A ‘brilliant, correct decision’

“The Court has to answer not only the purpose behind the creation of the CPP-NPA, but whether the acts committed by its members as alleged by the petitioner would qualify as ‘terrorist’ acts.”

A few weeks ago, we saw the resolution of the petition seeking the proscription of the Communist Party of the Philippines and the New People’s Army, jointly.

Judge Marlo Magdoza-Malagar’s decision on the case, even as it is controversial, will be hailed for decades to come for its brilliance and historic nature.

She is correct and would have been affirmed by the Supreme Court if the prosecution appealed the decision. This is based on an analysis I wrote and published with colleague Ally Munda.

The petition was filed on February 21, 2018 by the Department of Justice on behalf of the Republic against the CPP-NPA.

At the time, the relevant law was R.A. 9372, also known as the Security Act of 2007 or, in brief, HSA.

Though the HSA was expressly repealed in 2020 by R.A. 11479 or the Anti-Terrorism Act of 2020 (ATA) the court retained jurisdiction due to the saving clause in the repeal that dictated that all pending actions under the HSA remained valid and effective.

The Petition sought proscription against the CPP-NPA for having committed the following “terrorist acts:” Extortion in the collection of revolutionary taxes; Ambuscades of the PNP and AFP personnel resulting in deaths and physical injuries; Atrocities against civilians; Attacks on business establishments resulting in destruction of property and seizure of firearms; and, Armed attacks on PNP stations.

Section 3 of the HSA enumerates the criminal acts punishable under the Revised Penal Code and other special laws which may be classified as terrorist acts.

It was thus up to the Court to determine if, firstly, the evidence presented by the petitioner substantiates their claim that the CPP-NPA had even committed these alleged acts, and secondly, whether these acts if proven as a fact satisfy the definition of terrorist acts under the HSA and thus lead to the proscription of the CPP-NPA as a terrorist organization.

It is important for laymen and those not familiar with the law to understand how terrorism, despite how intuitive it seems to identify, has not been given a concrete definition by either the international community or within the Philippine jurisdiction.

Prior to the enactment of the HSA, the word “terrorism” had appeared only once in our criminal laws in President Ferdinand Marcos’ PD 1835, which was enacted during the Martial Law Regime to criminalize terrorism as a means to overthrow the government.

The subsequent EO 167 enacted by President Corazon Aquino in 1985, which repealed PD 1835, similarly punished terrorism for its subversion.

The same law outlawed the Communist Party of the Philippines.

However, both of these laws did not define “acts of terrorism.”

The issues at the heart of the Petition are now clear: whether or not the CPP-NPA was organized for the purpose of engaging in terrorism and, if not, whether the acts alleged by the petitioner to be committed by them were for the purpose to coerce the government to give in to an unlawful demand.

Was the CPP-NPA organized for the purpose of engaging with terrorism?

The Court turned to the definitional elements of “terrorism” under the HSA, which is through the commission of certain specified acts which by their doing would be “thereby sowing and creating 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 Court has to answer not only the purpose behind the creation of the CPP-NPA, but whether the acts committed by its members as alleged by the petitioner would qualify as “terrorist” acts.

Regarding the purpose of the organization, the Court relied upon the Constitution of the CPP, specifically the “The Program for a People’s Democratic Revolution” and “Our Specific Program” attachments.

The ultimate goal of the CPP is to achieve a People’s Democratic Revolution summed into a Ten-Point Program.

If the Program of the CPP is construed as the purpose for being of the CPP-NPA, then it is clear from the foregoing that it was not established for the reason of engaging in terrorism.

The Court, however, notes that the employment by the CPP-NPA of an armed struggle and violence o achieve their ideological purpose has given rise to the question at the very heart of the Petition.

The creation of the NPA by the CPP as its “mighty sword of the people in a protracted people’s war against foreign and feudal domination” solidified the Party’s approval of violence as a means to achieve their purpose.

But the Court made clear that the means to meet a purpose are not equal to the purpose itself.

Judge Maldoza-Malagar also observed that experts believed guerilla warfare is not synonymous with terrorism. I will discuss why this is so in my next column.

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