Unsolicited advice: We need a Drug Enforcement Summit

CHARGES

of extrajudicial killings marked our drug enforcement from its earliest stage, although the outcry somewhat abated with the exit of highprofile PNP chief Ronald “Bato” dela Rosa and the entry of low-key PNP chief Oscar Albayalde.

The outcry, however, led to the President’s word war with the confrontational Agnes Callamard, the special rapporteur of the UN Human Rights Council, when she started her mediacovered statements on extrajudicial killings. The word war, in turn, lead to threats of prosecution before the International Criminal Court (ICC) and the Philippines’ subsequent withdrawal from the Rome Statute that bound the country to the ICC.

In August, 2017, the Supreme Court issued its ruling in Estipona v. Lobrigo declaring Section 23 of RA 9166 unconstitutional for its prohibition on plea bargaining. The court ruled that plea bargaining (and its component questions of who, what, when, where, and how) is a procedural matter within its exclusive authority to regulate under the Constitution; hence, Congresss could not prohibit plea bargaining in drug cases. The Court failed, however, to sufficiently explain the why of its ruling.

Left unstressed, too, are the underlying tensions that Estipona spawned. By its ruling, the court effectively reversed a congressional and presidential policy declaration that drug cases are targeted serious concerns that merit strict compliance rather than the liberal treatment involved in plea bargaining, i.e., the downgrading of charges and the consequent imposition of lesser penalties. Congress, unfortunately, was never heard on the matter.

To stress the thrust of Estipona, the court issued a circular, through the Court Administrator, on the proper handling of plea bargaining in drug cases. The Department of Justice (DOJ) likewise came out with its own circular, reflecting its case disposition concerns, in particular, the number of the case dismissals the prosecution suffered. These two circulars have yet to be fully reconciled.

Before 2018 ended, the court came out with another ruling in Romy Lim v. People reversing the lower courts and acquitting the accused Romy Lim for defects in the police and the prosecution’s handling of the case, a fatal “chain of custody” technical deficiency.

As in Estipona, the court adopted a mandatory policy for apprehending officers, investigating prosecutors, and the courts in the custody and disposition of dangerous drugs in drug-related cases.

As matters currently stand and as official statistics show, the President’s drug war is far from the runaway success that he must have thought it would be when it began. The fight, on the contrary, developed more along the lines of Murphy’s Law – if anything can go wrong, it will.

We thus now face the question: Will the war just limp along in the way it has done so far, or can the situation still be reversed?

I am sure that the President, with his political will, can still meet undisputed success if the various pillars of justice would only act in sync with one another; his efforts would fly high if supplemental remedial and substantive fine tuning and a change of perspectives could be added.

More importantly, the President has to be a more active conductor of the pillars of justice orchestra, the built-in advantage he cannot afford to waste. Lest we forget, these pillars – namely: law enforcement (PNP and PDEA), prosecution, the courts, corrections, and the mobilized community – have long been organized to act together in delivering justice (except for Congress and the Judiciary which are independent bodies), and may only be waiting for synchronized marching orders.

Our starting point – the Dangerous Drugs Act, RA 9165 – to its credit is not perfect but is likewise not ambiguous in its terms, particularly in its operational standards. The chain of custody rules are even rendered clearer by the Supreme Court rulings and guidelines.

Its requirements, too, are not cast in stone and do not absolutely require rigid compliance. For example, the failure to strictly observe the Dangerous Drugs Act provisions on the seizure and handling of evidence is not necessarily fatal; the apprehending/seizing officers must only state the justification or explanation for any deficiency and the steps taken to preserve the integrity and evidentiary value of the seized/confiscated items.

Beyond the guidelines and at the level of implementation, there can be no substitute for the creation of specialist levels within each pillar and the consistent updating of their expertise on dangerous drugs technicalities.

Specialists are especially needed within law enforcement pillar (the PNP and the PDEA) and the community pillar (at the municipal and barangay levels, through the DILG). Their expertise can be developed through active schoolroom-type sessions and actual on-the-job training, with appropriate incentives for attaining their defined goals.

The prosecution pillar, with members already armed with knowledge of the law and with their smaller and tighter organization, may be easier to update. The same is true with the lower court magistrates and their personnel, and the correctional officers whose end-of-justice-process skills are unique to their calling.

The harder nut to crack would be at the policy level involving Congress and the court which fall under separate and independent branches of government. But with its own sense of nationhood driving its political will, nothing can stop Congress from addressing the problem areas it has already witnessed, in particular, in tightening up the substantive definitions of drug offenses (as may be needed for simpler prosecution and defense), and in laying down the substantive policy that each provision is intended to be unique and serious, by nature and as to penalties, and should not therefore be subject to any plea bargaining to a lesser offense at any stage of the proceedings.

Like Congress, the court should be convinced to refocus its perspectives on the demarcation lines between procedural and substantive matters, with particular emphasis on plea bargaining in drugs cases. While, the when, where, and how may lean towards the procedural, the what and the why could be substantive concerns when defined as policy declarations on the nature of drug offenses and their penalties.

All these, I would suggest, can be brought together and synchronized in a Drug Enforcement Summit that the President can call as head of government even before the May 2019 elections.