Naming ‘terrorist organizations’ is court’s, not President’s call

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FRANCISCO S. TATAD

FRANCISCO S. TATAD

PRESIDENT Rodrigo Duterte has declared the Communist Party of the Philippines (CPP) and its military arm the New People’s Army (NPA) as terrorist groups, following his decision to terminate the on-again and off- again peace talks with them in Oslo, and resume armed hostilities in the battlefield.

This puts the DU30 government “virtually” on the same page as the US, Britain, Canada and Australia, all of whom have listed the CPP and the NPA as foreign terrorist organizations (FTO) since 2002, a year after the US launched its “global war on terror” following the al-Qaida 9-11 attack on the World Trade Center in New York and the Pentagon near Washington, D. C.

“Virtually,” because while the unilateral action of the US and other foreign governments does not seem open to legal challenge, DU30’s proclamation might still be, based on what the Human Security Act provides.

The US view


The two communist organizations were first designated as FTOs by the US Secretary of State, in consultation with the US Attorney General and the US Secretary of the Treasury, under Executive Order 13224 pursuant to the US Immigration and Nationality Act, on Aug 9, 2002. It cited the communists’ armed attacks on US military personnel and assets in the Philippines. The FTOs were also committed to the violent overthrow of the Philippine government.

This designation needed to be renewed after every two years. It was thus renewed on Aug 9, 2004, and presumably after every two years later. On Feb. 2, 2017, ABS-CBN quoted US State Department deputy spokesman Mark Toner as saying, “the CPP/NPA is a designated Foreign Terrorist Organization and continues to meet the criteria for such designation.”

This declaration by the Secretary of State makes it illegal for any person in the US or subject to US jurisdiction knowingly to provide material support to the CPP/NPA. It also requires US financial institutions to block assets of the FTO, and provides basis for the US to deny visas to its representatives or members.

The European view

In a parallel move, the European Council of Ministers on October 28, 2002 declared the CPP and NPA as FTOs, following active representations by the Macapagal-Arroyo government. The late former Foreign Secretary Blas F. Ople hailed it as a “victory” for the government, in its fight against founding CPP chairman Jose Ma. Sison, who remained in Utrecht, the Netherlands as the leader of the last communists in Europe after the Soviet Union collapsed and the Cold War ended in 1991.

In a press statement, Ople spelled out the implications of the Council’s decision. Sison and his group, he said, would be denied visas to travel to other countries, their funds would be cut and frozen, and they would be barred from raising money from any source. Sison fought the EU ministers’ decision in court, and on July 11, 2007, the European Court of First Instance overturned the decision calling him a “terrorist.”

But on August 28 that same year, he was arrested by the Dutch police in connection with crimes allegedly committed in the Philippines while he was in exile in Utrecht. Protest marches instantly spread from the Netherlands to Belgium, the US, Australia, Hong Kong and other parts, demanding his release.

The road to Utrecht

From 1977 to 1986, Sison had languished in a Philippine jail. He regained his freedom only after Marcos fell in the civilian-backed EDSA military revolt. Cory Aquino, as revolutionary president, swiftly nullified all the charges against him and released him from jail. This enabled him to embark on a lecture tour that began in Oceania and ended in Utrecht, where he sought political asylum.

Despite Utrecht’s reputation as a haven for political refugees, Sison did not have an easy time. In July 1990, the Dutch Ministry of Justice denied his application for asylum. It was only after two years that the highest Dutch administrative court annulled the ministry’s decision and reinstated his status as a political refugee.

No longer CPP chairman, but Chief Political Consultant of the National Democratic Front of the Philippines (NDFP), Sison was reportedly hoping to get a safe conduct pass to the Philippines so that he and DU30 could have face-to-face negotiations. After all, DU30 used to recall Sison had been his professor at the Lyceum. Sison was apparently hoping he could use his part in the peace talks as reason to get stricken off the US list of “foreign terrorist organizations” and “terrorists.”

War easier than peace?

DU30’s proclamation has closed all possibilities for it. DU30 has shut down all avenues for talking peace and chosen the path of war instead. This was totally unexpected. Did he believe war has a far greater way of succeeding than peace? From Marcos onwards, various administrations have tried to do the impossible to try to bring around the CPP/NPA/NDF as a partner for peace.

In 1992, President Fidel V. Ramos pressed for the repeal of the Anti-Subversion Law to allow the communists to disarm, disband and reintegrate into the political mainstream. RA 1700, enacted in 1957, outlawed the old CPP (Partido Komunista ng Pilipinas) and other similar organizations. The NPA failed to disarm, disband and reintegrate, but so many former members of the CPP/NPA/NDF and front organizations ran and became party-list members of Congress.

On September 5, 2007, President Gloria Macapagal-Arroyo signed Proclamation 1377 granting amnesty to CPP/NPA/NDF members for rebellion and other crimes committed in the pursuit of their political beliefs. DU30 was to do better than all this.

The Reds are still here

In 2016, as the newly inaugurated President, he named several members of the CPP Central Committee to the Cabinet, without need of an enabling peace agreement. Two of them were subsequently rejected by the Commission on Appointments for reasons having nothing to do with their being communist. But the most powerful of them, Cabinet Secretary Leoncio Evasco Jr., did not have to go through the CA confirmation process but above all was given complete charge of the Office of the President and, at one point, some 18 agencies.

He also heads the socialist-oriented “Kilusang Pagbabago” (KP—Movement for Change) and its grassroots organization “Masa Masid.” He is above all vice chairman of the NDF.

While declaring the CPP and NPA as terrorist organizations and enemies of the state, DU30 has said nothing about Evasco, Liza Masa of the National Anti-Poverty Commission (NAPC), and the various communist undersecretaries and underlings who remain in government.

Nor has he said anything about the NDF, defined as the “revolutionary united front organization of the Filipino people, in their fight for national independence,” which had been talking to the government, off and on, on behalf of the CPP/NPA, until he threw his tantrum and said no more talks.

Until then, the communist entity seeking to bring down the government had been known as the CPP/NPA/NDF. But DU30 has spared the NDF from being branded “terrorist.” Does this mean there has been a split between the CPP/NPA and the NDF, and that while the CPP/NPA is the declared enemy of the state, the NDF is the coalition partner of government?

If so, this is the third time the communists would have split since 1968. The first time was on December 26, 1968, when Sison established the CPP in Barangay Dulacac in the tri-boundary of Alaminos, Bani and Mabini, Pangasinan, as a new party distinct from the old PKP headed by Jesus Lava and his brothers.

The second was after Sison, writing as Armando Liwanag, published “Reaffirm our Basic Principles and Rectify Errors” on December 26, 1991, and the CPP/NPA split between those who supported Sison’s ideas—the reaffirmists (RAs)—and those who rejected those ideas—the rejectionists (RJs). The RJs were forced out of the CPP/NPA or left on their own, like the Alex Boncayao Brigade.

This time, it appears DU30 has decided to separate the NDF from the CPP/NPA. So, he will no longer talk to Sison, but will not mind letting his communist-in-chief Evasco run the Office of the President. Whether the intention is to make war or peace with the CPP/NPA, there seems to be no better way to confuse those who want to support the government.

How are they to distinguish between the Sison communists and the Evasco communists? How will DU30 convince anyone he has truly decided to fight the communists?

Blessings of change?

Tomorrow (December 9), DU30 and Evasco are reportedly set to launch a new movement in Davao called, “Mga Biyaya ng Pagbabago” (The Blessings of Change). What blessings, and what change are they talking about?

The launch is apparently intended to offset the anemic November30 “revolutionary government” rallies. These drew some 50 marchers in Baguio, zero marchers in Central Luzon, a couple of thousands on Mendiola Bridge in Manila but not enough to finish all the congee that had been trucked in; a few more in Davao’s Crocodile Park, except that they could not quite agree what they were there for—was it for this outer space creature called “revgov” or for the Pimentel family’s idea of “pederalismo?”

They also probably hope to give the once promising KP a much-needed boost. But what blessings of change can they talk about? The most visible changes we have seen are people being slaughtered like animals, as The New York Times once put it. Among DU30’s well-recorded promises, only the promise to bury the late President Ferdinand Marcos’ remains at the Libingan ng mga Bayani, and to kill, kill, and kill criminal and drug suspects have been fulfilled.

The promise to end the drug problem, crime, and corruption in six months; the infamous contractualization of workers or “endoc” (end of work contract after every five months) in one week, end red tape, improve the MRT and traffic before they get much worse, appoint the best and brightest to the Cabinet and other offices, defend Philippine sovereignty in the West Philippine Sea, jail or execute a family member involved in corruption, drugs or other crimes—all these have notched a big “F” for DU30.

A legal problem

Will DU30 tell his fellow Mindanaoans that he had just declared the CPP and the NPA as terrorist organizations, and that he had come to assure them that they could rely on the communists he has retained in government to assure them the blessings of change?

What happens if and when an obscure lawyer like Jude Sabio, who has filed a complaint against DU30 before the International Criminal Court at the Hague, raises his hand in the crowd to point out that under Sec. 17 of RA 9372, otherwise known as the Human Security Act of 2007, only a competent regional trial court, not the President or anybody else, upon petition by the Department of Justice and after due hearing, has the authority to declare as a terrorist and outlawed organization, any group, association or organization.

Will this make DU30 rethink his proclamation, fire all the bum lawyers around him, and order his more reliable subordinates to fast-track the removal of the sitting Chief Justice and the search for a new one?

CORRECTION. In my December 5 column on CJ Sereno, I wanted to say that unlike PNoy, DU30 has NOT pressured 188 congressmen to fast-track the impeachment of the Chief Justice. The negative NOT disappeared from that sentence, conveying the exact opposite meaning.

fstatad@gmail.com

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