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Investigating President Rodrigo Duterte’s drug war using data is a tall challenge for any group, and it seems even more so for a government agency, for the simple reason that data is deficient.
But for the investigations that settled for limited datasets, a pattern of impunity emerged.
“Regardless of how rosy the narrative may seem to be, one must always go back to reality: that this is not a war, but state-sponsored murder,” was the conclusion of a study recently published by IDEALS or the Initiatives for Dialogue and Empowerment through Alternative Legal Services (IDEALS).
Rappler’s investigation showed that the government’s initial submission of drug war files to the Supreme Court, which is deliberating on the legality of Duterte’s centerpiece campaign, was largely “rubbish.” It included irrelevant files, and excluded files of deaths that resulted from legitimate police operations, or what’s commonly called the “nanlaban” cases.
An earlier study by the research consortium Drugarchive.ph looked at 5,021 individual victims – “data culled from publicly available information, mostly from media reports and others from publicly accessible court filings.”
The Commission on Human Rights, a government instrumentality but an independent institution, has so far found only 3,273 death files. This is out of the roughly 20,000 killings in the drug war.
The Department of Justice (DOJ) review panel, which was supposed to reinvestigate 5,655 deaths in police drug war operations, was sourced from 916 cases at the National Prosecution Service (NPS), but only 328 of those were made available for the review.
Rappler has been asking Justice Undersecretary Adrian Sugay for the nature of those cases, and why the DOJ had such a limited dataset, but the official has not replied since February 25. He told Rappler on Friday, March 5, he would answer “in due time.”
“I think the first problem is determining whether these documents even exist,” lawyer Carlo Brolagda of IDEALS told Rappler’s Law of Duterte Land podcast.
Brolagda is the project coordinator for research of IDEALS, which studied the drug war for 3 years, and was able to get documentation for 498 cases of human rights violations (HRVs) from 2016 to February 2020, their research cutoff.
“In some of the cases, the families were told there were no reports that were made about the incident. If these documents do exist, obtaining them – the families would go to the station to get these reports, the police would aks them, ‘Why are you requesting? Are you going to file a case?”’ Brolagda said.
“Having to maneuver that – it’s subtly saying, ‘I’m not gonna give this to you’ – it’s so hard to overcome those hurdles that these agents put up in the first place,” said Brolagda.
CHR experienced the same. “The PNP (Philippine National Police) has been reticent, they’ve been resisting cooperation. It’s not lack of cooperation – there is no cooperation particularly on this issue,” Human Rights Commissioner Karen Gomez-Dumpit told Rappler in an interview in January.
Patterns of impunity
Glaring in IDEALS’ study is the conflicting classification of the violent incidents.
If you ask state agents, they conducted 128 buy-bust operations, 33 warrantless arrests, 13 searches, and 11 tokhang operations. But if you ask the community, the numbers are the reverse – that police conducted 129 warrantless arrests, 66 tokhang operations, and 40 buy-bust operations.
These classifications are legally important.
Buy-bust operations involve a poser-buyer and marked money. These must have pre-operation reports. Searches need a search warrant. Buy-busts and searches must be documented.
Warrantless arrests are barely documented, as they are made on the basis of a suspect supposedly caught in the act of possessing, selling, or using drugs. The law also allows a warrantless arrest if police have probable cause that the suspect is possessing, selling or using drug. Rarely were these probable cause incidents documented.
That state agents are claiming they have more buy-busts (contrary to what the community is saying that they have, in fact, more warrantless arrests), leads IDEALs to believe police wrote up reports “after the fact.”
“It’s easier to create documentation after the fact. Warrantless arrest kasi pupunta ka lang dun, nand’yan na lahat ng crimes na nangyayari then huhuli ka (if it’s a warrantless arrest, you just need to go there, see that there’s a crime, and then arrest) whereas buy-bust has a pre-operation plan, marked money, police reports,” Brolagda said.
There’s also a disparity in the number of tokhang operations. Tokhang is a knock-and-plead operation, where policemen knock on the homes of people on a community drug list and “plead” with them to surrender. If they don’t surrender, former police chief and now Senator Ronald “Bato” Dela Rosa’s circular said, they should be referred “to case buildup and negation.”
Negation does not have any legal meaning, leading law groups to tell the Supreme Court that negation then meant “to kill.” Supreme Court petitioners also argued that the drug list is unconstitutional, as it violates the rights to privacy and due process. Having the police go to homes without a lawyer present also violates the right of a suspect in a custodial investigation, the petitions said.
“When they revised tokhang and ‘remedied’ it, it was modified such that the drug list would have to be verified and only people, whom the police have actual evidence against, would be on the list,” Brolagda said in a mix of English and Filipino.
“Our issue with this is, if you already went through this process of verifying these drug personalities, why won’t you apply for a search or an arrest warrant? Why go through a convoluted process of going to the house and asking these people to surrender when you could have already brought this evidence to a judge to arrest him legally?” Brolagda said.
An earlier study by the Ateneo Human Rights Center and Ateneo School of Government said that the circulars that operationalized the campaign violated constitutional rights. The study found that the Duterte government corrected these circulars to fix the legal loopholes along the way, but not before more than 6 million houses were subjected to Oplan Tokhang and thousands were left dead in the drug war.
Why trust the communities with no legal competence to classify? Because despite these people having no expertise and not knowing each other, said Brolagda, what they are saying are the same.
“The stories of the community no longer sound incredible, but they start to become believable because these are people [who have] no links to each other, and yet they show the same patterns,” said Brolagda. (“Incredible” in legal jargon means negative, or hard to believe the account.)
Of the cases IDEALS looked at, 32% had an initial investigation conducted by the police. Of these, most or 98%, did not go beyond the initial probe.
This is clear evidence that there was not enough prosecution of killings, something that Rappler knew as early as October 2018 based on data obtained from the DOJ. At the time, only 76 cases had reached prosecutors.
This is why we kept asking the DOJ why they created a review panel only in June 2020, when they knew all along that so few cases were being properly investigated.
Brolagda said “initial police investigation” in their study means there was a cop who approached the family to ask about what happened.
“Most of them said wala talaga (no approaches at all) and of those who said yes (that they were approached), 98% said nothing happened after,” said Brolagda.
“And in the reports we did get, the reports say a killing occurred by unknown assailant and that they got away, that’s it, that’s the investigation, and nothing follows,” said Brolagda.
The International Criminal Court (ICC) is on the last stretch of determining whether they would open the crucial phase of investigation. The deciding factor would be if the Philippine judicial system is unable and unwilling to investigate these killings by itself.
Justice Secretary Menardo Guevarra said that based on the DOJ’s partial findings, the police violated protocols in the nanlaban cases. Guevarra said they will wait for the PNP to file the complaints before their panel steps in.
“The DOJ, with its study, wants to show that we are able and willing, but data doesn’t support that view at all,” said Brolagda.
CHR’s dataset also shows that of the 1,893 deaths in police operations that they looked at, only 10 cases have reached courts, 48 are currently at the prosecutorial level, and 9 at the PNP internal affairs service (IAS) level.
Drug suspects killed by vigilantes
In the study of IDEALS, 76 victims have a prior criminal record.
In Rappler’s study of files in the major hot spot of Bulacan, 157 of the 352 drug-related, vigilante-style killings, involved people on the watch list.
Supreme Court petitioners have said that this indicates a tendency to regard the watch list as a kill list.
We also saw cases where the victim was killed by vigilantes only days after being arrested by the police for a drug offense.
Rappler’s Bulacan investigation also showed huge concentrations of killings in barangays in two major towns, raising the question of why the police were unable to stop them.
“What’s even worse is that we heard stories that the killings happened in front of the police station. How can these killers kill in front of where you’re supposed to be doing your job, and then get away with it?” Brolagda asked.
‘It’s not a war’
“We are contesting the use of the word ‘war,’ because it implies that there are at least two sides who are engaged in an armed conflict and are more or less on the same footing. This is not a war,” Brolagda said.
“The other side, the victims, are poor, vulnerable, marginalized people who have no capability to wage a war against the almost infinite resources of the state. On top of this, we see people being killed with little to no effort on the part of the state to bring these killers to justice,” said Brolagda.
In Drugarchives.ph’s dataset, 15.8% of the victims have known occupations.
“The majority were low-paying, low-skilled workers. There were 98 tricycle drivers, 32 construction workers or carpenters, 24 street vendors, 19 jeepney barkers or dispatchers, 16 farmers, 12 jeepney drivers, 15 habal–habal and pedicab (bicycle) drivers, and 7 garbage collectors. Thirty-eight were reported as unemployed. Based on their place of residence or their occupation, it is clear that most of the victims were poor,” said their study.
Brolagda said that what all these investigations are still missing is looking at the accountability of higher-ranking government officials. “This is not mere negligence, someone is making it happen, it’s state sponsored murder, because having to accept negligence, it’s an impossibility because how could negligence happen this often?” Brolagda asked.
The DOJ is yet to publish its partial report, with the DOJ still dodging the question of whether they are prepared to investigate top officials, even all the way up to Duterte, for potential accountability. – Rappler.com