in the discharge of official functions, to any person or entity through manifest partiality, evident bad faith, or gross inexcusable negligence.
e. If it can be established that the alleged red-tagging by government officials and/or employees constitutes grave misconduct, administrative charges under the Code of Conduct and Ethical Standards for Public Officials and Employees under RA 6713 and the Revised Rules on Administrative Cases on Civil Service (RRACCS) may likewise be filed.
f. Civil actions, particularly indemnification for the damages caused, under Articles 19, 21, and 32 of the Civil Code may likewise be availed.
g. The Judiciary also offers recourse to persons whose constitutional rights, particularly the right to liberty, have been violated by state agents. These are the writ of habeas corpus, the writ of amparo, and the writ of habeas data. The writ of habeas corpus is a known judicial remedy that safeguards the right against arbitrary state action. Meanwhile, the writ of amparo was promulgated to protect other fundamental human rights that are beyond the scope of the writ of habeas corpus.
In fact, following the Rules, upon the filing of the petition for the Writ of Amparo or at any time before final judgment is rendered, the court, justice, or judge may grant any of the following interim reliefs: (1) temporary protection order; (2) inspection order; (3) production order; and (4) witness protection order.
On the other hand, the writ of habeas data is a remedy available to any person whose rights are violated by an individual or entity engaged in the gathering, collecting, or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.
h. As for speculations that the state forces would invoke the Anti-Terrorism Act of 2020 to effect multiple violations of human rights, the law itself provides sufficient protections including imprisonment for up to 10 years for erring State agents.
The Committee takes exception to the progressive groups’ allegation that red-tagging is among the consequences of the passage of the Anti-Terrorism Act. This is unconvincing, to say the least, as red-tagging or red-baiting is in no way related to the recently passed law. Section 4 of the law is clear and explicit that it does not penalize advocacy, the exercise of the right to organize, and other forms of legitimate dissent. Notwithstanding, we submit that the issue on the constitutionality of the Anti-Terrorism Act of 2020 is already being deliberated and discussed before the Supreme Court and therefore should not be tackled in any other venue under the prevailing sub judice rule.
Mr. President, as exhaustively discussed in the Committee Report, the remedies provided in these laws have already been availed by parties in the recent past before the Office of the Ombudsman such as:
a. KARAPATAN’s criminal and administrative charges against the high-ranking officials of the NTF-ELCAC and former PCOO Undersecretary Mocha Uson for alleged violation of RA 9851 or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity;
b. Bayan Muna Rep. Zarate’s Complaint against Lt. Gen. Parlade for the alleged violation of RA 3019 or the Anti-Graft and Corrupt Practices Act;
c. Kabataan Rep. Elago, together with other leaders from various progressive youth groups’ administrative complaint against the ex-officio members of the NTF-ELCAC for the violation of RA 6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees with the Office of the Ombudsman.
d. the Court, in several instances, has also granted petitions for the issuance of the writ of amparo. The first person to benefit from the writ of amparo is Rowil Muñasque, an organizer of Bayan Muna in Mindanao. He was allegedly abducted by soldiers on the same day the writ of amparo was first promulgated. He walked out a free man from the Pagadian City RTC on November 7, 2007, after his family’s petition was granted.
Mr. President, with several courses of action available to parties who seek legal recourse to alleged transgressions of the state actors, it is our submission that various legal and institutional mechanisms are in place for the State to effectively and ultimately protect constitutional rights and civil liberties.
In the course of the public hearings, exhaustive research, and analysis of all the documents submitted by both parties, the following are the recommendations put forward by your Committee:
a. Legal remedies are sufficient and available for personalities or groups that have been the subject of the so-called “red-tagging,” and which some of them have already availed of. Hence, the Committee is of the view that criminalizing “red-tagging” is no longer necessary since those who were or might be at the receiving end of red-tagging may avail of these legal remedies under existing laws protecting their constitutional rights.
b. The Committee enjoins the members of the Makabayan bloc from the House of Representatives to openly and strongly denounce the CPP-NPA. Their public reproach against this group should bear the same tenacity they devote in calling out the administration on almost every aspect of governance.
c. The security sector should give greater attention to the strengthening of its intelligence gathering and analysis capability to ensure that every piece of information is indeed verified and actionable. Legal course of action shall take precedence before any propaganda that may be defamatory to one’s person. In the same manner, they should exercise caution in making public pronouncements as these carry with it a semblance of authority from the State which, if wrongly carried out, may result in polarization between the government and the people.
d. The updates and accomplishments of the localized peace talks should be in the foreground to counter vilification campaigns targeting the genuine purpose of EO 70 while earning the support of the public towards lasting peace. The program, pursuant to its intent, should focus on its development-centered efforts against armed conflicts.
e. As a matter of policy, we should prevent the potential conflict between the policies of NTF-ELCAC and the mandate of the security sector by not engaging a spokesperson who holds concurrent mandates, both in the active military service and a development-oriented entity such as the NTF-ELCAC. This would ensure that conflict situations will not arise between our anti-insurgency policy and our military’s institutional confidentiality and intelligence-gathering. A clear policy by the AFP leadership must be made on how to deal with the accountability of a member of the chain of command who speaks on behalf of an entity outside the military organization’s command structure.
Mr. President, allow me to emphasize: the NTF-ELCAC, a key program of this administration to end insurgency, should be a departure from the intermittent, inconclusive, and unsustained peace talks at the national level with the CPP-NPA-NDF since efforts through local peace initiatives have so far been proven to be more effective.
With its welfare programs such as the delivery of housing, education, social protection, health, and basic services to our people, we can address the crux of insurgency in the country, that is, social inequality and extreme poverty.
Lastly, despite some isolated blunders, the Committee believes that the “whole-of-nation” approach spearheaded by the NTF-ELCAC, thus far, can be our most effective anti-insurgency program as evidenced by the continuous and consistent reduction of the influence and strength of the CPP-NPA.
Mr. President, distinguished colleagues, in closing, I wish to share with you the words of Associate Justice Marvic M.V.F. Leonen in his concurring opinion in the case of Davao City Water District vs Aranquez, and I quote: “The constitutional right to freedom of expression belongs to all. But its exercise may be reasonably regulated. Those who chose public service embraced the public’s interest with a priority higher than their own. Their oaths signify a commitment to public accountability.”
Thank you, Mr. President.