Professional Documents
Culture Documents
SUPREME COURT
Manila
Through this Letter-Petition, we ask the Court to issue supplemental rules to address
Factual Background:
On July 1, 2016, Police Director-General Ronald Dela Rosa, Chief of the Philippine
National Police (PNP), issued Command Memorandum Circular (CMC) 16-2016
directing all PNP personnel to implement Project Double Barrel in line with the
current administrations vow to eradicate the sale of illegal drugs in the country.
CMC 16-2016 outlines a two-pronged approach: Project HVT (High Value Target),
the upper barrel, focused on prominent illegal drug personalities and syndicates at
the national and regional level, and Project Tokhang, the lower barrel, bent on
ridding all barangays in the country of illegal drug pushers and users. 1
Tokhang is a grave human rights concern as it involves visiting drug suspects in their
homes, persuading them to voluntarily surrender in writing2 and under oath,3 and
summoning them to the police station for interview, documentation, and other
actions4 a process that either already involves or have the substantial elements of
custodial investigation, and therefore dangerously fraught with actual or potential
violation of the constitutional right against self-incrimination.
It turns out that the concern on violation of constitutional rights pales in comparison
to the unprecedented carnage that has ensued all over the country, as a result of
Operation Tokhang.
From July 1, 2016 to March 24, 2017, a total of 2, 615 persons had been killed in
police anti-drug operations, according to the PNPsstatistics as of March 27, 2017.
That is, at least nine deaths had been occuring everyday from police anti-drug
operations from July last year and until March this year.
This is on top of 6,011 other deaths recorded during the same period, of which
another 1, 398 are also drug-related, but presumably carried out by vigilantes.
Another 3,785 deaths are still being investigated and are therefore classified as
Deaths Under Investigation (DUI), according to the PNP.
1 But for a brief suspension following the death of a Korean businessman in an alleged tokhang for
ransom and the filing in the Supreme Court of the Morillo Writ of Amparo petition, infra, Oplan Double
Barrel has been relauncedas Oplan Double Barrel Reloaded. See Cecile Suerte Felipe, Double Barrel
Reloaded, The Philippine Star, March 7, 2017, available at
http://www.philstar.com/headlines/2017/03/07/1678731/double-barrel-reloaded<last visited April 25,
17>.
Yet, if just the two drug-related figures are tallied the deaths arising from police
anti-drug operations and the vigilante killing during that nine-month period, a total
of 4,013 persons,or at least 14 persons per day, were killed in the drug war.
This easily surpasses the Marcos record of extra-legal killings, as, from 1975 until
1985 or during a ten-year period Task Force Detainees of the Philipppines
(TFDP) recorded 3,257 ELKs attributable to the martial law regime.
A common story in official reports is that suspects were killed because they fought
police (nanlaban, in police parlance). Many doubts have been raised against the
official narrative, not least of which is the statistical improbability of the whole
account, not to mention the fact that witness accounts in many of these cases
contradict the official narrative.
We, the lawyers of Centerlaw, have personally witnessed the impossible odds faced
by the families of victims of extralegal killings in their quest to obtain objective,
independent, and reliable investigation on the deaths of their loved ones.
We, as Centerlaw lawyers, have also experienced the difficult challenges of handling
cases of extralegal killings when our legal help was sought by the families of five (5)
victims, in what eventually became the Writ of Amparo case entitled Efren Morillo
v. Philippine National Police, G.R. No. 229072.
The Morillo case and many others that have already been documented5 are a chilling
example of what happens when police and other law enforcement authorities are
given blanket authority or are encouraged to act as if they have been granted one
to decide over who is a criminal and who is not, who is an enemy of the State and
who is not, or who deserves to die and who deserves to live, without the restraints
provided by law.
There is now an emerging class of people removed from the protection of the law,
thus rendering them in the Italian philosopher Giorgio Agambens work borrowing
from ancient Roman law as no more than homo sacer,6 persons with no rights
before the law, deprived of protection normally afforded by law to ordinary citizens,
5
See the most recent reportage on the drug war, Patricia Evangelista, Where the war began, Rappler, April 24, 2017,
available at http://www.rappler.com/newsbreak/investigative/beginning-war-on-drugs-philippines<last visited April 27,
2017>. This special report, written over a three-month period, a returns to the area under the jurisdiction of Police
Station 2-Moriones in Tondo, Manila, where the first drug fatality after President Duterte's inauguration was shot in
the early hours of July 1, 2016. According to Rappler, PS-2 Moriones is responsible for the death of at least 45
suspects, who were allegedly killed in shootouts with the police.
6Agamben says:
Let us now observe the life of homo sacer He has been excluded from the religious
community and from all political life: he cannot participate in the rites of his gens, nor (if he has been
declared infamis et intestabilis) can he perform any juridically valid act. W hat is more, his entire
existence is reduced to a bare life stripped of every right by virtue of the fact that
anyone can kill him without committing homicide; he can save himself only in
perpetual flight or a foreign land. And yet he is in a continuous relationship with the power that
reduced to the barest of existence as persons with flesh and blood and not much
else - and marked for execution anytime and anywhere.
Legal Background:
There are multiple national and international laws, protocols, and regulations upon
which the Supreme Court can anchor its issuance of additional rules on criminal
procedure to help prevent the emergence of citizens who are stripped of human
rights.
Art. 125 of the Revised Penal Code points to inquest as the nexus of the courts,
public officers and law enforcers in the protection of constitutional and human
rights. In inquest, the courts pluck the person arrested from the danger of
arbitrariness, abuse and breach and ensures his enfoldment in the system of law and
due process. The courts secure the person and all his rights through the police and
public prosecutors tasked to deliver the latter to the proper judicial authorities within
the prescribed periods of law.
Besides, the authority recognized by the Supreme Court of its power to promulgate
rules on preliminary investigation necessarily carries with it the power to supplement
and revise the said rules.
Article 125 of the RPC imposes upon police officers the duty to deliver to proper
judicial authorities a detained person within prescribed periods of law, and that any
failure to perform said duty will amount to a crime.
The reason behind Article 125 is to have the grounds of arrest and the imputation of
crime made by police officers reviewed independently by judicial officers. This is a
fundamental safeguard for citizens against abuses of police officers who may become
accusers, prosecutors, judges, and executioners rolled into one.
The reason behind and the purpose of Article 125 should not be applied only in
instances when the accused is arrested and detained alive. The obligation of police
officers to turn over records, documents, and all evidence in connection with the
commission of a crime as they themselves allege, must be required all the more if
the suspect ends up dead, either at the hands of police officers or unknown
assailants.
In cases of armed confrontation wherein the suspect dies, the Team Leader of the
operating unit shall submit the incident for inquest before the duty Inquest
Prosecutor prior to the removal of the body from the scene, except in areas where
there are no Inquest Prosecutor. In which case, the territorial police unit can proceed
with the investigation.
Even under the above-quoted police regulations, therefore, where the death of a
suspect results from a police operation, the proper procedure is for the police to
formally bring the matter to the attention of the public prosecutor in an inquest
proceeding in order to allow an independent investigation outside of the hands of
police officers. Chapter 3, Rule 15.4 of the PNP-OP was put in place to avoid
suspicions of any irregularity in police operations in which the death of a suspect
happened.
SEC. 16. Presence at crime scene. - Whenever a dead body is found and
there is reason to believe that the death resulted from foul play, or from the
unlawful acts or omissions of other persons and such fact has been brought to
his attention, the Inquest Officer shall:
At the heart of the UN Manual and the UN Principles is the conviction that
perpetrators of such killings will only be held responsible and accountable if
government authorities follow mechanisms and procedures of effective investigation.
The procedures it lays down are meant to ensure an impartial and effective
investigation against government officers or actors linked to the killings. This is
consistent with State obligations under international law to uphold the rights of
citizens in accordance with human rights norms.
The Minnesota Protocol considers the following as ELKs: (a) political assassinations;
(b) deaths resulting from torture or ill-treatment in prison or detention; (c) death
resulting from enforced "disappearances"; (d) deaths resulting from the excessive use
8
For an account of its development, see the blog of The Advocates for Human Rights, The Advocates Post, The
of force by law enforcement personnel; (e) executions without due process; and (f)
acts of genocide.11
The Minnesota Protocol covers deaths resulting from police operations, where these
deaths happened under conditions of excessive use of force. It also includes
summary executions or executions without due process, whether or not the
perpetrators were state agents or actors acting on orders from the former.
The Minnesota Protocol lists factors as triggers for a special inquiry for impartial
investigation on suspicions of government involvement in extralegal killings, provides
principles for the effective prevention and investigation of extralegal killings, among
others.
The thousands of deaths since the war on drugs was launched under Operation
Tokhang strongly call on the Supreme Court to promulgate rules for the protection
and enforcement of the most basic of constitutional and human rights the right to
life. The number of deaths linked to the war on drugs is an established fact. It is
based on official data provided by the Philippine National Police itself, the very
institution that launched and continues to implement the governments campaign
against anti-illegal drugs.
The factual milieu also indicates inquest to be the necessary locus of intervention.
James Fenton, an American journalist who has done in-depth reporting since the
implementation of Tokhang, describes in his own way two chief kinds of carnage
that has annihilated over 7,000 drug suspects: first, the buy-bust operation, and
second, the EJK, or extrajudicial killing.12
In either phenomenon, the courts have not had the chance to exercise its restraining
or sanctioning power. The buy-bust operation is conducted by the police under the
rubric of valid warrantless arrest and thus no warrant is applied for and issued by the
judge. An EJK is an outright breach of law. And regardless of the fact that the
suspect may have fought the police, it is not for the police to write off the crime and
proclaim that the killing was justified.
We propose a rule on inquest that would, in the case of a buy-bust operation, moor
police officers to the judicial authorities when a person is killed in the course
thereof, and in the case of an EJK, spur police officers to build a case and bring the
perpetrators thereof to court. The same procedure may now also cover alleged
shootouts, as what happened in the Morillo case.
Therefore, we respectfully submit the following proposals, consistent with the above-
discussed legal grounds, so as to prevent drug suspects or any other criminal suspects
for that matter, from being treated as homo sacer and from being subject to
banishment to the realm of uncertain fate. These procedures shall be employed in
any inquest or preliminary investigation proceedings by Prosecutors.
We anchor our proposals on the broad power and positive duty of the public
prosecutor not only to determine probable cause but to investigate or cause to be
investigated crimes, misdemeanors and violations of penal laws and ordinances.13
Complementary thereto is the duty of the police to Investigate and prevent crimes,
effect the arrest of criminal offenders, bring offenders to justice and assist in their
prosecution.14
In cases involving police operations, we propose that within a specified time frame
consistent or analogous with the periods mandated in Article 125 of the Revised
Penal Code, counted from the death of a suspect in a police operation, the
policemen involved shall, motuproprio submit to the office of the Prosecutor the
following documents:
- Intelligence Reports
Intelligence Plan
17
Summary of Information on the Targets
- Receipt issued by the local Crime Laboratory Office (CLO) for the firearms, cartridges and
26
slugs recovered
17
Required to be prepared by the Team Leader prior to the buy-bust operation under Chapter 3, Section 3.1.a.1 of the
Revised PNP Manual on Anti-Illegal Drugs Operations and Investigations, PNPM-D-0-2-14, 2010, Revised 2014.
18
Required to be prepared by the Team Leader prior to the buy-bust operation under Chapter 3, Section 3.1.a.1 of the
Revised PNP Manual on Anti-Illegal Drugs Operations and Investigations, PNPM-D-0-2-14, 2010, Revised 2014.
19
Required to be filed by the Team Leader of the operating team prior to the conduct of the operation under Chapter
2, Rule 4 of the Revised Philippine National Police Operational Procedures, PNPM-DO-DS-3-2-13, 2010, Revised
December 2013.
20
Required to be accomplished by the Team Leader of the operating team prior to the conduct of the operation under
Chapter 2, Rule 5.2 of the Revised Philippine National Police Operational Procedures, PNPM-DO-DS-3-2-13, 2010,
Revised December 2013.
21
Required to be submitted to the Inquest Officer by law enforcement authorities under Section 3 of Department of
Justice Circular No. 61.
22
Required to be accomplished by the Duty Officer under Chapter 3, Rule 17.4 of the Revised Philippine National
Police Operational Procedures, PNPM-DO-DS-3-2-13, 2010, Revised December 2013.
23
Required to be accomplished by the Duty Officer under Chapter 3, Rule 17.1 of the Revised Philippine National
- Certified true copy of the Certificate of Death of the deceased 27
- 28
Necropsy Report consistent with standards provided by the UN Minnesota Protocols
29
model procedure for autopsies
- Certificate of Post-Mortem Examination 30
- Accomplished Coordination Form prior to operation filed with the Philippine Drug
31
Enforcement Agency (PDEA)
- Accomplished Chain of Custody Form 32
- Chemistry Report 33
- Certificate of Laboratory Examination duly signed by the forensic chemist or other duly
34
authorized officer
- Machine Copy or Photograph of the Buy-Bust Money 35
We propose that the initial duty of the prosecutor,as soon as the prosecutor receives
the above evidence, is to cause a written notice to be sent to the Commission on
Human Rights informing the latter of the commencement of a death investigation.
We propose that the prosecutor shall next review the documents submitted by the
law enforcers. If the documents are incomplete, the prosecutor shall summarily
examine the arresting officers on their failure to submit said documents.
We propose that the prosecutor summarily examine the arresting officers on the
circumstances surrounding the arrest and death of the suspect in the course of the
police operation.
SEC. 16. Presence at crime scene. - Whenever a dead body is found and there is
reason to believe that the death resulted from foul play, or from the unlawful acts or
omissions of other persons and such fact has been brought to his attention, the
Inquest Officer shall:
a) forthwith proceed to the crime scene or place of discovery of the dead person;
b) cause an immediate autopsy to be conducted by the appropriate medico-legal
officer in the locality or the PNP medico-legal division or the NBI medico-legal
office, as the case may be;
c) direct the police investigator to cause the taking of photographs of the crime
scene or place of discovery of the dead body;
d) supervise the investigation to be conducted by the police authorities as well as
the recovery of all articles and pieces of evidence found thereat and see to it
that the same are safeguarded and the chain of the custody thereof properly
recorded; and
e) submit a written report of his finding to the City or Provincial Prosecutor for
appropriate action.
Our countrys Tokhang experience and the prevailing general attitude among
authorities and the general populace have so far cowed and resulted in a paralyzing
fear on the part of the victims, their families and relatives to render the protection of
the law and the relief granted by such writs as the Amparo virtually unavailing. And
while the law requires a positive duty on the part of the police and the prosecutors
where a crime is committed, they have so far been unable or unwilling to go beyond
their traditional roles of receiving evidence until complaints have been filed by the
victims or interested parties.
This is an opportunity to remedy the situation. Our proposals can either be adopted
as amendments to existing procedures or regulations or they can be transformed into
such class of writs as the Amparo to compel investigation and prosecution on the
part of the police and the prosecutors, respectively, such that the perpetrators will be
made to answer for their violation of the law and, ironically, brought within the
protection of the law with the commencement of judicial or quasi-judicial
proceedings.
By:
ROGER R. RAYEL
GEEPEE A. GONZALES
ETHEL C. AVISADO
ZHARMAI C. GARCIA
CRISTINA I. ANTONIO
JESSICA ANNE G. CO