EXTRA-JUDICIAL KILLINGS — the term has gained currency as a major criticism of the war on drugs of the Duterte administration. The proof of the crime: bodies felled by unidentified killers or vigilantes, in the dead of night or in the light of day.
Extra-judicial confessions — the term is known to men and women of the Philippine National Police (PNP) to be something that is inadmissible as evidence in court. The proof of the crime: affidavits signed by crime suspects, under duress or without assistance from a private lawyer or counsel of their choice.
Time and again, the Supreme Court has ruled against extra-judicial or “voluntary” confessions secured by law enforcers as clear violations of a suspect’s inalienable constitutional rights. In one such ruling, the high court had also declared such confessions as inadmissible in evidence, saying,”(The) Constitution is clear — a confession obtained in violation of the rights of an accused cannot be used as evidence.”
In the last 10 weeks, by the hundreds of thousands — or 716, 704 to be exact as of last week (51,198 alleged drug pushers and 663,506 alleged drug users) – men, women, and even minors have reportedly surrendered to local village and police officials under “Project Tokhang,” the demand-reduction track of the war on drugs of President Rodrigo R. Duterte.
But it was only four weeks ago – or a month and a half after Duterte launched his war — that the authorities issued written “guidelines” on how the police should deal with the surrenderees.
Yet the guidelines do not seem to be meant to preserve and protect the rights of the surrenderees. Rather, they pertain mostly to snatching information from the surrenderees about the most personal details of their lives, and that of their alleged drug sources or pushers.
Even as the guidelines spell out procedures in the handling of surrenderees, they also offer form templates for securing sworn affidavits and waiver of rights from them. In addition, the guidelines provide police officers more templates for filing reports on the conduct of the voluntary surrender and receipt of “confessions.”
The templates, according to human-rights lawyers, are a certain formula for extracting “extrajudicial confessions” or even witch-hunting for drug suspects, on the say-so of other alleged drug suspects.
On Aug. 3, 2016, the Dangerous Drugs Board (DDB) released Board Regulation No. 3 Series of 2016 titled “Guidelines on Handling Voluntary Surrender of Drug Personalities.” It is one of a few pieces of written guidelines covering the war on drugs that agencies under the Duterte administration have belatedly issued.
Signed by then DDB chairman Secretary Felipe L. Rojas Jr. and attested by OIC Board Secretary Amador S. Pabustan, the six-page issuance came with quite a number of attached forms and templates for the police to use and which the surrenderees would be encouraged or “required” to sign. These include:
• Affidavit of Undertaking and Waiver (Annex A)
• Voluntary Confession Form (Annex B)
• Physical/Medical Examination Request Form (Annex C)
• Drug Test/Examination Request Form (Annex D)
• Booking Sheet (Annex E)
• Booking Mug Shots (Annex F)
The DDB was created in July 2002 as the policy-making and strategy formulation body for policies and programs on drug abuse prevention and control, under Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002.
Chaired by the President, DDB’s 17 board members include the secretaries of 12 executive departments, the chief of the Philippine National Police chief; and representatives of the Integrated Bar of the Philippines and the private sector who serve in ex-officio capacity.
Apart from the DDB executive director, two other DDB executive appointees are permanent members and another two, regular members. The Philippine Drug Enforcement Agency or PDEA is the DDB’s “implementing operational arm.”
DDB Regulation No. 3 is silent, though, on what issuance had covered those who had been compelled to yield to the police and village officials before Regulation No. 3 itself was produced and came into effect.
No rules before Aug. 3
Laws and administrative orders may not have retrospective application, for sure. But the situation is all the more problematic with the apparent absence of any guidelines on the surrender of alleged drug users and pushers from July 1 to Aug, 3, 2016, when DDB issued Regulation No. 3.
Then again, whether or not Regulation No. 3 has come into full force and effect is a mystery, too. For one, the DDB said the Regulation “shall take effect fifteen (15) days after its publication in two (2) newspapers of general circulation and after registration with the Office of National Administrative Register (ONAR), UP Law Center, Quezon City.” PCIJ checked with the ONAR and found no listing as yet of DDB Regulation No. 3, and could not at press time confirm its publication in the newspapers.
By all indications, Regulation No. 3 was an afterthought on the part of the DDB and the Duterte administration.
In the “whereas” section of the document, DDB said it was issuing Regulation No. 3 citing that “due to the strong commitment of the President to immediately address the country’s drug problem, there are unprecedented responses from both law enforcement and the public, and one of which is the voluntary surrender of self- confessed drug personalities nationwide.”
Regulation No. 3 had to be issued, DDB said, because “there is no provision in RA 9165 providing guidelines on handling voluntary surrender of drug personalities.”
Tell all on cam
But already from July 1 to 25, 2016 alone, or before Regulation No. 3 came, the PNP had reported that a total of 116,466 persons had “surrendered.”
By Sept. 13, 2016, the PNP said this number had ballooned to more than 700,000 people.
There are more worrisome issues about Regulation No. 3, however. For one, it allows the conduct of an “interview” with surrenderees by police and village officials that is practically a tell-all confession. It allows the authorities to require the “surrenderees” to bare their personal details, income, and life patterns, and to expose the same data about their alleged sources of illegal drugs.
(By the PNP’s manuals, “interview” means “the process of eliciting information from witnesses, suspects and confidential informants.”)
The regulation also allows the testimony of surrenderees to be recorded on video and their mug shots and fingerprints taken — as the police are wont to do with those who had committed crime.
The surrenderees will also have to promise to report once a week for six months to the authorities, undergo rehabilitation using his/her money, and sign an “Affidavit Of Undertaking And Waiver (Annex A) allowing the conduct of physical/medical examination and drug test that he/she is in good shape, and that he/she shall fully cooperate with law enforcement, among others,” says Regulation No. 3.
Through it all, Regulation No. 3 states that, “no clearance or certificate shall be issued to the surrenderer (sic).”
“Voluntary surrender by drug personalities,” according to Regulation No. 3, “shall not be an assurance that they will not be subjected to drug law enforcement operation when they engage in the illegal drug activity after their voluntary surrender.”
Question of counsel
To be clear, Regulation No. 3 also says that “the presence of a counsel of his choice/PAO (Public Assistance Office) lawyer, nearest (of) kin or any person, of legal age, who knows him/her personally shall be mandatorily required during the execution of the Affidavit” and that the “surrenderer should not be handcuffed.”
Note the word “or” in the sentence. The Revised Penal Code (R.A. No. 7438 or An Act Defining Certain Rights of Persons Arrested, Detained or Under Custodial Investigation” provides in Section 2 (a) that “Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel.”
In Section 2 (d), the Code provides that, “Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall and signed by such person in the presence of his counsel or in the latter’s absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceedings.”
Note the word “and” in the sentence. The Revised Penal Code stipulates the presence of both the counsel of choice and a family member or responsible person in the community to assist the suspect, or in this case, the surrenderee.
According to Regulation No. 3, “the investigator shall conduct interview on the surrenderer’s alleged involvement and elicit all vital information regarding his illegal drug activity,” over two dozen multi-part questions.
By the verbatim text of DDB Regulation No. 3, these questions include but “shall not be limited to” the following:
• Personal information including the sketch map of his/her house;
• How long has the subject been involved in illegal drug activities;
• How much does he/she earn from illegal drug activities;
• Specify his/her other source of income;
• Specify his/her participation in the illegal drug activity (user, pusher, courier, maintainer of drug den, etc.);
• Types of illegal drugs being used, sold and/or smuggled;
• If the surrenderer is a user, determine the subject’s frequency of use, volume of drug sold, cost of drug use per intake, and if he/she is an injecting drug user;
• Determine his/her source of illegal drugs (name of supplier and place
• of origin);
• Identify his/her cohorts;
• Identify his/her protectors and/or linkages (politicians, law enforcers,
• prosecution, etc.);
• Determine his/her area of operation;
• Identify his/her clients/consumers of illegal drugs being sold to;
• Determine if the subject has previous drug cases. Status of the case;
• Is he/she part of a drug group, if any: Determine the profile of the group
– Strength/manpower – Arms, equipment, and mobility
– Types of illegal drugs being distributed
– Modus operandi
– Area of operation – Links/connections of the group with politicians and/or police units, armed, terrorist group/s or organization/s and determine the identified connections, if there are any; and
• “Determine if the group is involved in manufacturing/production, smuggling, and/or distribution.
– If the group is into smuggling or distribution, source and/or place of origin of illegal drugs
– If the group is into manufacturing/production, where is the location of the laboratory?
– Are there Chinese or other foreign nationals involved? Production capability (small/kitchen type, medium scale or large scale)
– If the group is involved in marijuana plantation cultivation, where is the location of the mj plantation site/s? production capability per harvest.”
Seize mobile phones
After the “interview” with the surrenderees, Regulation No. 3 says, “the Office shall immediately conduct record check to verify if the surrenderer (sic) person is included in the PDEA and PNP Target List, Wanted List, and Watch List or has any other pending criminal case/s.
In addition, “the result of the interview with the surrenderer (sic) shall be prepared and shall be used as reference for validation and cross-validation with the existing target-list. If possible, get photographs/descriptions of the persons he/she named.”
But if the initial interview yields information that is “actionable,” Regulation No. 3 says “the surrenderer may be requested to submit his/her cellular phones for forensic examination to obtain more data and to support his/her voluntary confession.”
The seizure of the surrenderee’s mobile phone “has to be officially covered by a receipt and the procedure laid down in cybercrime law shall be followed for the evidence to be admissible in court.”
The DDB’s issuance also defined specific guidelines for surrenderees who are “high-value targets” or have pending warrants or arrest or criminal cases, or had not posted bail.
For these surrenderees, the DDB says, “the concerned Office shall have temporary custody pending verification of the status of the said warrant or charges before the Prosecutor’s Office.”
“If said warrant has not been secured,” says the DDB, “the surrenderee shall be delivered to the judicial authorities or Prosecutor’s Office.
In case there is no pending warrant of arrest against the surrenderee, the DDB says the investigating office must do the following:
“If the surrenderer is a high-value target, the procedure under the general guidelines shall be observed. Further, his/her affidavit shall be subject to verification and investigation and he/she will be required to execute waiver to allow the Office where he/she surrendered to conduct financial investigation in coordination with the AMLC (Anti-Money Laundering Council) and declare or submit his/her assets and liabilities and related documents and an appropriate intervention shall be provided.”
The DDB regulation continues: “If the surrenderer (sic) is a pusher/protector and an appointed or elected official or government employee, the procedure stated under the general guidelines shall be observed. Further, a copy of his/her voluntary confession and other pieces of evidence gathered shall be endorsed to the appropriate court, tribunal or quasi-judicial body for the conduct of administrative disciplinary actions.”
“If the surrenderer is a minor,” Regulation No. 3 says, “he/she shall be immediately endorsed to the local social welfare office in accordance with Republic Act 9344, or Juvenile Justice Welfare Act of 2006.”
“If the surrenderer is an OFW who wanted to surrender abroad,” Regulation No. 3 says, “he/she shall submit her/himself to Labor Attache assigned in their respective embassies and same shall be referred to the Migrant Workers and Other Overseas Filipinos Resource Center and the procedure stated under the general guidelines shall be observed.”
Who or which agencies will take care of the surrenderees? DDB Regulation No. 3 states that they “shall be under the supervision of the LGUs thru the City or Municipal Anti-Drug Abuse Council (CADAC/MADAC), and shall report to the Chief of Police at least once a week for a period of six (6) months and may be subjected to random drug testing.”
Cache of confessions
What happens to the confessions of or interviews with the surrenderees? Regulation No. 3 says that “all law enforcement agencies shall maintain a separate file of drug personalities who voluntarily surrendered in their respective offices,” and the PNP shall have “one list of surrenderees” per area.
A massive file of these confessions will be harvested across the nation. Says DDB Regulation No. 3: “The PNP shall designate a Secretariat that will collate reports and maintain periodic statistics on drug personalities who voluntarily surrender to authorities for evaluation/analysis and continuing enhancement of processes and procedures.”
City and town police units shall then submit monthly reports “to the PNP Chain of Command” and “the Chief, PNP, thru the PNP Anti-Illegal Drugs Group shall submit a consolidated report to the PDEA,” according to the regulation. — PCIJ, September 2016