Tokhang in Drugs War and Pandemic

The Report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Philippines prepared by the Office of the United Nations Commissioner on Human Rights (OHCHR), which is the basis of this series of columns, concludes that although there is credible evidence that widespread and systematic extrajudicial killings are occurring, national security enforcers continue to exercise near impunity. While the government insists that investigation is conducted automatically on any deaths that result during police operations, yet only one case has been cited by the government – that of 17-year-old Kian delos Santos – where three police operatives were charged and convicted of a drug campaign-related killing. The case of Kian delos Santos only came to light because it was caught on CCTV and resulted in charges after public outcry for justice.

The government draws attention to more than 9,000 administrative cases police personnel are now facing, but there is no available data on how many of these are drug related. For the OHCHR administrative penalties are insufficient in cases of serious allegations of violations of the right to life. In fact, according to the OHCHR, there is utter lack of progress in the investigation of anti-illegal drug campaign related cases referred to the Office of the Ombudsman. In the light of police invocation of “presumption of regularity” of operational conduct to justify the lack of prosecutions, the Supreme Court stated that “[police] cannot claim the presumption of regularity in official functions because deaths are not supposed to occur during any of [the police] operations.”

To the government, the absence of private complainants hampers investigation of these killings. According to the OHCHR, the Philippines is under obligation to establish rules and procedures for mandatory reporting, review, and investigation of lethal and other life. However, many of the relatives of victims, lawyers and journalists face many obstacles in pursuing justice including threats and harassment, lack of education, lack of protection of witnesses and victims, unwillingness by law enforcement to cooperate in the investigation, and reluctance by judges to critically examine drug-related cases.

For obvious reasons, the President’s assurances that he would protect police officers even if they killed 1,000 persons while on duty is of no help in curbing impunity among the police force.

On another area of human rights, the OHCHR pointed out in its Report the problem of arbitrary detentions in the country. Figures released by the Government indicate that 223,780 “drug personalities” were arrested from 1 July 2016 to 31 December 2019 and 204,721 of these individuals are now facing criminal charges, although it cannot be determined how many may have been related to drug trade and how many to personal drug use, how many were convicted, released or remain in pre-trial detention. The lack of reliable data, coupled with due process irregularities, gives rise to concerns that many of these cases may have resulted in arbitrary detentions.

The high number of arrested persons is straining the judiciary and prisons. OHCHR pointed out that with low court disposition rates, and delays in administration of justice, detainees have been languishing in often protracted pre-trial detention. The 2016 data cited by the United Nations Committee against Torture indicated that pre-trial detainees accounted for 85-90 per cent of the detained population, mostly due to the strict application of the 2002 Comprehensive Dangerous Drugs Act. In February 2020, the prison congestion rate stood at 534 per cent and remains among the highest in the world. This has been exacerbated by the increase in drug-related cases, a lack of judicial capacity to process criminal cases in a timely fashion, and poverty precluding many detainees from posting bail.

More recently, the Duterte government has been arresting people for violating quarantine rules. This is absolutely illegal and unconstitutional even as it is unsafe because it exposes police officers and citizens to the coronavirus. It also flies against the evidence, well-documented by researchers, that Filipinos have been largely compliant to the declared lockdowns. If we are failing to contain infections, this is squarely the fault of government and no one else.

Compounding this is the recent announcement by Duterte officials that asymptomatic people will be taken from their homes, I suppose against their will, to quarantine centers. This is similar to the tokhang (knock on doors of homes) approach in the drugs war. This is a constitutional travesty and also totally illegal. It also won’t work to defeat Covid-19 as families will just hide their sick. It will also divide communities, as the war against drugs have done.

It is not a crime to be sick. It is not a crime to be a drug addict. The militaristic tokhang approach to defeats drugs did not succeed and resulted in many extrajudicial killings. Following the same approach during the pandemic will result in the same human rights fiasco.

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