University of San Carlos

College of Law

Final Requirement for Legal Writing

“Operation Tokhang (Double Barrel) Constitutional or Not?”

Jurado, Ralph
OPERATION TOKHANG (DOUBLE BARREL) CONSTITUTIONAL OR NOT?

Introduction

“No cause is more worthy than the cause of human rights... they are what makes
us human. Deny them and you deny our humanity.” [1]

-Late Senator Jose Diokno

Presently the society rather the country is undeniably facing a higher increase with
regards to criminal rate. We can still hear in the news that someone has been killed,
someone has been raped, an establishment has been robbed and much more of the illegal
activities. However, upon the takeover of another administration the Filipino people
found an iron fist ruling in the pearl of the orient, with his unorthodox way of ruling
many rules has been implemented and a new approach to criminality has been adopted.

Each administration has his own focus as to what aspect of the country he wants to
focus more is discretionary to the Chief Executive. The present administration took a step
forward to eradicate crime, and it has found its roots to the present increasing drug
problem, the president ordered for a very unorthodox way of eliminating drug problem
here in the Philippines and he tagged it as TokHang which the Chief of the PNP
explained as Oplan Double barrel. The Filipino people had a glimpse of how it is done on
the early part of 2016 but subsequently suspended due to several complaints, however,
presently the government has resumed its operation. To the point as to why is it
suspended, since it was alleged that such activity or program has been made as a medium
of police personnel to extort or to have the illegal motives of the men in uniform be
successfully conducted and having TokHang as an excuse. Many brows raised with
regards to the constitutionality of this movement many human rights advocates as well as
those in the government raised there own woes as to how uncostitutional this movement
is as this would infringe the human rights granted by our very own constitution.
However, to there defense the government specifically the PNP hold its position that they
would still continue such operation not until the congress determines if it is constitutional

1. Rappler Philippines: DLSU Law Dean Diokno: ‘Glaring violations of human rights’ rampant today
or not. Thus, it can be inferred that they will still be waiting for the result of the senate
panel which was tasked to look into this issue. [2]

Questions to be answered

To understand more this paper would explore more on the rationale of the benefits
and as well as the disadvantages this operation has to give. This paper would also like to
discover how relevant this type of techniques is in the present society. In addition, this
paper will also try to understand what rights do this operation TokHang/Double barrel
might affect and finally, this paper will try to answer the ultimate question of whether or
not Operation TokHang or Double Barrel is constitutional and should be continued by
being able to weight down different issues and the different pros and cons of the said
operation.

Sign Posts

The First paragraph of the body paragraph will tackle the present relevant
advantage and disadvantage of the said operation. Second paragraph of this paper would
be more of the presentation of the rights which were infringed upon conducting this said
operation. Last paragraph is reserved to answer its constitutionality. The next section will
be the conclusion of this paper and which would also contain a brief summary and
integration of information gathered.

To further understand such topic TokHang or Operation Double Barrel is defined

by no less than the brainchild of this Operation PNP Chief Rolando dela Rosa as “toktok”
and “hangyo” in other words “knock” and “plead”. The mechanics of this operation is
that there will be a house to house visit or a list would be provided of the suspected drug
personalities and the officials would ask for their humble surrender. And they will be
signing waiver or a certain paper. [3] Now to discuss further many Human Rights
advocates were voicing their concern with regards to the constitutionality of such
operation. Human Rights are rights inherent to all human beings, whatever our
nationality, place of residence, sex, national or ethnic origin, colour, religion, language,

2 and 3 Rappler Philippines: ‘Tokhang’ Unconstitutional? Dela Rosa unfazed

or any other status. We are all equally entitled to our human rights without
discrimination. These rights are all interrelated, interdependent and indivisible.

Universal human rights are often expressed and guaranteed by law, in the forms of
treaties, customary international law , general principles and other sources of
international law. International human rights law lays down obligations of Governments
to act in certain ways or to refrain from certain acts, in order to promote and protect
human rights and fundamental freedoms of individuals or groups. [4] This definition is
with regards to how the United Nation Office of the High Commisioner defined such act.
In the Philippine Context Human Rights or Human Right violations are defined in
R.A. 10368 : AN ACT PROVIDING FOR REPARATION AND RECOGNITION OF
VICTIMS OF HUMAN RIGHTS VIOLATIONS DURING THE MARCOS REGIME,
DOCUMENTATION OF SAID VIOLATIONS, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES section 3 (b), which defined it as any act
or omission committed during the period from September 21, 1972 to February 25, 1986
by persons acting in an official capacity and/or agents of the State.[5]

Constitutional laws are defined as to those which deviates or violates the

principles enunciated or enshrined specifically in the 1987 Philippine Constitution. Now
how a law could also be unconstitutional or one could also violate a law even fi such law
would just be or merely an adoptation from an international law. This is because
generally accepted principles of international law and those wherein the Philippines is
asignatory such would be considered as part of the law of the land. Now, the Philippines
being asignatory of the Universal Declaration of Human Rights it could be inferred that
the Philippines is duty bound or binded by the principles which do not contradict the
present Philippine constitution.

These terms are thoroughly discussed since in these terms the topic of this paper
will revolve. Since the main proposition to be explored or to be discussed is whether or
not the Operation Tokhang or Double Barrel is constitutional or not.

4 United Nations Human Rights : Office of the High Commisioner- Your Human Rights
5 Official Gazette: R.A. 10368
Body Paragraph

Operation Double Barrel: The yay and nay to the society

The “Project TOKHANG” is a practical and realistic means of accelerating the

drive against illegal drugs in the affected areas. This concept involves the conduct of
house to house visitations to persuade suspected illegal drug personalities to stop their
illegal activities. [6] The society nowadays as it explore into a more hi-tech and as well as
each one looking for convenience learned to modify or innovate several things makes
everything convenient from buying, selling and as well as making good of business
transactions. Now to continue many drug personalities especially sellers have learned to
put into stocks there very own shabu, some others even make shabus in their very own
family home. Some others need not go to a drug den since drug transactions could be
done in a delivry basis or some even make one if they have the right chemicals. This
operation tokhang go more in-depth to the present drug war as it go inwards to the
communities and to specify it goes individually o family homes where drug problme
usually starts. This would have a higher rating in terms of accessability and as well as
convenience, convenience with regards to the police personnels as they are just to knock
to the homes of the suspected drug personalities and plead for their surrender.
Furthermore, this is a much more convenient arrest for those drug personalities who resist
or who fight back upon the knocking stage since there are a few encounters on the said
tokhang activities, since it would trigger their survival instincts they would fight back or
fire back , thus, it would give a more higher speculation as to their guilt and such
resisting arrest would be the result. Furthermore, another advantage would be a more
friendly environment, this is a more peaceful way despite such encounters, there are
twenty-one thousand and plus surrenderees which are all drug users and about seven
hundred plus surrenderees with regards to the drug pushers these datas are still from last
year [7], which proves that it is in a way a friendly way to plead and try to ask out those
suspected drug personalities rather than chasing them with guns, at least they are given a

6 CASE STUDY ON PNP PROJECT “DOUBLE BARREL” IN THE MUNICIPALITY OF ROSARIO, LA UNION,
PHILIPPINES
7 Philippine Information Agency. Gov: Oplan Tokhang, an anti-drug campaign yields more
surrenderees regionwide.
 warning that they are on the list of the PNP drug watch. Thus, it would still be part of the
essence of what we subscribed as restorative justice.

However, this project admits several disadvantages both to the society and the
police officers. To tackle first we go to the disadvantages for the Police officers, yes they
might have been given standard operating procedures however, engaging in such activity
is such abold and a very vulnerable move for the police officers. They are to knock on the
door without knowing the possibilities or what are behind those doors, the degree of
uncertainty is high. Anytime those drug users could just set up an ambush for the police
officers, some even in the news have deadly encounters as these drug personalities tried
to fight back upon noticing that such persons knocking are those persons in authority.
Second, would be to the society. One of it was alleged that this operation only is a war
against poor as it only go throught walls of urban poor communities and on the streets not
on the high end subdivisions. However, this was positively rebutted by the NCRPO Chief
Albayalde that such operation is done on the streets since in these communities drugs
selling is more rampant to qoute “You can buy them as easy as a cigarette” on those areas
but despite that fact they are still trying their very best to go as far as high-end private
subdivisions.[8] Second thing which is the most controversial and still unanswered is the
information collected by who is who with regards to the drug personalities. Some say that
local government officials and even baranggay officials are the only ones who pin points
the suspect. And such is an unhealthy practice since this will be an unverified information
such allegation could be false and harm the reputation of the accused might as well
incriminate the other. Thus, the degree of information that they have against the
suspected drug user is still unverified, despite their claim that it has been verified how
can they explain those who were not drug users that they visited or called. Furthermore,
such information should be subject to scrutiny and as well as subjected to a more
comprehensive investigation and note merely a word of mouth which is not beneficial to
the citizenry as it promotes hearsay evidences.

8 Rappler Philippines: Village Tokhang: Disadvantage to say no to cops – NCRPO Chief

Violations here and there

The disadvantages of tokhang and its advantages has been discussed on the
previous page. This section would discuss more on the disadvatage it gave with regards
to the individuals or those subjected to the Knock and plead technique by the
government. These disadvantages are those most of the legalese tried to shout “the
violations of human rights”. As what has been said human rights violations are those
done by the government officials in their official capacity which violates the rights
enshrined in the 1987 Philippine Constitution sepcifically article three. First, it violates
the constitutional presumption of innocence, second, it violates the right of the individual
to a counsel upon inivitation of the authorities, lastly it was alleged that it violates the
rights of the accused to remain silent and as well as to self- incrimination.

Guilty until prove innocent

This has been the mechanics how it is viewed right now as this Tokhang
Operations resumed. In a statement by Ateneo Human Rights Center Executive Director
Arpee Santiago “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”.[9] First let us discuss what is the consitutional presumption of
Innocence. Article 3 Section 14 of the 1987 Philippine Constitution expressly states that
“2 In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of
the nature and cause of the accusation against him, to have a speedy, impartial, and public
trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses and the production of evidence in his behalf. However, after
arraignment, trial may proceed notwithstanding the absence of the accused provided that
he has been duly notified and his failure to appear is unjustifiable.”[10] Furthermore it

9 Interaksyon Philippines: Lawyers to PNP: Tokhang violates human rights; cleanse drug watch lists safely
10 gov.ph The 1987 Philippine Constitution
could also be related in Article 3 section 14 paragraph 1 with regards to constitutional
grant of the mandatory observation of the Due process of law.

The presumption of innocence in this operation is really zero in terms of

percentage this is due to the undeniable fact that when one is being asked or pleaded to
one is presumed to be a drug user without the observance of fair trial and not even a bit or
just a spec of preponderant evidence that existed (but one must take note that it is guilt
beyond reasonable doubt which is needed). In the constitutional presumption of
innocence it entails that one is presumed innocent until proven otherwise. Now, how is
this proved this is proved through a fair trial or a through determination by the judge
upon presentation of evidence. One should take note that being a drug user is a crime
punishable under R.A. 9165 thus it being a crime one being accused of it should be
subjected to a fair trial. Fair trial would mean that it be conducted in a competent court of
law and not just a mear controverted list. Thus, it is volative of the constitutional right of
the accused. To conduct such trial or to proceed with a custodial investigation one should
afford a cousel assuming further that the arrest was valid or the custodial invitation is
valid.

Call for help

The constitution provides one the right to be given a counsel. And it is

enshrined in the 1987 Philippine Constitution Article 3 Section 12 paragraph 1 which
entails that “ (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the services
of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel.”

This would mean that when the accused assuming that he was legally arrested in a
tokhang operation he should be automatically provided with a counsel either of his own
choice or be provided with one if he cannot secure for one. Why is this so ? this is
because the counsel of the accused is more knowledgeable with the law. Furthermore it
would provide a more comprehensive perspective and understanding of the charges filed
against the accused. Sometimes in the course of the investigation police officers tend to
be more intimidating and forceful in picking up or getting the information from the
accused. Sometimes they tend to push the issue even if they lack evidence, this maybe a
personally driven thing or a desire to a higher position, nonetheless it is still violative of
the constitution to not provide the accused of any counsel.

The constitutional provision for the accused to be provided with counsel also
encroached with it that he be informed of his constitutional right. This is also one of
which that are most likely violated in a custodial investigation jurisprudence would
provide so, since some of the accused although being provided with there constitutional
right they do not understand such and such should be made to understand them or else it
wouldn’t provide the accused any good. That is why a lawyer should be provided since
the lawyer knows or is the one who knew when to and what legal steps to take in these
cases.

Now why is this right violated according to Senator Richard Gordon supra, in his
interview and upon his findings in the senate panel or committee on justice investigating
such act, that when a drug user has been arrested or invited for investigation in a tokhang
operation he is not given or provided with a counsel. And much more it is questionable if
he was informed of his constitutional right. If not it also violated his right to such
consititutional protection or grant. In the same section it also provided that such should
be given the right or be given the chance to be silent for him/her not to be incriminated in
such proceeding which leads to the next point which is to be discussed in this paper.

Say nothing and you’ll be safe

This constitutional provision is to be read in conjunction with the previous

cited provision. This is the constitutional right of the accused to remain silent in any
custodial or preliminary investigation. This is to not incriminate the accused, thus it is
 really necessary for the accused to be provided with a lawyer and as much as possible he
be knowledgeable of his constitutional rights.

This was discussed in conjunction with the prior issue by the Supreme Court in the
case of Morales, Jr. vs. Enrile, et al., the Supreme Court laid down the procedure to be
followed in custodial investigations, to wit:

“At the time a person is arrested, it shall be the duty of the arresting officer to inform him
of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be
informed of his constitutional rights to remain silent and to counsel, and that any
statement he might make could be used against him. The person arrested shall have the
right to communicate with his lawyer, a relative, or anyone he chooses by the most
expedient means _ by telephone if possible _ or by letter or messenger. It shall be the
duty of the arresting officer to see to it that this is accomplished. No custodial
investigation shall be conducted unless it be in the presence of counsel engaged by the
person arrested, by any person on his behalf, or appointed by the court upon petition
either of the detainee himself or by anyone on his behalf. The right to counsel may be
waived but the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether exculpatory or
inculpatory, in whole or in part, shall be inadmissible in evidence.”[11]

Furthermore the right to remain silent is, “The right to remain silent means that
any person who has become a suspect for the commission of an offense shall be informed
of his right to remain silent. In fact one with is charge for the commission of an offense
may refuse to be investigated at all. When Janet Lim Napoles is summoned to the Senate
for investigation she can invoke her right to remain silent and refuse to take the witness
stand on the ground that she has the right to remain silent, because she has been charged
for PLUNDER before the Office of the OMBUDSMAN. Hence, the summons issued by
the Senate would be useless if she invokes her right to remain silent.” [12]

However such right maybe waived and this is done by writing and with the
presence of a lawyer. This constitutional provision exist since nobody is forced to be a
witness against himself in a criminal proceeding. And what have been used in the above
statement was Janet Napoles and ehr involvement in a plunder case involving the
legislature.

The Answer

In view of the present facts given and such enormous constitutional violations the
operation tokhang has it could only mean that such operation being violative of numerous
constitutional prohibition is not only unconstitutional but also unjust.

11 Abogadomo.com: Right of a Person under custodial investigation

12 Negroschronicle.net: Atty Francisco Yap’s “The right to remain Silent”
CONCLUSION

The present administration have the right reason to address the increasing drug
rate in the Philippines and have every reason to employ every step to eradicate such
problem. However, the government must observe steps which are legal and not only legal
but also humane as well as constitutional. Oplan Tokhang might be a very successful
operation as it has tallied more than twenty thousand surrenderees with regards to the
users and almost a thousand with regards to the pushers, however the ultimate question
here is, is it constitutional and furthermore if it is not constitutional how can it be legal?

Upon the data and information gathered it clearly violated constitutional

provisions furthermore the provisions violated are the ones which are governing the
constitutional rights of the accused or every person. Thus, it also violated the rules
provided by the Universal Declaration of Human rights and is a generally accepted
principle with regards to customary international law.

Such numerous violations confirmed and answered the very own question asked
by this paper if such operation double barrel is constitutional or not. Which was clearly
answered by a BIG NO! Thus, it should then be stopped or if not stopped it should be
modified into a more legal setup. With these types of steps readers should then agree with
the author that “it pays to know your constitutional rights”.
Rubric for Legal Essay Final Requirement

Structure and Organisation (80%)

Title:

Does the title of my essay/paper clearly inform the reader of what my 5%

essay is about?

Introduction:
 Does my introduction or abstract state the central question that
is being addressed/answered in my essay?
 Does my introduction give a roadmap for the rest of the essay, 10%
explaining how the paper is structured to answer the central
question posed?

Headings and Subheadings:

10%
Have I used headings and subheadings to signpost the content of the
subsequent section of the essay?
Body Paragraphs:
 Does every paragraph in my essay have a topic sentence? Does
the content of every paragraph relate to its topic sentence?
40%
 Do my body paragraphs seamlessly transition into the next
paragraph?

Conclusion:

Does my conclusion summarize the argument made in my essay,

15%
show the reader how I have addressed the question posed in my
introduction, and contain no new content?
General elements of good writing, presentation and referencing (20%)
Fundamentals of Writing:

 Have I edited my essay to avoid wordiness and redundancy?

 Have I avoided the use of antiquated words such as
‘hereinafter’ or ‘aforementioned’ and have I used Latin words
or phrases only where necessary to convey a precise legal
meaning? 5%
 Have I edited my essay to eliminate the passive voice?
 Have I used shorter sentences and paragraphs to convey clear
meaning in my writing?
 Have I retained necessary words such as “the” and “a”, and
omitted unnecessary words that convey no extra meaning?

General rules of good writing and format:

 Have I abided by more general rules of good writing (gender
neutral, formal tone etc)?
 Are the pages of my essay numbered, and is my essay in an
appropriate and consistent font and clearly formatted so that 5%
headings and paragraphs can be differentiated? Is my essay
double-spaced (or otherwise formatted in the way required by
the given assessment task)?

References:
10%
Have I properly referenced my work to acknowledge the source of
words and ideas?