SC justices warn vs red-tagging, hit shallow understanding of ideologies

Supreme Court justices on Tuesday, May 11, grilled government lawyers for the relentless red-tagging of the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC), and lectured them on the risks of labeling, especially labeling without basis.

During Day 7 of the anti-terror law oral arguments on Tuesday, Associate Justice Amy Lazaro-Javier asked point-blank: What is the evidence of the NTF-ELCAC that progressive groups such as Gabriela and Kabataan are legal fronts of the Communist Party of the Philippines-New Peoples' Army (CPP-NPA)?

Javier noted that the Philippine government has already designated CPP-NPA as terrorists in December 2020. But groups being red-tagged by the NTF-ELCAC were not mentioned in any official resolution.

"Does this mean that after all these months of tagging Kabataan and Gabriela as fronts of the CPP-NPA, there is insufficient evidence linking them to said terrorist organizations after all?" Javier asked.

Assistant Solicitor General Marissa dela Cruz-Galandines could not answer, and deferred to National Security Adviser Hermogenes Esperon Jr, who was expected to be called to court on Day 8, Wednesday, May 12.

The Office of the Solicitor General (OSG) has argued that NTF-ELCAC spokesperson Lieutenant General Antonio Parlade Jr's red-tagging on his social media accounts are done in his personal capacity and not the official military position.

"But has the government disavowed his statements?" asked Javier.

The government had in fact not disavowed any of Parlade's statements. The farthest that Esperon went was to gag Parlade during the height of his red-tagging spree against community pantries. (READ: DOJ sidesteps question on NTF-ELCAC's red-tagging)

During Day 6, Galandines told the Supreme Court that red-tagging was a term coined by leftists, and that what the government does was "truth-tagging."

Truth-tagging, Galandines said, "involves a comprehensive, detailed and careful evaluation of circumstances before the government comes up with the tagging of a person or organization."

Yet Galandines could not answer when pressed for evidence why the government would link progressive groups to the CPP-NPA.

Complex ideologies

Javier said during her interpellation, "Isn't it that the act of calling a group a leftist a form of red-tagging itself?"

Some Left personalities do not mind being called leftists, but Associate Justice Marvic Leonen said calling someone leftist can be "pejorative" or contains contempt "because it reflects on whoever is labeling that person."

In open court, Leonen talked about touchy topics for the Left and told government lawyers that a misunderstanding of complex ideologies may land the wrong person in jail.

Leonen went into a whole lecture about the intricacies of the Philippine Left, the different factions of national democrats and social democrats, and different kinds of Marxist teachings.

Leonen said to be a communist is not wrong because to be a communist simply "means you believe in the writings of Karl Marx and the communist manifesto."

Communism has not been a crime in the Philippines since 1992, when former president Fidel V. Ramos repealed the anti-subversion law.

"Even with all the guidelines, still and all, it will be interpreted by the ordinary foot soldier, the ordinary police officer, and they will look at somebody, you look like a terrorist, a leftist, communist, so come to jail, you're here 14 days, and then later on you are released, but it has already created damage. Turns out they were wrong, you're not a terrorist...you're not Marxist Joma Sison, but Marxist Adorno or Marxist Gramsci," said Leonen in a mix of English and Filipino.

"Porke meron kang libro na communist manifesto, nagkamali 'yung foot soldier. That is a mistake, that is the risk in the implementation of the law," Leonen added.

(Just because you have the communist manifesto, the foot soldier labeled you wrong. That is a mistake, that is the risk in the implementation of the law.)

Leonen said that when Esperon comes to the Court, possibly on Wednesday, he would ask the retired general if the government truly understood Karl Marx.

'Careful'

Leonen acknowledged the dilemma: To a law enforcer's mind, it is better to make the mistake of jailing a leftist, than the risk of letting him free and then bomb a market.

Leonen said that the Supreme Court must be careful as to make the Constitution apply to all and not to regard people as mere collateral damage.

"That's why we're very careful with this particular case, to make the right pronouncement, that if we proceed with it, that we are careful that we do not hold the hands of government for something that we do not truly understand," said Leonen.

Leonen's lecture about ideologies was anchored on his point about chilling effect, telling the government lawyers that a fundamental issue of the case is how free speech provides a narrow window for the Supreme Court to exercise judicial review.

It's the government's position that the anti-terror law is a political question that is not covered by judicial review.

"You have to address very clearly what are the parameters for us to do judicial review. Given that this law appears on many portions to be a little bit vague, shouldn't we therefore have the opportunity to come in to protect the sovereign?" Leonen said. – 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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