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Lawyers to PNP: Tokhang violates human rights; cleanse drug watch lists safely

Police officers conducting a a Tokhang operation. AFP file photograph

InterAksyon.com
The online news portal of TV5

MANILA - The Philippine National Police needs to figure out a way to remove innocent people from its drug watch lists, even as widespread, drug-related killings occurring with impunity continue to sow fear in those who find their names wrongfully included in the dreaded roster.

This was what Ateneo Human Rights Center Executive Director Arpee Santiago said, in reaction to a viral Facebook post by Pangasinan resident Eula Vega, where she related how she was told by police officers to sign a surrender form in late December, despite her insistence that she had never touched drugs.

"Just what is the procedure for getting oneself safely delisted?" Santiago inquired, in a phone interview with InterAksyon.

Atty. Santiago had been able to assist a person who claimed s/he was wrongfully included in a similar watch list. A police officer Santiago had talked to told him that he gathered intelligence about Santiago's client and found out that the latter was clean, and yet, still had to "report" the client because the name was in the list.

"The scary question is, how do you get in the list?" Santiago remarked.

He believed that in the case of his client, someone from the Philippine Drug Enforcement Agency might have held a grudge against him or her.

Vega, meanwhile, suspected that her name was included in the list because of her plan to run for the aborted Sangguniang Kabataan elections. She told InterAksyon that her inclusion in the list might have been a way to tarnish her reputation.

Due diligence
Santiago noted that the police should have gathered evidence and exercised due diligence before creating the lists, which have revealed themselves in many cases to be of "very poor" quality. Some names were unverified, while others were already those of the deceased.

He quoted a police officer he had talked to as saying that with the sheer number of names, it was "humanly impossible to verify each and every name."

"So if that's the case, then the PNP, the leadership, should actually acknowledge this and do something about it. Otherwise it becomes very dangerous. And we've heard reports that some criminal elements – we don't know if they are part of the police or people are just taking advantage of the situation – but people are extorting based on you being in the list," Santiago said.

'Afraid'
Vega (whose real name is Aga Soriano; Eula Vega being her stage name) acknowledged also that she was a little afraid about the consequences of her Facebook post, which had gathered 9,400 reactions and over 8,000 shares since she published it last month.

"Especially now that it's gone viral. Those [law enforcers] who interviewed me might turn the heat on me," she said. "But I chose to share what happened, because what more for the people who are afraid to speak out?"

She was glad she was able to help make people more keenly aware about what went on behind the PNP's Tokhang operations, where they would knock on doors to ask suspected drug users and pushers to surrender.

Vega explained that she went to the police station to clear her name, after her mother told her that the police had come looking for her because she was on a watch list.

But upon arriving at the station, she was told that signing a surrender form and undergoing a program for surrenderers would be the only way to "release" her name.

She argued that it was unfair to make her undergo the program when she was just a victim of a wrongful accusation.

She said that the police told her that if there were people on the watch list who did not surrender, their town would not be declared drug-free.

Drug test
Vega insisted that she be allowed to undergo a drug test instead so that she could prove that she was not involved in drugs. Why could they not have sprung a surprise drug test on her to find out if she really was doing what she was suspected of?

She said she was then told by the police that there would indeed be a drug test, but only later on, in the program. To this she asked, was it not more sensible to have a drug test at the beginning, and if it turned out positive, then that would be the only time that the suspect would be made to undergo the program?

Vega added that the police even wanted to take her mug shot and fingerprints, "just for documentation". But she replied that this might cause problems for her when seeking clearances.

"The way they said it was really stressful: 'We won't force you to fill up a surrender form, but if you don't surrender, we have to send a report to the higher office, and they'll be in charge of you,'" she recalled.

So she told them that she had no problems with it, should the "higher office" make a surprise visit, "anytime, anywhere". "I'm not afraid because I'm confident that I am just a victim [of mistaken accusation]."

'Absolutely wrong'
The process Vega was made to go through was "absolutely wrong, improper, anomalous, and illegal," according to Atty. Edre Olalia, secretary general of the National Union of Peoples' Lawyers.

He advised Vega to execute a sworn affidavit attesting to her allegations, which she should then submit to the police, the Commission on Human Rights, and media; undergo an independent but voluntary drug test and submit its results, too; and file a case for habeas data to clear her name.

Olalia added that she could also file civil, criminal, and administrative charges against those coercing her.

Santiago, meanwhile, said she was right in publicizing the incident through Facebook.

He stressed that, while it was important to be familiar with the law and know one's rights, one had to look at the environment, too.

"You have to be wise," he said. One could not be stubborn or stand his or her ground if s/he felt s/he was not safe in, say, a police station.

"Do what is best for your physical safety, then ... expose what happened," Santiago said. Because if one kept insisting that authorities obey the law, "Baka ito ang maging mitsa rin sa buhay mo (This might be your downfall, too)," he explained.

"It hurts to say this, but because of the killings that have been happening all around us, it's as if we are in a period of lawlessness. And the public simply brushes it off as acceptable killings because they are allegedly drug users or drug pushers or related to drugs. Which we actually don't know. The public just assumes. So there's no outcry," Santiago lamented.

He added that it was good to seek legal counsel to facilitate a "friendly dialogue" with the police. It did not have to be a legal battle straightaway. If it cannot be resolved at that level, then the dialogue can be pursued with the higher-ups.

Asked if the police could simply arrest a person for refusing to surrender, Olalia answered with a resounding, "No."

Even if the arrest was made as an invitation, it was illegal if it was done under compulsion.

"Jurisprudence says a forced invitation amounts to an arrest and, so, certain rights attach. The only instance law enforcement agents can go into your home or office is when they have a valid and lawful search warrant, and is generally served during the day only (unless otherwise indicated)," Olalia elaborated.

"The rare exceptions of a warrantless search of one's home or office do not apply in (Vega's) context. You can refuse to attend and even refuse to let police in," he added.

If they still insisted, they could be charged "with a slew of criminal, civil, and administrative cases," Olalia said.

He added that one must document, through video and/or photograph, the situation; get the names of police and barangay officials who tried to force or coerce him or her; and call human rights organizations or lawyers, and media.

Rights violated
A number of rights were being violated by Tokhang, said Santiago.

First was the presumption of innocence. If one was on the drug watch list, the way it was being implemented, the burden to prove one's innocence was on him or her.

This was the opposite of what should occur. There had to be an investigation first. The police should gather evidence so that a suspect could be apprehended justifiably, and cases filed against him or her.

Second, if a person surrendered, s/he would be incriminating himself or herself. Santiago said Vega was correct in standing her ground about not surrendering because she was not involved in drugs.

By surrendering, one was already, in effect, admitting that s/he was involved. Santiago pointed out that the surrender form he has seen had only two options: one was either a pusher, or a user. S/he did not have the option to say that s/he was not involved in drugs. This, in itself, was incriminating, Santiago said.

Third, Tokhang defied the due process of law. "There is a very basic notice and hearing," he said. "Here, no one wants to listen to you. You are not given the chance to defend yourself. You are presumed – again, you are presumed – guilty."

But the presumption of innocence should reach up to the level of the court, Santiago said. The burden of proof lay with the state. But in Tokhang, it was the other way around.

Fourth, the physical safety of people was violated.

"We no longer know whether my security, security of person, my physical safety [will be ensured]. Because my name appeared there, with all the killings that are happening, you don't know if it is being perpetrated by the state through the police, you don't know if it's being perpetrated by hit men, you don't know if it's just violence all around us. But the reality is, you feel unsafe because you had already been tagged. You'll never know when someone might shoot you," Santiago said.

He urged the government to reassure the public that due process was being followed in its war on drugs for their constituents' peace of mind.

"We all are supportive of the campaign against drugs, but within the proper bounds of the law. That is what we are asking for here," Santiago appealed.

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