THE recent preliminary hearings of the International Criminal Court (ICC) on the charges filed against former president Rodrigo Duterte have cast a long shadow over the state of criminal justice in this country. The culture of impunity and contempt for the rule of law that defined the Duterte administration remains — and its influence continues to pervade certain institutions of government.
The case discussed here exposes the failings of three institutions in our criminal justice system: the Philippine National Police (PNP), the Public Attorney’s Office (PAO), and the Department of Justice (DOJ)-National Prosecution Service (NPS).
A grieving mother sought the assistance of our law office last week to inquire about the proper legal remedies available to her, her son (Mr. A.) having been subjected to a violent and unlawful arrest by police operatives on trumped-up charges. As our office does not engage in public defense work, she was referred to the PAO for appropriate legal assistance. However, in a regrettable turn of events, the PAO lawyer assigned to the case directed Mr. A. to execute a waiver of detention pending the conduct of the preliminary investigation by the Office of the Prosecutor — a course of action that appears to have been taken without due regard for the rights and interests of the person deprived of liberty (PDL). Notably, the prosecutor assigned to the case had also improperly compelled the PDL to forgo the inquest proceedings and submit instead to a preliminary investigation (PI).
The referred case
According to the investigation report filed by the arresting police officers, the following events allegedly transpired:
1. On Feb. 19, an informant tipped off the police regarding the alleged “rampant selling” of illegal drugs in a barangay in a town north of Metro Manila. The police thereafter conducted pre-operation coordination.
2. Approximately four hours after the tip-off, the police conducted a buy-bust operation wherein one of the operatives posed as a poseur-buyer.
3. As a result of the operation, Mr. A. was placed under arrest. He was read his Miranda rights, and the following items were recovered from his person: two sachets of shabu, a coin purse and a marked P500 bill.
4. The seized items were marked, inventoried and photographed in the presence of a barangay kagawad and a representative of the media.
5. On Feb. 23, the investigating police officer transmitted the investigation report to the City Prosecutor’s Office for inquest proceedings, which, however, did not take place.
6. The city prosecutor subsequently scheduled the PI on March 2, during which the PDL was required to file his counter-affidavit. In the interim, the PDL executed a waiver of detention.
However, the PDL and his witnesses proffer a materially different account:
1. No buy-bust operation was conducted. Police operatives suddenly descended upon the residence of Mr. A., forcibly broke down the door, and placed him under arrest.
2. The sachets of shabu, the coin purse, and the P500 bill were planted by the police operatives.
3. The barangay kagawad and the media representative were outside the room at the time of the arrest and thus were not present during the recovery of the alleged evidence.
4. No inquest proceedings were conducted. The handling prosecutor and the assigned PAO lawyer allegedly coerced the PDL into executing the waiver of detention in lieu of inquest, pending the conduct of the preliminary investigation.
(Note: Names and places have been changed to protect the anonymity of the persons involved.)
Proper procedure not followed
The following procedures should have been observed in a legitimate buy-bust operation:
– Pre-operation requirements. The police operatives should have coordinated with the Philippine Drug Enforcement Agency (PDEA) prior to the conduct of the operation, as required under Republic Act 9165 (Comprehensive Dangerous Drugs Act of 2002) and its implementing rules and regulations.
– During the operation. The poseur-buyer should have properly conducted the test-buy or the actual buy-bust transaction. Upon consummation of the sale, the arresting officers should have immediately marked the seized items at the place of arrest and in the presence of the accused.
– Chain of custody rule. This is the most critical procedural requirement. Under Section 21 of RA 9165, as amended by RA 10640, the apprehending team was required to conduct a physical inventory and photograph the seized items immediately after seizure and confiscation, in the presence of the following mandatory witnesses: a) the accused or his representative or counsel; b) an elected public official; and c) a representative from the National Prosecution Service (NPS) or the media. All three witnesses must be present at the time of the seizure and inventory, not merely during the photography or at some later point. The failure to secure the presence of all required witnesses at the time and place of seizure is a significant procedural lapse that can compromise the integrity of the chain of custody.
– Post-operation requirements. The seized items should have been turned over to the investigating officer, who was then required to submit them to the PNP Crime Laboratory within 24 hours of confiscation for qualitative examination. A certificate of inventory, signed by all required witnesses, should have been prepared and attached to the case records.
– Inquest proceedings. Since the arrest was made without a warrant, the arresting officers were required to deliver the PDL to the proper inquest prosecutor within the periods prescribed under Article 125 of the Revised Penal Code — specifically, 12 hours for offenses punishable by light penalties, 18 hours for correctional penalties, and 36 hours for offenses punishable by afflictive or capital penalties. Drug offenses generally fall under the last category, giving the police 36 hours within which to file the case for inquest. The waiver of this period and the bypassing of inquest proceedings in favor of a preliminary investigation, if done without the free and voluntary consent of the PDL and without the assistance of competent and independent counsel, is highly irregular and potentially violative of the PDL’s constitutional rights.
In the subject case, several of these procedural safeguards appear to have been compromised, most notably the presence of the mandatory witnesses at the time and place of seizure, and the proper conduct of inquest proceedings.
Reforms necessary
The foregoing events are symptoms of a deeply troubled criminal justice system. The three institutions at the center of this matter — the Philippine National Police, the Public Attorney’s Office and the Department of Justice — appear to be in a state of institutional dysfunction and are in urgent need of reforms.
PNP Chief Jose M. Nartatez must take decisive action in ridding the PNP ranks of scalawags and rogue elements who continue to undermine the rule of law.
PAO Chief Persida R. Acosta must exercise her authority to discipline her lawyers and purge the agency of those who are derelict in their duty to provide competent and zealous legal assistance to PDLs.
Acting Justice Secretary Fredderick A. Vida must likewise remind his prosecutors of their sworn duty to uphold justice impartially and to conduct themselves with integrity and propriety in the prosecution of cases.
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