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Duterte administration sparks new legal offensive vs red-tagging

The National Union of Peoples' Lawyers (NUPL) filed on Wednesday, December 9, an administrative complaint against Lieutenant General Antonio Parlade Jr and Press Undersecretary Lorraine Badoy over red-tagging.

This is part of a continuing legal offensive sparked by the Duterte administration's crackdown on progressive groups.

NUPL's complaint accused Parlade and Badoy of committing grave misconduct, conduct prejudicial to the service, and grave abuse of authority, all under Republic Act 6713 or the Code of Conduct of Public Officials. The penalty under this law is either a suspension or a dismissal from service.

"The complainants bring the instant action in order to finally address a continuing wrong, to vindicate their basic rights, and to remind public officials that illegal, improper, unjust and oppressive acts and utterances, especially those vicious and virulent, are not without consequence," said the complaint.

Start of the legal offensive

Red-tagging is linking legitimate progressive groups to the communist movement, either the leadership of the Communist Party of the Philippines (CPP) or its armed wing, the New People's Army or NPA.

Since 1992 when the anti-subversion law was repealed, being a communist has ceased to be a crime.

However, as the complaints allege, those red-tagged end up being arrested on false charges like murder, and illegal possession of firearms and explosives. The rest are surveilled, harassed, and worst, killed.

But red-tagging is not a crime, too, pushing lawyers to be creative with their filings.

Before the NUPL's complaint, Bayan Muna Representative Carlos Zarate filed a similar Code of Conduct administrative suit against Parlade back in June in a case still unresolved by the Office of the Ombudsman.

"I think that's a very viable case because the Code of Conduct really does contain the ethical standards to be followed by all government officials," said human rights lawyer Chel Diokno of the Free Legal Assistance Group (FLAG) in Rappler podcast Law of Duterte Land.

In Zarate's complaint, he also sued Parlade for graft which is most commonly used for corruption allegations. But Zarate framed it as a violation of Section 3(e), which punishes, among others, causing undue injury through manifest partiality, evident bad faith, or gross inexcusable negligence.

Creative ways

Last week, rights group Karapatan tried an unexplored route of using RA 9851 or the 2009 International Humanitarian Law (IHL), alleging that red-tagging falls under Section 6(h) or a crime against humanity by persecution.

It has never been done before, so Karapatan told the Office of the Ombudsman to be guided by the law itself in referring to international laws when trying to define persecution.

Will the Philippine justice system accommodate this creativity?

"That depends a lot on the personality of the judge involved," Diokno said.

"The training that many lawyers have here is very technical and by the book, because we're codal. It's more of the civil law tradition that prevails more than the common law which is more open-minded and open to innovation. That's a basic tendency that I see in practice," Diokno added.

Civil suits?

Diokno said invoking Articles 19, 21, and 32 of the Civil Code can also be another way.

Article 19 says "every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith."

Article 21 says "any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."

Article 32 says "any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages."

A civil suit's punishment is the payment of damages. Diokno said the advantage of this route is that it doesn't have to go through public prosecutors, as civil suits can be directly filed in court.

"It's a private suit so there's no issue of you needing to be under the control of a public prosecutor," Diokno said in Filipino.

Other ways

In 1953, the Supreme Court issued an injunction ordering law enforcement not to arrest senators who were red-tagged by the government. There were not even charges nor warrants against the senators.

But then-Philippine justice secretary Oscar Castelo called Senators Jose P. Laurel, Claro M. Recto, Lorenzo M. Tañada, and Arsenio Lacson communist sympathizers and threatened to arrest them for subversive activities.

It is acknowledged as a unique case but has not been seen repeated in more current jurisprudence. Diokno said there was "no extended decision." 

"Kaya hindi natin alam ang actual reasons ng Court, ang nakita ko lang ay 'yung injunction ng Court (That's why we don't know the Court's actual reasons, because what I saw was only the injunction) which doesn't really explain why they issued the injunction," Diokno said.

The lawyers for the senators were Diokno's father Jose, or Ka Pepe, and his grandfather Ramon.

Diokno said one can also invoke the Articles of War and bring it to the attention of the military to sanction its own men in their own military court.

But would that work if their commander-in-chief, President Rodrigo Duterte, red-tags too?

"I think it's worth a try, because they have their own justice system to police their ranks and it's worthy to test whether they'll really do that or not," said Diokno.

Weaponization

Activists used to resort to filing for extraordinary writs like amparo to get court protection from, for example, soldiers who allegedly harass them.

But most of these petitions have recently lost, with lawyers pointing to a 2015 decision that has weakened the writs  Zarate vs Aquino, where the High Court said the inclusion of activists in intelligence lists "has no direct relation to the circumstances (they) experienced." (READ: Supreme Court promises to review and strengthen protective writs)

In Karapatan's case, when they filed for an amparo against National Security Adviser Hermogenes Esperon Jr, the retired general filed a countersuit of perjury that got them all – including a nun – ordered arrested. The case is on trial.

"It's part of the phenomenon called the weaponization of the law where the law itself is used as a blunt instrument against critics of the government, that is a phenomenon we experienced during Martial Law, it disappeared for a while until this administration," said Diokno. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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