Abstract
This essay delves into the Philippine Drug War’s legal framework and examines the interplay between law enforcement, national security, and human rights. It scrutinizes the implementation of the war on drugs and the Comprehensive Dangerous Drugs Act of 2002 (RA 9165) as a legislative action vis-à-vis Executive Order Number 15 (EO 15), highlighting the complexities faced by the national police in balancing policies with law intertwined with national security and individual rights. As such, it evaluates government policy decoupling police operations from the law’s intent and constitutional rights, prompting an in-depth investigation into significant challenges such as human rights abuses, legal scrutiny, and the erosion of public trust. The pivotal role of law enforcement in upholding the rule of law and ensuring operational transparency is stressed, asserting the necessity of such practices in enhancing public trust, fostering cooperation, and maintaining the delicate balance between human rights and security. The essay argues that although eradicating drug-related criminality is a valid and critical goal for national security, the campaign’s implementation provokes grave concerns about the law’s role in preserving human rights, due process, and accountability. The author contends that the law is a protective barrier against the potential overreach of government power and a solid apparatus for guaranteeing the rule of law, due process, and accountability in the fair administration of justice and protection of human rights in addressing national security issues.
The methamphetamine hydrochloride, the most commonly abused illegal-drug in the Philippine streets, is a transnational criminal enterprise fostering narco-politics, narco-justice, and narco-terrorism; and is a significant threat to national security and sustainable development goals (SDG) of the Philippines [1]. The 2015 survey by the Philippine Dangerous Drugs Board (DDB) and Resources, Environment, and Economics Center for Studies, Inc. (REECS) estimated the country’s drug market at around PHP 55.8 billion (US$1.1 billion) per year consumption, or 16,138 kilograms annually [2]. In 2016, in an attempt to eradicate the drug-related problems in the Philippines, the Duterte administration implemented the Philippine Drug War, a nationwide campaign to combat the illegal drug trade and address drug-related crimes in the country, targeting drug dealers, manufacturers, and users. President Rodrigo Duterte claimed it was an all-out war against illicit drugs, which he considers a threat to national security [3], as the UN marked it as a significant threat to worldwide peace and stability [4].
The drug war combined law enforcement operations and anti-drug campaigns implemented by two law enforcement agencies: Philippine National Police (PNP) and Philippine Drug Enforcement Agency (PDEA). Intriguingly, President Duterte assigned the primary responsibility for his hallmark war on drugs to the PNP [5]. It was contrary to Republic Act No. 9165, the comprehensive drug law, in which the PDEA should enforce the national drug strategy, enforce drug-related laws, and perform prevention efforts while the DDB serves as the policy-making and strategy-formulating body [6]. In addition, the EO 15 created the Inter-Agency Committee on Anti-Illegal Drugs (ICAD) for an organizational structure where PDEA is the chairperson. Examining RA 9165, the DDB, a policy-making body, must supervise PDEA as its enforcement group; EO 15, however, altered the law’s intention by seemingly transforming a policy-making entity into an operational one, while an enforcement entity is tasked to control larger departments in this committee.
Building on EO 15 supporting the existing RA 9165 combined a foundational power baseline of President Duterte’s tough-on-crime policy approach, which advocated aggressive tactics against drug offenders. The policy direction perceived the drug problem solely as a criminal matter, emphasizing a strategy of punitive actions led by the PNP and local authorities through arrests, raids, and drug-specific operations [7]. The PNP led the “Operation Plan (OPLAN) Double Barrel” campaign, which has two parts: “Project HVT” which aims at high-value targets, and “Project Tokhang” which involves home visits urging suspected drug offenders to cease illegal activities such as usage [8]. Focusing on the escalating drug issues in underprivileged communities was overlooked due to attention on high-level traffickers; despite this, a 2019 Social Weather Survey reported that it garnered an 82% satisfaction rate among Filipino adults [9]. However, the high satisfaction survey results by people who perceived Duterte as fulfilling his promises seemingly disregard the high death toll associated with his policies; the drug war has faced substantial criticism and controversy.
Human rights organizations and advocacy groups have raised concerns about the campaign implementation of alleged extrajudicial killings [10], human rights abuses [11], and due process violations in implementing the campaign [12]. Due process, encompassing the right to be heard in all governmental actions, is a cornerstone of the 1987 Philippine Constitution and the Rome Statute [13]. These documents assert the presumption of innocence until proven guilty as part of due process. Further, the Philippine Constitution explicitly outlined additional rights such as legal representation, knowledge of charges, swift and public trial, and the right to confront and secure witnesses. Closely, the high number of casualties and allegations of police abuse had drawn domestic and international criticisms, prompting calls for an investigation and accountability. The government’s “war on drugs” has faced condemnation as a campaign targeting people experiencing poverty [14], often referred to as the “war against the poor” [15]. Human rights organizations have also questioned the government policy in addressing the country’s drug menace and have called for greater adherence to the rule of law, respect for due process, and accountability for human rights violations to ensure a more just and lawful approach [16]. These groups argue this, citing Waldron, who states that the Rule of Law primarily requires those in power to act or operate within recognized norms, avoiding arbitrary decisions driven by personal beliefs or ideology [17]. Similarly, the drug war’s law enforcement has been criticized for alleged excessive force, including extrajudicial killings, creating a culture of violence and impunity, thereby jeopardizing human rights [18]. Also, there have been concerns about the lack of accountability for human rights abuses committed during the drug war.
Critics contend that the government inadequately investigates and prosecutes those behind extrajudicial killings or rights violations, with senior police officials attributing deaths to infighting among drug dealers [19]. This has led to near impunity, with perpetrators largely unaccountable despite credible accusations of systematic extrajudicial killings in the anti-drug campaign [20]. Thus, the ICC has restarted an investigation into Duterte’s drug war, referencing a Philippine CHR report that characterized the deaths as resulting from “excessive and disproportionate force” amidst “a culture of impunity [21]. Similarly, the drug war’s approach has disproportionately affected marginalized communities and the urban poor. There are reports of indiscriminate violence, with innocent bystanders and non-drug users becoming victims [22]. One study supports that drug-related killings harmed the Conditional Cash Transfer beneficiaries (a legible cohort of poor), often reducing household income and causing social stigma, leading to beneficiary children dropping out of school [23].
These controversies surrounding the “war on drugs” campaign in the Philippines have sparked debates about the necessity of more balanced and rights-respecting approaches in addressing drug-related issues. A study suggests that the drug war should shift towards evidence-based policies prioritizing public health, harm reduction, and human rights, shifting away from a militarized, enforcement-led approach [24]. The Bogo City Police in Cebu province effectively utilized this concept during the campaign peak in collaboration with the local government; addressing it as a health issue paralleled with the rule of law and due process policing in a comprehensive approach, yet, despite its success story, it went unnoticed as it is contrary to the Duterte policy [25].
To further understand the controversial policy in the national security approach and its far-reaching impacts, the following conditions should be examined: strained justice system, eroded public trust in law enforcement, undermined democratic principles, and perpetuated stigmatization and discrimination. The campaign’s approach strained the justice system, as seen in the high number of arrests and cases related to drug offenses which overwhelmed the capacity of the courts, leading to delays in proceedings and a backlog of cases filed [26]. This backlog undermined the effectiveness and efficiency of the justice system, potentially impeding access to justice for all individuals, including those accused of drug-related crimes. A past study showed that merely increasing arrests without enhancing the criminal justice system’s capacity for the extra workload is unproductive and inefficient [27]. Similarly, the controversial tactics and allegations of human rights abuses eroded public trust in the national police force.
The widespread concerns about extrajudicial killings, lack of due process, and excessive use of force led to skepticism and suspicion towards the actions and motives of the police. This lack of trust can hinder the cooperation and collaboration between the public and law enforcement, making it more challenging to gather information, investigate crimes, and maintain community safety [28]. In addition, upholding human rights and ensuring due process have been crucial pillars of democratic societies; these inherent rights are enshrined in Article III, Bill of Rights of the 1987 Philippine Constitution. When these principles are undermined, they can weaken democratic institutions, likely eroding police legitimacy and creating an environment where power abuses may go unchecked. It is essential to strike a balance between security imperatives and the protection of human rights to maintain a healthy democratic system. Controversial security approaches can also contribute to stigmatization and discrimination. Vulnerable communities, including the urban poor and marginalized groups, may face increased profiling, harassment, and violence. This can deepen social divisions, exacerbate inequalities, and perpetuate cycles of discrimination and marginalization. A study indicates that the drug war impacts not just legal reform but also society’s socioeconomic and health systems, the punitive approach fosters suspicion, harms health determinants, and worsens drug users’ lives [29].
Although despite surmounting challenges, the law’s role in national security affords opportunities by upholding a balanced power system and fostering a just, orderly society. It established the legal boundaries within which the security sector must operate, ensuring that actions are grounded in legal authority and are subject to legal scrutiny. The rule of law necessitates consistency with human rights in legal processes and norms, encompassing equality, accountability before the law, and fairness in protecting rights [30]. Thus, upholding the rule of law in national security efforts means that security measures are conducted under established laws, regulations, and constitutional provisions.
As such, in established law, respecting due process is upholding the rule of law; it is a right given to a citizen in a judicial system, a fundamental right to safeguard individual liberties and protect human rights, all guaranteed in the 1987 Philippine Constitution-Bill of Rights. It guarantees fair treatment, legal protections, and the opportunity for individuals accused of crimes to present their defense in a court of law, contrary to extrajudicial killings. Similarly, “due process” is the right to be heard in a fair trial, the presumption of innocence, the right to legal representation, and protection against arbitrary arrest and detention [31]. Upholding due process is essential to prevent miscarriages of justice and ensure that security actions are conducted in a manner that respects the rights of individuals. All these rights are constitutional guarantees; violations precipitate people’s mistrust of government, explicitly eroding police legitimacy. Accordingly, balancing individual rights and minimizing harm in intelligence work is challenging but crucial, as pursuing national interests can lead to unintended consequences [32]. Thus, it is vital to consider all factors without bias toward any one goal.
In addition, accountability is vital to maintaining the balance between security imperatives and human rights. It ensures that those responsible for abuses or violations of rights are held accountable for their actions. Accountability mechanisms, such as independent oversight bodies, judicial review, and internal investigations, are essential to provide checks and balances on security operations. For instance, in a May forum at the Washington-based Center for Strategic and International Studies, President Marcos Jr. admitted to government abuses in his predecessor’s drug war campaign, revealing the formation of a commission to investigate potential police involvement in the drug trade [33]. Law enforcement requires high integrity within agencies and their oversight; without this, officers risk acting unlawfully and beyond their scope. Accountability mechanisms promote transparency, provide remedies for victims, and deter future abuses; thus, the rule of law and accountability are not subservient to security; any obstacles to these principles pose a significant national security risk [34]. Accountability by the global community means ensuring that the most severe crimes do not escape punishment by the international criminal court [35]. Similarly, domestic laws (RA 9165 and Article 298-Murder of the Revised Penal Code) punish those who misuse their authority, including those committing extrajudicial executions that satisfy murder criteria. The law is clear-cut in criminalizing unwarranted killings. The Article 298 of the Revised Penal Code establishes a 20-year prescription period for murder cases; these enable victims of extrajudicial killings to seek justice and hold offenders accountable, even if cases have become dormant. Due process and accountability are guiding principles of the rule of law. Thus, any complications pose a risk to the fair administration of justice and the protection of human rights.
It is evident that the law plays several roles in ensuring national security. Firstly, it sets the framework, defining threats, designating responsibilities of government agencies, and laying down procedures to tackle these threats. Secondly, while aiming to protect the state and its citizens, it also upholds individual rights and liberties in the due process clause of the law, necessitating a balance between security and liberties. Thirdly, the law regulates actions taken for national security, such as surveillance, detention, use of force, and intentional killings; it establishes penalties for violations. Lastly, it promotes transparency and accountability in national security operations by providing rules for oversight and review. This complex system underscores the importance of a robust legal structure.
In conclusion, upholding the rule of law, respecting due process, and ensuring accountability in national security efforts contribute to building trust and legitimacy, all in the ambit of the law. When security operations are conducted lawfully and transparently, it enhances public confidence in law enforcement agencies and government institutions, as in the war on drugs campaign. Trust between the public and security forces is high, thus promoting robust collaboration, information sharing, and cooperation in addressing security challenges. Balancing security imperatives with protecting human rights is difficult, but it is necessary for a just and democratic society. It requires policymakers to consider alternative approaches prioritizing security and human rights, avoiding disproportionate or indiscriminate actions. This may involve implementing intelligence-led law enforcement operations, focusing on rehabilitation and prevention, and addressing root causes of insecurity, such as poverty, inequality, and lack of access to justice. When all necessary criteria are satisfied, concerns regarding human rights and public trust can be effectively addressed. Though the drug war may seem like political rhetoric, its strategies aim to safeguard national interests and individual rights if implemented with due process, the rule of law, and accountability.
by: Byron Filog Allatog
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CSOP101 is a professional learning site for community policing advocates, practitioners, and supporters in changing the policing landscape. It is likewise issue-based, related to or addressing nation-building. The views expressed within individual blog posts (police blog and academic) are those of the author and do not reflect any official position or that of the author’s employers. Any concerns regarding this blog post or resources should be directed in first instance to byron.allatog012@gmail.com.