Probe into 'nanlaban' cases just a fishing expedition – SolGen

MANILA, Philippines – The Office of the Solicitor General (OSG) said that there is no basis to compel the police to submit for investigation firearms used in "nanlaban" cases, where drug suspects were killed after they supposedly fought back.

“The submission of firearms, including serial numbers and description, of monthly reports in ‘nanlaban’ cases amounts to a fishing expedition,” the OSG said in its 63-page comment submitted to the Supreme Court (SC) on Friday, November 17.

The OSG is representing local policemen and Philippine National Police (PNP) chief Director General Ronald Dela Rosa in two petitions against the government's anti-drug operations that are set to undergo oral arguments on Tuesday, November 21.

The OSG also said that the police should not be asked to submit to the court monthly reports on the status of their investigations into nanlaban cases.

Instead, the OSG advised petitioners “to file the proper administrative and criminal cases against erring police officers.”

“To give due course to the petitioner’s patently baseless petitions would only serve to countenance harassment suits and “fishing expeditions” that distract law enforcement agencies from their principal duties or, worse, dampen their zeal in the pursuit of criminal elements,” the OSG said.

Difficulties

Lawyer Christina Antonio, one of the lawyers from Center from International Law (CenterLaw) handling the case, told Rappler it is not easy for relatives to file separate cases.

"You are constantly afraid. More desperate when you are arrested and languishing in jail in the aftermath of the killing. You do not know any lawyer. You don't even have fare to go to any lawyer. The law is a nebulous, distant cloud," Antonio said.

In an interview with Al Jazeera, Foreign Secretary Alan Peter Cayetano claimed that the government is investigating “every single one” of the deaths. But as of September 27, the PNP has only managed to submit 10 inquest reports out of the 3,800 deaths at the time.

The Department of Justice (DOJ) has prosecuted only 71 drug-related deaths, and of those, only 19 have reached the courts, based on DOJ data as of August 22.

The PNP’s function to serve and to protect necessarily encompasses not only responding to crimes already committed but also preventing their commission. https://t.co/hmwPSyXaZK — SolGen Jose C Calida (@SolGenCalida) November 17, 2017

Petitions

The petitions to be heard by the SC are those filed by the Free Legal Assistance Group (FLAG) on behalf of alleged victims of Oplan TokHang in Baguio, Tondo, and Quezon City; and by the CenterLaw representing the families of 35 individuals in San Andres Bukid, Manila, who were killed in police raids.

CenterLaw accused the policemen of the Manila Police District (MPD) Station 6 of being masterminds of the killings.

FLAG had petitioned the SC to make an intervention into cases of nanlaban, a narrative often used by policemen when somebody is killed during their operations.

FLAG wants the policemen to turn over to the National Bureau of Investigation (NBI) their firearms for forensic examination, and for the PNP Internal Affairs Service (IAS) and/or the National Police Commission (NAPOLCOM) to submit a monthly report to the Court full documentation of police operations which result to death.

The OSG does not believe that the petitioners are entitled to their request. FLAG also asked for a writ of amparo for the families. A writ of amparo is a remedy that serves to protect constitutional rights perceived to be in danger. (READ: Lawyers do dirty groundwork to fight Duterte’s drug war)

“While judicial intervention is equally available to these petitioners, it could not be done through the blanket issuance of a writ of amparo,” the OSG said.

Antonio said there are basis for their requests for a writ of amparo such as "numerous jurisprudence and executive pronouncements of pardon for cops in narco killings."

Writ of amparo

Just the same, the OSG also does not believe that the petitioners deserve a writ of amaro.

“The petitioners failed to establish by substantial evidence that the respondents violated their right to life, liberty or security; hence, they are not entitled to the issuance of a writ of amparo,” the OSG said.

In San Andres Bukid for example, the petitioners are asking for restraining orders against the policemen, and a prohibition against anti-drug operations in their community. Their petitions said this is due to threats to their safety and lives.

The OSG said the families are not entitled to such protection because their stories are hearsay. OSG cited affidavits of petitioners which source their testimonies from stories they heard from neighbors and other witnesses.

San Andres Bukid petitioners claimed that while the killings by masked vigilantes were ongoing, they spotted policemen from MPD 6 in the area, as if on standby. This is among their bases for saying there was coordination with police.

In response, the OSG said: “The petitions are hinged mainly on hearsay and on the assumption that the men in plainclothes lurking near the crime scenes were police officers. Considering that the petitioners’ allegations are not adequately supported by substantial evidence, their claim that the anti-drug operations conducted by the respondents are illegal has no leg to stand on.”

The OSG also enumerated a slew of technical reasons, such as some of the petitioners not being qualified to file a case. Some of the petitioners are “concerned citizens” and members of religious groups immersed in the community.

The OSG cited the rules which state that a non-relative may be allowed to file a case only if there is no known relative.

The OSG also added: "The alleged extralegal killings transpired sometime in 2016 and early 2017. If indeed petitioners’ lives were on the line, they would have filed the present actions at the earliest possible time to prevent accountable police officers from committing any further human rights violation."

Moot?

The OSG also said the cases are now moot since President Rodrigo Duterte has taken out the PNP from the anti-drugs campaign. 

The OSG also said Dela Rosa’s circular back in July 2016 was constitutional.

“It is unfortunate that loss of lives resulted from the operations of the police officers. But these incidents do not automatically render the anti-drug operation conducted by the respondents “unlawful” as would entitle the petitioners to the protection of a writ of amparo,” the OSG said.

The OSG claims that to render the police’s war on drugs illegal would only benefit those engaged in the illegal drug trade.

The oral arguments will begin at 2 pm on November 21.

The police's nanlaban defense in their drug war killings has generated controversy and criticism, amid allegations that weapons and drugs had been planted on the victims only after they were killed. State forensic experts had cited "staged" crime scenes in the case of teenager Carl Arnaiz.  (READ: 'Nakaluhod, tapos nasubsob': How Kian was killed, according to PAO)

The results of a Social Weather Stations (SWS) survey held in June, or nearly a year after the Duterte administration launched it's drug war, showed that half of Filipinos don't buy the police's nanlaban line. – Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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