If it were to be revived at all, precise distinctions have to be made to prevent excessive infringement of freedoms. However, the Arroyo Autocracy seems unprepared to make them…
Recently I came across a disturbing news report from the Philippine Daily Inquirer, to the effect that President Gloria Macapagal-Arroyo wants the Anti-Subversion Law re-enacted as part of the Human Security Act. Considering how the Anti-Subversion Law was abused during the Marcos Autocracy, its proposed re-enactment by the Arroyo Autocracy was denounced by various sectors who called it a “throwback to Martial Law”. Senator Loren Legarda, for instance, pointed out the prudential foolishness of the proposal, since, she said–and quite rightly–that it would force the members of existing people’s organizations to go underground instead of cooperating with the government’s social welfare objectives. PGMA has thankfully backpedaled since; but no one really knows what the Autocrat will finally decide to do.
To those unfamiliar with the Anti-Subversion Law, it was originally enacted as Republic Act No. 1700 (1957) or the Anti-Subversion Act, and was intended to counter the Hukbalahap, a Communist partisan group that was especially active in Central Luzon (which later became the birthplace of the present Communist Party). Section 4 of the law punished “whoever knowingly, willfully and by overt acts affiliates himself with, becomes or remains a member of the Communist Party of the Philippines and/or its successor or of any subversive association as defined in section two” and whoever conspired to overthrow the government, on the basis of its declaration that
“[T]he Communist Party of the Philippines [is] an organized conspiracy to overthrow the Government of the Republic of the Philippines for the purpose of establishing in the Philippines a totalitarian regime and place the Government under the control and domination of an alien power. The said party and any other organization having the same purpose and their successors are hereby declared illegal and outlawed.” (Section 2)
During its lifetime, the Anti-Subversion Act was subjected to repeated constitutional challenge on the ground that, among other things, it amounted to an ex post facto law and a bill of attainder (or, more precisely, a bill of pains and penalties, since it did not impose the death penalty). However, it was repeatedly upheld as being not-unconstitutional (which, by the way, is technically different from being constitutional per se), most definitively in People v. Ferrer (G.R. Nos. L-32613-14, Dec 27, 1972), a Decision penned by Justice Castro. In it, the Supreme Court explained that RA 1700 could not be a bill of attainder since it did not amount to a legislative finding of guilt; for Congress simply declared a set of acts illegal, but the courts still had to determine whether a person committed the offense or not.
Moreover, the Court said, the statute could not be a bill of attainder because it did not apply “either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial”. This meant that the courts still had to determine who would be punished, unlike the case of the 17th century bills of attainder that actually named the people to be punished, like their most prominent victim, King Charles I of England. Furthermore, the court said, the law did not apply retroactively–that is, it did not expressly punish people who joined subversive groups before its enactment–, so that it could not be struck down as an ex post facto law. (Note the excessive formalism of the ruling, which completely ignored the practical dimension of the law, but was nonetheless buttressed by the letter of the law “that killeth”.)
Later, President Ferdinand E. Marcos, in Presidential Decree No. 885 (1976), enacted the more familiar version of the law, which broadened its scope to include groups and associations “organized for the purpose of overthrowing the Government of the Republic of the Philippines with the open or covert assistance and support of a foreign power by force, violence, deceit or other illegal means” (Section 2). In addition to this, the Decree also enumerated a frankly overbroad set of acts that would be prima facie evidence of subversion–that is, presumptive evidence of guilt, which, once proven to exist, would suffice for conviction unless rebutted by the defense–, such as giving financial support to a “subversive” organization and distributing its propaganda.
During the period of martial law, and even up to the end of the Marcos Autocracy, the anti-subversion laws served as one of the most potent weapons against the Opposition, whose members were regularly branded Communists or Communist sympathizers. After the overthrow of Marcos in 1986, a clamor arose to finally remove the Anti-Subversion Law from the statute books. Despite the continued existence of a (Maoist) Communist insurgency, some “revisionist” members of whom launched a short-lived campaign of urban assassination, the pressure of libertarian sentiment proved too strong to resist, and PD 885 was finally repealed in 1992.
Reasons against revival
If, therefore, the Supreme Court itself had found the old Anti-Subversion Law to be not-unconstitutional, why then should it not be re-enacted now, when the Communist insurgency still exists, and is still active in such areas as the Bicol, Central Luzon, and Eastern Visayas regions? Several reasons have already been given by other commentators–that it amounts to ex post facto legislation; that it would alienate the members of the Left and People’s Organizations, who would be forced underground by its application; that it violates the freedoms of speech and association; and that it’s liable to abuse by, especially, the Arroyo Autocracy–so I’ll focus here on the reasons I haven’t come across on other reactions to the news. (For other reactions, see the summations made on Postcard Headlines and tonyocruz.com)
To begin with, the Anti-Subversion Law, if re-enacted as originally phrased in the earlier statutes, would be legally “overbroad”, meaning that its scope would go beyond what is reasonable under the circumstances. Note that it makes mere membership in an ideological organization an offense if its official ideology espouses violence; but the problem is that membership and ideology are not monolithic phenomena. Not all “Communists”, for example, actively espouse the armed-struggle component of Marxist ideology–Marx himself waffled between seeking violent revolution and conceding that, in electoral democracies, peaceful revolution might be possible (proven, ironically enough, in 20th century America)–, and even revolutionary Marxists have proven willing to put the armed struggle in the backburner for strategic reasons. Leaving aside the somewhat tortuous history of Italian Communism, the best proof is German Socialism (co-founded by Engels), which adopted parliamentarism long before it formally rejected armed revolution. The same observation holds of our party-list groups, whose parliamentarism would be rendered nugatory by the Law.
Second, and in connection with the preceding, the Anti-Subversion Law, if re-enacted as it was originally phrased, would violate the equal-protection clause (Article III, Section 1, last clause) of the Bill of Rights. Under the clause, a person or group of persons cannot be treated differently from others in similar circumstances; or, otherwise stated, different treatment can be allowed only if, it is in line with substantial distinctions and are relevant (“germane”) to public interest, among other conditions. In non-legal language, a person can’t be treated differently from others without reason. Considering that the Anti-Subversion Law made no distinctions among the various kinds of ideology and manners of adherence, its re-enactment would end up treating parliamentarian Leftists and Islamists, for example, as though they were all terrorists, and differently from other parliamentarians–and this would violate equal protection.
Third, the Law if re-enacted would violate freedom of religion and conscience. As pointed out by the US Supreme Court in the free-exercise case of U.S. v. Seeger (380 US 163, 174-175, 184-185 ), freedom of religion protects not only Theist belief-systems like Christianity and Islam but also non-Theist systems like Buddhism, Marxism, and Secular Humanism, which–as argued by Paul Tillich in Dynamics of Faith–have the same “religious” function in human life. (On this point, see also P. Casarella’s brilliant article on Communio.) Mark you, I am not a Liberal, and I don’t believe that restrictions on belief, if there are sufficient reasons to impose them, are intrinsically wrong: Post-Hitler Germany, for instance, prohibits Nazi beliefs, and no one can blame them under the circumstances. However, under our Liberal system, freedom of belief cannot be restricted without “clear and present danger”, meaning that there must be a real danger to society that only restriction would answer; and considering the shift of the Left to parliamentarism, the impending accord with the Islamist MILF, and the weakness of the armed Right, no such danger seems to exist.
In other words, and summarizing the preceding, the Anti-Subversion Law would be unreasonable, and would therefore violate the constitutional right to substantive due process, which demands that freedoms not be restricted except in a reasonable manner and as necessitated by a real public interest. If it were to be re-enacted at all, precise distinctions would have to be made as required by such cases as Ople v Torres (1998), to prevent an excessive infringement of constitutional freedoms. However, the Arroyo Autocracy seems unprepared to make any such distinctions, as demonstrated by the comprehensive way it muzzled Executive officers and restricted press and assembly freedoms in the past. Hence, I believe the Anti-Subversion Law is neither lawful nor just under present conditions, and I join the ranks of those who oppose its revival.