“One who is falsely identified as a communist can sue for libel, subject to the defenses available to the person sued under the law and jurisprudence”
Before they invoke any law and discuss it with the media, it is advisable for the lawyers representing the National Union of People’s Lawyers (NUPL) to carefully read the laws they cite before discussing the same in news interviews.
Their misunderstanding of the laws they cite misleads the public.
More than a year ago, the NUPL filed a complaint with the Office of the Ombudsman. The NUPL accused top officials of the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC) of committing grave misconduct and grave abuse of authority.
According to the NUPL, erstwhile NTF-ELCAC officials, namely, former National Security Adviser Hermogenes Esperon, retired General Antonio Parlade Jr., and ex-NTF-ELCAC spokesman Lorraine Badoy linked the NUPL to local communist rebels.
This, the NUPL alleged, constitutes red-tagging.
Esperon and his co-respondents asserted that red-tagging is not a crime, because there is no statutory definition of red-tagging and there is no law which penalizes it.
The NUPL agrees that there is no existing law explicitly penalizing red-tagging as a crime.
However, the NUPL insists that red-tagging is a criminal act under Republic Act 9851, which penalizes crimes against international humanitarian law. This law was enacted in December 2009 and remains in our statute books.
The NUPL believes that Republic Act 9851 can be the basis for penalizing red-taggers because red-tagging is “persecution against political groups” as contemplated in Section 6(h) thereof, which provides:
Section 6(h) of Republic Act No. 9851 provides —
“SEC. 6. Other Crimes Against Humanity. – For the purpose of this Act, “other crimes against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime defined in this Act; xxx.”
Under Section 3(p) of the same law, persecution is defined as:
“(p) Persecution” means the intentional and severe deprivation of fundamental rights contrary to international law by reason of identity of the group or collectivity.”
In my opinion, the NUPL is grossly mistaken in its understanding of Republic Act 9851.
For starters, Republic Act 9851 is a penal law. Being so, it must be strictly construed in favor of anyone criminally charged under any of its provisions.
Since red-tagging is not even explicitly mentioned in Republic Act 9851, it is legally untenable for the NUPL to include red-tagging into the law, particularly for the purpose of causing the criminal prosecution of anyone, including Esperon and his group.
Next, red-tagging cannot be considered as persecution of the kind contemplated in Section 3(p) above, because red-tagging does not involve any “intentional and severe deprivation of any fundamental right” recognized under international law to begin with.
To illustrate, a person who finds himself at the receiving end of a red tag does not lose any of his fundamental rights such as free speech, press freedom, free expression, freedom of assembly and religious freedom, among others.
Undoubtedly, therefore, I don’t think the interpretation given by the NULP to Republic Act 9851 will win the day for it.
With or without Republic Act 9851, red-tagging cannot be criminalized.
Red-tagging is a form of speech. To criminalize red-tagging per se raises a red flag (no pun intended) in the realm of the constitutional rights of free speech, press freedom and free expression.
Moreover, jurisprudence states that any law which, on its face, abridges the aforesaid rights bears a heavy presumption of unconstitutionality.
What is it with red-tagging, therefore, that will justify making it a crime? Nothing!
The Philippine government and the governments of the United States and many European countries have officially declared the Communist Party of the Philippines (CPP), the New People’s Army (NPA) and the National Democratic Front (NDF) as terrorist organizations.
Since the CPP-NPA-NDF troika are terrorists organizations, the communists who compose the troika are terrorists.
Considering that terrorism is a crime against which the general public should be protected, it is necessary for the government to warn the public about any such communists, even to the point of identifying them as communists.
Thus, if the person red-tagged is really affiliated with the CPP-NPA-NDF troika, then it is legally absurd that one who exposes that person as a communist, should be held criminally liable for doing so.
At any rate, one who is falsely identified as a communist can sue for libel, subject to the defenses available to the person sued under the law and jurisprudence.
For the foregoing reasons, it is unconstitutional to make red-tagging per se a criminal offense.