“The law was designed to serve as the coup de grâce against the sagging communist movement in the Philippines. It was the answer to the local reds’ shift in style from armed aggression to the more subtle ‘legal and parliamentary struggle.’ It was hoped that the law would finally break the back, or what remained of it, of the red conspiracy in the Philippines.”
Way back in 1964, a scholarly young man named Reynato S. Puno – who would later preside over the highest tribunal of the land as Chief Justice of the Supreme Court – wrote an essay, “The Anti-Subversion Law – a Bill of Attainder,” which was published in that year’s July-August issue of the journal Progressive Review.
(Among the other think pieces in that issue were “Individual Freedom and National Freedom” by Justice Jesus G. Barrera, “Plea for Cooperative Farming,” by UP Professor Agustin Rodolfo, ”Exploitation of Filipino Labor in US Bases” by Rep. Juanita L. Nepomuceno, and “Land Reform and US Bases” by Rep. Miguel Cuenco.)
In his article, Puno analyzed the “possible constitutional infirmities of the law, its necessity as well as practicality in the light of contemporary events.”
His findings: Republic Act 1700, the Anti-Subversion Law of 1957, was “vulnerable against two constitutional objections: 1) it was a bill of attainder; 2) it penalized mere membership [in the Communist Party of the Philippines].” Also, the law was a “surplusage in view of the many provisions in the Revised Penal Code on the subject of subversion and illegal associations.”
RA 1700, signed into law by President Carlos P. Garcia, depicted the CPP as an “organized conspiracy to overthrow the government of the Republic of the Philippines not only by force and violence but also by deceit, subversion and other illegal means, for the purpose of establishing in the Philippines a totalitarian regime subject to alien domination and control.” (The latter reference was to either the then-Soviet Union or the People’s Republic of China.)
Under martial law, the dictator Ferdinand Marcos twice amended RA 1700 (through PD 885 in 1975 and PD 1835 in 1981). The latter decree codified the various anti-subversion laws and increased the penalties for membership in “subversive” organizations. It was later repealed by President Corazon Cojuangco-Aquino in 1987, through Executive Order 167. However, Mrs. Aquino didn’t repeal RA 1700.
It was under Fidel V. Ramos’ presidency, in 1992, when Congress repealed RA 1700 – thus, legalizing the CPP. The repeal, Ramos then said, assured communist insurgents of political space and challenged them to compete in the “free market of ideas” guaranteed by the “rule of law” under the existing constitutional system.
Early last week, DILG Secretary Eduardo Año, seconded by DND Secretary Delfin Lorenzana, proposed the restoration of RA 1700. Ano’s move aimed to end what he claimed, based on “intelligence reports,” to be the CPP-NPA’s “indoctrinat(ing)” 500-1,000 youths yearly “to either become NPA fighters or serve as militant student leaders in their respective schools.” Lorenzana specifically urged inclusion, among the organizations to be outlawed, of the Makabayan bloc of progressive partylist legislators in the House of Representatives.
Lorenzana’s specific proposal reflects the same concern within the ruling circle in 1957 – over the “legal and parliamentary struggle” context of advocating revolutionary or progressive social change – that led to the enactment of RA 1700.
That raises the legal concept of a bill of attainder: “a legislative act which convicts specific persons or an ascertainable class and punishes them for crimes without judicial trial.” Bills of attainder, Puno noted in his essay, originated in England around the year 1300. He explained, “They were passed in times of rebellion, insurrection, or great public disorder or when Parliament was particularly subservient to the Crown [emphasis mine].”
Puno cited as reference point Article III, Section 1, subsection 11 of the 1935 Constitution, which stated: “No ex post facto law or bill of attainder shall be enacted.” In the current (1987) Constitution the closest provision to that is in the Bill of Rights (Article III) Section 4, which states: “No law shall be passed abridging the freedom of speech, of expression, or the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.”
How did a bill of attainder apply in the case of RA 1700? The law, Puno wrote, pinpointed the CPP (as ascertainable class) as “guilty of subversion”and condemned it as “an outlaw with membership therein per se punishable… without judicial trial.” Such condemnation of the CPP, he added, “violate(d) the very essence of procedural due process… which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.”
Puno further made the following observations, which current members of Congress ought to take into account seriously should they accede (or be dragooned) to enact a reprise of RA 1700:
• “The CPP was convicted by legislative judgment solely on the basis of studies and evidence presented by the Armed Forces… It is no secret that the so-called evidence or dossiers of the Army are sometimes of the nature of proof which could hardly stand the most peremptory judicial scrutiny. They mostly belong to the class of inadmissible evidence alien to our sense of justice and fairness.”
• “But more important, the CPP was convicted by legislative fiat without being given its day in court. It was convicted in a ‘trial’ ex parte. The CPP was not called upon to make a defense of its cause; it was denied the right to submit evidence to exculpate itself of the charges; it was not allowed to cross examine contrary witnesses; it was deprived of the right to rebut prosecution’s evidence.” By such acts, Puno asserted, the Legislature usurped judicial power.
• “The condemnation of the CPP as an outlaw was equivalent to the imposition of a death sentence to the association. It amounts to a judgment that the organization does not have the right to exist. It cannot accept members. Membership thereof is per se punishable. Civilly, administratively, and criminally.”
• “The danger here lies in the possibility that this power could be exercised as a means by which to exterminate the minority in order to satisfy the distorted ambitions of the temporary majority. If this could be done to the CPP, it could be done to other harmless associations, to other rebellious individuals. It is, as it has been, the weapon of tyrants as well as despots of history.”
These observations by the young lawyer Puno are no less true and valid today than they were 55 years ago.
Aware of the hardly changed conditions, as Chief Justice, Puno endeavored, in 2007, to add protective judicial mechanisms for individuals, groups, and organizations that the state security forces have targeted for political persecution. These are the writs of amparo and of habeas data, among others, that the Supreme Court instituted through his initiative.
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Published in Philippine Star
Aug. 24, 2019