Drug war and the Courts

EVEN before the declaration of the war on drugs, a sudden surge of drugrelated cases struck the dockets of our Courts between 2014 and 2016.

During these years, our Courts saw 135 percent increase of filed cases under Republic Act (RA) 9165 otherwise known as the Comprehensive Dangerous Drugs Act of 2002, as amended.

From 29,240 filed cases in 2014, it stood at 68,859 in 2016. In 2017, it inched to 70,706 filed drug-related cases. In that same year, violations of BP 22 or the Anti-Bouncing Check Law stood a far second with 21,760 filed cases. This is an astonishing difference. A deluge of drug-related cases is flooding the already clogged dockets of our Courts.

A handful of these filed drug-related cases eventually managed to climb its way up to the Supreme Court. This provided the Court with an opportunity to refine judicial interpretation in view of the new realities of the Executive’s raging War on Drugs. Three notable cases emerged. Estipona (G.R. No. 226679), Ga-a (G.R. No. 222559), and Lim (G.R. No. 231989) – two of which came from Cagayan de Oro City.

Let us begin with Estipona. Section 23 of RA 9165 forbade an accused from availing of the provisions on plea-bargaining. Plea-bargaining is essentially admitting guilt to a lower offense which is necessarily included in the offense charged. This would allow a person accused of selling illegal drugs to plead guilty to possession of illegal drugs which entails a substantially lower and probationable penalty. However, this mutually advantageous deal was not allowed under the law.

Estipona, a case from Legazpi City, changed all of that. The Court declared Section 23 unconstitutional for being contrary to the rule-making authority of the Supreme Court. In our system of separation of powers, the authority to prescribe rules on plea-bargaining exclusively rests with the Court, not Congr ess.

This case whose issues ripened during the early days of the war on drugs opened the door for plea-bargaining en masse. In a later Resolution, the Court adopted a framework where only drug suspects caught with small amounts of illegal drugs could avail of plea-bargaining. For example, those caught with less than one gram of “shabu” (methamphetamine hydrochloride) can avail of plea-bargaining.

After the release of the framework last May 2018, the City jail’s male dormitory congestion rate declined by 206.01 percent. But application for probation and recognizance spiked. Our drug treatment facilities, both private and public, struggle to keep up with the sudden and massive demand.

Section 21 of RA 9165, as amended outlines the Chain of Custody Rule. This essentially means that the movement of seized drugs from the crime scene to the Court should be duly recorded and identified. One integral part of the rule is the witness requirement. The presence of a barangay official and a media representative or a DOJ representative is needed during the inventory of seized items. Failure to strictly follow the rules would taint the integrity of the seized items and lead to acquittal. Thousands of drug cases met their deaths because of such failure.

The two other cases, Ga-a and Lim, both coming from Cagayan de Oro City, emphasized the burden of State authorities to strictly adhere to the Chain of Custody Rule. In Ga-a, the Court stressed, among others, that these witnesses “must be present at the time of and at or near the place of apprehension and seizure.” Even if physical inventory and photographing are allowed to be done at the nearest police station, this does not dispense with such requirement.

This is a rebuke to the common experience where witnesses do not have personal knowledge of the apprehension because they are only contacted after the arrest of the suspect. The Court said that the purpose of these witnesses is to “insulate against the police practice of planting evidence.” When even at the point of apprehension the possibility of planting is present, the integrity of the seized items is t ai nt ed.

Lastly, Lim wants the Courts to weed out poorly built-up drug-related cases. Apprehending officers must state their compliance with the requirements of the Chain of Custody Rule and in case of noncompliance, they have to state their justification and steps taken in order to preserve the integrity of the seized items. If there is no explanation provided by the officer, the investigating prosecutor must not immediately file the case before the Court but must refer to case for preliminary investigation. And if still filed, the Court may exercise its discretion to either refuse to issue a commitment order or dismiss the case outright.

The war on drugs strained many institutions. It is the poor who bear the brunt of its violence. While many organizations are accounting the excesses of this sheer display of power, our Court is silently shaping jurisprudence which shields us from excesses of this War. Rights amplified by our Court’s eloquence will only be beautiful words on paper if we do not continually nourish them with our vigilance and conviction.