MANILA, Philippines – On the 3rd and final day of oral arguments at the Supreme Court (SC) on the war on drugs on Tuesday, December 6, justices grilled Solicitor General Jose Calida on the operational loopholes of Oplan TokHang.
Oplan TokHang is the knock-and-plead feature of the campaign against illegal drugs, where drug personalities are supposedly asked to surrender and reform.
1. Where are the big fish?
Senior Associate Justice Antonio Carpio started with this question to Calida: "Can you explain to me why Philippine National Police (PNP), in this circular, is concentrating on street level operations and is practically ignoring the big-time drug lords?"
Carpio asked why Chinese and Filipino-Chinese drug lords have not been arrested when the circular tagged them as involved in bulk smuggling.
“The big time Chinese drug lords are outside our jurisdiction, they are in China,” Calida told the justice. (READ: SC’s Carpio compels gov't to submit ‘nanlaban’ documents)
Carpio said that one can stop the entry of shabu from China at the Bureau of Customs, killing the supply, and then killing the demand.
“Unfortunately our country is an archipelago. This shabu is dumped into the sea and somebody will get them from the high seas and bring them to the coastal areas or the land. We cannot police an archipelago. There are so many places where they can be transported. It need not pass the Bureau of Customs,” Calida reasoned out.
When Carpio pointed out that shabu has been smuggled “easily” at ports under the nose of the Bureau of Customs, as in the case of the P6.4-billion drug shipment in May this year, Calida said, “I cannot answer why there was this alleged importation of drugs, it’s still under investigation.”
2. Will more people die?
Carpio noted that government statistics peg the number of drug addicts at 4 million, higher than the 1.8 million estimate in 2015 or the year before President Rodrigo Duterte took office.
Calida said that the 1.8 million number was not accurate, and might have been understated.
On the question of why the bulk of the thousand casualties are poor drug peddlers, Calida said it was just natural statistics.
“Statistically, there are more people living in barangays than in Forbes Park or other swanky villages,” Calida said. He also told reporters: "Shabu is a poor man's cocaine. Ano ba ang mas marami (Which is more), poor or rich? Naturally you focus on where the shabu is.”
Based on the 4 million figure, Carpio asked Calida: “That means more Filipinos will be killed if we go after street-level addicts? We expect several thousands more to be killed?”
Calida said, “I hope not.”
3. Compliant to law
Calida got help when it was Associate Justice Diosdado Peralta's turn to interpellate.
On Day 2 of the oral arguments, Associate Justice Francis Jardeleza said there is basis to temporarily stop Oplan TokHang. For Jardeleza, house-to-house visitations already comprise custodial investigation.
Jardeleza said that in the conduct of the visitations, policemen violate rights given to individuals subjected to a custodial investigation, as provided under Republic Act 7438.
Peralta provided another view and gave Calida his defense: Items 4b and 4c of the police circular, which provide that personalities who voluntarily surrender are assisted by counsels, are actually compliant to RA 7438.
When policemen end up engaging with armed drug suspects, Peralta said it’s not only a matter of self-defense but actually a performance of a lawful duty.
“It’s actually a performance of a lawful duty, because the officers go to the place to arrest violators of law, and if there is a resistance, they can arrest them because they’re in the fulfillment of duty, but when their life is in danger thats the time they put up self defense,” Peralta said.
4. TokHang vs buy bust
Calida again insisted that TokHang is different from a buy bust. In TokHang, Calida said subjects are not considered persons of interest and their refusal to cooperate will just mean that cops move on to another house.
It’s during buy busts, he said, that confrontations happen. It’s when drug personalities, considered as persons of interest, resist arrest by fighting back.
Associate Justice Benjamin Caguioa asked Calida why policemen conducting buy busts do not have a search warrant.
“If there is enough evidence against him, shouldn’t the default be a matter of applying for a search warrant instead of conducting a buy bust?” Caguioa asked
Calida replied, “If it’s in the business of selling drugs, your honor, it’s difficult to pin him down unless there’s a buy bust operation."
“In other words, the evidence is not yet complete?” Caguioa pressed.
“Yes, he must be caught in the act,” Calida answered.
5. Is it really a buy bust?
In the petition of the Center for International Law (CenterLaw), the class suit of residents of San Andres Bukid, Manila, alleging 35 extrajudicial killings, Calida said 25 of the killings are from legitimate police operations or legitimate buy busts.
CenterLaw’s Christina Antonio told Rappler that the affidavits of the petitioners would show that what happened in those incidents “did not have the pretext of a buy bust.”
For one, policemen were not wearing uniforms.
Peralta asked Calida what policemen wear when they conduct operations, seeing that they are required to wear uniforms.
In the end, it was also Peralta who gave Calida a defense of the police: “If it is a visitation, they have to wear the uniform for proper identification. But in buy bust operations, they are not required. In fact, they conceal their identities, otherwise they will not be able to arrest violators."
6. Why raid at night? Why cordon off?
CenterLaw’s petition alleges a pattern in the killings: they happen from 10 pm to 3 am and the surroundings are cordoned off.
Chief Justice Maria Lourdes Sereno said that these nighttime raids are unusual. “I have yet to see a transaction or a sale being carried out at 3 am or 2 am,” Sereno said, citing the drug cases that have reached the Supreme Court.
Calida said the ungodly hours of the morning is when the drug addict is awake “because he cannot sleep.”
PNP Director for Investigation and Detective Management (DIDM) Police Director Augusto Marquez said an operation is done in the wee hours of the morning "to surprise" the suspects.
Sereno said cordoning off an area was “complicated” task, so police should not find it troublesome to apply for a search warrant prior to am operation.
7. The secretive drug list
Sereno grilled Calida on the process to access a drug list and possibly get your name off it.
From Calida’s answers, it turned out there is no clear process, more so if your name is on the list.
Calida said the matter cannot be subject to a petition for a writ of habeas data because it is a matter of national security.
“I disagree that it is a matter of national security. It’s a simple police matter,” petitioner Dean Jose Manuel "Chel" Diokno told reporters after the session was adjourned.
Diokno argued that community members are entitled to know who is on the drug list. “Paano kung ang pangalan ko ay nandoon (What if my name is on the list), how can I be given due process if I believe that my name should not be there?" Diokno said.
Diokno of the Free Legal Assistance Group (FLAG) filed the petition that seeks to declare police and interior circulars unconstitutional.