The called-for criminal law on red-tagging must get it right

By Soliman M. Santos, Jr.

Naga City, 4 July 2026

Given renewed calls for a criminal statute defining and penalizing red-tagging, it is imperative that we get right the most crucial definition of the crime. The premise of course is that red-tagging properly defined is a substantive evil that Congress has a right, and also duty, to prevent. The substantive evil involved here are “threats to a person’s life, liberty or security” and also threats to the legitimate exercise of constitutional freedoms of expression, assembly, and association, especially of political and social activists, various kinds of NGO workers, and human rights defenders.

The 2023 Supreme Court decisions in Deduro vs. Vinoya and two consolidated cases of Badoy-Partosa are often cited as the key references for characterizing and proscribing red-tagging. While in Deduro, “this Court declares that red-tagging, vilification, labelling, and guilt by association constitute threats to a person’s right to life, liberty or security,” it also declares that “Inherent in the practice of red-baiting is the use of threats and intimidation to discourage ‘subversive’ activities.” We can harmonize these two declarations this way: “red-tagging, vilification, labelling, and guilt by association constitute threats to a person’s right to life, liberty or security” because “inherent in the practice of red-baiting is the use of threats and intimidation” such as but not limited to acts of surveillance and harassment. Stated otherwise, red-tagging is “a form of harassment and intimidation” because “the use of threats and intimidation” is “inherent” in red-tagging. In fine, to be red-tagging in the proper sense, the “vilification, labelling, and guilt by association” must be accompanied by “the use of threats and intimidation” such as acts of surveillance and intimidation.

But that is not the only element. The above-quoted Deduro phrase “to discourage ‘subversive’ activities” can be understood as the malicious purpose or motive to “silence,” “discourage” or “delegitimize” the legitimate exercise of various constitutional freedoms, especially of political dissent, critical discourse and human rights advocacy, as can be gleaned from the context of Deduro and vother cases involving red-tagging. This malicious purpose or motive is also inherent in, and thus also an element of, red-tagging in the proper sense. In the Badoy-Partosa cases, it appears that “showing factual basis” and being “grounded in truth and facts” may make a difference regarding purported acts of red-tagging. In other words, to be red-tagging in the proper sense, the publicly-made connection, linking or association of aboveground open and legal organizations and individuals as cohorts or partisans of the Communist Party of the Philippines (CPP), New People’s Army (NPA) and/or the National Democratic Front of the Philippines (NDFP) must be unfounded. This is the third element or aspect of red-tagging in the proper sense.

Perpetrators of red-tagging should not be limited to State actors or agents, since it can also be perpetrated by civilians or private persons in support of the government’s counter-insurgency effort against the CPP-NPA-NDFP. It is this government effort “to end the local communist armed conflict” that is the context of red-tagging. Incorporating the above-presented three key elements or aspects of red-tagging in the proper sense, the “Amended Anti-Red-Tagging Ordinance of Naga City,” Ordinance No. 2025-025, features a nuanced definition of red-tagging that should be a reference for a criminal statute defining red-tagging, as follows:

Red-tagging is the malicious and/or unfounded publicly-made connection, linking or association of aboveground open and legal organizations and individuals as cohorts or partisans of the Communist Party of the Philippines (CPP), New People’s Army (NPA) and/or the National Democratic Front of the Philippines (NDFP), including but not limited to calling or labelling them as “reds,” “communists,” “(communist) terrorists,” “subversives,” or the like, especially or more so when done to silence, discourage or delegitimize their legitimate exercise of various constitutional freedoms, especially of political dissent, critical discourse and human rights advocacy, in ways or under circumstances that constitute threats to a person’s right to life, liberty or security, such as by intimidation, harassment and surveillance, on the part of State agents or civilian proxies of the State’s counter-insurgency efforts against the CPP-NPA-NDFP.

As stated in the Ordinance’s Explanatory Note, without these crucial elements, the act of publicly-made connection, etc. to the CPP-NPA-NDFP may in fact be one also in the legitimate exercise of various constitutional freedoms, rights and duties – like freedom of speech and of the press, the right to seek and duty to give public information, academic freedom, and truth-telling. Such as when made in the course of media opinion columns and broadcasts, academic works and discussions, and other truthful public information services whether governmental or non-governmental on the “important public interest” which is the local communist armed conflict. The warranted push-back against red-tagging should not result in a likewise “chilling effect” on the same constitutional rights and liberties that are meant to be protected by the criminalization of red-tagging.

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SOLIMAN M. SANTOS, JR. is a retired Judge of the RTC of Naga City, Camarines Sur.  He is a long-time human rights and international humanitarian lawyer;  legislative consultant and legal scholar;  peace advocate, researcher and writer; and author of a number of books, including on the local communist armed conflict and peace process, and on his court work and practice. He was the main drafter of Republic Act No. 9851, the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.”