"Let it stay deep on the graveyard of bad legislation."
The Anti-Subversion law, first enacted in 1957 as Republic Act 1700 (the Anti-Subversion Act) and later on revised and made more repressive by President Marcos through Presidential Decree No. 1835 (the Anti-Subversion Law of 1981) is one of the worst laws the Philippines has ever seen. It did not only fail in its main goal to defeat the communist insurgency but it had the opposite result of strengthening the revolutionary movement. The legislation on Anti-Subversion did not result in the defeat of the communist insurgency nor did it decimate the ranks of the movement. Instead by the 1980s, more people, especially the young, had joined the Communist Party of the Philippines and its allied organizations, driven to it by the repressive tactics of the US-Marcos dictatorship.
There is no reason to believe that the same outcome will not be repeated if the Anti-Subversion Law is reenacted. Yet top officials of the Armed Forces of the Philippines and the Philippine National Police, together with Local Government and Interior Secretary Eduardo Año, have proposed its revival. Thankfully, Justice Secretary Menardo Guevarra and former PNP Chief Senator Panfilo Lacson, among others, seem to object to the proposal.
As for me, I make mine the words of the Manananggol Laban sa Extra-judicial Killings (Manlaban sa EJK), of which I am a convenor: “The reimposition of the Anti-Subversion Law is unconstitutional, discriminatory, and contradictory to the democratic process.”
Indeed it is. According to Manlaban:
“No less than the Constitution, in Article 2, Section 4 says that ‘No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.’ The Constitution, which is the highest law of the land, makes it clear that any Filipino has the freedom to associate with groups they feel are aligned with their beliefs, and mere membership is not, and should not be, sufficient basis to have them charged in the court of law.
Under the proposal however, mere distribution of material considered by the Duterte administration as propaganda of the CPP, NPA, NDFP, any alleged front, or any person, for that matter, against the government will be sufficient to constitute an act of subversion.
Further, it is provided in Article III, Section 22 of the 1987 Constitution that no “ex post facto law or bill of attainder shall be enacted.” A bill of attainder is an act of the legislature which declares a person or group of persons guilty of some crime and prescribes their punishment, all without the benefit of a trial. In a bill of attainder, the legislature assumes the work of the judiciary, taking upon itself the pronouncement of the guilt of parties, even without the reception of evidence. At its core, it is a dangerous discretion, because it usually does not take into consideration the independent judgment that the courts should ideally arrive at.
To lump the CPP, the NPA, and the NDFP together, and declare these organizations criminal, and to have its members and those affiliated with them charged with criminal offenses, expressly violates the proscription on the passing of bills of attainder. Without the benefit of trial, only prima facie evidence of being a member of the CPP, NPA, or NDFP or any supposedly front group of these organizations could land dissenters or the opposition in jail.
The revival of the anti-subversion law must be seen in the context of the alarming signs that we are in the cusp of the return of authoritarianism. Manlaban correctly observes that the Anti-Subversion Law will be used by the state as a repressive weapon not just at communists or national democrats but also at the opposition, student and youth activists, human rights lawyers and defenders, and other dissenters—all of whom will be lumped as NPA supporters or as ouster plotters. During the Marcos time, subversion was a catch-all term that government used to ensnare all those it thought were its enemies. Most of time, these were for imagined crimes.
The Anti-Subversion Act is inherently discriminatory. It violates the equal protection clause of the Bill of Rights found in Article III, Section 1 of the 1987 Constitution which states in no uncertain terms that “no person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”
I agree with Manlaban that the equal-protection clause is not absolute. I emphasize to my constitutional law students that one can differentiate classes of people based on reasonable classification. But such classification, as pointed out in the Manlaban statement, “(a) must be based on substantial distinctions which make for real differences; (b) must be germane to the purpose of the law; (c) must not be limited to existing conditions only; and (d) must apply equally to each member of the class.” Indeed, to “indiscriminately lump these groups together will deny the rights of the people to the equal protection of the laws.”
The reenactment of the Anti-Subversion Act will undermine the democratic process. According to Manlaban:
“To threaten to charge people for their political ideas will create the results that the law initially wanted to remove. To remove from these people their right to petition for redress and to organize might prove to be far more dangerous in the long run. Mere affiliation in any organization is not a crime, and to render it criminal will precisely create the evil it avoids.”
Needless to say, the revival of the Anti-Subversion Law will be a big blow against the peace process. As Manlaban points out, this “practically destroys the peace process and any effort at achieving a just and lasting peace in the country.”
Ironically, only a successful peace process can result in the outcome that Anti-Subversion Law supporters would like to achieve—the laying down of arms by a revolutionary movement. One only need to look at how much good the Comprehensive Agreement on the Bangsamoro has done for Mindanao to conclude that such a peace agreement is the only way to end the longest communist insurgency in the world.
The Manlaban statement reminds us why the Anti-Subversion Law was repealed during the time of former President Fidel V. Ramos, himself a soldier and the best and wisest post-Marcos president the Philippines has had. Ramos justified the repeal using impeccable logic: “By assuring communist insurgents of political space, we also challenge them to compete under our constitutional system and free market of ideas—which are guaranteed by the rule of law.”
Manlaban is correct: “Laws are repealed for good reason, and to revive such dead law will simply revive the horrors that came with it when it was first promulgated.”
The Anti-Subversion Law is evil, regressive, and abominable, rightly laid to rest and buried. Let it stay deep on the graveyard of bad legislation and never again allow it to be the law of the land.