NO, JUANA, there has not been any big change in tactics in the government’s war against drugs just yet.
By all indications, as well as the statements of President Rodrigo R. Duterte himself and his senior advisers, the supposed revert to the Philippine Drug Enforcement Agency (PDEA) as the "sole agency" assigned to the drug war was but a small concession that the Palace had made to appease "bleeding hearts" in the opposition and the media, and a public increasingly upset over what has been a very bloody anti-drug campaign.
In fact, Duterte's decision to assign PDEA lead role, coupled with his disavowal of any role or further participation in the drug war, happened around the time human-rights lawyers filed before the Supreme Court two separate petitions to stop and to declare the anti-drug war as unconstitutional. (Oral arguments on the petitions will start on Tuesday, Nov. 21, at the high court.)
Since then, the media have reported fewer anti-drug operations on minor players, with alleged users and pushers killed not while supposedly shooting it out with law enforcers, but by unknown gunmen.
The “revert,” however, seems tenuous and tentative in both legal form and administrative substance. In the meantime, an elaborate and richly funded infrastructure organized to implement the drug war has not been abolished and continues to roll, with local police commands variably abolishing, suspending, or still sustaining their Drug Enforcement Groups (DEGs) and Drug Enforcement Teams (DETs).
A senior government official even told PCIJ in a recent interview: "The messaging of the PNP (Philippine National Police) on ground is that the drug war is still on. Sa totoo naman, PDEA can still mobilize them. Papaano naman gagawin ng PDEA lahat, dalawa lang tao nila sa ilang probinsiya (How is PDEA supposed to do everything when it has just a couple of people in some provinces)?"
According to the official, the only thing clear is that the "memorandum" prohibits the PNP – which had hitherto been front and center in the drug war -- from initiating or conducting operations on its own, "without notice to, or clearance and coordination with PDEA."
Then again, other senior Cabinet officials also admit that the government is unclear on how to implement the revert, including what it proposes to do with the P900-million budget in 2018 for "Oplan Double Barrel" that the House of Representatives has approved for the PNP, but which senators now want to realign – to build more housing units for policemen, or to prop action against terrorism, or to give PDEA more money, among other proposals.
Another P500 million in the 2018 budget, which has been proposed for an anti-drug program of the Department of the Interior and Local Government (DILG), is also being eyed by senators for similar realignment.
PNP launched its anti-drug campaign, Oplan Double Barrel, in July 2016 on strength only of a Command Memorandum Circular signed by its chief, Director-General Ronald 'Bato' de la Rosa. It promotes a two-track strategy: the arrest, surrender, and "neutralization" of alleged drug users and pushers for "demand-reduction," as well as "high-value targets" for "supply-reduction."
The DILG anti-drug program, MASA-MASID or Mamamayang Ayaw sa Anomalya, Mamamayang Ayaw sa Iligal na Droga, is for information, education, and advocacy activities in support of the drug war.
No barcode, no number
In his "memorandum" dated Oct. 10, 2017, President Duterte said, “(In) order to bring order to the operation/campaign against illegal drugs, thus pinpointing precise accountability, I hereby direct the NBI (National Bureau of Investigation), PNP, Armed Forces of the Philippines, Bureau of Customs, Philippine Postal Office, and all other agencies or any and all ad hoc anti-drug task force, to leave to the PDEA, as sole agency, the conduct of all campaigns and operations, against all those who, directly or indirectly, and in whatever manner or capacity, are involved in or connected with illegal drugs."
He added that "all information/data received" by these agencies "shall forthwith be relayed, delivered or brought to the attention of the PDEA for its appropriate action." And while the PNP "shall at all times maintain police visibility as a deterrent to illegal drug activities,” the "memorandum" said it was to leave to PDEA “the conduct of anti-illegal drug operations."
One problem, though, is that the Oct. 10 “memorandum” had neither the required number nor barcode, making it infirm by form. Too, under the Administrative Code of 1987, a mere "memorandum" is not among the official issuances the President may sign and pass as part of his “ordinance powers”.
The Code was instituted by Executive Order No. 292, dated July 25, 1987, of then President Corazon C. Aquino. In its Book III, it states that the issuances that the chief executive may pass are limited to Executive Orders, Administrative Orders, Memorandum Orders, Memorandum Circulars, Proclamations, and General Orders or Instructions.
Apparently, it was not the Office of the Executive Secretary, typically the President's go-to staff for the crafting and review of legal issuances, which prepared the "memorandum" on PDEA’s role in the drug war. Said Senior Deputy Executive Secretary Menardo Guevarra: "I am not sure who drafted it.... It seems intended more for public consumption rather than for government agencies."
In gist, he recalled, it was "more like an internal memo to emphasize that ground operations, PDEA na iyan.... Remember, one time, PNP led, there were so many complaints, ginawa ng Presidente, PDEA na."
Guevarra said that he saw a copy of the "memorandum" shortly before the President made it public at a press conference on Oct. 10, when Duterte also inaugurated the new briefing room for the Malacañang Press Corps. According to Guevarra, he was asked to review its text for possible conflict with Executive Order No. 11 creating the Inter-Agency Committee on Anti-Illegal Drugs or ICAD that Duterte issued only last March. EO No. 11 names the PDEA director-general as ICAD chair.
Where's ICAD, DDB?
But the Palace official also asserted, "Before the President issued that memo, nasabi na iyan, gawin na natin implementation. We can have curative remedial measures. If this is the announcement, then we do what needs to be done."
As of this posting, ICAD, however, has yet to call a meeting since; the last it had, Guevarra said, was held over two months ago.
A senior Cabinet official who declined to be named remarked to PCIJ, "Pinabilisan 'iyan (memorandum), pinamadali iyan kasi 'yung mga sunod-sunod na incidents, involving the police, partly survey results -- nag-decline rating niya sa illegal-drug war (That was hurried up and rushed through because of a string of incidents, involving the police, partly survey results – his rating declined because of the illegal-drug war)."
It’s an impression shared by Abdiel Dan Elijah Fajardo, national president of the Integrated Bar of the Philippines (IBP). In a lengthy written response to PCIJ’s queries, Fajardo said that the memorandum is “a testy response to accusations that Oplan Double Barrel may have failed in its avowed purpose to 'generate impact and public support.'”
Fajardo wrote to PCIJ: “It is widely alleged that police abuses may have been committed in the implementation of CMC 16-2016 (the PNP’s command memorandum circular on Double Barrel). Notably, the Presidential memorandum seems to have acknowledged the violations because it cites a particular provision in the Anti-Drugs Act which provides that when the investigation being conducted by PNP is ‘found to be a violation’ of any of the provisions thereof, the PDEA shall be the lead agency.”
“Anointing PDEA as the ‘sole’ agency in the anti-drug campaign contradicts its plain and simple designation in the law as the ‘lead’ agency created to enforce the policies spelled out by the DDB,” continued Fajardo. “In this respect, the memorandum teeters toward invalidity as an unauthorized amendment of the law.”
'Back in right place'
The IBP president sits in the Dangerous Drugs Board or DDB as a permanent private-sector representative. A policy body formed under Republic Act No. 9165 or the Comprehensive Dangerous Drugs Act of 2002, DDB has PDEA as its implementing arm.
It is the DDB, an agency under the Office of the President, that the law specifies as having the task to "develop and adopt a comprehensive, integrated, unified, and balanced national drug abuse prevention and control strategy." Apart from the President, DDB assigns the PNP director general and the NBI director permanent roles as its "consultants."
Fajardo confirmed to PCIJ that, like ICAD, DDB has yet to hold a meeting since the "memorandum" came out.
In his response to the Center, Fajardo also noted that the law had authorized the establishment of the PDEA Academy, which was to be responsible “for the recruitment and training for all agents and personnel.”
“Congress wanted the organizational structure of PDEA to become fully operational and the number of graduates of the PDEA Academy sufficient to conduct anti-drug operations nationwide,” he explained. “The (National Bureau of Investigation) and the PNP were directed to continue with enforcement activities on all other crimes as provided for in their respective organic laws.”
“It is now apparent,” said Fajardo, “that the law passed fifteen years ago is yet to see full light of day.”
'A tacit admission'
Ironically, the “memorandum” appears to be only putting some things back in their rightful places. In truth, said Jose Manuel ‘Chel’ Diokno, national president of the Free Legal Assistance Group or FLAG, Duterte’s "memorandum” bears "a tacit admission that all these months, the PNP has been violating the law" by taking a lead role in the war on drugs.
Executive Secretary Salvador Medialdea, for his part, said that the "memorandum" now orders the PNP to keep out of the war on drugs.
"Epekto nito, wala na ang pulis diyan (One effect of this is that it takes the police out),” Medialdea told PCIJ in a phone interview. "Ginamit lang niya (Duterte) pulis kasi kilala niya, and because operations ito, ‘I have dealt with them before’.”
But Medialdea said that the President had voiced concern that to take on the task, PDEA needed to hire more people. Recounted the Executive Secretary: "Nalulungkot nga siya, sabi niya, ‘I don't think PDEA can handle it, kulang ng tao’ (He was sad, and he said, ‘I don’t think PDEA can handle it, it lacks personnel’).”
The President, Medialdea said, thought that he “had made a good start” but was wary that now all that may just go to waste – “sayang.”
Six months for PDEA
Duterte himself has seemed tentative at best, and conflicted at worst, about his decision to give PDEA lead role in the drug war.
On Oct. 13, or three days after he issued his "memorandum," Duterte told reporters: “If there are drug operations, I told (the) police, ‘Do not interfere. If you see a chase and they say it’s drugs, you leave. Let them be.’ So if somebody dies, the priests, you go to PDEA."
The President said that he did not want to have to do anything anymore with the drug war. “I will not anymore interfere,” he said. “'Di hugas kamay. Ayaw ko talaga, 'di ako naghugas, ayaw ko na (I am not washing my hands. I just don’t want to be involved anymore. I am not washing my hands, I don’t want it)."
But less than two weeks after uttering those words, Duterte raised the possibility of pulling back the PNP to lead the war against drugs. Last Oct. 23, in an apparent reference to the PNP, the President said in a conference of Asian lawyers, “Okay, let us see, six months from now. If things get worse again, I will say to these apes: ‘Go back to this job. You solve this problem of ours’.”
In lieu of the police, he said he kill drug suspects himself. Said the President: “Those who rape children, who rape women, those sons of… if you don’t want the police, I am here now. I will shoot them. That’s true! If nobody would dare it, I will pull the trigger. I gambled on that, but everybody knows, the military and the police, the consequences of that could be far more serious.”
DDB is policy body
Perhaps the President’s worries would have been less had he stuck to the law and left PDEA as only the lead agency in the anti-drug war, supported by other state bodies, rather than the “sole agency.” As Fajardo observed in his reply to PCIJ, “there was clear legislative intention behind the enactment of the Comprehensive Dangerous Drugs Act in 2002,” with “all campaigns and strategies against illegal drugs would be formulated under the direction of one body”: the DDB.
“A total of nine (9) Cabinet Secretaries are members of the DDB,” Fajardo noted. “This is meant to ensure a balanced and coordinated approach to the drug problem. For example, membership of the (Health) Secretary is acknowledgment that drug dependence is a health issue, while membership of the DILG Secretary ensures amplification of programs in basic units of Philippine society.”
The law excluded the NBI Director and PNP head from the DDB because, Fajardo said, it had created instead PDEA to be DDB’s implementing arm. Wrote Fajardo: “The DDB enacts the rules, PDEA enforces them.”
“Thus, the transitory provisions of the law are a veritable road map for the anti-drug campaign thenceforth,” he also said. “Discordant units like the Narcotics Group of the PNP, the Narcotics Division of the NBI, and the Customs Narcotics Interdiction Unit, had been operating for decades without extraordinary success. They were abolished by Congress that saw wisdom in developing one (1) cohesive enforcement unit with special training and competence to address the growing drug problem.”
What PDEA lacks
But that is no longer the case with the President’s declaration of PDEA as “the sole agency” in the government’s war against drugs, and the situation now begs a discussion of what it lacks in men, materiel, and mandate.
Days after the "memorandum" came out, PDEA Director General Aaron N. Aquino himself had expressed hope that PDEA 's lead role in the drug war would only be temporary. “I know the public has high expectations but I am asking the public for understanding because of our limitations,” he said in a radio interview. “I hope this is just a temporary arrangement; we need the police.”
Aquino had been director of the PNP Regional Office 3, but two weeks before he was to retire from the PNP last Sept. 6, President Duterte appointed him as PDEA chief. He had barely warmed his seat at his new office when the President’s “memorandum” came out. In the radio interview, Aquino said that PDEA needed a bigger budget, and must hire from 1,000 to 1,500 agents a year in the next five years to take on its new, stellar role in the war. Of PDEA's nearly 2,000 personnel, he said, only 1,100 are drug enforcement agents.
The Commission on Audit says that as of December 2016, PDEA had 1,887 personnel, of which only 1,754 had plantilla positions. As well, the agency had three presidential appointees; one co-terminus and 28 temporary staff; 48 case monitors; 19 consultants, and 33 contractual personnel. It has 15 regional centers but has long sought funds to organize offices in all the nation's provinces.
Two weeks after Aquino aired his thoughts on radio, PDEA said that it wants to recruit 72 more drug agents but who must first undergo a six-month training program. Interviews with more applicants continue to this day.
Even with many more personnel, though, PDEA's workforce comes up to less than a percent of PNP's filled positions of 162,364 uniformed personnel, and 11,092 civilian personnel. PNP can hire up to 24,100 more uniformed personnel, and 1,200 more civilian personnel that are unfilled authorized positions.
PNP's loss, PDEA's gain
The “memorandum” may have an adverse impact on the PNP’s coffers, even as PDEA could get a financial boost, however.
PDEA had a budget of P957 million in 2016, and P1.84 billion this year. Nearly 80 percent of its budget for 2017, or P1.6 billion, has been allotted for "Dangerous Drugs Supply Reduction and Suppression Services."
In the proposed 2018 budget, the Department of Budget and Management (DBM) had actually even planned to cut PDEA's allocation to only P1.38 billion. Of this, P1.25 billion would support PDEA's "operations" against illegal drugs.
In contrast, the PNP had received a budget of P88.51 billion in 2016, and P111.69 billion this year.
The 2018 proposal allocates P131.26 billion to the PNP, including P900 million in maintenance and other operating expenses (MOOE) for the "PNP Anti-Illegal Drugs Campaign-Double Barrel Project.” The fund has been assigned to the PNP NCR-Central Office.
This special fund for Double Barrel forms part of the PNP's total 2018 MOOE for "Crime Prevention and Suspension Program" that is estimated at P11.06 billion, apart from P602 million for its "Crime Investigation Program."
Amendments up in Senate
The period for interpellation on the budget is over, but this week the senators are scheduled to propose amendments and vote on the budget of the PNP, which had previously been given the top role in the drug war by the President.
It could be the first time that an appropriations act submitted by the Executive, and which has been approved on third reading by the House of Representatives, would undergo a major makeover. The budget versions approved by the House and the Senate would, of course, have to be reconciled and approved by the bicameral conference committee of Congress before it could be signed into law by the President.
This could be the first time, too, that a heretofore small and largely ignored agency like PDEA might get multiple times more money than its budget in the current year.
The “memorandum” may also lead to the realignment of the P500 million originally allotted in the 2018 budget for DILG’s MASA-MASID. In the past year, DILG – which has supervision over the PNP – is said to have organized more than 120,000 MASA-MASID volunteers in teams to educate, mobilize, and monitor members of the community, as well report activities that may be related to crime and illegal drugs. These volunteers will thus be extensions of Duterte’s drug war in their respective communities.
No DBM proposal
Budget and Management Secretary Benjamin E. Diokno said that the Executive branch has not submitted proposals to Congress on how or where to realign the proposed P900-million Double Barrel fund in the PNP budget, and the P500 million for DILG's MASA-MASID program. He pointed out, though, that MASA-MASID is part of the Philippines' national action plan targets under the Open Government Partnership (OGP) initiative.
Diokno also said that sudden budgetary windfalls for certain agencies are not that unusual, although this has happened mainly to the big ones. These include the Department of Public Works and Highways and the Department of Education, which received up to 100-percent markups in their budgets from 2016 to 2017, and are poised to get even more in 2018.
Still, refunding PDEA and defunding the PNP might close some doors for the President, should he decide to put the PNP back once more as the lead state entity in his war on drugs.
"I don't think you can question the act of the Executive in assigning work from one agency to another, there is no prohibition,” Senator Franklin Drilon told PCIJ. He also said that “what is more important is for us to give support funds to PDEA.” He then wondered aloud, “Is its designation as lead agency sustainable legally?"
Defunding a trap
"Having said that, the President may say in January or February that I have changed my mind, it's back to PNP',” Drilon said. “By then, however, we cannot give the funds back to PNP anymore."
Drilon said the senators have reached consensus that the P900-million special drug war fund for the PNP, and the P500 million for MASA-MASID have to be realigned. Beyond this, though, there is dissonance as yet. Drilon has proposed to use the funds to build 10,000 more housing units for policemen. Sen. Richard Gordon has proposed to leave a portion of the fund with PNP for its anti-drugs and anti-terrorism activities.
Secretary Diokno said there should be no problem, though, should Duterte reassign PNP the lead role in the drug war, even after already losing funds for Double Barrel in its budget. According to Diokno, there are lumpsum funds anyway from which the President can draw supplemental monies for PNP, including the Contingency Fund, the Miscellaneous Personnel and Benefits Fund, Consultancy Funds, among others.
It’s clearly not a bottomless barrel, however. Admitted Diokno: "Konti na lang naman lump-sum funds namin (Our lump-sum funds aren’t that much anymore)." -- With additional reporting from Vino Lucero, PCIJ, November 2017