Creating a Marcos? Reviving the anti-subversion law under Dutertedesktop
The anti-subversion law was the dictator Ferdinand Marcos' tool of choice in strangling the opposition and crushing legitimate dissent. Groups fear its planned revival under President Rodrigo Duterte will lead to the same – or even worse.
MANILA, Philippines – In June 2006, two young women traveled to Hagonoy, Bulacan to see how farmers were toiling and tilling the land.
One was a student researcher, the other was a pregnant community organizer. They were drawn to the workers and their stories about their land and how somehow, they never seemed to make enough.
The young women were on a mission, hoping to change what they saw.
But they did not go far.
On June 26, Karen Empeño and Sherlyn Cadapan were dragged out of their rented house, blindfolded, pulled into a jeep by gun-strapped men wearing army fatigues. A farmer, Manuel Merino, tried to stop them, but he was also taken along with them.
The military said they had not the faintest idea where the two women were. What the major general who ruled over the area, Jovito Palparan, said was this: his men took two female communist rebels in Hagonoy, Bulacan, but they were not the missing women.
None of them have come home – daughters forever younger than 30 in the memory of their mothers, snatched on mere suspicion of having communist ties.
The story of Cadapan and Empeño comes to mind as the Philippine government mulls the return of the anti-subversion law, which makes arrests based on communist ideology – even mere suspicion of it – within easy reach of the police and the military.
Many of the country’s key democracy and human rights icons were charged with subversion during the Marcos dictatorship, including statesman Jovito Salonga – a senator who faced subversion charges after he was implicated in the Metro Manila bombings in 1980, but was cleared of crimes by the Supreme Court 5 years later.
It's a push that did not come from nowhere. Consider the longstanding conflict of the Philippine government against communists. It has produced its own star lobbyist for the revival of the anti-subversion law, whose reputation for hunting rebels rivals Palparan’s.
Also consider the President, who has tried to patch up the conflict with the movement, but has instead been disgraced. (READ: The end of the affair? Duterte's romance with the Reds)
From Huks to ‘legitimate dissent’
The anti-subversion law can be traced to more than 60 years ago in the aftermath of World War II. The Communist Party of the Philippines, including membership to the group, was declared illegal for the first time in June 1957 through Republic Act 1700.
The law, signed by Carlos Garcia, stated that the CPP “constitutes a clear, present and grave danger to the security of the Philippines,” after the Hukbalahap shifted from being an anti-Japanese movement to becoming the armed wing of the CPP.
In 1976, then-president Ferdinand Marcos issued Presidential Decree 885, which expanded RA 1700 to include other groups organized to overthrow the government, “with the open or covert assistance and support of a foreign power by force, violence, deceit or other illegal means.”
The Marcos dictatorship utilized this decree to stifle legitimate political dissent and criticism amid widespread human rights violations during Martial Law.
In 1981, two years before the lifting of Martial Law, Marcos issued Presidential Decree No. 1835 or the anti-subversion law of 1981 to allegedly “support the continuing efforts of the government aimed at solving the problems of public disorder and lawlessness, and the restoration of normalcy in the country.”
The reinstatement of democracy in the Philippines led to the repeal of Marcos decrees through Executive Order No. 167, signed by then-president Corazon Aquino in 1987.
Five years later in 1992, Congress repealed RA 1700 by passing RA 7636 as the Ramos administration began its peace talks with the Communist Party.
Repealing the law, Ramos said, assures communist insurgents of political space and at the same time “challenges them to compete under our constitutional system and free market of ideas – which are guaranteed by the rule of law."
The revival’s poster boy
It was at the peak of Marcos’ anti-communist policies in 1983 that a bright lieutenant entered the Philippine Army by way of the Philippine Military Academy: Eduardo Año.
Decades later, he made a name for himself as the military’s “Rebel Hunter," a title that only rivals Palparan’s “Butcher” nametag.
A former intelligence chief and army commanding general, Año retired as the military chief then but was readily embraced by Rodrigo Duterte in his Cabinet as interior and local government secretary.
In the decades since Ramos initiated the peace talks, 4 other presidents have tried and failed to reach an agreement with the CPP, with the turbulent process punctuated by encounters on the ground which have left people dead on both sides.
Then came Duterte: a popular president who, in his first year, proclaimed himself a leftist, only to have a falling out with his supposed comrades.
It was in 2018, as Rappler earlier reported, that Año began sending Duterte daily reports of the CPP-NPA’s infractions: every gunfight with the government, every burning of property, every collection of revolutionary taxes.
Año had seen the peace talks crumble before, and he wanted to see the conflict end with certainty.
“In good faith, the government acceded to those demands for the sake of peace. But instead of laying down their arms and joining mainstream society, the Communists grew bolder and used the democratic space accorded to them to regroup, organize, and mobilize,” Año said in a statement on August 14.
He told the Senate that he wanted a return to the old days. He wanted the anti-subversion law revived.
“Specific naman 'yung mga organizations na gusto nating ma-list as subversive, particularly the communist party, ang kinatatakot kasi ng iba diyan baka 'yung opposition at saka mga ibang political party malista,” Año said, attempting to calm fears.
(The organizations we want to list as subversive are very specific, particularly the communist party. Because others fear that opposition groups and other political parties will also be listed.)
The DILG’s vision
In an interview with Rappler, DILG Undersecretry and spokesman Jonathan Malaya laid down what the DILG wanted.
Duterte’s verbal attacks were not enough. Not even an executive order that had declared the Communist Party a terrorist organization. They want a law crafted by Congress, and which could only be repealed by Congress again.
The DILG so far wants the ban of two things: membership and association with the CPP, NPA, and NDF; and “direct support” of the CPP.
By membership, the DILG does not simply mean registration with the party, but adherence to its ideology.
“Membership in the Communist Party of the Philippines, which is clearly defined by their program, and their program is the violent overthrow of government through revolutionary armed struggle through a protracted peoples war wherein guerrilla fronts are established,” Malaya said.
The DILG also envisions government running after organizations that are simply “associated” with the CPP, such as labor, youth, and religious sector groups – should they be proven to support the CPP.
“These organizations directly support the Communist Party of the Philippines, therefore, if we can prove that they are directly supporting the CPP, then they should be liable under our laws,” Malaya said.
Malaya said the “direct support” of the CPP can take various meanings: from financial backing to taking part in the recruitment of members.
Criminalizing mere membership or subscription to the ideology of communism infringes on constitutionally-guaranteed rights, such as freedom of expression and association, among others, according to Far Eastern University Institute of Law dean Mel Sta Maria.
One should be able to distinguish between “advocacy or thought or a principle and a desire to commit violence.”
“People should be aware that in a democratic society, we are not homogenous as we have different advocacies…But when it reaches the area of violence that you want, then that’s the problem, ” Sta Maria said.
He added that the government should just make use of existing laws, such as the Revised Penal Code, to hold accountable people who subscribe to communism and who have committed violence.
As for the limits? Malaya said they are open to discussing the crafting of the bill with members of Congress.
What they are certain of, he said, is they do not want a return to a Marcosian political persecution drive marked by illegal detention, murder, and enforced disappearances. (READ: Martial Law, the dark chapter in Philippine history)
“This is not the authoritarian martial law which is of the Marcos period, when someone is arrested and not heard of, and suddenly he's dead. This is a different context,” Malaya argued.
He added: “We don’t want the presidential decrees passed by Marcos. We understand that these were repressive.”
The people behind the revival of the anti-subversion law should think about the huge implications especially on the freedoms of individuals, according to Sta Maria.
He cited the concept of the Bill of Attainder which, in relation to criminalizing mere membership to an organization, automatically penalizes a person as a criminal without trial.
“Nahusgahan ka na bago pa magkaroon ng (You’ve been judged before) due process which ideally should start with the very principle of presumption of innocence,” he said, describing the law as “ensnaring” because it can be utilized by an abusive executive power.
Commission on Human Rights Chairperson Chito Gascon also stressed that historically, governments used laws against subversion to stifle legitimate dissent.
“It is for this reason that countries that have transitioned to democracy and away from authoritarianism have either repealed those laws or have in practice not utilized them favoring toleration of pluralist voices while drawing the line on the use of violence,” he said in an interview with Rappler.
Human rights and other progressive groups also beg to differ on assurances that the planned revival will not be as undemocratic as previous laws. Even without an anti-subversion law, they see political persecution as they continue to advocate against repressive policies of the Duterte administration.
Ellecer Carlos of In Defense of Human Rights and Dignity (iDEFEND) sees a new anti-subversion law as part of the “overall efforts to set up the state apparatus to stifle any and all forms of dissent.”
“Due process and the rule of law has been blatantly disregarded on a massive scale, routinely, by this government,” he told Rappler, adding that it is a slippery slope that may lead to more repressive laws.
“You can just imagine the new human rights crisis that this will usher in if they continue with the anti-subversion law,” Carlos added.
Not unfounded fears
Carlos' and many other progressive groups’ fears are not unfounded. After all, many critics accuse the Duterte government of using and twisting the law to suit its agenda, particularly to silence dissenters – to include critics of the violent campaign against drugs. (READ: Duterte's war on dissent)
According to data from rights group Karapatan, at least 2,370 human rights defenders have been charged by the government from 2016 to 2019. The numbers under Duterte, many said, are clearly the worst of the last 3 administrations.
The Philippine Alliance of Human Rights Advocates (PAHRA), a member of iDEFEND, is one of at least 30 organizations red-tagged by the government, accusing them of being CPP fronts.
Red-tagging, according to the Supreme Court, refers to "the act of labeling, branding, naming and accusing individuals and/or organizations of being left-leaning, subversives, communists or terrorists (used as) a strategy...by State agents, particularly law enforcement agencies and the military, against those perceived to be ‘threats’ or ‘enemies of the State.'”
Groups accused of being communist fronts have cried foul, condemning the government's attacks as "dangerous."
In February 2019, the military asked the European Union to stop funding progressive groups, including church and human rights organizations, as they are allegedly being used to fuel terrorist acts.
In 2018, the Department of Justice wanted to declare 656 people as terrorists, including United Nations Special Rapporteur Victoria Tauli-Curpiz, in line with Duterte's Proclamation No. 374 declaring the CPP-NPA as a terrorist organization. It has since trimmed the list down to 8 amid a massive backlash from both local and international bodies.
The Duterte government has also been active in its crackdown on alleged recruitment of students into activist groups in various colleges and universities.
Worsening repression is what many organizations fear may happen with the revival of the anti-subversion law, especially given what critics call a climate of impunity and the erosion of democracy under Duterte.
The National Union of Peoples' Lawyers (NUPL) warns that the government’s plan is “an excavation of a jurassic idea which has the effect of curtailing freedom of association and political beliefs which are in fact crucial ingredients for democracy to flourish.”
“This draconian measure, together with a menu of other repressive laws and policies, and on top of vicious red-tagging of individuals and groups, is essentially antidemocratic even if packaged for purportedly salutary ends,” NUPL president Edre Olalia said in a statement.
But how do we end Asia’s longest insurgency? For Carlos, the best way to address insurgency is to address root causes of systematic oppression, including poverty and social inequality.
“Naging violence ang response to the insurgency problem whereas, ang sagot naman ay investment in a life of dignity,” he said. “Kung ang lahat ay makatatamasa ng maayos na pamumuhay, wala naman mag-iisip na sumali sa insurgency.”
(Violence became the response to the insurgency problem whereas, the answer should be investment in a life of dignity. If everyone is able to live a comfortable life, no one will think of joining insurgencies.) – Rappler.com
ANNIVERSARY. The flag of the Communist Party of the Philippines during its 50th year anniversary in 2018. Photo by Alecs Ongcal/Rappler
VISITING SULU TROOPS. President Rodrigo Duterte speaks with then martial law implementor AFP chief Eduardo Año during a visit to a military camp in Jolo, Sulu in 2017. Presidential photo
BURN. Protesters burn an effigy during a demonstration against government policies. Photo by Alecs Ongcal/Rappler
DEFEND OUR SCHOOLS. Students of UP Baguio condemn the militarization of schools in line with the government’s crackdown on leftist organizations. Photo by Mau Victa/Rappler