Dec 2, 2020

The Nilo Tayag case revisited

The Bill of Rights of the 1935 Constitution then in force—as does our present (1987) Constitution—provides: “No ex post facto law or bill of attainder shall be enacted.”  While ex post facto laws are statutes that make an act criminal retroactively (i.e., the act was not a crime at the time it was committed but is sought to be penalized by the subsequent law), a bill of attainder is a statute that imposes a penalty without a trial or judicial process to determine guilt.  Both kinds are considered antithetical to the concept of “constitutional due process” or the demands of reasonableness and “fair play”. 

A bit of legal-political history:  in 1970, Nilo Tayag (co-founder of Kabataang Makabayan) and some others were charged with the crime of being members and leaders of the Communist Party of the Philippines, under the Anti-Subversion Act of 1957 (RA 1700), which statute outlawed the CPP and penalized membership in said organization.  On motion of the accused (Tayag’s lawyer was Senator Jose Diokno), Judge Simeon Ferrer of the CFI of Tarlac declared RA 1700 void for being a “bill of attainder” and dismissed the charges.  On appeal by the government, the Supreme Court upheld the validity of RA 1700 (People vs. Hon. Ferrer, et al., Dec. 27, 1972).

The Bill of Rights of the 1935 Constitution then in force—as does our present (1987) Constitution—provides: “No ex post facto law or bill of attainder shall be enacted.”  While ex post facto laws are statutes that make an act criminal retroactively (i.e., the act was not a crime at the time it was committed but is sought to be penalized by the subsequent law), a bill of attainder is a statute that imposes a penalty without a trial or judicial process to determine guilt.  Both kinds are considered antithetical to the concept of “constitutional due process” or the demands of reasonableness and “fair play”.  In the case of Nilo Tayag (People vs. Hon. Ferrer), the Supreme Court held that the ASA was not a bill of attainder because the “judgment” expressed in the statute—i.e., that the CPP was “an organized conspiracy to overthrow the Government,” etc.—was one “so universally acknowledged to be certain” as to require no judicial trial.

For reasons not stated in the repealing statute, the ASA of 1957 was repealed by RA 7636 in 1992.  Meanwhile, after his release from prison in 1981, Nilo Tayag took up theological studies to become a priest, and eventually, a Bishop, of the Aglipayan Iglesia Filipina Independiente; and, yes, now at age 77, he is on Facebook, and is an ardent supporter of President Duterte.

The Anti-Terrorism Act of 2020 (RA 11479) could be likened to the ASA, in so far as it penalizes organizational affiliations.

The ATA of 2020 classifies as “terrorism” acts that were otherwise ordinary or common crimes against the safety of persons and property “when the purpose of such act, by its nature and context, is to intimidate the general public…or seriously destabilize or destroy the fundamental political, economic, or social structures of the country,” etc. (Sec. 4; italics mine), with consequently harsher penalties and wider latitude in law-enforcement options.

Unlike the earlier Anti-Subversion Act, however, and perhaps to obviate the risk of being stricken down as an unconstitutional bill of attainder, ATA provides for a judicial procedure for the “proscription” or outlawing of groups “organized for the purpose of engaging in terrorism” (Sec. 26), towards penalizing membership in such groups (Sec. 10).

ATA does not explicitly refer to the CPP-NPA, but it is fairly obvious that this would be among the first groups to be proscribed; hence, the recent flurry of court-cases to declare the ATA unconstitutional filed by various parties that include personalities “red-tagged” by law-enforcement agencies.  Indeed, earlier, in 2017, President Duterte had issued Proclamation No. 374, identifying the CPP-NPA as a “terrorist organization”.  The United States also identifies the CPP-NPA as such.

I have here no intention to comment on any judicial proceedings on the constitutionality of the ATA.  But whether or not the CPP-NPA would fall under the category of a “terrorist organization,” committed to “seriously destabilize or destroy the fundamental political, economic, or social structures of the country”, etc., can be seen from the basic textbook of its adherents.  The book, Philippine Society and Revolution, first published in 1970, was written by CPP-founder Jose Maria Sison using the nom de guerre Amado Guerrero (Spanish for “beloved warrior”).  It purports to be an analysis of the ills of Philippine society from a communist perspective or according to Marxist-Leninist-MaoTseTung thought.

In PSR, Sison significantly writes:

“Political power grows out of the barrel of a gun. Not until the counterrevolutionary armed forces, including foreign aggressor troops, puppet troops and all kinds of murder gangs, have been destroyed can the independent regime in the countryside or the people’s democratic state system throughout the country be established…. The New People’s Army shall be the mainstay of the people’s democratic state system. It has now the principal task of seizing political power and consolidating it…. The New People’s Army shall advance wave upon wave over a protracted period of time to destroy the enemy in the whole country.” (http://www.philippinerevolution.net/documents/philippine-society-and-revolution/, p. 136)

Catholic teaching condemns communism as “intrinsically perverse” (Compendium of the Social Doctrine of the Church, No. 92).  And to use the language of the Supreme Court in the Nilo Tayag case, the idea of the CPP-NPA as “an organized conspiracy to overthrow the government” is one “so universally acknowledged to be certain as to be ‘judicially noticeable’”.  (4.XI.2020)

 

 

Share your vote!


How do you feel about this post?
  • Happy
  • Sad
  • Angry