Last year, the Philippines moved forward with a key executive order designed to shore up its approach to defeating a decades-old communist insurgency. The move bears noting within the broader question of the country’s overall approach to resolving the manifold security challenges it continues to confront under Philippine President Rodrigo Duterte.
Signed on December 4, 2018 by Duterte, Executive Order (EO) 70 was issued to coordinate the defeat communist insurgency, laying the foundation for a new legal counterterrorism framework. As the Legislative-Executive Development Advisory Council prepares to convene, senior Cabinet officials proposed revisions to the 2007 Human Security Act (HSA) and a revival of the defunct Republic Act (RA) 1700, the Anti-Subversion Act.
The executive order bears notice. The current conversation on counterterrorism legislation is inextricable from national discourses on martial law, human rights, and the role of state security forces within civilian spaces, especially universities. Fundamentally, EO 70’s mandate for reform is facilitating potentially radical changes in the Philippines’ approach to counterterrorism, granting the Duterte administration unprecedented authority to prosecute its critics and opposition.
The context for the current push for stronger counterterrorism laws is martial law in Mindanao, which remains in effect under Proclamation No. 216 issued in 2017. Senator Panfilo Lacson recently argued that martial law is “a toothless tiger” and impractical to maintain. Despite the gradual degradation Islamic State-affiliated militants like the Maute Group, other groups such as the Bangsamoro Islamic Freedom Fighters and the Jolo-based Abu Sayyaf Group led by Hatib Hajan Sawadjaan continue to mount mass casualty attacks including suicide bombings.
Secretary of National Defense Delfin Lorenzana stated he is open to lifting martial law so long as the HSA is amended, although it must pass before the New Year, otherwise martial law will be extended for the fourth time. Nevertheless, Lorenzana’s argument to revise the HSA has wide support from prominent figures in the administration including Cabinet Secretary Karlo Nograles, Department of the Interior and Local Government (DILG) Secretary Eduardo Año, and Duterte. According to Lorenzana’s proposal, the revised HSA would extend detention periods for suspected terrorist from 36 hours to 60 days, and lengthen wiretaps authorized by the Court of Appeals from the current limit of 30 days to 90 days.
By contrast, Senator Lacson pushed for a 14-day detention period when introducing Senate Bill No. 2204 in February 2019. This bill aims remove penalties against law enforcement personnel who fail to release or transfer a detainee to a proper judicial authority within the law’s timeframe. It would also amend HSA’s Section 50 requiring reparations of 500000 pesos (about $25,564) for every day of illegal detention a suspect endures that are “automatically charged against the appropriations of the police agency or the Anti-Terrorism Council that brought or sanctioned the filing of the charges against the accused.” Instead, the wrongly accused would have to sue the state for damages incurred while detained in order to receive restitution.
Coinciding with the push for revising the HSA is DILG Secretary Año’s push to revive RA 1700 under the mandate of EO 70. RA 1700 first passed in 1957 to address the communist Hukbalahap insurgency and subsequently expanded by the decree President Ferdinand Marcos to combat the CPP, criminalized affiliation or membership with outlawed groups determined to be antigovernment. Secretary Año believes that “the Anti-Subversion Act is urgent, critical, and inevitable,” to thwart the CPP’s ability to obtain funds and recruits, alleging that 500-1000 students are recruited to the CPP annually, of which 50-100 become NPA fighters.
Backed by the PNP and members of the Senate, Año’s proposal still encountered mild criticism from officials within the administration such as Justice Secretary Menardo Guevarra, while presidential spokesman Salvador Panelo merely stated that the proposal would require further review. Duterte has not officially commented on the subversion law, but warned in a recent speech that there would be “radical change” in the government’s war against communist insurgency, terrorism, and illegal drugs. Presidential Peace Adviser Carlito Galvez, by contrast, voiced his support for a new subversion law, stating that it would help his office’s initiative conducting local peace talks with the NPA. Regardless, Año backed down from pushing for reviving the repealed legislation, and is instead calling for a new law outlawing membership in the CPP.
Despite Año’s assurances that a new anti-subversion law would not target activists and political opposition, DILG Undersecretary and spokesman Jonathan Malaya previously explained that the DILG’s desired ban on CPP-NPA membership would include individuals and groups who adhere to CPP ideology. At present, Section 17 of the HSA enables the proscription of an organization as a terrorist entity based on their links to other “outlawed organizations”, but maintains no provisions for listing entities based on ideology. A new Anti-Subversion Law would eliminate this protection by providing officials the legal means to link left-wing organizations with “outlawed organizations”, namely the CPP-NPA, which was designated as a terrorist organization under RA No. 10168 in 2017.
Banning left-wing organizations and individuals on the basis of their political beliefs is an egregious violation of civil liberties, and it would be strategic blunder in the campaign against the CPP-NPA. The opening of limited opportunities for left-wing groups to participate in government after the Marcos dictatorship provoked schisms within the CPP and its National Democratic Front, resulting in defections, and purges that severely diminished the strength of the CPP-NPA during the late 1980’s and early 1990’s. Without the space to organize and advocate through political parties and civil society, left-wing groups may have greater incentives work with the CPP as they are forced to operate underground in defiance of the law.
Restricting legal avenues for expressing dissent also plays directly into the propaganda of the CPP, which has always argued against participation in a “rigged” democracy. This argument gained currency when former President Ferdinand Marcos reissued the Anti-Subversion Law, driving both Leftists and opposition moderates into joining or partnering with the CPP-NPA. Drawing a deliberate comparison between the heyday of Marcos’ martial law and the current administration, CPP founder Jose Maria Sison quipped that Duterte is bound to surpass President Ferdinand Marcos as the NPA’s “best recruiter,” adding that a new Anti-Subversion Law would only “incite the masses” against the government.
Even if a new Anti-Subversion Law does not make the docket of the Legislative-Executive Development Advisory Council, the revision of the HSA is rife with potential for abuse under any administration. Some revisions to the HSA may be warranted, but the need for stronger laws is outweighed by the overall weakness Philippines’ justice system, which ranks among the worst in Asia and worldwide according to the 2019 report of the World Justice Project. While Philippine courts have made noteworthy progress in closing cases within the target of 180-days from filing, the system remains seriously understaffed and underfunded. Ultimately, stronger institutions capable of processing cases in accordance with existing laws are a better investment in justice than new laws that implement harsher penalties on suspects at the expense of due process.
Luke Lischin is an Assistant Research Fellow at the National War College, Washington, D.C., and an independent consultant on political violence in Southeast Asia. The opinions expressed in this article are the author’s own and do not reflect the views of the National War College.