HIGHLIGHTS: What was discussed in SC oral arguments on drug war?

MANILA, Philippines – Two petitions before the Supreme Court seek to declare the police and interior department circulars on the war on drugs unconstitutional. They want to investigate all cases of "nanlaban" or those killed while resisting arrest, and want prosecutors to conduct a preliminary investigation on the 35 killings in San Andres Bukid, Manila perpetrated by masked vigilantes.

For the first time since the war on drugs began in July 2016, the government will face the Supreme Court to explain why the campaign is legal in the face of thousands of alleged extrajudicial killings.

Solicitor General Jose Calida will take the floor on November 28 and was instructed to bring with him Police chief General Ronald dela Rosa and other concerned officials, including the head of the Philippine Drug Enforcement Agency (PDEA), designated as the sole agency in charge of the war on drugs.

On Tuesday, November 21, the High Court justices interpellated the two petitioners and here's a wrap of the highlights of the discussions.

1. Is Dela Rosa’s circular unconstitutional?

Associate Justice Estela Perlas-Bernabe pointed out that Dela Rosa’s Command Memorandum Circular (CMC) No. 16-2016 expressly states that policemen conducting the war on drugs should adhere to the law. Because the circular enumerates statutes and provisions, and even includes an instruction to follow the Constitution, Bernabe asked how it can be unconstitutional.

Petitioner Dean Jose Manuel “Chel” Diokno of the Free Legal Assistance Group (FLAG) Diokno said the provisions paid mere lip service and were not implemented by police on the ground.

Associate Justice Marvic Leonen then led Diokno to identify the provisions in the circular which can be deemed unconstitutional.

Under number 4, letter E of the circular, any person suspected of having drug links and who refuses to open his doors to police “shall be referred to the Anti-Illegal Drugs Units for immediate case buildup and negation.”

Leonen said that because there is a threat of something happening to the person who refuses to open his doors to the police, it is a violation of the right against self-incrimination. And if the person does open his doors, the element of coercion is already at play, and violates provisions of the anti-torture law, Leonen added. (READ: Was the PNP’s war on drugs illegal? Here’s why lawyers think so)

2. Is DILG’s circular unconstitutional?

Diokno also wants to declare Department of the Interior and Local Government (DILG) Memorandum Circular (MC) No. 2017-112 unconstitutional saying that their mechanism of community reporting violates the rights of community members.

Leonen agreed with this. He said the drug list, in itself, violates fundamental rights.

The circular operationalized the Mamamayang Ayaw sa Anomalya, Mamamayang Ayaw sa Iligal na Droga or Masa Masid program. It requires cities, municipalities, and barangays to establish a system of reporting suspected drug personalities. From these reports, the police draw up a drug list. 

Leonen pointed out that there is no mechanism for making a case and getting one's name off the list. This, he said, violates Section 11, Article II of the Constitution which says that: "The State values the dignity of every human person and guarantees full respect for human rights."

3. Should the police enjoy presumption of regularity?

Chief Justice Maria Lourdes Sereno has doubts. Sereno said the police is obliged to prioritize capturing suspects over killing them, and that the need for self-defense by the police should be a “rare occurrence.”

Sereno then led Joel Butuyan of the Center for International Law (CenterLaw) to say that what should have been a rare occurrence has instead grown to thousands dead, and already constitutes a pattern.

LAWYERS AND THE DRUG WAR. Solicitor General Jose Calida, who will be defending the government, shares a light moment with petitioner and human rights lawyer Dean Jose Manuel u0022Chelu0022 Diokno before the start of the oral arguments on November 21, 2017. Photo by Ben Nabong/Rappler

LAWYERS AND THE DRUG WAR. Solicitor General Jose Calida, who will be defending the government, shares a light moment with petitioner and human rights lawyer Dean Jose Manuel u0022Chelu0022 Diokno before the start of the oral arguments on November 21, 2017.

Photo by Ben Nabong/Rappler

4. Are the petitions moot because PNP is no longer part of the war on drugs?

Given that President Rodrigo Duterte has already taken out the PNP from the campaign and assigned to PDEA the role that the PNP used to play in the war on drugs, Solicitor General Jose Calida said the petitions are moot.

Moot and academic na kasi wala nang pakialam ang PNP dito sa war on drugs, wala na dapat pag-usapan pa (It’s moot and academic because the PNP doesn’t have anything to do with the war on drugs now, there’s nothing to talk about),” Calida said in an interview with reporters.

It was the same point raised by Associate Justice Samuel Martires, who asked Butuyan of Centerlaw why PNP is still included as respondent. Butuyan said it’s because the PNP is still involved via “auxiliary assistance” if offers PDEA.

Dela Rosa and his operations chief Director Camilo Cascolan said police can still help out in instances such as when PDEA operatives are involved in a gunfight and are losing, if PDEA operatives requested backup support, or if they need help for crowd control.

5. Is Dela Rosa’s circular necessary for a successful drug campaign?

Associate Justice Teresita Leonardo-De Castro wants the petitioners to clarify how the government can do away with Dela Rosa’s circular and still successfully fight drugs.

De Castro told petitioners: “I also would like you to compare the PNP Operations Manual with this circular and why you say that is better and why you say that the manual will suffice to address the widespread use of illegal drugs in the country.”

De Castro was leaning towards the circular, telling Diokno: “You said this is the first time that there are so many arrests, and you said there were killings related to the use of illegal drugs, but this is also the first time in our history that we have seen big factories, shabu factories in populated areas and so many barangays whose population is seriously affected by the use of illegal drugs and drugs peddling is quite rampant, to show to us that the manual of operations existing would suffice to meet these serious problems that we have now.”

Leonen had a contrasting opinion. He said the government does not need the circulars to fight drugs.

“Declaring the circulars unconstitutional will have the effect of probably clarifying certain rights of certain individuals vis-a-vis the power of the government to go against illegal drugs,” Leonen said.

6 Did the war on drugs mean to kill?

Diokno said Dela Rosa’s circular instructed policemen to kill. Diokno said the circular was peppered with the words “neutralize” or “negate". The words do not have counterparts in law, he said, and they mean "to kill" given the pronouncements of both Dela Rosa and Duterte.

Senior Associate Justice Antonio Carpio told Diokno that to neutralize, in police parlance, does not necessarily mean to kill a suspect. 

“Neutralized, meaning they should surrender, be arrested, or be killed during drug operations. So it doesn't only mean killed, it’s a general term and it has been used even during the previous administration," Carpio pointed out.

7. Can we apply the principle of ‘void for vagueness’?

Void for vagueness means a law can be invalidated because it is not clear.

Associate Justice Francis Jardeleza said that because there is dispute in the real and practical meaning of the word “neutralize”, then it can be considered vague.

“But I think you have something here, you have a situation where a government circular according to you contains vague terms which can be interpreted to mean a license or authority to kill and you’re saying that in effect, it’s unconstitutional,” Jardeleza said. (READ: Lawyers do dirty groundwork to fight Duterte’s drug war)

Jardeleza explained that the “classical” application of void for vagueness is in the context of freedom of speech, or when somebody is already convicted. He also said that petitioners can wait for a time where a killing incident directly tackles what “neutralize” means although he said “that can take time.”

“What bothers me is that more than freedom of speech, this is lives, more than the conviction of somebody, this is about lives,” Jardeleza said.

COMMUNITY. Families of drug war victims in San Andres Bukid and nuns of the Religious of the Good Shepherd watch the oral arguments at the Supreme Court. Photo by Ben Nabong/Rappler

COMMUNITY. Families of drug war victims in San Andres Bukid and nuns of the Religious of the Good Shepherd watch the oral arguments at the Supreme Court.

Photo by Ben Nabong/Rappler

8. Can victims just apply for a writ of habeas data?

The writ of habeas data, which took effect during the cruel anti-insurgency campaign of the Arroyo administration, is a remedy for a person whose right to life is threatened. (READ: Lawyers to question before Supreme Court role of prosecutors in EJKs)

The writ sets up a mechanism where information which is erroneous and can be damaging to an individual can be destroyed, or rectified. In this context, individuals labeled as drug personalities can avail of the writ so that the information against them can be addressed.

This is what Leonen asked Butuyan, saying those on the drug list can challenge the basis of the police for identifying them as drug personalities.

Lawyer Marnie Tonson of the Philippine Internet Freedom Alliance noted, however, that the writ will be “quick and painless” on the police and that the Data Privacy Act might be more useful to those labeled as drug personalities. 

A breach of the data privacy act, Tonson said, would impose “hefty fines and imprisonment” which would be a better deterrent.   with reports from Rambo Talabong/Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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