Jesus Dureza, whose title as Presidential peace adviser is becoming more and more tenuous as the Arroyo regime’s attitude towards peace negotiations becomes more and more martial, has denied that Mrs. Gloria Macapagal Arroyo is supporting the “revival” of the Anti- Subversion Act.

But we haven’t heard any denial from the lady herself after she was reported to have said that she would support such a bill if Congress wants it. Based on the common experience of this unhappy nation, some Filipinos suspect that Mrs. Arroyo is allowing everyone to say their piece, but that, as earlier reported, she’s in favor of the bill “reviving” the Anti-Subversion Act that one of her House allies, Sorsogon Congressman Jose Solis, had told her he would file.

It’s an idea whose time has long passed, and much earlier proposed by one of Mrs. Arroyo’s favorite generals, that great humanitarian, now retired, Jovito Palparan. Another favorite and favored general, Armed Forces Chief of Staff Hermogenes Esperon, has expressed support for it, declaring that the country’s laws are not enough to defeat the New People’s Army.

As everyone should know by now, if anyone has Mrs. Arroyo’s ears it’s the generals, with her allies in the House a close second. Put that together with Solis’ pledge to “modify” his version of the act to outlaw not only the Communist Party but also “right wing” groups, and the idea of “reviving” the Act won’t seem as absurd.

But “reviving,” which suggests that something’s only temporarily inactive, may not be the word. “Exhuming” might be the more appropriate term to describe Solis’ plan, the Anti Subversion Act having been in the ground since 1992, when Republic Act 7636 repealed RA 1700.

Political prisoners remember RA 1700 well. It was the law the Marcos martial law regime cited when arresting members of the opposition including the late Benigno Aquino Jr., academics, broadcasters and journalists, labor, peasant and student leaders, delegates to the 1971 Constitutional Convention, and anyone else, including gossip columnists and coffee shop rumor mongers, that caught the regime’s fancy for expressing contrary views.

Before the declaration of martial law in 1972, RA 1700 was already under challenge from constitutional experts. These experts argued that the Act was unconstitutional. Not only did it make an act punishable after it was committed, thus making it an ex post facto law. It also penalized without trial mere membership in a political organization, which made it a bill of attainder.

Webster’s Revised Unabridged Dictionary defines an ex post facto law as “any law, civil or criminal, which is enacted with a retrospective effect, and … signifies a law which retroacts, by way of criminal punishment, upon that which was not a crime before its passage, or which raises the grade of an offense, or renders an act punishable in a more severe manner than it was when committed. Ex post facto laws are held to be contrary to the fundamental principles of a free government…”

On the other hand, a bill of attainder is “any legislative act that prescribes a punishment on one or more specific individuals or groups or denies them civil or political rights without a trial or other judicial proceeding”.

The passage of such laws was expressly prohibited in the 1936 Constitution. For the information of Palparan, Solis, Esperon, the 1987 Constitution similarly makes such laws unconstitutional, the prohibition against them being in Section 22 of Article III (The Bill of Rights): “No ex post facto law or bill of attainder shall be enacted.” Section 14 (1) of the Bill of Rights also declares that “No person shall be held to answer for a criminal offense without due process of law”. Section 18 (1) also declares that “No person shall be detained solely by reason of his political beliefs and aspirations”.

But what was truly outstanding about RA 1700 was that it remained in the statute books for 35 years despite its infirmities, and was still around as a convenient tool of repression when Ferdinand Marcos declared martial law. In abetting the abuses of the martial law period as well as in its being a continuing offense against the Bill of Rights, the Anti-Subversion Act was actually subverting the Philippine Constitution.

One of the ways through which it subverted the Constitution was through wording so vague that it could apply to a host of acts, statements and opinions. That put the Act in direct collision with the right to free expression as well as press freedom. Section 4 of the Act thus declares that a conspiracy to overthrow the government is not limited to the use of force and violence, but includes “deceit, subversion or other illegal means.” This phrasing allowed the martial law government to arrest and detain anyone whose contrary views it held to be part of the conspiracy to overthrow the government if they echoed, no matter how faintly, the views of the Communist Party.

Any “revival” of the Anti Subversion Act would thus pose, in addition to the violation of the right to a fair trial and to the presumption of innocence, a grave peril to free expression and the free press, besieged as these already are by a government that’s committed, not to transparency, but to concealing information from the citizenry. As unconstitutional as it may be, a bill cloning RA 1700 may fit regime needs nicely, especially if it will include among outlawed organizations, such pesky military groups as Antonio Trillanes’ Magdalo.


Prof. Luis V. Teodoro is a former dean of the University of the Philippines College of Mass Communication, where he used to teach journalism. He writes political commentary for BusinessWorld.

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