Workshop No.

5
Review of Related Literature
December of last year, the entire nation was shocked

at the news of privileged inmates at the Bilibid prison.

Convicted drug lords have been in luxury cells with guns,

drugs and other contraband including stashes of US dollars,

a jacuzzi and a stripper bar. It reflects a sad reality

that our country relative to the proliferation of loose

firearms and the growing drug industry cannot contain.

Drug Situation in the Philippines

According to the United Nations Drug Report 2012, the

Philippines has the highest abuse rate for methamphetamine

hydrochloride, or shabu, in East Asia. The UN report was

cited by the US Department of State in its 2012

International Drug Control Strategy Report, which is posted

on the website of the US Embassy in Manila. The state

department also disclosed that 2.1 percent of Filipinos

aged 16 to 64 were using shabu, and domestic consumption

of methamphetamine and marijuana continued to be the main

drug threats in the Philippines.(Retrieved May 10, 2015

from http://newsinfo.inquirer.net/168143/un-drug-report-

philippines-has-highest-rate-of-shabu-use-in-east-asia,

10:55 PM).
 Furthermore, Citing Philippine Drug Enforcement Agency

records, it reported that in 2011 PDEA conducted 9,850

anti-illegal drug operations resulting in the arrest of

8,491 suspects and 9,995 cases being filed. It higligthed

that many Philippine citizens are being used as drug

couriers by transnational drug trafficking organizations

gained national attention when (four) Filipinos were

executed in China for drug trafficking.

Recently, the case of Mary Jane Veloso on human drug

trafficking caught international attention. Veloso, 30, was

sentenced to death in October 2010 for attempting to

smuggle heroin into Indonesia from Malaysia. Violation of

human rights has been mundanely observe and it is socially

and morally excrucianating.

These recent events that shocked our country and

caught attention of the masses are in dire need for special

attention from our goverment to review our policies and

prevailing legislation on drugs and human trafficking in

order to address the problem as the necessity requires.

Governing Law on Drugs

The prevailing law on dangerous drugs is R.A. 9165

also known as the Comprehensive Dangerous Drugs Act of

2002 Section 2 of the law provides 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.

In People of the Philippines v. Wu Tuan Yuan and Peter

Co, It recogzized the time honored principle that drug

addiction is one of the most pernicious evils that has ever

crept into our society. More often than not, it is the

young who constitute the greater majority of the citizenry

who are the victims.

Nature of the Crime

Violation of R.A. 9165 is a malum prohibitum because

it punished an offense under a special law. It is wrong

because it is prohibited by law. Without the law punishing

the act, it cannot be considered wrong. As such a mere

commission of said act constitutes the offense punished

and suffices to validly charge and convict and indiviidual

caugth committing the act so punished regardless of the

ccriminal intent (Leonor D. Boado, Notes and Cases on

special Penal laws p. 455, 2007).

Illicit drug trafficking in the Philippines remains

difficult to bring to a halt due to new modus operandi and

the involvement of persons of authority. Although there are

measures to combat illicit drug syndicates, statistics show

that this is still an alarming predicament in the country.

Marijuana and methamphetamine hydrochloride (shabu) remain

the preferred drugs by the drug users, thus making it still

the most available drugs in the country. Along with

ephedrine and methylenedioxy methamphetamine (MDMA) or

ecstasy, these substances are at an alarming rate of

cultivation (growth, production, and possession), trade,

and consumption (Philippine Center for Transnational Crime,

2013).

According to the Philippine Drug Enforcement Agency

(PDEA), some areas of the country are conducive for

marijuana cultivation, especially in mountainous areas of

Northern Luzon, Eastern Visayas and Mindanao. Marijuana

produced locally are distributed domestically and exported

to other countries. Statistics also imply that the local

distribution of marijuana increased in 2012, deeming that

the eradication of plantation sites do not necessarily

translate to the decrease or elimination of the illicit

trade and use of marijuana in the country (Philippine Drug

Stituation, PDEA Report, p.14-18, 2013).

Since 2010, drug syndicates established small-scale

laboratories and kitchen-type clandestine laboratories to

lower the risk of detection of shabu production. From

renting warehouses to be used as shabu laboratories,

syndicates shifted to renting houses in exclusive

subdivisions, condominiums and apartments. Medium-type to

kitchen-type shabu laboratories have resorted to operations

in posh villages and condominiums in order to further

conceal their activities. Private properties are becoming

the popular target of syndicates in manufacturing illicit

drugs, mainly due to the lower risk of detection these

locations provide.

With increasing cases of illicit drug trade,

authorities emphasized the importance of law enforcement

measures with the enactment of R.A. 9165 to deal with the

drug problem in the country. From January to December 2012,

a total number of 9,885 nationwide operations have been

conducted by PDEA, which led to the arrest of at least

10,159 persons. A majority of 5,724 of this number were

identified as drug pushers, and 1,965 as users. A total

number of 12,534 cases have been filed in the same duration

covered (PDEA Report).

In the column of Danilo Suarez on Manila Standard

Today dated January, 22, 2015, Deputy Director General

Felipe Rojas Jr., PNP deputy chief for administration, said

that 75 percent of crimes nationwide are drug-related and

65% of our inmates are incarcerated because of drug-related

cases(Retrieved May 8, 2015 from

manilastandardtoday.com/2015/01/22/drugs-and-guns-in-the-

philippines/, 11:00 PM).

Apprehension of Drug Offenders

In our jurisdiction, apprehending officers conduct a

buy-bust operation to apprehend drug offenders. In People

v. Salcena, the court recognized that a buy-bust operation

is a form of entrapment, which in recent years has been

accepted as valid and effective mode of arresting violators

of the Dangerous Drugs Law. It has been proven to be an

effective way of unveiling the identities of drug dealers

and of luring them out of obscurity. To determine whether

there was a valid entrapment or whether proper procedures

were undertaken in effecting the buy-bust operation, it is

incumbent upon the courts to make sure that the details of

the operation are clearly and adequately established

through relevant, material and competent evidence. The

courts cannot merely rely on, but must apply with studied

restraint, the presumption of regularity in the performance

of official duty by law enforcement agents. Courts are

duty-bound to exercise extra vigilance in trying drug cases

and should not allow themselves to be used as instruments

of abuse and injustice lest innocent persons are made to

suffer the unusually severe penalties for drug offenses.

Thereafter, the confiscation and seizure of drugs

require a specific chain of custody, the Court exhorted

that the Courts to be extra vigilant in trying drug cases

so an innocent person is not made to suffer the unusually

severe penalties for drug offense. The Supreme Cout

recognizes that a buy-bust operation carries a built-in

danger for abuse because, by its ver nature, anti-narcotics

operation involes the need of entrapment procedures and the

use of shady characters as informants and the secrecy that

shrouds drug deals enables the planting of marijuana or

heroin. Such operation therefore, have to be governed by a

specific procedure with respect to the seizure and custody

of drugs (Riano,2013).

In People v. Almodiel, Although there was no warrant,

once the arrest was lawfully made, the search incidental to

the arrest was also valid. A person lawfully arrested may

be searched without a warrant, for dangerous weapon or

anything which may have been used or constitute proof in

the commission of an offense. In this case, the two sachet

of shabu was confiscated, hence they are admissible as

evidence.

Prosecution of Drug Cases

In a prosecution for illegal sale of a prohibited drug

under Section 5 of R.A. No. 9165, The elements necessary

for the prosecution of the illegal sale of drugs are: (1)

the identities of the buyer and the seller, the object, and

the consideration; and (2) the delivery of the thing sold

and the payment therefor. What is material to the

prosecution for the illegal sale of dangerous drugs is the

proof that the transaction or sale actually took place,

coupled with the presentation in court of evidence of

corpus delicti. Annent thereto, considering the illegal

drug's unique characteristic, there is a need to comply

strictly with procedure in its seizure and custody known as

the unbroken chain of custody; otherwise acquittal will set

in. In our Jurisdiction, a lot of drug related cases

resulted to acquittal in lower court because on non-

compliance on the strict provision of unbroken chain of

custody, despite the existence of the corpus delicti and

other evidences.

Supreme Courts Observation on Drug Cases

Aside from the growing number of drug related cases,

drug conviction in this country is hard to prove, this

manifests higher acquittal in lower courts rather than

conviction because of merely procedural lapses committed

by the apprehending officers. In people v. Garcia G.R. No.

173480, 25 February 2009, 580 SCRA 259, The Supreme Court

observed the statistics relating to dismissal and acquittal

in dangerous drugs cases. There it mentioned that [u]nder

PDEA records, the dismissals and acquittals accounted for

56% because of the failure of the police authorities to

observe proper procedure under the law, among others. It

noted an international study conducted in 2008, which

showed that out of 13,667 drug cases filed from 2003 to

2007, only 4,790 led to convictions (most of which were

cases of simple possession); the charges against the rest

were dismissed or the accused were acquitted. On the cases

filed with the supreme Court from 2006 to 2011 show that,

out of those in which this Court made acquittals and

reversals, 85% involved failure of the prosecution to

establish the arresting officers compliance with the

procedural requirements outlined in Section 21 of R.A.

9165.

Strict Compliance on Chain of Custody

In drug related cases, strict procedural compliance is

observed, this is known as the chain custody. According to

the case of People v. Langcua, the Supreme Court held that

the purpose of chain custody is to guaranty the integrity

of the physical evidence and prevent the introduction of

evidence which is not authentic. It is to ensure the that

the integrity and evidentiary seized items are preserved,

so much so that unnecessay doubts as to the identity of the

evidence are removed.

This procedure is known as the Chain of Custody rule

mentioned in Section 21 of R.A. 9165. In People v.

Obmiranis, Chain of Custody means the duly recorded

authorized movements and custody of seized drugs or

controlled chemicals or plants sources of dangerous drugs

or laboratory equipment of each stage, from the time of

seizure or confiscation to receipt in the forensic

laboratory to safekeeping to prsentation in court for

destruction. Such record of movements and custody of

seized item shall include in the identity and signature of

the person who held temporary custody of the seized item,

the date and time when such transfer of the custody were

made in the course of safekeeping and use in court as

eveidence, and the final disposition.

The first stage in the chain custody is the marking of

the dangerous drugs or related items. In the case of People

v. Gonzales, marking involves the the affixing on the

dangerous drugs or related items by the apprehending

officer or of the poseur-buyer of his initials or signature

or other identifying marks, should he made in the presence

of the apprehended violator immediately upon arrest. The

marking immediately upon confiscation or recovery of the

dangerous drugs or related items is indispensable in the

preservation of their integrity and evidentiary value.

Morever, Chain custody as a method of authenticating

evidence, the chain of custody rule requires that the

admission of an exhibit must be preceded by evidence

sufficient to support a finding that the matter in question

is what the proponent claims to be. This according to

Malilin v. People would include testimony about every link

in the chain, form the moment the item was picked up to the

time it was offered into evidence, in such a way that every

person who touched the exhibit would describe how and from

whom it was received, where iit was and what happened to it

while it was in the witness possession, the condition in

which it was received and the condition in which it was

delivered to the next link in the chain.

Although testimony about a perfect chain is not always

the standard because it is almost always impossible to

obtain an unbroken chain of custody, it becomes

indispensable and essential when the item or real evidence

is not distinctive and is not readily identifiable, or when

its condition at the time of testing or trial is critical,

or when a witness has failed to observe its uniqueness. The

same standard is likewise obtains in case the evidence is

susceptible to alteration, tampering, contamination and

even substitution and exchange (Fajardo v. People, 677 SCRA

541, July 25, 2012).

Exception to the Chain Custody, Saving Clause

Several Supreme Court Rulings mentioned in the above

cited cases reiterate that R.A. 9165 has a strict mandate

for the arresting officers to comply with the afore-quoted

procedural safeguards. Supreme Court further note that,

before the saving clause provided under it can be invoked,

Section 21(a) of the IRR requires the prosecution to prove

the twin conditions of (a) existence of justifiable grounds

and (b) preservation of the integrity and the evidentiary

value of the seized items. In this case, the arresting

officers neither presented nor explained justifiable

grounds for their failure to (1) make a physical inventory

of the seized items; (2) take photographs of the items; and

(3) establish that a representative each from the media and

the Department of Justice (DOJ), and any elected public

official had been contacted and were present during the

marking of the items. These errors were exacerbated by the

fact that the officers had ample time to comply with these

legal requirements, as they had already monitored and put

accused-appellants on their watch list. The totality of

these circumstances has led us to conclude that the

apprehending officers deliberately disregarded the legal

procedure under R.A. 9165. These lapses effectively

produced serious doubts on the integrity and identity of

the corpus delicti, especially in the face of allegations

of frame-up.

Despite the presumption of regularity in the

performance of the official duties of law enforcers, The

Court stress that the step-by-step procedure outlined under

R.A. 9165 is a matter of substantive law, which cannot be

simply brushed aside as a simple procedural technicality.

It is truly distressing how courts are constrained to make

acquittals, dismissals, or reversals because of the

inadvertent failure of arresting officers and the

prosecution to establish compliance or justify

noncompliance with a statutory procedure. It is even more

troubling when those cases involve apparently known or

long-suspected drug pushers. Congress was clear in its

declaration on the eradication of the drug menace plaguing

our country. Yet, also firm and stringent is its mandate to

observe the legal safeguards under R.A. 9165 (People v.

Ancheta, et. al. G.R. No. 197371, June 13, 2012)

However, the Court has also consistently ruled that

procedural lapse is not fatal and will not render the items

seized inadmissible in evidence. What is of utmost

importance is the preservation of the integrity and

evidentiary value of the seized item, as the same would be

utilized in the determination of the guilt and innocence of

the accused. In other words, to be admissible in evidence,

the prosecution must be able to present through records of

testimony, the whereabouts of the dangerous drugs from the

time thee were seized from the accused by the arresting

oficers turned-over to the investigating officer; forwarded

to the laboratory for determination of their composition;

and up to the time these are offered in evidence. For as

long as the chain of custody remains unbroken, as in this

case, even though the procedural requirements provided for

in Sec. 21 of R.A. No. 9165 was not faithfully observed,

the guilt of the accused will not be affected. The

integrity of the evidence is presumed to have been

preserved unless there is a showing of bad faith, ill will,

or proof that the evidence has been tampered with.

Appellants bear the burden of showing that the evidence was

tampered or meddled with in order to overcome the

presumption of regularity in the handling of exhibits by

public officers and the presumption that public officers

properly discharged their duties (People v. Octavio, G.R.

199219, April 3, 2013).

Rights of Drug Offenders

Article III, Bill of Rights of the 1987 Philippine

Constitution list down the fundamental rights of the

accused. These rights vested by law should not be impaired,

particularly the presumption of innocence of the accused.

Hence, any doubt would resolve in favor of the accused.

Following the rule that penal laws shall be construed

strictly against the government and liberally in favor of

the accused, in People v. Dela Cruz, the apprehending

teams omission to observe the procedure outlined in R.A.

9165 in the custody and disposition of the seized drugs

significantly impairs the prosecutions case.

 An observation however was made in article written by

Romeo B. Fortea in Ateneo Law Journal entitled The Right of

the Accused to Bail in Capital Offense: An Illusion ,

September 2013, that drug offenders most of the time were

not given an opportunity to bail. He made an observation in

the case of People v. De La Rosa,2011, that when the

accused was arrested ,during an alleged buy-bust operation,

subjected to inquest and was indicted for violations of RA

9165. No bail was recommended. The defense, immediately

appplied fo bail, and simultaneoulsy filed a motion to

suppress. Bail hearings did not commence until about a year

from filing of the application for bail. The bail hearing

also dragged on for over year. Only then, after a year of

prosecutioon initated-postponements, the prosecution first

witness took the witness stand. However, the defense saw no

point for the court to proceed any further with the

prosecution of the accused if in the end the case would be

dismissed for non-compliance of chain custody. The author

is in opinion that fault lies in the court, that the court

erred in not dismissing the case outright for failure of

the arresting officers to comply with the requirements of

Sec. 21 of RA 9165, because of which the right of the

accused that no person shall be deprived of life, liberty

and property has been violated. However, knowing the slow

pace of litigation in our country, the failure of the

judicial system to address the problem confronting the

accused who has a pending application for bail for a long

period results, wittingly, or unwittingly, in the continued

pre-trial detention of the accused as if he were already

serving his sentence. Until a specific Supreme Court rule

is prescribed on how exactly bail should be time-managed on

non bailable offense, the accuseds right to bail

particularly in drug offenses is an illusion.

Aside from the fact that drug situation in the

Philippines is rampant, it is also undeniably true that

litigation of drug cases is laborious and dragging. Sadly,

many of them resulted to dismissals or acquittals due to

inadvertent of apprehending officers. Despite strong

campaign of the government against dangerous drugs and the

gravity of its punishment, yet drug cases are still

increasing and profilerating in this country, which calls

for an immediate attention from our goverment to review and

strengthen our policies on drug related cases.