Circulars governing drug war endanger human rights —study

Researchers have found that the official documents that form the legal backbone of the Duterte administration's war on drugs endanger several human rights.

Global criticism of the government's anti-illegal drug operations has centered on alleged extrajudicial killings connected to the campaign, but a paper released Friday by researchers from the Ateneo Human Rights Center suggests that human rights concerns begin at how the police "persuade" suspected drug personalities to change their ways.

"The implementation of the current anti-drug policies, now with the benefit of hindsight, reveals a pattern of human rights violations that must be addressed," said lawyer Araceli Habaradas, one of the researchers, at a forum held at the Ateneo De Manila University on Friday morning.

The study found that several rights guaranteed by the Constitution have been made "vulnerable" by the legal framework behind Oplan Tokhang, complemented by the public naming and shaming of alleged drug suspects, and the process suspected drug personalities undergo after they surrender.

As part of the study, the researchers examined anti-drug campaign-related issuances by the Philippine National Police (PNP) and the Dangerous Drugs Board (DDB), including the original circular signed in 2016 by then-police chief Ronald Dela Rosa, the revised "Double Barrel: Reloaded" circular in 2017, and supplemental operational guidelines on Tokhang activities released in 2018.

The researchers claimed that Tokhang — the house-to-house visits aimed at "persuading" suspected drug personalities to stop their illegal activities — has room for potential police excesses because of its implementing circular's "vagueness and lack of accompanying guidelines."

Exposing the rights to due process and against unreasonable searches and warrant-less arrests, there are no prescribed parameters for persuasion, no clear rules as regards who will be visited and urged to surrender, no need for a search or arrest warrant, the researchers said.

"The term persuasion may mean any or all techniques within an available range of methods to influence a subject. Unfortunately, the only clear guideline in the PNP Double Barrel Circular is the directive that police officers must 'wear their proper uniform and perform their tasks with authority, firmness, and conviction'," the study states.

They added that should subjects surrender, they may be invited to police stations for "interview, documentation, and other alternative actions" without being accompanied by a lawyer.

The right to counsel is guaranteed for people under custodial investigation, but the researchers said Tokhang, with its flavor of "informality and voluntariness," does not require its subjects to be taken into custody or interrogated as if they are under investigation, "effectively tak[ing] it" out of the custodial investigation umbrella.

The study also raises questions at the source of information on the alleged drug law offenders made targets of Oplan Tokhang, asking if the lists historically provided by barangay anti-drug units are validated for the purpose of Tokhang.

"The directive shows eagerness or haste in implementation of Oplan Tokhang that either way prompts suspicion on the accuracy and sufficiency of information that fuelled the knock and plead activities," it says.

The Supreme Court is set to decide on the constitutionality of the implementing circular of the war on drugs: PNP Command Memorandum Circular No. 16-2016.  Recently, the justices have ordered the government to release official drug war reports to the two human rights groups challenging the campaign.

Parallel persuasion

Meanwhile, the study found that "parallel persuasion" efforts by the government to convince suspected drug personalities to surrender, including public naming and shaming through the release of so-called narco-lists, among other methods, endanger the rights to due process, presumption of innocence, and privacy.

President Rodrigo Duterte himself has released lists of public officials allegedly involved in the illegal drug trade. The Ateneo Human Rights Center, in its study, said that justifying the disclosure as an exercise of the public's right to information "misses the rationale of the constitutional guarantee."

Even if the names fall under matters of public concern, state agents must also show the public the official records and data used as bases for the pronouncement, the researchers said.

Citing a Supreme Court ruling, they said the right to information "goes hand-in-hand" with transparency and accountability in the public service.

Voluntary surrender?

The researchers also questioned the "voluntariness" of the surrenders of millions of people suspected of using or selling illegal drugs, raising potential violations to the rights to due process, presumption of innocence, against self-incrimination, and privacy during the process after one surrenders.

This includes signing waivers compelling them to divulge possibly incriminating information and allowing state authorities to take personal information and urine samples and conduct physical or mental examinations, including drug tests, and use the results "for any legal purpose that it may serve," the researchers said.

They said that the DDB surrender guidelines requires surrendering persons to sign a template affidavit and a waiver that contains "multiple admissions of guilt" and suggests that a voluntary confession is "mandatory."

When previous government terms let surrenderers off the hook after they complete the voluntary submission program, the current DDB guidelines provide that surrenderers are not absolved from criminal liability nor removed from the list of drug personalities, the researchers said.

"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," they said.

Looking beyond guidelines and documents, the researchers found that Duterte's "inflammatory" statements — including threats of killing illegal drug personalities — have given an "extra dosage of persuasive power" to the Tokhang visits.

"When this surge of killings are taken together with the president's statements and the earlier discussed methods of persuasion characterized by threats, force or intimidation, the voluntariness of many surrenders may be seriously put to doubt," the paper states.

"This doubt may even be extended to voluntariness of any admission or confession that came as an integral component of the surrender process." —KBK, GMA News