SC rules: Red-tagging is threat to life, liberty

For almost six years, red-tagging has been a major component of the bloody counterinsurgency campaign – initiated and implemented by the Duterte regime and sustained by the Marcos Jr. administration – through the National Task Force to End Local Communist Armed Conflict (NTF-ELCAC).

They got away with it by claiming that red-tagging (the act of branding activists and government critics as communists or communist sympathizers) wasn’t a crime but an exercise of the right to free expression. The campaign led to numerous abductions and disappearances, extrajudicial killings and arrests on trumped-up charges. All the victims had been red-tagged.

Last Wednesday, however, the Supreme Court made public its en banc decision, promulgated in July 2023, that “red-tagging, vilification, labelling and guilt by association constitutes threats to a person’s right to life, liberty or security.” It was welcomed as a “landmark decision” by legal circles and other groups.

Written by Associate Justice Rodil Zalameda, the ruling pertained to a petition for the issuance of a writ of amparo (court protection against the military’s threat) raised by long-time Iloilo activist Siegfred Deduro, who once represented Bayan Muna in the House of Representatives. In 2020, his petition had been denied by the Iloilo Regional Trial Court, which said that Deduro’s complaints of repeated red-tagging by the military were “insufficient” to be deemed as threats to his life.

Overturning the RTC ruling, the SC rebuked the lower court, saying it found prima facie evidence that warrants the issuance of a writ of amparo to Deduro. It explained:

“Petitioner should not be expected to await his own abduction or worse, death, or even that the supposed responsible persons directly admit their role in the threats or violations of his constitutional rights, before the courts can give due course to his petition.” It is at this phase, the SC added, “where the petitioner is at risk of enforced disappearance or extrajudicial killing, when the writ of amparo becomes necessary.”

In his concurring opinion, Senior Associate Justice Marvic Leonen noted: “The heightened risk of danger brought about by being labeled as a communist, a communist sympathizer or even merely being adjacent to a communist cause should be seriously considered by judges in amparo proceedings.” He referred to his dissenting opinion in a 2015 case, where he pointed out the dangers inherent in red-tagging.

Clarifying it wasn’t making a categorical ruling on the merits of Deduro’s case because it is “not a trier of facts,” the SC ordered the RTC to conduct a summary hearing within 10 days to ensure that “petitioner’s cause of action and respondent’s [the military] are fully ventilated.” 

Notably, the SC also ordered Deduro to submit to the RTC a supplemental petition to implead or charge the Alliance of Victims of the CPP-NPA-NDF and the Western Visayas Alliance of Victims of the CPP-NPA-NDF, which allegedly caused the circulation of posters red-tagging him. 

About the landmark ruling, the National Union of Peoples’ Lawyers (NUPL), through its chairperson Edre Olalia, was first to welcome it as “long overdue” and “crucial.” He said: “It is not a mere legally meritorious victory nor a vindication and potential shield of human rights defenders and a tribute to those fallen and already victimized by it, but a strong slap on self-righteous red-taggers before and now.”

It needs pointing out that the NUPL’s own petition for the issuance of the writ of amparo, filed a few years back, was dismissed by the Court of Appeals and has been pending, on appeal, before the high tribunal.

Note also that Deduro’s counsels in this case are NUPL-Panay members, headed by Angelo Karlo Guillen. In March 2021, Guillen, then 33 years old, survived an attack by two unidentified men who stabbed him, then scurried off aboard waiting motorcycles. Before this, government authorities had repeatedly denounced him and other NUPL lawyers as “terrorists.” But vindication came for Guillen in August 2022, when he was honored with an international award by the US-based Human Rights First – the 2022 Roger Baldwin Medal of Liberty, named after a founder of the American Civil Liberties Union.

The Movement Against Disinformation, largely composed of lawyers, welcomed the tribunal’s expansion of the scope of threats which allows the issuance of the writ of amparo, and its recognition of the “numerous instances where red-tagging was a precursor to abduction and EJKs, that red-tagging precedes attacks against activists, lawyers, members of (NGOs) and even judges.” Recognizing the practice as a “societal issue,” MAD said, demonstrates the SC’s understanding of the dangers faced by human rights defenders every day. “This sends a clear message that these attacks to security will not be tolerated and that perpetrators will be held accountable.”

Speaking for the Free Legal Assistance Group (FLAG), chairperson Jose Manuel Diokno stated: “FLAG prays that the (SC) take one step further by incorporating these pronouncements into the Rule on the Writ of Amparo and of Habeas Data.” FLAG calls on the Executive Department and the Civil Service Commission to direct all public servants not to engage in red-tagging and to punish those who persist in committing this pernicious practice.”

At the House of Representatives, the  Makabayan bloc called for the urgent passage of a bill pending in that chamber seeking to declare red-tagging as a crime. Former Bayan Muna representative Carlos Isagani Zarate called for the repeal of Duterte’s Executive Order No. 30 that would abolish the NTF-ELCAC.

Siegfred Deduro, whose quest for a legal remedy to his predicament led to the ruling, welcomed the decision favoring his petition for the issuance of a writ of amparo. Declaring red-tagging as a threat to any person’s life, liberty or security, he said, “refutes the NTF-ELCAC’s assertion that their rampage of red-tagging of activists is a benign exercise of ‘truth-tagging.’” He expressed hope that the ruling would benefit thousands of other activists and political dissenters, like him, who are victims of such political persecution.