Manila judge junks DOJ’s bid to declare CPP-NPA as terrorist groups

THE Regional Trial Court (RTC) of Manila City has junked the petition for proscription filed by the Department of Justice in 2018 seeking to declare the Communist Party of the Philippines (CPP) and its armed wing, the New People’s Army (NPA) or the Bagong Hukbong Bayan as terrorist groups.

In a 135-page decision issued by Manila RTC Branch 19 Presiding Judge Marlo Magdoza-Malagar on Wednesday, September 21, 2022 which coincided with the 50th anniversary of the declaration of martial law in the country by the late strongman former President Ferdinand E.  Marcos Sr., the trial court held that the alleged atrocities committed by the groups that were offered, as evidence of DOJ cannot be considered as terrorist acts as defined under Sections 3 and 17 of Republic Act 9372 or the or the Human Security Act (HSA) of 2007.

Furthermore, the trial court held that the CPP-NPA based on its “The Program for People’s Democratic Revolution” would show that it was organized not for the purpose of engaging in terrorism.

“It is not difficult to see how the CPP-NPA’s resort to ‘armed struggle’ and the violence that necessarily accompanies the same, as the sanctioned means to achieve its purpose[s] may have earned the CPP-NPA the terrorist label. Indeed, witness accounts of former members and official documents point to the fact that ‘armed struggle’ is essentially built into the structure of the CPP itself as the recognized and prescribed means to achieve its ends,” the trial court explained.

“Be that as it may, while ‘armed struggle’ with the ‘violence’ that necessarily accompanies it, is indubitably the approved ‘means’ to achieve the CPP-NPA’s purpose, ‘means,’ is not synonymous with ‘purpose.’ Stated otherwise, ‘armed struggle’ is only a ‘means’ to achieve the CPP’s purpose; it is not the ‘purpose’ of the creation of the CPP,” it added.

Section 3 of HSA 2007 defines “terrorism” as the commission of acts such as piracy and mutiny in the high seas, rebellion or insurrection, coup d’ etat, murder, kidnapping and serious illegal detention, crimes involving destruction of property such as arson, use of toxic substances and hazardous nuclear wastes, hijacking, piracy and highway robbery and the illegal manufacture, acquisition, disposition and possession of firearms, “thereby sowing and creating a condition of widespread and extraordinary fear and panic among the popular, in order to coerce the government to give in to an unlawful demand.”

On the other hand, Section 17 defines a terrorist organization, association or group of persons as that which is organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses acts mentioned in this Act, or commits acts to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand.

The proscription case was filed by the DOJ in February 2018 but the HSA has since been replaced by the controversial Anti-Terrorism Act (ATA) of 2020 whose constitutionality was upheld by the Supreme Court despite fears of many sectors that its provision is prone to violation of the people’s basic rights.

The CPP-NPA and several individuals affiliated to the group have been labeled as terrorists under the ATA.

In determining whether or not the CPP-NPA organizations have committed acts that will qualify as terrorist acts, the trial court took into consideration that nine incidents of atrocities allegedly committed by CPP-NPA against civilians.

These incidents include the December 31, 2019 killing of Bontola Mansinugdan in Agusan del Sur; the March 19, 2020 killing of Datu Astudillo and Zaldy Ibañez in Sitio Inadan, Barangay Magroyong, San Miguel, Surigao del Sur; the October 4, 2020 ambush of Datu Jumar Bucales and company at Sitio Mamprasanon, Barangay Banahao, Lianga, Surigao del Sur; the July 6, 2020 killing of Datu Jomar Engayas in Sitio Sangay, Barangay Libas-sud, San Miguel, Surigao del Sur; the October 16, 2020 failed attempt to kill Department of Education Teacher Eli Apacible at Purok Hitaon, Barangay Awasian, Tandag City, Surigao del Sur; the August 13,  2020 killing of 70-year-old Datu Benedicto Dinoy, in Dumalaguing Village, Impasugong, Bukidnon; the May 28, 2020 burning of chapel and residential houses, in Barangay Limunda, Opol, Misamis Oriental; the May 30,  2019 abduction of seven civilians, including Ryard Badiang who was later beheaded, in Barangay Maitum, Tandag City, Surigao del Sur; and the July 21, 2020 killing of Datu Saidor Balansi, at Sitio KM 18, Barangay Besigan, Cagayan de Oro City.

While the nine acts or incidents that the DOJ claimed were carried out by NPA members and can be considered terrorism under the 2007 HSA, the trial court pointed out that their authorship could not be traced with certainty to the communist movement as the prosecution witnesses have only identified the manner of clothing of the attackers and the fact that they were carrying high-powered firearms.

“This identification leaves much to be desired. Certainly, it takes more than a certain manner or mode of dressing to establish that one is a member of the CPP-NPA,” the court said.

“In the absence of any evidence that the official uniform of the members of the CPP-NPA consist of an all-black outfit, this court cannot give credence to the witnesses’ identification,” it added.

Furthermore, the court stressed identification is not exclusive, particularly in Mindanao where the nine incidents occurred due to the presence of other armed groups such as the Moro National Liberation Front, Moro Islamic Liberation Front, Abu Sayyaf Group, Maute Group and a host of private armed groups.

It also noted that none of the nine incidents can be said as having caused “widespread and extraordinary fear and panic” among the general public.

“While the Court does not dismiss or minimize the loss of lives and property, these incidents can only be characterized as ‘pocket and sporadic occurrences’ in limited and scattered areas of the country, particularly in specific areas in Mindanao, i.e., Surigao del Sur, Cagayan de Oro City, Misamis Oriental, Bukidnon, and Agusan del Sur,” the trial court said.

“Any fear and panic these incidents may have caused are confined to the communities where they have occurred. In other words, these incidents have not reached ‘widespread’ or ‘extraordinary’ proportions contemplated under Section 3 and 17 of HSA 2007,” it added.

The DOJ, the court said, also failed to present evidence showing that the nine incidents were meant to coerce the government to agree to their demands, much less an unlawful demand.

“No evidence has been submitted establishing that any of the nine incidents of atrocities committed by the CPP-NPA against civilians has been preceded or followed by any demand for peace negotiation with the government,” the trial court said.

As to the “purging” incidents or the liquidation of its members that have turned their back to the movement, the court said it does not constitute acts of terrorism, especially since these were carried out in secrecy, thereby precluding the likelihood of “widespread and extraordinary fear and panic among the populace” for them to be considered terroristic acts.

With regard to the collection of revolutionary taxes, the 1971 Plaza Miranda bombing and other incidents being attributed to the CPP-NPA, the court said these couldn’t be used against the groups as these took place before the passage of the HSA.

“These incidents transpired before the enactment either of HSA 20O7 or ATA 2020, which defined and penalized terrorism. They cannot now be utilized to prove the ‘terrorist character’ of respondent organizations,” the court said.

The court stressed the acts attributed to the CPP-NPA should be considered “political crimes” treated with leniency.

The said acts were also targeted against primarily at State agents, not on civilians, adding that it could only qualify as rebellion but not terrorism.

The court also warned of the danger of red tagging as it poses a risk to the safety and security of activists.

It pointed out that the petition initially named approximately 600 personalities, mostly known activities and members of various non-government organizations as being members of the CPP-NPA.

“Activism is what activists do; that is, it encompasses the methods they use in order to bring about the desired change. Activism is a political act, by which an informed and active citizenry expresses and works for change in an array of political issues that affect them. In essence, activism therefore is an important part of the democratic process—where individuals and communities exercise their right to shape government policy and ultimately, society,” the court explained.

“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 are uncompromising in their ideals, so must the government be uncompromising in safeguarding the Constitution it is sworn to uphold,” it added.

In its petition, the DOJ insisted that the groups were organized for the purpose of engaging in terrorism and in fact, have been committing acts that fall under the RA 9372.

It also cited in the petition the purging activities of the CPP dubbed as “Kadena de Amor, Takip Silim, Kampanyang Ahos, Operation Missing Link, Zombie, Olympia” aimed at cleansing its ranks of government infiltrators.

It also accused the groups of being insincere in finding peaceful solutions to the decades-long insurgency problem in the country.

It would be recalled that former President Rodrigo R.  Duterte signed an order declaring the CPP-NPA as a terrorist organization and ordered the DOJ to immediately file a petition before the Manila RTC to classify the communist movement as a terrorist group under the HAS of 2007.

Under the said law, a person found guilty of terrorism shall be meted a jail term of up to 40 years without parole.

The crime is given heavier penalty compared to rebellion, which is punishable by reclusion perpetua or also up to 40 years imprisonment, but eligible for pardon or parole.