MikeLigalig.com

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

Here's a summary of the most important points raised during the petitioners' round in the Supreme Court oral arguments on the war on drugs

Lian Buan
@lianbuan
November 22, 2017


ORAL ARGUMENTS. Supreme Court Chief Justice Maria Lourdes Sereno leads other justices in deliberating on the constitutionality of Duterte's drug war during oral arguments at the Supreme Court on November 21, 2017. Photo by Ben Nabong/Rappler

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.

Linkback: https://tubagbohol.mikeligalig.com/index.php?topic=88392.0

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?

Diokno said the provisions paid mere lip service and were not implemented by police on the ground.

Associate Justice Marvic Leonen then led petitioner Dean Jose Manuel “Chel” Diokno of the Free Legal Assistance Group (FLAG) 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.

Linkback: https://tubagbohol.mikeligalig.com/index.php?topic=88392.0

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 "Chel" Diokno before the start of the oral arguments on November 21, 2017. Photo by Ben Nabong/Rappler

Linkback: https://tubagbohol.mikeligalig.com/index.php?topic=88392.0

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.

Linkback: https://tubagbohol.mikeligalig.com/index.php?topic=88392.0

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.

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

Linkback: https://tubagbohol.mikeligalig.com/index.php?topic=88392.0