Know your rights: Ateneo study cites rights violated in ‘Tokhang’

Michael Joe Delizo, ABS-CBN News

Posted at Apr 26 2019 05:05 PM | Updated as of Apr 26 2019 06:20 PM

The Philippine National Police resumes Oplan Tokhang in Quezon City on Jan. 29, 2018 in a new morning schedule following controversy associated with nighttime operations. Mark Demayo, ABS-CBN News/File

MANILA — At least 8 rights guaranteed by the Philippine Constitution have been violated by the enforcement of government policies in its intensified anti-drug campaign, showed a study by the Ateneo Human Rights Center (AHRC) released Friday.

In examining the legal framework of “Oplan Tokhang,” government's controversial knock-and-plead crackdown on drug suspects, AHRC said authorities violate the rights to due process, equal protection of the law, unwarranted searches and warrantless arrest/arrest without cause, the right against self-incrimination, right to counsel, presumption of innocence, information, and health. 

It said these rights were being “affected and made vulnerable by the government" in implementing Oplan Tokhang. 

Under the operation, police go house to house to "knock and plead" to drug suspects to surrender. This was designed as a “practical and realistic means of accelerating the drive against illegal drugs in affected barangays.” 

The Ateneo study showed that such component of the drug war has been violating human rights. The campaign has been associated with questionable slays. 

Ma. Araceli Habaradas, professor at the Ateneo School of Law, said there is nothing wrong about persuading drug suspects, but the way law enforcers implement it is “problematic.”

“Hindi natin sinasabing ayaw natin silang magbago pero ’yung pamamaraan na gagamitin sana ay tama (We are not saying that we do not want them to change, but the method should be right),” she said.

Based on a “real numbers” report of the Philippine National Police (PNP) and the Philippine Drug Enforcement Agency (PDEA), 170,689 drug suspects were arrested from July 1, 2016, the start of the Duterte administration, until January 31 this year. A total of 5,176, meanwhile, were killed for supposedly resisting arrest. 

“Many drug offenders right now are really in need of legal aid,” said Ray Paolo Santiago, executive director of AHRC. “Based on our study, we are see multiple violations of human rights.”

Courtesy of Ateneo Human Rights Center

Below is the summary of the paper titled "How change rendered human rights more vulnerable: Examining the anti-drug campaign legal framework with a human rights lens":

TOKTOK + HANGYO

What happens?

A combination of the Visayan words toktok (knock) and hangyo (plead), Tokhang mandates house-to-house visits and “persuasion of suspected illegal drug personalities to stop their illegal drug activities” 

Rights made vulnerable:

  • Right to due process
  • Right guaranteed for those under custodial investigation (ex: right to counsel)
  • Right to unreasonable searches and warrantless arrest/arrest without cause

How rights are affected:

  • The PNP Double Barrel Circular can serve as the license for police personnel to do acts that expose “Tokhang” subjects to many evils sought to be prevented by the Bill of Rights because of the vagueness and lack of accompanying guidelines. Additionally, it poses uncertainty as to who exactly will be visited and persuaded to surrender under “Project: Double Barrel.”

  • Despite not being in custody, “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. The PNP Double Barrel Circular itself articulates the possibility of “Tokhang” subjects being “referred/invited to the local police station for interview, documentation, and other alternative actions” if these subjects “voluntarily surrender themselves to the visiting team.”

  • “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 drug operations can be executed. What the PNP circular merely requires prior to the house visit is the “collection and validation” of information and proof on suspected illegal drug personalities.

PARALLEL PERSUASION: WHAT COMPLEMENTS TOKHANG 

What happens

Public naming — and consequently shaming — of suspected drug personalities through diagrams, photographs, straightforward verbal pronouncements from national government officials including the President himself.

Rights made vulnerable:

  • Right to due process
  • Right to presumption of innocence
  • Right to privacy
  • Right to information 

How rights are affected:

  • In its 2008 PNP Policy on Presentation of Suspects to the Media, the PNP recognized that public shaming is “…not only violative of their (arrested suspects) constitutional rights of presumption of innocence but also of their human rights subjecting them to unwanted publicity, thereby, besmirching their name and reputation including that of their family before guilt is proven.”

  • Labeling and shaming methods against suspected drug personalities despite an incomplete case buildup, and in certain cases mistaken identification, are shortcuts of what the law sanctions as the permissible route to stop drug activities. It is a shortcut of due process.

  • At the heart of the constitutional provision on the right to be informed is the state’s “duty to afford access to sources of information.” The constitutional provision must be fully appreciated in the context of the public’s right to access records and documents on information of public concern and the state’s related duty to gives access to said records. 

VOLUNTARY SURRENDER AND ITS EFFECTS

What happens?

Once the suspected drug personalities are visited by the police:

  • They are “persuaded” to submit to the police and execute an affidavit admitting to either being a pusher or a user.
  • Upon signing the pro-forma affidavit, they waive all their rights against giving urine samples and undergoing tests.
  • They commit to attending anti-drug programs.
  • Their information is also taken/processed by the police, allowing its use for whatever purpose.

Rights made vulnerable:

  • Right to due process
  • Right to presumption of innocence
  • Right against self-incrimination
  • Right against self-incrimination
  • Right to privacy

How rights are affected:

  • The waiver allows state authorities to “take a urine sample from surrenderer” and to “utilize the result” of urine sample “for any legal purpose that it may serve.” These in effect translate to, whether intentionally or unintentionally, a waiver of the surrenderers’ right against an unreasonable search and right to privacy. Obtaining urine samples or conducting physical, medical and/or mental examination is a state-initiated search that must be done in accord with the protection guaranteed by Article III, Section 2 of the Constitution at the risk of running afoul the proscription against testimonial compulsion and against violations to privacy.

    The Dangerous Drugs Board's (DBB) Surrender Guidelines suggest that admission of guilt is a necessary component of the voluntary surrender package. 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. 

    Thus, when the 1st DDB Surrender Guidelines are read in the context of the PNP directives on Double Barrel where suspected drug personalities are persuaded “to stop”, stopping means not only surrendering but also admitting to offending drug laws. 

    Moreover, the guidelines do not specifically require that surrenderers should be informed of their constitutional rights and the consequences of their confession. Nothing is also stated about requiring the presence of legal counsel prior to the signing of the affidavits. The absence of independent and competent counsel raises questions on the voluntariness of any statement signed by a surrendering user or dependent that purports to a confession. Even assuming that the affidavit/waiver do not constitute a confession, they certainly constitute an admission — “something less than a confession” and “an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction — that tends to establish the ultimate fact of guilt.

  • Under the Data Privacy Law, “the processing of sensitive personal and privileged information is prohibited, except when consent is given by data subject prior to the processing of the sensitive personal information or privileged information, which shall be undertaken pursuant to a declared, specified, and legitimate purpose.” 

SUBMIT V. SURRENDER

What happens?

  • Access to rehabilitation is burdensome considering the current voluntary surrender system.
  • While more venues for care and treatment were created at the community level, there are unnecessary burdens imposed by the voluntary surrender system of the government.

Rights made vulnerable:

  • Right to health
  • Right to privacy
  • Righty against self-incrimination 

How rights are affected:

  • The Declaration of Policy of the Comprehensive Dangerous Drugs Law recognized that while the State needs to enhance further the efficacy of the law against dangerous drugs, it shall also aim to achieve a balance in the national drug control program so that there could be effective mechanisms or measures to re-integrate into society individuals who have fallen victim to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation.

    Under DDB Reg. No. 4, the word “surrender” alone is laden with presumptions or admission to the commission of a crime. Whether intentional or not, this “criminalized” nature of the process as shown by how the surrenders are framed, the required tests and exams, privacy waivers, and commitment to other undertakings in order to access rehabilitation at the community level has significant implications on the right to health of drug users or dependents.

  • Drug surrenderers are required to disclose information and sign privacy waivers. Upon signing the pro forma waivers, the drug surrenderers allow the authorities to take photos, fingerprints and information, and to take urine samples and to conduct physical/mental examinations, including drug tests. The waivers also allow use of the results “for any legal purpose that it may serve.”

  • The waivers required of drug surrenderers compel them to divulge information that may implicate them without any assurance of an exemption from criminal liability.

FILE CASES

Reacting to the study, Commission on Human Rights Chair Chito Gascon reminded government officials that “there are standards that must be complied [with], there are no shortcuts.”

Law reform specialist Raymond Marvic Baguilat of UP Law Center’s Institute of Human Rights hopes that “there will be more people who will be willing to file cases knowing that this will be the last 3 years of the President.”

PNP deputy spokesperson Police Lt. Col. Kimberly Molitas recognized the significance of the study to improve their performance in combating illegal drugs. 

She admitted that there were lapses by some police on the ground, assuring that they were not being tolerated. 

“We have always been transparent about the operational procedures that have not been observed by police officers. There is nothing to deny about the study,” Molitas said. 

She added: “We have filed thousands of cases against our police officers, some of them have already been dismissed. This is a clear indication that we recognize the mistakes that have been made by our men on the ground.”