Study: Gov't circulars on 'drug war' affect constitutional rights

MANILA, Philippines — The administration’s ruthless “drug war,” enforced through the police’s Oplan Tokhang, risks violation of at least eight citizen’s rights enshrined in our Constitution, a study showed.

On Friday, the Ateneo Human Rights Center presented its study on the legal framework of President Rodrigo Duterte’s “drug war,” a petition challenging its legality pending before the Supreme Court.

The search looked into the Philippine National Police Command Memorandum Circular No. 16-2016 or Project “Double Barrel,” a two-prong approach for the drug war: Oplan HVT (High-Value Targets) and Oplan Tokhang.

“However, enforcement and implementation have brought up a lot of questions and even accusations of basic human rights,” it added.

The following rights, enshrined in our Constitution, were affected and made vulnerable by the policies on drug war:

• Right to Due Process
• Right to Equal Protection of the Laws
• Right to Unwarranted Searches and Warrantless arrest/Arrest without Cause
• Right against Self-Incrimination
• Right to Counsel
• Right to Presumption of Innocence
• Right to Information
• Right to Health

READ: Justices ask: Did Oplan Tokhang, Masa Masid violate any law?

Tokhang

The term Tokhang is derived from the combination of Visayan words “toktok” (to knock) and “hangyo” (to plead). In the government program, the police conduct house to house visitations to persuade “illegal drug personalities to stop their illegal drug activities.

Oplan Tokhang, AHRC said, affects a citizen’s right to due process, right guaranteed for those under custodial investigation and right to unreasonable searches and warrantless arrest/arrest.

EXPLAINER: Why is the writ of habeas corpus important?

The group said that the circular did not state who exactly can be visited and persuaded.

Rights groups raised that Oplan Tokhang targets the poor community, a point that was raised by Senior Associate Justice Antonio Carpio during the SC's oral arguments on the constitutionality of the drug war.

The senior justice further grilled Solicitor General Jose Calida, who was defending the government: "Can you explain why PNP, in this circular, is concentrating on street-level operations and is practically ignoring the big time drug lords?"

Carpio stressed: "How come the flagship project of the president is concentrated in going after small-time peddlers? Why not big-time drug lords?"

READ: Carpio asks: Were there Chinese drug lords killed by the PNP?

The research showed that other activities that are outside the letter of the memorandum circular include on the spot testing and extracting confessions without legal counsels present.

It noted that, during the conduct of Oplan Tokhang, subjects “were persuaded in assorted ways that flirt with dangers sought to be prevented by constitutionally-guaranteed rights of those under custodial investigation, including the right to counsel.”

“Tokhang is conducted by police officers without the need of a search or arrest warrant or to complete a case-build up required under the PNP Manual before anti-illegal drugs operations can be executed. What the PNP Circular merely requires prior to the house visit of the ‘collection and validation’ of information and proof on suspected illegal drug personalities,” it added.

Voluntary surrender

The research also looked into the “voluntary surrender” in the police program, that it said, affect the citizen’s right to due process, right to presumption of innocence, right against self-incrimination and right to privacy.

A subject of a Tokhang operation is “persuaded” by the police to execute an affidavit on either being a pusher or user of drugs, the study showed.

Those who surrender also sign a waiver that allows the state to take urine samples, take photos, fingerprints, information and conduct physical/mental examinations. The authorities can “utilize the result... for any legal purpose that it may serve.”

This, in turn, translates to the waiving of the right against an unreasonable search and right to privacy, the research said.

The group also pointed out that the template affidavit under the 1st Dangerous Drugs Board that contains “multiple admissions of guilt” and contains a text suggesting voluntary confession as part of the protocol.

"Both affidavit and voluntary confession may even be used as evidence against a surrenderer in the event charges are filed against him/her in the future," they said.

Supreme Court petitions

In 2017, two groups of petitioners asked the SC to halt the implementation of Duterte’s drug war. Their pleas are centered on killings in the San Andres Bukid district of Manila and in Baguio.

The high court had recently reiterated its order to the Office of the Solicitor General to give the petitioners a copy of the voluminous drug war records and investigation of the thousands of deaths during police operations.

In another strongly worded resolution, the high court told Solicitor General Jose Calida, the government's chief legal counsel: “The undeniable fact that thousands of ordinary citizens have been killed, and continue to be killed, during police drug operations certainly is a matter of grave public concern.”

READ: SC tells Calida: Thousands of deaths in drug war of 'grave' public concern