INTRODUCTION

One of the major and relevant issues that currently plagues the country involves the use and trade of prohibited and illegal drugs, which threatens the very life of the nation and its people. It is stated in Republic Act 9165, otherwise known as the Comprehensive Dangerous Drugs Act of 2002, that the state should safeguard the integrity of its territory and the well being of its citizenry, from the harmful effects of dangerous drugs on  their physical and mental well being, thus there is a need for the further enhancement of the efficacy of the law against the usage of and consumption of prohibited and illegal drugs.

The researchers deemed it relevant to conduct this study for the reason that drug dependency was always been rampant in the country. In fact, during the years 2016 and 2017 there were reportedly  a total of ten thousand one hundred twenty-four (10,124) drug cases form residential and out-patient drug facilities nationwide. In addition, since June 30, 2016, over twelve thousand Filipinos, mostly urban poor and at least two thousand five hundred fifty-five( 2,555) were killed resulting from drug related incidents.

The reason why the researchers conducted this study is the improper implementation of the duly constituted authorities in apprehending the accused/ defendants In accordance with rules of criminal procedure, which deprived them of their basic constitutional right to due process.There should be strict adherence and application of such rules,as these type of people are still covered by the protection given by our laws, specifically the inviolable rights granted by the Constitution, which are afforded to all the citizens of the Philippines.

Methodology

This study used the evaluative type of research as it was deemed the most appropriate. Evaluative research involves the testing whether rules work in practice, or whether they are in accordance with desirable moral, political, economical aims (Hoecke, n.d.).

In this case, the research conducted involves the analysis on the application of rule 113 (arrest) of the prescribed criminal procedures on existing jurisprudence involving acts punishable under the  Republic Act 9165 or otherwise known as the Dangerous Drugs Act of 2002. This study will discuss the requisite elements necessary in order for an arrest to be deemed valid and its application relating to Republic Act 9165. Our primary source of data, which will illustrate the application of the rule mentioned above, will be publicly available cases already decided by the Courts which had observed the same rule in coming to a decision. The cases chosen to be discussed in this study, as much as possible, will involve acts that can be considered punishable under Republic Act 9165.

REPUBLIC ACT 9165 OR OTHERWISE KNOWS AS COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002

AN ACT INSTITUTING THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002, REPEALING REPUBLIC ACT NO. 6425, OTHERWISE KNOWN AS THE DANGEROUS DRUGS ACT OF 1972, AS AMENDED, PROVIDING FUNDS THEREFOR, AND FOR OTHER PURPOSES

According to Section 1 of Republic Act 9165, this Act shall be known and cited as the “Comprehensive Dangerous Drugs Act of 2002”.

Meanwhile Section 2 of the said act declares that, it is the policy of the State to safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being, and to defend the same against acts or omissions detrimental to their development and preservation. In view of the foregoing, the State needs to enhance further the efficacy of the law against dangerous drugs, it being one of today’s more serious social ills.

Toward this end, the government shall pursue an intensive and unrelenting campaign against the trafficking and use of dangerous drugs and other similar substances through an integrated system of planning, implementation and enforcement of anti-drug abuse policies, programs, and projects. The government shall however aim to achieve a balance in the national drug control program so that people with legitimate medical needs are not prevented from being treated with adequate amounts of appropriate medications, which include the use of dangerous drugs.

It is further declared the policy of the State to provide effective mechanisms or measures to re-integrate into society individuals who have fallen victims to drug abuse or dangerous drug dependence through sustainable programs of treatment and rehabilitation.

Acts punishable by the provision

Article II.  provides for the Unlawful Acts and Penalties under Republic Act 9165

Section 4. Importation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Section 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Section 6. Maintenance of a Den, Dive or Resort.

Section 7. Employees and Visitors of a Den, Dive or Resort.

Section 8. Manufacture of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Section 9. Illegal Chemical Diversion of Controlled Precursors and Essential Chemicals.

Section 10. Manufacture or Delivery of Equipment, Instrument, Apparatus, and Other Paraphernalia for Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Section 11. Possession of Dangerous Drugs.

Section 12. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs.

The possession of such equipment, instrument, apparatus and other paraphernalia fit or intended for any of the purposes enumerated in the preceding paragraph shall be prima facie evidence that the possessor has smoked, consumed, administered to himself/herself, injected, ingested or used a dangerous drug and shall be presumed to have violated Section 15 of this Act.

Section 13. Possession of Dangerous Drugs During Parties, Social Gatherings or Meetings.

Section 14. Possession of Equipment, Instrument, Apparatus and Other Paraphernalia for Dangerous Drugs During Parties, Social Gatherings or Meetings.

Section 15. Use of Dangerous Drugs.

Section 16. Cultivation or Culture of Plants Classified as Dangerous Drugs or are Sources Thereof.

Section 17. Maintenance and Keeping of Original Records of Transactions on Dangerous Drugs and/or Controlled Precursors and Essential Chemicals.

Section 18. Unnecessary Prescription of Dangerous Drugs.

Section 19. Unlawful Prescription of Dangerous Drugs.

Section 20. Confiscation and Forfeiture of the Proceeds or Instruments of the Unlawful Act, Including the Properties or Proceeds Derived from the Illegal Trafficking of Dangerous Drugs and/or Precursors and Essential Chemicals. – Every penalty imposed for the unlawful importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of any dangerous drug and/or controlled precursor and essential chemical, the cultivation or culture of plants which are sources of dangerous drugs, and the possession of any equipment, instrument, apparatus and other paraphernalia for dangerous drugs including other laboratory equipment, shall carry with it the confiscation and forfeiture, in favor of the government, of all the proceeds and properties derived from the unlawful act, including, but not limited to, money and other assets obtained thereby, and the instruments or tools with which the particular unlawful act was committed, unless they are the property of a third person not liable for the unlawful act, but those which are not of lawful commerce shall be ordered destroyed without delay pursuant to the provisions of Section 21 of this Act.

After conviction in the Regional Trial Court in the appropriate criminal case filed, the Court shall immediately schedule a hearing for the confiscation and forfeiture of all the proceeds of the offense and all the assets and properties of the accused either owned or held by him or in the name of some other persons if the same shall be found to be manifestly out of proportion to his/her lawful income: Provided, however, That if the forfeited property is a vehicle, the same shall be auctioned off not later than five (5) days upon order of confiscation or forfeiture.

During the pendency of the case in the Regional Trial Court, no property, or income derived therefrom, which may be confiscated and forfeited, shall be disposed, alienated or transferred and the same shall be in custodia legis and no bond shall be admitted for the release of the same.

The proceeds of any sale or disposition of any property confiscated or forfeited under this Section shall be used to pay all proper expenses incurred in the proceedings for the confiscation, forfeiture, custody and maintenance of the property pending disposition, as well as expenses for publication and court costs. The proceeds in excess of the above expenses shall accrue to the Board to be used in its campaign against illegal drugs.

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

(2) Within twenty-four (24) hours upon confiscation/seizure of dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment, the same shall be submitted to the PDEA Forensic Laboratory for a qualitative and quantitative examination;

(3) A certification of the forensic laboratory examination results, which shall be done under oath by the forensic laboratory examiner, shall be issued within twenty-four (24) hours after the receipt of the subject item/s: Provided, That when the volume of the dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals does not allow the completion of testing within the time frame, a partial laboratory examination report shall be provisionally issued stating therein the quantities of dangerous drugs still to be examined by the forensic laboratory: Provided, however, That a final certification shall be issued on the completed forensic laboratory examination on the same within the next twenty-four (24) hours;

(4) After the filing of the criminal case, the Court shall, within seventy-two (72) hours, conduct an ocular inspection of the confiscated, seized and/or surrendered dangerous drugs, plant sources of dangerous drugs, and controlled precursors and essential chemicals, including the instruments/paraphernalia and/or laboratory equipment, and through the PDEA shall within twenty-four (24) hours thereafter proceed with the destruction or burning of the same, in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the DOJ, civil society groups and any elected public official. The Board shall draw up the guidelines on the manner of proper disposition and destruction of such item/s which shall be borne by the offender: Provided, That those item/s of lawful commerce, as determined by the Board, shall be donated, used or recycled for legitimate purposes: Provided, further, That a representative sample, duly weighed and recorded is retained;

(5) The Board shall then issue a sworn certification as to the fact of destruction or burning of the subject item/s which, together with the representative sample/s  in the custody of the PDEA, shall be submitted to the court having jurisdiction over the case. In all instances, the representative sample/s shall be kept to a minimum quantity as determined by the Board;

(6) The alleged offender or his/her representative or counsel shall be allowed to personally observe all of the above proceedings and his/her presence shall not constitute an admission of guilt. In case the said offender or accused refuses or fails to appoint a representative after due notice in writing to the accused or his/her counsel within seventy-two (72) hours before the actual burning or destruction of the evidence in question, the Secretary of Justice shall appoint a member of the public attorney’s office to represent the former;

(7) After the promulgation and judgment in the criminal case wherein the representative sample/s was presented as evidence in court, the trial prosecutor shall inform the Board of the final termination of the case and, in turn, shall request the court for leave to turn over the said representative sample/s to the PDEA for proper disposition and destruction within twenty-four (24) hours from receipt of the same; and

(8) Transitory Provision: a) Within twenty-four (24) hours from the effectivity of this Act, dangerous drugs defined herein which are presently in possession of law enforcement agencies shall, with leave of court, be burned or destroyed, in the presence of representatives of the Court, DOJ, Department of Health (DOH) and the accused/and or his/her counsel, and, b) Pending the organization of the PDEA, the custody, disposition, and burning or destruction of seized/surrendered dangerous drugs provided under this Section shall be implemented by the DOH.

Section 26. Attempt or Conspiracy. – Any attempt or conspiracy to commit the following unlawful acts shall be penalized by the same penalty prescribed for the commission of the same as provided under this Act:

(a) Importation of any dangerous drug and/or controlled precursor and essential chemical;

(b) Sale, trading, administration, dispensation, delivery, distribution and transportation of any dangerous drug and/or controlled precursor and essential chemical;

(c) Maintenance of a den, dive or resort where any dangerous drug is used in any form;

(d) Manufacture of any dangerous drug and/or controlled precursor and essential chemical; and

(e) Cultivation or culture of plants which are sources of dangerous drugs.

Section 27. Criminal Liability of a Public Officer or Employee for Misappropriation, Misapplication or Failure to Account for the Confiscated, Seized and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment Including the Proceeds or Properties Obtained from the Unlawful Act Committed. – The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00), in addition to absolute perpetual disqualification from any public office, shall be imposed upon any public officer or employee who misappropriates, misapplies or fails to account for confiscated, seized or surrendered dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, instruments/paraphernalia and/or laboratory equipment including the proceeds or properties obtained from the unlawful acts as provided for in this Act.

Any elective local or national official found to have benefited from the proceeds of the trafficking of dangerous drugs as prescribed in this Act, or have received any financial or material contributions or donations from natural or juridical persons found guilty of trafficking dangerous drugs as prescribed in this Act, shall be removed from office and perpetually disqualified from holding any elective or appointive positions in the government, its divisions, subdivisions, and intermediaries, including government-owned or –controlled corporations.

Section 28. Criminal Liability of Government Officials and Employees. – The maximum penalties of the unlawful acts provided for in this Act shall be imposed, in addition to absolute perpetual disqualification from any public office, if those found guilty of such unlawful acts are government officials and employees.

Section 29. Criminal Liability for Planting of Evidence. – Any person who is found guilty of “planting” any dangerous drug and/or controlled precursor and essential chemical, regardless of quantity and purity, shall suffer the penalty of death.

Section 30. Criminal Liability of Officers of Partnerships, Corporations, Associations or Other Juridical Entities. – In case any violation of this Act is committed by a partnership, corporation, association or any juridical entity, the partner, president, director, manager, trustee, estate administrator, or officer who consents to or knowingly tolerates such violation shall be held criminally liable as a co-principal.

The penalty provided for the offense under this Act shall be imposed upon the partner, president, director, manager, trustee, estate administrator, or officer who knowingly authorizes, tolerates or consents to the use of a vehicle, vessel, aircraft, equipment or other facility, as an instrument in the importation, sale, trading, administration, dispensation, delivery, distribution, transportation or manufacture of dangerous drugs, or chemical diversion, if such vehicle, vessel, aircraft, equipment or other instrument is owned by or under the control or supervision of the partnership, corporation, association or juridical entity to which they are affiliated.

Section 31. Additional Penalty if Offender is an Alien. – In addition to the penalties prescribed in the unlawful act committed, any alien who violates such provisions of this Act shall, after service of sentence, be deported immediately without further proceedings, unless the penalty is death.

Section 32. Liability to a Person Violating Any Regulation Issued by the Board.

Implementing Authorities as Provided by Republic Act 9165

ARTICLE IX

Dangerous Drugs Board and Philippine Drug Enforcement Agency

Section 77. The Dangerous Drugs Board. – The Board shall be the policy-making and strategy-formulating body in the planning and formulation of policies and programs on drug prevention and control. It shall develop and adopt a comprehensive, integrated, unified and balanced national drug abuse prevention and control strategy. It shall be under the Office of the President.

Section 81. Powers and Duties of the Board. – The Board shall:

(a) Formulate, develop and establish a comprehensive, integrated, unified and balanced national drug use prevention and control strategy;

(b) Promulgate such rules and regulations as may be necessary to carry out the purposes of this Act, including the manner of safekeeping, disposition, burning or condemnation of any dangerous drug and/or controlled precursor and essential chemical under its charge and custody, and prescribe administrative remedies or sanctions for the violations of such rules and regulations;

(c) Conduct policy studies, program monitoring and evaluations and other researches on drug prevention, control and enforcement;

(d) Initiate, conduct and support scientific, clinical, social, psychological, physical and biological researches on dangerous drugs and dangerous drugs prevention and control measures;

(e) Develop an educational program and information drive on the hazards and prevention of illegal use of any dangerous drug and/or controlled precursor and essential chemical based on factual data, and disseminate the same to the general public, for which purpose the Board shall endeavor to make the general public aware of the hazards of any dangerous drugs and/or controlled precursor and essential chemical by providing among others, literature, films, displays or advertisements and by coordinating with all institutions of learning as well as with all national and local enforcement agencies in planning and conducting its educational campaign programs to be implemented by the appropriate government agencies;

(f) Conduct continuing seminars for, and consultations with, and provide information materials to judges and prosecutors in coordination with the Office of the Court Administrator, in the case of judges, and the DOJ, in the case of prosecutors, which aim to provide them with the current developments and programs of the Board pertinent to its campaign against dangerous drugs and its scientific researches on dangerous drugs, its prevention and control measures;

(g) Design special trainings in order to provide law enforcement officers, members of the judiciary, and prosecutors, school authorities and personnel of centers with knowledge and know-how in dangerous drugs and/or controlled precursors and essential chemicals control in coordination with the Supreme Court to meet the objectives of the national drug control programs;

(h) Design and develop, in consultation and coordination with the DOH, DSWD and other agencies involved in drugs control, treatment and rehabilitation, both public and private, a national treatment and rehabilitation program for drug dependents including a standard aftercare and community service program for recovering drug dependents;

(i) Design and develop, jointly with the DOLE and in consultation with labor and employer groups as well as non-government organizations a drug abuse prevention program in the workplace that would include a provision for employee assistance programs for emotionally-stressed employees;

(j) Initiate and authorize closure proceedings against non-accredited and/or substandard rehabilitation centers based on verified reports of human rights violations, subhuman conditions, inadequate medical training and assistance and excessive fees for implementation by the PDEA;

(k) Prescribe and promulgate rules and regulations governing the establishment of such centers, networks and laboratories as deemed necessary after conducting a feasibility study in coordination with the DOH and other government agencies;

(l) Receive, gather, collect and evaluate all information on the importation, exportation, production, manufacture, sale, stocks, seizures of and the estimated need for any dangerous drug and/or controlled precursor and essential chemical, for which purpose the Board may require from any official, instrumentality or agency of the government or any private person or enterprise dealing in, or engaged in activities having to do with any dangerous drug and/or controlled precursors and essential chemicals such data or information as it may need to implement this Act;

(m) Gather and prepare detailed statistics on the importation, exportation, manufacture, stocks, seizures of and estimates need for any dangerous drug and/or controlled precursors and essential chemicals and such other statistical data on said drugs as may be periodically required by the United Nations Narcotics Drug Commission, the World Health Organization and other international organizations in consonance with the country’s international commitments;

(n) Develop and maintain international networking coordination with international drug control agencies and organizations, and implement the provisions of international conventions and agreements thereon which have been adopted and approved by the Congress of the Philippines;

(o) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the PDEA, about all dangerous drugs and/or controlled precursors and essential chemicals-related cases to which they have attended for statistics and research purposes;

(p) Receive in trust legacies, gifts and donations of real and personal properties of all kinds, to administer and dispose the same when necessary for the benefit of government and private rehabilitation centers subject to limitations, directions and instructions from the donors, if any;

(q) Issue guidelines as to the approval or disapproval of applications for voluntary treatment, rehabilitation or confinement, wherein it shall issue the necessary guidelines, rules and regulations pertaining to the application and its enforcement;

(r) Formulate guidelines, in coordination with other government agencies, the importation, distribution, production, manufacture, compounding, prescription, dispensing and sale of, and other lawful acts in connection with any dangerous drug, controlled precursors and essential chemicals and other similar or analogous substances of such kind and in such quantity as it may deem necessary according to the medical and research needs or requirements of the country including diet pills containing ephedrine and other addictive chemicals and determine the quantity and/or quality of dangerous drugs and controlled precursors and essential chemicals to be imported, manufactured and held in stock at any given time by authorized importer, manufacturer or distributor of such drugs;

(s) Develop the utilization of a controlled delivery scheme in addressing the transshipment of dangerous drugs into and out of the country to neutralize transnational crime syndicates involved in illegal trafficking of any dangerous drugs and/or controlled precursors and essential chemicals;

(t) Recommend the revocation of the professional license of any practitioner who is an owner, co-owner, lessee, or in the employ of the drug establishment, or manager of a partnership, corporation, association, or any juridical entity owning and/or controlling such drug establishment, and who knowingly participates in, or consents to, tolerates, or abets the commission of the act of violations as indicated in the preceding paragraph, all without prejudice to the criminal prosecution of the person responsible for the said violation;

(u) Appoint such technical, administrative and other personnel as may be necessary for the effective implementation of this Act, subject to the Civil Service Law and its rules and regulations;

(v) Establish a regular and continuing consultation with concerned government agencies and medical professional organizations to determine if balance exists in policies, procedures, rules and regulations on dangerous drugs and to provide recommendations on how the lawful use of dangerous drugs can be improved and facilitated; and

(w) Submit an annual and periodic reports to the President, the Congress of the Philippines and the Senate and House of Representatives committees concerned as may be required from time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.

Section 82. Creation of the Philippine Drug Enforcement Agency (PDEA). – To carry out the provisions of this Act, the PDEA, which serves as the implementing arm of the Board, and shall be responsible for the efficient and effective law enforcement of all the provisions on any dangerous drug and/or controlled precursor and essential chemical as provided in this Act.

Section 84. Powers and Duties of the PDEA. – The PDEA shall:

(a) Implement or cause the efficient and effective implementation of the national drug control strategy formulated by the Board thereby carrying out a national drug campaign program which shall include drug law enforcement, control and prevention campaign with the assistance of concerned government agencies;

(b) Undertake the enforcement of the provisions of Article II of this Act relative to the unlawful acts and penalties involving any dangerous drug and/or controlled precursor and essential chemical and investigate all violators and other matters involved in the commission of any crime relative to the use, abuse or trafficking of any dangerous drug and/or controlled precursor and essential chemical as provided for in this Act and the provisions of Presidential Decree No. 1619;

(c) Administer oath, issue subpoena and subpoena duces tecum relative to the conduct of investigation involving the violations of this Act;

(d) Arrest and apprehend as well as search all violators and seize or confiscate, the effects or proceeds of the crimes as provided by law and take custody thereof, for this purpose the prosecutors and enforcement agents are authorized to possess firearms, in accordance with existing laws;

(e) Take charge and have custody of all dangerous drugs and/or controlled precursors and essential chemicals seized, confiscated or surrendered to any national, provincial or local law enforcement agency, if no longer needed for purposes of evidence in court;

(f) Establish forensic laboratories in each PNP office in every province and city in order to facilitate action on seize or confiscated drugs, thereby hastening its destruction without delay;

(g) Recommend to the DOJ the forfeiture of properties and other assets of persons and/or corporations found to be violating the provisions of this Act and in accordance with the pertinent provisions of the Anti-Money-Laundering Act of 2001;

(h) Prepare for prosecution or cause the filing of appropriate criminal and civil cases for violation of all laws on dangerous drugs, controlled precursors and essential chemicals, and other similar controlled substances, and assist, support and coordinate with other government agencies for the proper and effective prosecution of the same;

(i) Monitor and if warranted by circumstances, in coordination with the Philippine Postal Office and the Bureau of Customs, inspect all air cargo packages, parcels and mails in the central post office, which appear from the package and address itself to be a possible importation of dangerous drugs and/or controlled precursors and essential chemicals, through on-line or cyber shops via the internet or cyberspace;

(j) Conduct eradication programs to destroy wild or illegal growth of plants from which dangerous drugs may be extracted;

(k) Initiate and undertake the formation of a nationwide organization which shall coordinate and supervise all activities against drug abuse in every province, city, municipality and barangay with the active and direct participation of all such local government units and nongovernmental organizations, including the citizenry, subject to the provisions of previously formulated programs of action against dangerous drugs;

(l) Establish and maintain a national drug intelligence system in cooperation with law enforcement agencies, other government agencies/offices and local government units that will assist in its apprehension of big-time drug lords;

(m) Establish and maintain close coordination, cooperation and linkages with international drug control and administration agencies and organizations, and implement the applicable provisions of international conventions and agreements related to dangerous drugs to which the Philippines is a signatory;

(n) Create and maintain an efficient special enforcement unit to conduct an investigation, file charges and transmit evidence to the proper court, wherein members of the said unit shall possess suitable and adequate firearms for their protection in connection with the performance of their duties: Provided, That no previous special permit for such possession shall be required;

(o) Require all government and private hospitals, clinics, doctors, dentists and other practitioners to submit a report to it, in coordination with the Board, about all dangerous drugs and/or controlled precursors and essential chemicals which they have attended to for data and information purposes;

(p) Coordinate with the Board for the facilitation of the issuance of necessary guidelines, rules and regulations for the proper implementation of this Act;

(q) Initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency or instrumentality of the government, including government-owned and or –controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers; and

(r) Submit an annual and periodic reports to the Board as may be required from time to time, and perform such other functions as may be authorized or required under existing laws and as directed by the President himself/herself or as recommended by the congressional committees concerned.

ARTICLE XI

Jurisdiction Over Dangerous Drugs Cases

Section 90. Jurisdiction. – The Supreme Court shall designate special courts from among the existing Regional Trial Courts in each judicial region to exclusively try and hear cases involving violations of this Act. The number of courts designated in each judicial region shall be based on the population and the number of cases pending in their respective jurisdiction.

The DOJ shall designate special prosecutors to exclusively handle cases involving violations of this Act.

The preliminary investigation of cases filed under this Act shall be terminated within a period of thirty (30) days from the date of their filing.

When the preliminary investigation is conducted by a public prosecutor and a probable cause is established, the corresponding information shall be filed in court within twenty-four (24) hours from the termination of the investigation. If the preliminary investigation is conducted by a judge and a probable cause is found to exist, the corresponding information shall be filed by the proper prosecutor within forty-eight (48) hours from the date of receipt of the records of the case.

Trial of the case under this Section shall be finished by the court not later than sixty (60) days from the date of the filing of the information. Decision on said cases shall be rendered within a period of fifteen (15) days from the date of submission of the case for resolution.

Arrest is defined as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. A person is arrested based on a specific and definite purpose which is  to make him answer for the commission of an offense.

Section 2 of rule 113 of the Rules of Court provides two ways on how arrest can be made. Arrest is either done by an actual restraint of a person to be arrested, or by the submission to the custody of the person making the arrest; the latter option need not require actual restraint done towards the person to be arrested. The restraint to be given should only be limited to what is necessary for the individual’s detention, thus no violence or unnecessary force shall be used in making an arrest.

Analysis must be done pertaining the legality of the act of an arresting officer since the authority to make an arrest entails the restriction of a person’s liberty which liberty is protected by the Constitution through the Bill of Rights. Failure to observe proper procedural mandates of the law in making the arrest could make it infirm.

As a general rule,  part of Section 2 of the Bill of Rights declare that: “No search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after the examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.’” this section of the Bill of Rights states the requirement on needing a valid warrant of arrest for an arrest to be considered valid.

Before a warrant of arrest can be issued, there must be presence of a probable cause. What constitutes probable cause is settled in the case of Microsoft Corporation v. Maxicorp, Inc, [G.R. No. 140946. September 13, 2004]. the Court, in this case,defined probable cause as: “means such as reasons, supported by facts and circumstance as will warrant a cautious man in the belief that his action and the means taken is prosecuting it are legally just and proper.”Thus, an arrest done without probable cause is a form of unreasonable seizure over a person which is a violation of Section 2 Article III of the Constitution since the said section, in the words of Fr. Bernas, unreasonable search and seizure “is not just a circumscription of the power of the state over a person’s home and possessions. More important, it protects the privacy and sanctity of the person himself. It is a guarantee of the right of the people to be secure in their persons against unreasonable searches and seizures. It is therefore also a guarantee against unlawful arrests and other forms of restraint on the physical liberty of a person.”

With regard to the personal determination by the judge whether there is probable cause or not, the Court explained that the provision does not mandatorily require the said judge to personally examine the complainant and her witnesses as explained in their decision in the case of Soliven v. Makasiar , (G.R. No. 82585 November 14, 1988).The judge may instead evaluate the reports and supporting evidences submitted by the fiscal  upon his initial determination, and on the basis thereof, issue a warrant of arrest upon determining that probable cause exists. The necessity of a personal determination by the Judge arises only when the evidence being presented are insufficient or fails to show the  existence of probable cause. The court expressed in the case of Talingdan v. Eduarte, [A.M. No. RTJ-01-1610. October 5, 2001] that: “what is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause.”

Method of Arrest by Virtue of a Warrant

Section 7 of Rule 113 of the Rules of Court provides that the officer shall: (1) inform the person to be arrested of the cause of his, arrest and (2) inform him of the fact that a warrant has been issued for his arrest. Information need not be done in cases where the person to be arrested (1) flees, (2) forcibly resists or (3) when the giving of such information imperils the arrest.

Arrest without a warrant; when lawful

An arrest without a warrant does not automatically mean that the arrest is invalid provided that it is lawful. Under Sec. 5, Rule 113 of the Rules of Court, it is lawful under in any of the three circumstances: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b) When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

When the arrest done does not fall under any of the scenarios mentioned above, the arrest done is considered as unlawful. Article 269 of the Revised Penal Code defines the concept of unlawful arrest as a crime committed by any person, whether a private person or public officer, who arrest or detains a person without reasonable ground therefore, for the purpose of delivering him to proper authorities.

Citing the case of People v.  Gerrjan Manago y Acut, in relation to Republic Act 9165 or the Comprehensive Dangerous Drugs Act of 2002, it was said based on the factual antecedents that

 “On April 10, 2007, an Information was filed before the RTC, charging Manago of Possession of Dangerous Drugs, defined and penalized under Section 11, Article II of RA 9165, the accusatory portion of which reads:

That on or about the 16th day of March, 2007, at about 11:50 in the evening, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with deliberate intent, and without authority of law, did then and there have in his possession and under his control one (1) heat-sealed transparent plastic packet of white crystalline substance weighing 5.85 grams containing Methylamphetamine Hydrochloride [sic], a dangerous drug, without being authorized by law.

The RTC found Manago guilty beyond reasonable doubt of possession of shabu. The Court of Appeals affirmed the lower court’s but allowing Manago to post bail considering the quantity of shabu seized from the accused was nominal. However, the Supreme Court opposed the appellate court’s decision saying that Manago’s warrantless arrest, and the search incidental thereto, including that of his moving vehicle were all unreasonable and unlawful resulting to his acquittal by reason that the shabu seized from the accused cannot be admissible  as evidence pursuant to the exclusionary rule under Section 3 (2), Article III of the 1987 Constitution.  Since the confiscated shabu is the very corpus delicti of the crime charged, Manago must necessarily be acquitted and exonerated from criminal liability.

In another recent case,where a crime was allegedly committed under Republic Act 9165 or the Comprehensive Dangerous Drugs Act of  2002, of People v. Oares et. Al, where the defendants employed unnecessary force in undertaking the incident, wherein the accused  P03 Paredes, PO1 Pereda and P01 Cruz with the indispensable cooperation of Loveraz, with the intent to kill without the justifiable motive, did then and there willfully, unlawfully, and feloniously assaulted and killed one Kian Delos Santos, a minor, thus inflicting upon him gunshot wounds at the back of his head, which were the direct and immediate cause of his death. The Regional Trial Court of Caloocan City in arriving at a decision, citing the case of People vs. Ulep, which states that:

The right to kill an offender is not absolute, and may be used only as a last resort, and under circumstances indicating that the offender cannot otherwise be taken without bloodshed. The law does not clothe police officers with authority to arbitrarily judge the necessity to kill. It may be true that police officers sometimes find themselves in a dilemma when pressured by a situation where an immediate and decisive, but legal, action is needed. However, it must be stressed that the judgment and discretion of police officers in the performance of their duties must be exercised neither capriciously nor oppressively, but within reasonable limits. In the absence of a clear and legal provision to the contrary, they must act in conformity with the dictates of a sound discretion, and within the spirit and purpose of the law. We cannot countenance trigger-happy law enforcement officers who indiscriminately employ force and violence upon the persons they are apprehending. They must always bear in mind that although they are dealing with criminal elements against whom society must be protected, these criminals are also human beings with human rights.

The defendants, in this case, violated the basic constitutional right of the deceased, which is according to Article  III Section 1 of the 1987 Constitution that “ no person shall be deprived LIFE, liberty, or property without due process of law, nor shall any person be denied the equal protection of laws,” not only that, there was no probable cause for the defendant to act in such an oppressive and wanton manner.

Conclusions and Recommendations

As researchers of the study, we have come to a conclusion that every Filipino, whether or not he is an offender, has the same standing in the society, enjoys the same rights, and has the liberty of doing everything as long as it is within constitutional bounds and is not detrimental to the welfare of the society. Thus the proper constituted authorities, government agents and officials shall properly implement and observe the rules and procedures stated and if those mentioned shall not comply with what is required and incumbent upon them, proper legal sanctions and penalties shall be imposed.

SOURCES:

Researchers:

Apelo, Orly John

Pandan, Ralph Chrisol

Published by Jocelle Batapa Sigue

ATTY. JOCELLE BATAPA-SIGUE • Named as one of The Outstanding Women in Nation’s Service of the Philippines or TOWNS for 2016 in the field of Information and Communications Technology or ICT • Positions: Past Vice President (2018) and Past President (2010-2012) and Past Trustee (2013-2017) of the National ICT Confederation of the Philippines or NICP • Founder, Former President and Current Executive Director of the Bacolod-Negros Occidental Federation for ICT or BNEFIT • Served for 3 terms as councilor of Bacolod City • Chosen as one of Asia Society Top Ten Philippines 21 Young Leaders in 2009 • Chosen as the Eisenhower Fellow of the Philippines in 2012 • Awarded as Philippine Individual Contributor of the Year during the International ICT Awards given by the Canadian Chamber of Commerce and Industry in the Philippines

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