NSC's Malaya told: Red-tagging can be prosecuted

MANILA, Philippines —The National Union of Journalists of the Philippines stressed that red-tagging can be prosecuted.

The NUJP said this in a statement in response to the remarks of National Security Council assistant director general Jonathan Malaya who claimed that there is no law on red-tagging. Malaya earlier said that making red-tagging a crime is “impossible.” 

“Criminalizing the practice of red-tagging – which is basically the vilification of dissent and of critical reportage – is up to Congress and there have been attempts to define the act in law,” the NUJP said in a statement.

“What Mr. Malaya and the NTF-ELCAC cannot deny is that red-tagging is a malicious imputation that damages the subjects’ reputations and is an act that can and has put them at risk of harassment and worse,” it added.

In the NTF-ELCAC statement quoting Malaya, it claimed that red-tagging cannot be criminalized by law as complaints concerning such acts have been dismissed by courts due to lack of probable cause.

“In the case of Zarate vs Aquino, the Supreme Court of the Philippines dismissed several petitions for writ of amparo and habeas data and ruled that the mere labeling of a group as a communist front organization is not, and I repeat, not an actual threat to one’s right to life, liberty or security,” Malaya said, according to the NTF-ELCAC statement. 

The NUJP also pointed out that red-tagged victims have been filing civil suits instead of criminal ones, saying that “the Philippine government cannot even acknowledge that these (red tagging) happen.”

Among the individuals who filed civil damages against “red-taggers” are journalist Atom Araullo and former Bayan Muna Rep. Teddy Casiño.

Both filed charges against former NTF-ELCAC spokesperson Lorraine Badoy and her co-host Jeffrey Celiz over red-tagging in a suspended program of Sonshine Media Network International. 

Araullo and Casiño filed civil charges instead of libel punished under the revised penal code as they are both against the criminalization of libel. 

"The sole rationale for refraining from filing libel suits against these red-taggers is our principled conviction that libel should be decriminalized in the first place," the NUJP explained.

Meanwhile, New York-based Human Rights Foundation said that there are 32 recorded incidents of red-tagging in the Philippines and at least 23 journalists killed between 2016 and 2022, citing the data of NUJP.

Aside from Malaya's remark on "red-tagging", NTF-ELCAC also released a statement on Wednesday emphasizing that red-tagging is not a government policy.

This position was also reiterated by the Department of Justice, a member of the NTF-ELCAC, to United Nations (UN) Special Rapporteur for Freedom of Expression and Opinion Irene Khan during her visit.

“In fact, the Marcos administration has not issued any law, rule, executive order or policy instrument that implements red-tagging or even uses the word red-tagging,” the NTF-ELCAC said quoting Malaya.

“Sa madaling salita, and ating mga hukuman na at no less than ‘yung ating kataas-taasang hukuman ang nagsabi na ‘yung red-tagging ay hindi krimen…And is therefore part of the democratic process,” the statement read.

(In simpler terms, our courts, and not just any court but our highest court, have stated that red-tagging is not a crime. It is therefore considered part of the democratic process.)

However, several human rights groups have flagged the NTF-ELCAC for linking human rights workers, critics and journalists to the communist insurgency.

Last November, another UN special rapporteur called for the abolition of the NTF-ELCAC as it “is operating beyond its original mandate and is red-tagging people from the community and indigenous peoples.”

The agency’s spokesperson, Badoy, has also been previously reprimanded by the Supreme Court and the Ombudsman due to her red-tagging.