By: Tetay Mendoza
House Bill 7814 or “An Act Strengthening Drug Prevention and Control” is already in the pipelines towards becoming a law before the current Congress ends. It was passed on third and final reading at the House of Representatives and is now being heard in the Senate Committee on Public Order and Dangerous Drugs. This bill does not only reinstitute death penalty for certain drug offenses in violation of the International Covenant on Civil and Political Rights and its Second Protocol, it also increases the fine up to PHP 10 Million. Worse, and unprecedentedly so, it wreaks havoc to a Constitutional provision, one of the basic principles criminal justice system is founded on –the presumption of innocence afforded to the accused.
In a criminal proceeding, a conviction must merit proof beyond reasonable doubt. Because of deprivation of liberty attached to criminal offenses coupled with the challenge of going against the almighty People of the Philippines represented by the prosecutors, it is the job of the State to prove that the accused is guilty. It is not the other way around. However, this bill shifts the burden of proof to the accused, left to his or her own devices (sometimes with the help of an overworked, underpaid PAO lawyer), and flips the Bill of Rights over to favor the State.
The problematic part starts and does not in any way end there. The situations when the presumptions attach are all quite legally untenable and simply absurd. The drafters of this bill have created flimsy criteria that give birth to a “more dangerous” Dangerous Drugs Law and a cabal of new drug suspects who are now required by the State to explain themselves.
For instance, the Presumed Exporter and Importer is someone caught transporting dangerous drugs, controlled precursors, and essential chemicals in and out country and as such is “found to have in his/her possession or under his/her direct or indirect control any purchase order, memorandum receipt, delivery receipt, bill of lading, or any similar document” evidencing the exportation or the importation of the prohibited items.
It does not take anyone to watch all seasons of Breaking Bad to know that when you are smuggling drugs or any contraband for that matter, you do not keep receipts. In cases where a rather legal shipment turns out to be containing drugs as cargoes, the lack of knowledge of the existence of the contraband in an otherwise valid transaction is a defense. This bill turns this around and requires the exporter or the importer to prove lack of knowledge. Prove before the court that you do not know that there were drugs. For the shipper, maybe a photo or video evidence of what goods are to be transported and a CCTV camera footage of the goods while in transit to make sure nothing is suddenly enclosed with the package. For the consignee, or the receiver of an imported good, you will just never know. That is just the risk you now have to take every time you order something abroad. As for the photo or video evidence of the goods, assuming nothing is technologically manipulated, again, you don’t need to watch all the documentaries about Pablo Escobar to know that contrabands are not something you ship in plain view.
The other presumptions are less complicated but more absurd.
For the authors of this bill, refusal to submit to a urine test within twenty-four hours after arrest, presumes that you are a drug user. Having actual control of a private property where drugs are concealed presumes possession of drugs. Just hanging out within the immediate vicinity of an area where a drug transaction takes place, presumes selling; within the premises of a drug laboratory, presumes involvement in manufacturing. Any person who did not follow the rules of procedure on arrest, search, and seizure is presumed to have planted evidence. A negligent lessor who failed to visit and inspect her leased property at least once every quarter is presumed to have given her consent to the illegal use of the leased property. She might pay a fine of One Million Pesos and might go to jail for six to twelve years.
Moreover, presumed financiers and presumed coddlers of drug offenders might also be implicated. A presumed financier could be an innocent parent who did not know how her money was spent when she gave it to her kid. Under certain circumstances, according to the bill, she might end up in the death row, too. Meanwhile, a presumed coddler is another drug offender of a crime which penalizes anyone who wants to be a good Samaritan and defend another person wrongfully accused of a drug offense. This person could be a barangay captain or a concerned neighbor, or any citizen who refuses to tolerate an injustice.
Somehow, being in the wrong place at the wrong time is now your fault. To get out of legal trouble, you must now build a solid defense to be able to compete with the tax-paid resources the prosecution has at its disposal. You will need a good lawyer. You will need people willing to testify on your behalf. You will need to procure evidence yourself. You will need expert witnesses. You will have to go to court and face the State that has investigators, forensics, state lawyers, special agents, police officers. You will need to prove your innocence against all of them. Meanwhile, the prosecution only needs to show the court that you were there, or your name was on the receipts, or that you did not visit your property last quarter.
According to its sponsors, House Bill 7814 will give our existing drug laws “more teeth” by enacting these presumptions aiming to strengthen drug prevention and control. A cursory reading of the provisions convey that what they really wanted was simply to make the job of the prosecution easier to the point of unconstitutional absurdity. Will the bill strengthen drug prevention and control? That is debatable. Will it violate the rights of the accused? Certainly. Will its enactment be in total disregard of the principles of criminal justice and human rights similar to what the government has done and has been doing? The answer might not rather be a surprise.
The idea that our drug laws need “more teeth” is a total hard sell. Given the failure of the government’s already intense, well-oiled, enduring campaign against drugs, what drug policy in the Philippines could actually use is perhaps “more brain”.