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Thursday, June 1, 2023

Red-Tagging is an Actionable Wrong

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If there is a key takeaway from the recent Supreme Court decision on the constitutionality of the Anti-Terrorism Act (R.A. No. 11479), it is the Court’s recognition of red-tagging as a “credible threat of injury” that gives legal standing to some petitioners in said case (Calleja vs Executive Secretary, G.R. No. 252578) 

The significance of this judicial pronouncement cannot be understated especially in view of the continued prevalence of red-tagging (or truth-tagging as what the government wants to call or sanitize it) in our society, whose harm is further aggravated by the enactment of Anti-Terrorism Act which penalizes recruitment and active membership in designated “terrorist” organizations. 

In his dissenting opinion in Zarate vs Aquino III (G.R. No. 220028), Associate Justice Marvic Leonen defined red-tagging or red-baiting as a phenomenon of implicating progressive civil group leaders to heinous crimes (ie. terrorism) or as what Philip Alston, a former Special Rapporteur on Human Rights in the Philippines, described as the “vilification”, “labelling”, or “guilt by association” of various democratic organizations. 

According to Vera Files, the Oxford Living Dictionary defines “red-tagging” or red-baiting as the harassment or persecution of a person because of “known or suspected communist sympathies.”

Justice Leonen noted that the groups which are red-tagged or red-baited are “stereotyped or caricatured by the military as communist groups, making them easy target of government military or paramilitary units.”

The case of Zarate is worth mentioning because in this case, majority of the Supreme Court Justices, implied that red-tagging or red-baiting alone is not constitutive of an “actual threat” to life, liberty or security that warrants the issuance of Writ of Amparo or Writ of Habeas Data.  The Court said, mere membership in an organization (that was red-tagged by the military as communist fronts of CPP-NPA, a designated terrorist organization under the ATA) cannot be considered as an actual threat as to justify the issuance of a Writ of Amparo. 

The cases of Calleja and Zarate gave us contrasting characterizations of red-tagging for purposes of legal standing and application for the issuance of Writ of Amparo and Writ of Habeas Data, respectively. While both cases deal with different factual milieu, the core issue that they touched upon albeit impliedly is essentially the same, that is whether red-tagging is an actionable wrong. 

In this brief article, I argue that with the advent of the Anti-Terrorism Act of 2020, the harm that red-tagging inflicts constitutes an actionable wrong that gives rise to various remedies, criminal and civil. In particular, I argue that red-tagging constitutes the crime of libel under the Revised Penal Code and gives rise to civil action for damages under Article 19 in relation to Article 23, and Article 33 of the Civil Code.

Red-Tagging as libel

Article 353 of the Revised Penal Code defines libel as a public and malicious imputation of a crime…XXX On the other hand, Section 10 of the Anti-Terrorism Act penalizes active membership in a designated terrorist organization. 

In a case of red-tagging, a person that was tagged as member of a front and/or underground organization of a designated terrorist organization like the CPP-NDF is being maliciously imputed of committing a crime of active membership in a terrorist organization. 

In other words, the red-tagger is committing the crime of libel. 

It is of no moment whether the said organization is in truth and in fact a front and/or underground organization of a designated terrorist organization (unless it is validly designated as terrorist by the Anti-Terrorism Council) because truth of a defamatory statement is not a defense per se in libel as every defamatory statement is presumed to be malicious even if it is true (Article 354 of the RPC). 

The ATA legalizes red-tagging in certain instance

While the Anti-Terrorism Act opens up the possibility for a charge of libel against a red-tagger, the law also gives him/her a possible defense. 

Since the designation of a terrorist organization by the United Nation Security Council and the Anti-Terrorism Council is adjudged constitutional by the Supreme Court in Calleja, once an organization has been validly designated as a terrorist organization alone or in cahoots with another designated terrorist organization, the Anti-Terrorism Act gives law enforcers the right to legally red-tag such organizations. In this particular instance, the Anti-Terrorism Act legalizes the act of red-tagging.

Example of a legalized red-tagging can be found below:

Here, National Task Force to End Local Communist Armed Conflict (NTFELCAC) spokesperson, Undersecretary Lorraine Badoy, posted on her Facebook page posters of several organizations that the Anti-Terrorism Council declared as terrorist organizations and underground-mass organizations of the CPP-NPA-NDF (Anti-Terrorism Council Resolution No. 28 series of 2022).

These posters come with a warning to the public to severe ties or membership with the said organizations.

In this instance, there is an absence of malice because the designation of terrorist organizations and its public announcements are rendered legal by the Anti-Terrorism Act. 

However, if an organization, (for instance GABRIELA) is red-tagged as a front organization of CPP-NPA-NDF without valid resolution from the Anti-Terrorism Council designating it as a terrorist organization, a criminal charge for libel may potentially arise against the red-tagger. 

Red-Tagging is Tortious Conduct

A victim of red-tagging may also file a civil claim for damages under Section 19 in relation to Section 21, and Section 33 of the Civil Code. 

Article 33 of the Civil Code provides an independent civil action for defamation. Dafamation includes libel and slander. It is the publication of anything which is injurious to the good name and reputation of another or tends to bring a person into disrepute (Aquino, 2016: 507). Defamation may give rise to claim for damages such as moral damages under Article 2219. 

Unlike libel under the Revised Penal Code, defamation as an independent civil action only requires preponderance of evidence not proof beyond reasonable doubt. 

Moreover, Article 19 in relation to Article 21 of the Civil Code allows persons to claim damages for intentional acts against another person that may be legal but is contrary to moral, public policy and public order, exercised in bad faith and with intent to injure. This may include the act of red-tagging since there is no crime that penalizes such conduct per se. 

Can freedom of expression excuse a red-tagger for civil and criminal consequences of his/her speech?

Not necessarily. Defamatory or libelous statements are not protected speech. And utterance that is made with intent to injure another may give rise to civil actions for damages as discussed above. 

Is red-tagging an actual threat that may justify the issuance of Writ of Amparo?

Although I do not argue that red-tagging per se or membership in a red-tagged organization alone warrants the issuance of Writ of Amparoit is worth-mentioning that when Zarate was decided in 2015, the Anti-Terrorism Act is still non-existent and that the Anti-Subversive law has been long repealed. However, with the enactment of the Anti-Terrorism Act of 2020, the harm of red-tagging has elevated into a level of “credible threat of injury” that passes even the direct injury test for purposes of legal standing. 

In other words, the Court in Calleja recognizes that red-tagging in our present context is an “actual or credible threat of injury” to the life, liberty and security of a red-tagged individuals which gives them a recourse in law. 

Although, there are other legal remedies that may be available to a red-tagged victim, if the red-tagging is coupled with illegal state surveillance, overt acts of harassment from law enforcement agencies or para-military agents, and malicious prosecution under the Anti-Terrorism Actwhich are usually the case– the Writ of Amparo can be the best remedy to secure the person’s right to life, liberty and security. 

In conclusion, red-tagging is, has always been and will always be an actionable wrong. 

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