Government, SC engage in tug-of-war over tokhang documents

BAGUIO, Philippines – It began on December 5, 2017, when all of a sudden, Supreme Court Senior Associate Justice Antonio Carpio told Solicitor General Jose Calida during oral arguments that he wants copies of investigation reports of 3,806 deaths in police anti-drug operations.

It was the last of the 3-day oral arguments on petitions seeking to declare President Rodrigo Duterte’s campaign against drugs unconstitutional.

By tradition, the justice who speaks first during oral arguments is the member-in-charge. That was Carpio.

The verbal order came as a pleasant surprise to petitioners, because Carpio had effectively already granted one of their prayers in the petition – for the government to submit police documents related to the deaths.

“I want the names, addresses and all the reports regarding these 3,806 killed in legitimate drug operations,” Carpio said, only 40 minutes into the interpellations.

The documents would put to the test the government’s claim that it was investigating every single one of the deaths in the drug war.

“The records must be there because these are supposedly legitimate police operations,” Carpio added.

On the rostrum, Calida did not resist. He told the Justice: “We will embody them in the memorandum, Your Honor.”

Then finally, Calida realized it would be detrimental to the interest of the government’s case. He started to file pleadings.

The tug-of-war

Thirteen days later, on December 18, Calida filed a motion for reconsideration, refusing to give the documents to the Court.

Calida invoked national security.

"The production of documents...in the long run will have an undeniable effect on national security: it could spell the success or failure of follow-up operations of police and other law enforcement bodies, aside from endangering the lives of those on the list as well as those already in custody," Calida said.

Human rights lawyer Christina Antonio of Center for International Law (CenterLaw), one of the two petitioner groups, said the refusal “shows that the Respondents have a lot to hide.”

So what was initially a clear order from the Court became a new string of litigation. As opposed to Carpio giving orders from the Bench in a public hearing, the rest of the justices of the en banc now had the time to deliberate.

On April 3, 2018, during its en banc session in Baguio city, the SC voted to deny Calida’s motion for reconsideration, compelling the Solicitor General to turn over the documents.

The vote was unanimous.

Strong resolution

Not only did Carpio get unanimous votes, the resolution was very strongly-worded.

First, from only 3,806 killings, the SC agreed that the government must submit documents related to 20,322 killings committed by both policemen and vigilantes from July 1, 2016 to November 27, 2017.

The SC went on to say: "The government's inclusion of these deaths among its other accomplishments may lead to the inference that these are state-sponsored killings.”

The resolution also posed a profound challenge to the government: prove that these reports exist.

Were anti-drug operations planned and conducted properly, and were the deaths really investigated?

“What is in issue is the existence of the police reports, whether the police reports have been prepared as mandated by regulations,” the SC said.

Conditional?

On March 5, 2019, on the sidelines of the oral arguments over the Legal Education Board, Calida told reporters that he agreed to submit the documents “under the condition” that they would remain between the government and the Court only.

“Associate Justice Carpio asked for it, so out of respect for him, we gave it to them under one condition: it should not be given to the other parties who are not involved in this case,” Calida said.

A reporter asked: Did the SC agree to the condition or was it only implied? "What do you think? We did not receive any order,” Calida replied.

It was a misleading statement.

As early as August 14, 2018, the SC issued an order to the Office of the Solicitor General (OSG) that “required” it to give copies of the documents to the other petitioner group, the Free Legal Assistance Group (FLAG).

It was FLAG chairman Jose Manuel "Chel" Diokno who had asked the Court to be furnished copies of the documents.

On September 4, 2018, Calida filed a motion for partial reconsideration asking that they not be required to give petitioners all documents. What Calida was willing to give them was copies of documents related to only the killings specified in their petitions – 35 killings for CenterLaw and 3 killings for FLAG.

“By requiring the production, this Honorable Court has, in effect, issued the writ of Amparo. Worse, the Court would be allowing what the rules on Amparo seek to obviate, that is, a fishing expedition,” Calida said.

And again, a clear order from the Court became the subject of another process of deliberation.

It took the SC another 7 months to assess.

On April 2, 2019, in their first Baguio en banc for the year, Carpio won again. He got another unanimous vote to compel the government to release all documents of all 20,322 killings.

Courtesy of Carpio, the two resolutions on the release of the drug war documents tarnished the Duterte government’s winning record in the SC.

“Malaking hakbang ito sa pagkamit ng pananagutan at katarungan para sa mga biktima ng madugong kampanyang ito,” said Diokno, an opposition senatorial candidate. (This is a big step towards accountability and justice for the victims of this bloody campaign.)

The International Criminal Court (ICC) is currently examining whether it has jurisdiction over the high number of killings in the campaign.

It will have jurisdiction if the ICC determines that Philippine authorities are unable or unwilling to solve the killings. (READ: Duterte gov't allows 'drug war' deaths to go unsolved)

The documents will contain crucial answers. – 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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