The Manila Regional Trial Court (RTC) has turned down the Department of Justice’s (DOJ) petition for proscription that sought to declare as “terrorist organizations” the almost 54-year-old Communist Party of the Philippines (CPP) and its armed wing, the New People’s Army (NPA).
“Wherefore, premises considered, the instant petition is hereby dismissed,” the court ruled in the 135-page resolution dated last Sept. 21 and written by RTC Judge Marlo A. Magdoza-Malagar of Branch 19.
Dismissed was the DOJ’s petition for proscription filed on Feb. 21, 2018 based on Section 17 of Republic Act No. 9372, the Act to Secure the State and Protect Our People from Terrorism or the Human Security Act of 2007 (HSA 2007).
“Efforts on the part of the present government to counter insurgency should include respect for the right to dissent, to due process and to the rule of law. Just as the respondent organizations (CPP and NPA) are uncompromising in their ideals, so must the government be uncompromising in safeguarding the Constitution it is sworn to uphold,” Judge Malagar said.
The judge said that Section 17 of HSA 2007 defines a “terrorist organization, association, or group of persons as that which is organized for the purpose of engaging in terrorism, or which, although not organized for that purpose, actually uses the acts mentioned in this Act or commits acts to sow and create a condition of widespread and extraordinary fear and panic among the populace in order to coerce the government to give in to an unlawful demand....”
To prove its allegations, the DOJ presented in evidence nine incidents allegedly committed by CPP-NPA from 2019 to 2020, namely:
1. The 31 December 2019 killing of Bontola Mansinugdan in Agusan del Sur;
2. The 19 March 2020 killing of Datu Astudillo and Zaldy Ibañez in Sitio Inadan, Barangay Magroyong, San Miguel, Surigao del Sur;
3. The 04 October 2020 ambush of Datu Jumar Bucales and company at Sitio, Mamprasanon, Barangay Banahao, Lianga, Surigao del Sur;
4. The 06 July 2020 killing of Datu Jomar Engayas in Sitio Sangay, Barangay Libas-sud, San Miguel, Surigao del Sur;
5. The 16 October 2020 failed attempt to kill DepEd Teacher Eli Apacible, at Purok Hitaon, Barangay Awasian, Tandag City, Surigao del Sur;
6. The 13 August 2020 killing of 70-year-old Datu Benedicto Dinoy, in Dumalaguing Village, Impasugong, Bukidnon;
7. The 28 May 2020 burning of chapel and residential houses, in Barangay Limunda, Opol, Misamis Oriental;
8. The 30 May 2019 abduction of seven civilians, including Ryard Badiang who was later beheaded, in Barangay Maitum, Tandag City, Surigao del Sur;
9. The 21 July 2020 killing of Datu Saidor Balansi, at Sitio KM 18, Barangay Besigan, Cagayan de Oro City
But the RTC decision stated: “The eyewitness accounts of the foregoing alleged ‘terrorist’ acts of the CPP-NPA leave little or no doubt that the foregoing acts constitute crimes defined under the Revised Penal Code and Other Special Penal Laws and enumerated in Section 3 of HSA 2003 as comprising terrorism, particularly the crimes of rebellion, murder, kidnapping, abduction, arson and serious illegal detention.”
The decision stated: “None of the evidence presented by the petitioner gives any impression that these incidents fall within the category of acts officially sanctioned by the respondent organizations.”
The decision also stated:
“After consideration, this Court finds none of the (9) incidents of atrocities which are allegedly committed by the NPA against civilians can be said as having caused ‘widespread and extraordinary fear and panic’ among the Philippine populace.
“While the Court does not dismiss or minimize the loss of lives and property, these incidents can only be characterized as ‘pocket and sporadic occurrences’ in limited and scattered areas of the country, particularly in specific areas in Mindanao, i.e., Surigao del Sur, Cagayan de Oro City, Misamis Oriental, Bukidnon, and Agusan del Sur.
“Any fear and panic these incidents may have caused are confined to the communities where they have occurred. In other words, these incidents have not reached ‘widespread’ or ‘extraordinary’ proportions contemplated under Section 3 and 17 of HSA 2007.”
While the CPP and NPA have chosen guerilla warfare as one of its strategies, the decision stated that HSA 2007 “effectively precludes ‘guerrilla warfare’ or small-time warfare.”
“Indeed, the nine incidents of atrocities fall within the category of small-time, ‘hit-and-run,’ sporadic acts of violence with no specified victims or targets,” it said.
Judge Malagar’s decision stated that no evidence was showed that the nine incidents were committed to make unlawful demands from the government including those presented during peace negotiations.
“’Sowing fear’ among members of a community, without more, cannot be construed as a ‘demand,’” the judge said as she refuted the allegations made by the DOJ in its petition.
“No evidence has been submitted establishing that any of the nine (9) incidents of atrocities committed by the CPP-NPA against civilians has been preceded or followed by any demand for peace negotiation with the government,” she said.
She pointed out that the cases involving the nine incidents are pending in various courts and that “the perpetrators of the nine (9) incidents of atrocities are charged only with the commission of regular crime(s).”
She noted: “That the perpetrators are charged only as ordinary individual(s), and not as rebels or as member(s) of the CPP-NPA, much less, as terrorists, is significant as it erases from the State’s indictment any allegation that could have classified these acts as “official acts” of members of the CPP-NPA.”
“In the absence of such qualification, these acts can only be attributed to regular or ordinary persons committing regular criminal acts in their personal, private capacity. It may not be remiss to emphasize the distinction between acts committed in the course of the ‘armed struggle’ to achieve the political purpose of the respondent organizations and the random acts of violence committed by individual-members without the sanction of the organization of which they are members,” she added.
While the DOJ also presented other incidents reportedly committed by the CPP-NPA, like the 1971 Plaza Miranda bombing, Judge Malagar said these cannot be considered as acts under HSA 2007.
“More importantly, these incidents transpired before the enactment of either HSA 2007 or the ATA (Anti-Terrorism Act) of 2020 which defined and penalized terrorism. They cannot now be utilized to prove the ‘terrorist character’ of respondent organizations,” she said.
The judge cited that while the HSA 2007 has been repealed by RA 11479, ATA of 2020, Section 57 of ATA states that “all judicial decisions and orders issued, as well as pending actions relative to the implementation of Republic Act No. 9372, otherwise known as the ‘Human Security Act of 2007’, prior to its repeal shall remain valid and effective.”
“In explicitly stating that actions pending under the HSA of 2007 shall remain effective, ATA 2020 not only maintains the jurisdiction of the RTC in said cases, it also impliedly provides that crucial parts of the repealed law, particularly the definition of ‘terrorism’ ‘terrorist acts’ or ‘terrorist groups’ under the HSA of 2007 would still hold sway in the pending action, she said.
A contrary ruling would have the effect of imposing standards of proof and evidence that may have been inexistent at the time the first action is filed,” she explained.
“In sum, an application of ATA 2020 to the present petition may amount to a violation of due process as it would make a determination of the merits of the petition for proscription filed under a repealed law (HSA 2007) by utilizing definitions and processes provided under the new law (ATA 2020). On this basis, the Court resolves to apply the definitions of ‘terrorism’, ‘terrorist acts’ and ‘terrorist organizations under HSA 2007 to the present petition,” she stressed.
At the same time, the judge said that ATA of 2020 “re-enacts HSA 2007 by punishing essentially the same acts previously penalized under HSA 2007. In this case, the repeal merely modifies the conditions affecting the crime under the repealed law.”
She pointed out that while former President Rodrigo R. Duterte may have CPP and NPA as terrorist organizations, “this does not render moot the instant proscription proceedings” since “’proscription’ and ‘designation’ being two distinct processes.”
She explained that “designation is an administrative act of the Executive branch through the Anti-Terrorism Council (ATC), while proscription is judicial proceeding before the Regional Trial Court (RTC) (under the now-repealed Human Security Act of 2007) or before the Court of Appeals (CA) (under the Anti-Terrorism Act of 2020).
“In proscription proceedings, the burden of proof lies with the Department of Justice (DOJ) to prove that a group of persons, association or organization is organized for the purpose of committing terrorism, or is committing terrorist acts. Just like any judicial proceeding, the respondent terrorist organization is accorded due process of law,” she said.
In its petition, the DOJ initially named over 600 respondents and Judge Malagar recounted this resulted in “a flurry of motions” from these persons who “disavowed any connection to the CPP-NPA” and “sought either the dismissal of the Petition or their discharge as party-respondents.
Those named in the petition also charged the DOJ with red-tagging them, as they alleged that their inclusion among the enumerated members of the CPP-NPA, in the absence of any evidence, “had exposed them to public vilification and possible reprisal from the military.”
Thus, the RTC issued on July 27, 2018 resolution which told the DOJ that “it becomes imperative for the petitioner that summons be served only to persons with known, undeniable links to the CPP-NPA.”
The DOJ eventually filed its third amended petition on June 14, 2019 and named as respondents CPP chairman Jose Maria Sison and Mindanao Commission secretary Antonio Cabanatan in response to the directive of the court.
The RTC said:
“The recognition of the State that the fight against terrorism does not only entail meeting force with force but rather necessitates a comprehensive approach comprising of political, economic, diplomatic, military, and legal means duly taking into account the root causes of terrorism without acknowledging these as justifications for terrorist and/or criminal activities, is heartening.
“Indeed, measures that seek to include conflict management and post-conflict peace-building, addressing the roots of conflict by building state capacity and promoting equitable economic development will hopefully stamp out terrorism and eradicate its seeds (see Declaration of Policy, RA 9372).
“Nothing is better attested by present realities than that terrorism does not flourish in a healthy, vibrant democracy.
“WHEREFORE, premises considered the instant Petition is DISMISSED. SO ORDERED.”