Jardeleza to ban ‘tokhang’ house visits

Sisyphus’ Lament By: Oscar Franklin Tan

SINGAPORE — Justice Francis Jardeleza proclaimed a slam dunk theory to end “Project Tokhang” house visits during the second Supreme Court “tokhang” hearing last Nov. 28.
On deck were Free Legal Assistance Group led by Dean Jose Manuel “Chel” Diokno, and CenterLaw’s young lawyers led by Inquirer columnist Joel Butuyan. CenterLaw’s Gil Anthony Aquino and Cristina Antonio joined the bar in 2016 and 2015, almost 30 years after Diokno.

In the first hearing, Diokno attacked Command Memorandum Circular (CMC) 16-2016, claiming its terms “negate” and “neutralize” mean “kill.”

But his case collapsed within Senior Associate Justice Antonio Carpio’s first nine minutes of questions, including a standard freshman exam question on the right against unreasonable search that was answered wrong.

Only Jardeleza bolstered Diokno’s “top level” attack on CMC 16-2016’s wording, contrasted with Butuyan’s “ground level” attack on its implementation specifically in San Andres Bukid, Manila.

Jardeleza asked Diokno to recast his case per his suggestions. Innocuously, he asked Butuyan to argue the same, even if he did not formally attack CMC 16-2016. His clients were too scared to authorize this.

In the second hearing, Jardeleza repeated Butuyan’s argument that “house visitations of suspected drug personalities” violate the right against unreasonable search. Any consent to enter cannot be valid because it is made under threat of “immediate case buildup and negation” under CMC 16-2016 if entry is refused.

Solicitor General Jose Calida likened “tokhang” to “bayanihan,” where barangay officials join police. He refuted that police do not enter homes, make arrests or seize evidence; they merely talk with no coercion intended.

But Jardeleza countered this then triggers the right against self-incrimination and custodial investigation rights under Republic Act No. 7438, including the right to a lawyer and other “Miranda rights.”

These are not ordinary conversations because the person visited is already listed as a suspect, though there is no evidence to apply for a search or arrest warrant.

Calida parried that custodial investigation involves actually being brought into custody, not speaking with police at one’s own door.

Jardeleza cited Sec. 2(f) of RA 7438: “‘custodial investigation’ shall include the practice of issuing an ‘invitation’ to a person who is investigated.”

If police cannot invite one to the police station unless there is cause for arrest, he paralleled, neither should they be able to invite themselves to one’s home. “Tokhang” creates a coercive atmosphere such that the police station is practically transported to one’s home when several policemen knock on one’s door.

Jardeleza thus pronounced a “prima facie case” for stopping further “tokhang” house visits. This is a powerful argument because custodial rights are one area where the Constitution always favors the suspect, given the sheer imbalance relative to police.
Calida eventually asked to answer Jardeleza in a memorandum, a polite way of calling a time out.

Completing Jardeleza’s masterstroke, no one noticed how he transplanted Butuyan’s arguments to salvage Diokno’s case, when he curiously asked Butuyan to argue Diokno’s case in the previous hearing.

It was Butuyan who prominently cited custodial rights in his opening speech, and RA 7438 is raised in page 49 of Butuyan’s written petition but not cited in Diokno’s.
Justice Marvic Leonen spoke for one out of the second hearing’s three hours, injecting drama by asking Philippine National Police Chief Ronald “Bato” dela Rosa if he ever issued a kill order.

Before Calida spoke, Butuyan was grilled at length by Justices Presbitero Velasco Jr. and Alexander Gesmundo. The latter tried to trap him by arguing there is no penalty for police who conduct unauthorized searches.

Butuyan won the skirmish, correctly citing “violation of domicile,” Art. 128 of our Revised Penal Code. The trap was odd, though, as a circular’s invalidity is not the same issue as implementing policemen’s liability.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

source:  Inquirer

CenterLaw: Philippine National Police’s worst nightmare

By: Oscar Franklin Tan

His clients are too terrified to prosecute policemen who shot their relatives in supposed drug raids.
Lawyer Joel Butuyan outlined to the Supreme Court during the “Oplan Tokhang” hearing on Nov. 21 why prosecution was impossible. But his solution could become the blueprint for anti-Tokhang cases all over the country.

No evidence

Butuyan’s clients from the slums of San Andres Bukid, Manila, lack money to commute to the courthouse, much less prosecute.
 

And they lack evidence. Eyewitnesses to Tokhang deaths —the victims — are unavailable to testify.

Residents claim security cameras were shut off before several nighttime attacks. Police formed a perimeter in eight raids, shooing bystanders away with flashlights.

Before drug surrenderer Jack Lord was shot, his brother saw police order nearby stores to close shop.

When Ramon Rodriguez was shot, police guarding the door told relatives, “We were told to watch.” They heard gunshots and shouts of “That’s wrong!”

Police also detained relatives who witnessed or inquired about a death.

Reynaldo “JR” Javier Jr. was killed just as his wife went into labor. She and JR’s mother were detained, but she was allowed to leave to give birth the next day then returned to the jail.

And evidence appeared planted. Required forensic investigation was never done.

Writ of amparo

Butuyan leads Centerlaw, a team of young human rights lawyers founded in 2003. They solved the lack of evidence and unwillingness to prosecute by reframing the San Andres Bukid cases into a petition for a writ of amparo.

The writ of amparo is a special protection order created in 2007. A judge can issue it immediately because it orders protection, not to jail someone.

The strategy does not need the definitive evidence needed for a full trial. It can be enough for a lawyer to document survivors’ fear for their lives.

It is a brilliant, simple solution, a template easily copied in other cities.

Centerlaw’s test case was that of vegetable vendor Efren Morillo. Five armed men shot him and four garbage collectors as they played billiards near the Payatas dump in Quezon City on Aug. 21, 2016.

Morillo played dead and rolled into a ravine behind the house. He was eventually taken to the police station near Payatas.

He heard: “He’s tough. He was shot at 3 p.m. but he’s alive up to now.”

He was taken to East Avenue Medical Center at midnight.

One of the armed men later told reporters that he was Senior Insp. Emil Garcia and that his team just killed drug suspects and known robbers.

Police charged Morillo with assault.

Centerlaw took the rare chance to pilot its amparo strategy with an eyewitness who miraculously survived.

Gil Anthony Aquino and Cristina Antonio—admitted 2016 and 2015—transformed Morillo’s story into a heart-wrenching petition to the Supreme Court. (Aquino was captain of the UP Law team that won the Square Off TV debates in October 2014 and the Price Media Law Moot Court international competition in March 2015.)

The facts were so compelling that the police did not even contest the case. In just a week, the Supreme Court ordered them not to go within 1 kilometer of Morillo.

That was in January and it was a historic first win against Tokhang.

Expanded strategy

Centerlaw expanded its legal strategy by going to San Andres, which had 35 Tokhang deaths in 12 months. Lacking a miracle eyewitness, the lawyers painstakingly compiled affidavits from 39 residents and presented the killings as a systematic pattern.

Twenty-three of the 35 Tokhang deaths involved police. Twenty-four of the victims died during a “kill time”—between 10 p.m. and 3 a.m. Twenty-one died in their homes. Several of them were drug surrenderers or their relatives.

Centerlaw’s next innovation was a class suit. It argued that the right to security is a community right.

After Jerry Estreller Jr. and Randy Concordia were killed on Estrada Street, 19 relatives and neighbors slept on tables in a nearby market for three months.

When it rained, they slept in parked jeepneys. The neighborhood needs protection, not just the deceased, Butuyan argued.

He told the Supreme Court that police forced barangay captains to repudiate the suit and confront the lawyers.

Will the court grant?

Butuyan’s key challenge is that the Supreme Court does not try facts. Morillo’s win was an exception. The second case is more difficult.

But several justices appeared open. Justice Lucas Bersamin encouraged criminal charges so a trial court could take permanent jurisdiction over the case.

Senior Associate Justice Antonio Carpio spoke about command responsibility and crimes against humanity. Chief Justice Maria Lourdes Sereno and Justice Marvic Leonen suggested a privacy protection or habeas data order to remove Butuyan’s clients from drug lists.

Unlike Morillo’s win, the Supreme Court might forward the San Andres Bukid cases to Manila judges for review. But even this could inspire other young guns to replicate Centerlaw’s blueprint in suits all over the country.

One hopes police act to distinguish professionals from rogues in their own ranks. It is best for the country if they avoid their worst nightmare: a flood of human rights cases or, as Carpio has warned, a case in the International Criminal Court.

React: oscarfranklin.tan@yahoo.com.ph, Twitter @oscarfbtan, facebook.com/OscarFranklinTan.

source:  Philippine Daily Inquirer