MANILA (UPDATE) - Police and law enforcement agents must wear body cameras in serving search warrants, human rights lawyers urged the Supreme Court Wednesday, following the "Bloody Sunday" killings of 9 activists in the Calabarzon region.
Lawyers have highlighted concerns about the service of search warrants while 2 recent quashals of search warrants indicated the problem starts right from the very beginning — the application for such warrants.
At a forum Tuesday on attacks against lawyers and petitioners who challenged the Anti-Terrorism Act before the Supreme Court, lawyers were one in saying the high court needs to review and clarify its guidelines for search warrants.
“Kung gagawin ng Supreme Court halimbawa na i-require lahat ng service ng search warrant na may body cameras lahat ng police officers o law enforcement officers na magserve ng search warrant, maiiwasan natin yung mga gawa-gawang istorya,” said lawyer Evalyn Ursua.
(If the Supreme Court, for example, requires all police officers or law enforcement officers to wear body cameras during service of search warrants, we’ll avoid fabricated stories.)
“Kailangan kasi, malinaw ano ba ang nangyari. Hindi tayo magrerely sa testimony ng mga law enforcers na ‘nanlaban.’ Kailangan meron tayong objective na ebidensya na ‘nanlaban’ nga,” she explained.
(We need clarity on what really happened. We cannot rely on testimonies of law enforcers that [those to be arrested] ‘fought back.’ We need objective evidence that they really fought back.)
Police claimed all 9 activists killed in Cavite, Batangas and Rizal provinces resisted arrest, a claim contradicted by those who saw the raids.
But Ursua would go further so as to suggest that the Supreme Court come up with a rule presuming that non-compliance with the body camera requirement means there were irregularities in the operations - a rule that goes against current evidentiary presumptions that law enforcement agents are presumed to have regularly performed their duties.
The current rule places the burden on alleged victims to show the police violated the rules.
Ursua’s proposal will reverse that burden.
“So ang presumption, pwede nating i-shift. Kung may namatay…pag hindi gumamit ng body cameras, automatic ang presumption ay irregularity…Hindi gumamit ng body camera, ibig sabihin may intention na itago sa publiko,” she said.
(So the presumption can be shifted. If someone died [and law enforcers] did not use body cameras, there should be an automatic presumption of irregularity…They didn’t use body cameras, that means they intend to hide something from the public.)
On many occasions, police and law enforcers have relied on the presumption of regularity to evade accountability, particularly in drug war killings where there were either no witnesses or witnesses were too scared to come forward.
That presumption of regularity would only occasionally be overturned in the face of solid evidence such as closed circuit television footage which would contradict police claim that the drug suspect fought back, such as in the case of 17-year-old Kian delos Santos where 3 policemen would later be convicted for his death.
Since delos Santos’ death in 2017, the Philippine National Police entertained the idea of requiring police officers to use body cameras during drug operations but that proposal has languished for years.
In October last year, the PNP began testing body cameras for a December 2020 target rollout, but nothing has happened since.
Meanwhile, the killings under the drug war continued and the police narrative of “nanlaban” remained.
Rights lawyers have accused the police of deploying “Oplan Tokhang”-like operations on alleged communist rebels, particularly in the “Bloody Sunday” raids which killed 9 and the raid on Tumanduk indigenous group in Panay in December last year where 9 people were also killed.
The killings of 9 activists on Sunday came 2 days after President Duterte told state forces to ignore human rights and “finish off” communist rebels — rhetoric that according to constitutional law professor Tony La Viña has crossed over from drug suspects to communist rebels.
Lawyer Pacifico Agabin of Concerned Lawyers for Civil Liberties stressed that a search warrant only entitles law enforcers to make a search of the premises described in the order.
"They're not supposed to kill or engage in fistical or battle with the occupants of the premises," he told ANC Wednesday.
AUTOMATIC REVIEW AND RELEASE OF RECORDS
But while the body camera proposal might take years, a more immediate suggestion is for the Supreme Court to amend its rules on the issuance of search warrants.
A 2004 Supreme Court circular allows executive judges, or in their absence, vice-executive judges in Manila and Quezon City regional trial courts to issue search warrants enforceable anywhere in the Philippines.
This rule allowed Quezon City Executive Judge Cecilyn Burgos-Villavert to issue search warrants which were enforced in Negros and Tondo leading to the arrest of 60 individuals in 2019 and in Quezon City, Manila and Mandaluyong in December last year, which led to the arrest of journalist Lady Ann Salem and 6 trade unionists.
But 2 courts have already struck down some of the search warrants Burgos-Villavert issued.
A Mandaluyong court in February this year quashed the search warrants against Salem and trade unionist Rodrigo Esparago on the ground of vagueness and failure to establish probable cause.
On Monday, a Bacolod City court also struck down search warrants against 6 trade unionists when the warrants failed to particularly describe the place to be searched.
Activists and rights groups have accused the Philippine government of “weaponizing” search warrants against alleged communist rebels.
Agabin, former dean of UP College of Law, supports calls urging the high tribunal to revisit the rule on search warrants.
"As a general rule, search warrants can be used only in the judicial district where the court that issued it sits," he said.
Two trade unionists, meanwhile, urged the high court to look into so-called “warrant factories.”
Former Bayan Muna party-list Rep. Neri Colmenares, who is also the chairperson of the National Union of Peoples’ Lawyers, wants the high court to “automatically review” the issuance and the implementation of search warrants in cases where deaths take place.
NUPL’s Josalee Deinla, meanwhile, is suggesting automatic release of the records of search warrant applications.
“Automatically order that the records for the application of search warrants be made available to the accused. Huwag nang hintayin na magfile pa sila ng motion or subpoena doon sa issuing judge. Kasi tumatagal at hindi nila na-aavail ang mga remedy gaya ng motion to quash,” she said.
(Automatically order that the records for the application of search warrants be made available to the accused. Don’t wait that a motion be filed or a subpoena be issued by a judge because that delays the case and [those arrested] are deprived of their remedy like a motion to quash.)
Access to records of search warrant applications was instrumental in securing Salem's release as it revealed inconsistencies in the statements of the police officers and the informant, leading the Mandaluyong court to conclude there was no probable cause established in the issuance of the search warrants.
This was not the case for Reina Mae Nasino, the detainee who gave birth to baby River while in detention and lost her a few months after.
Deinla said Judge Burgos-Villavert denied their letter-request for release of the search warrant application records, requiring the handling court to issue a subpoena.
But while Mandaluyong Judge Monique Quisumbing-Ignacio immediately issued a subpoena in the case of Salem, the Manila court handling Nasino’s case refused, prompting Nasino to file an administrative complaint with the Judicial Integrity Board against Manila RTC Br. 20 Judge Marivic Balisi-Umali.
In contrast, Bacolod RTC Judge Ana Celeste Bernad, who also junked Burgos-Villavert’s search warrants found it unnecessary to issue a subpoena as the record “is part of public record.”
Rights lawyers want the Supreme Court to clarify these 3 varying rulings by 3 different courts on 1 issue — are accused entitled to access to records of the applications for search warrants against them?
“Yes, definitely, a clear guideline as to the issuance of the search warrant…will be extremely beneficial to the accused and is, in fact, part of accused’s constitutional right to due process,” Deinla said.
“Para malaman nila kung ano ang dahilan kung bakit pinasok at hinalughog ang kanilang tahanan at kanilang bahay, at nakita yung mga paratang, mga gawa-gawang paratang mula sa isang anonymous informant o confidential informant nagsasabing nakita niya mga granada at mga baril sa kanyang bahay,” she added.
(So they’ll know the reason why police entered and searched their house and find out the allegation, the fabricated claim from an anonymous or confidential information who claims to have seen grenades and guns inside the house.)
For Colmenares, it’s simply unacceptable for a judge to deny the accused access to records of their own case.
“Karapatan mo yan eh. Hindi pwedeng wala kang record,” he said.
(It’s your right. It cannot be that you don’t have a record.)
“I’m really angry with that kind of argumentation ng mga judges, na record ko naman, ano ba namang ibigay mo. Wala akong nakikitang rason para di ibigay ang records,” he added.
(I’m really angry with that kind of argumentation of judges. It’s your record, they should release it. I don’t see any reason not to release the records.)