Prosecution flaws bog down govt campaign against illegal drugs

MANILA, Philippines - For many years, Chinese national Cai Qing Hai had been on the list of Asia’s “most wanted drug manufacturers and traffickers," with law enforcers from three countries—the Philippines, China and Malaysia—hot on his trail. Cai was no ordinary drug dealer. He headed a transnational syndicate, which Chinese authorities said produced 1.7 tons of methamphetamine hydrochloride or “shabu" in the three countries. He was also slippery prey—in 2005, he escaped prison by bribing his jailers in Malaysia just as they were about to hand him over to Chinese law enforcers. Cai then fled to Manila, which he has considered his second home since he was 13. In October 2007, Philippine anti-narcotics agents caught up with Cai, then 36 and using the alias Bruce Esteban Ong, in his clandestine shabu laboratory in Sta Cruz, Laguna. They thought they had helped put an end to the activities of one of Asia’s most dangerous men. To their dismay, however, State Prosecutor Melvin Abad decided three months later not to file a case against Cai and his accomplices in court. Abad said he had found no “probable cause" despite what anti-narcotics agents found in the lab: chemicals and equipment that could produce 200 kilos or about P1 billion worth of high-grade shabu a month. Cai’s case is just one of several major drug cases that illustrate how the fight against prohibited drugs is weakened when government prosecutors fail to appreciate evidence. In worse cases, government lawyers have prematurely judged police operations to be irregular or even accepted bribes in exchange for dismissing charges, an accusation the Philippine Drug Enforcement Agency (PDEA) has made against prosecutors in the “Alabang Boys" case. The Alabang Boys— Richard Brodett, Jorge Joseph and Joseph Ramirez Tecson—were arrested by PDEA agents in a drug bust last September. Allegations of bribery and improprieties forced President Gloria Arroyo last month to intervene in the public bickering between the PDEA and the Department of Justice (DOJ). In the latest twist to the Alabang Boys’ story, prosecutor John Resado is being investigated by the Anti-Money Laundering Council because his bank records show an P800,000 deposit on the same day he recommended the boys’ release. Arroyo has taken over the anti-drug campaign. She has declared herself anti-drug czar, ordered Justice Undersecretary Ricardo Blancafor and state prosecutors implicated in the case to go on leave, and directed the DOJ to submit for her “automatic review" all cases dismissed under the Republic Act No. 9165 or the Comrephensive Dangerous Drugs Act of 2002. To be fair, a number of government lawyers have been doing their job in prosecuting major drug cases, or those involving the operation of clandestine labs, importation of illegal drugs and the sale and possession of a sizable amount of illegal drugs. All these carry life imprisonment. Of the 31 major drug cases resolved since 2003, 19 ended in convictions, including that of former Panukalan, Quezon Mayor Ronnie Mitra who was caught transporting more than 500 kilos of shabu to nearby Infanta town in 2001. Majority of those who have been convicted are Chinese. But it is an altogether different picture for all drug cases in general, both big and small. Of the 99,754 cases filed over the last six years, only 6,862 or a mere 7 percent led to convictions, far outnumbered by the 12,500 dismissed or acquitted cases. Conflicts between government prosecutors and anti-drug agencies in the handling of drug cases can happen anytime from arrest to imprisonment. As the cases of Cai in Laguna and the Alabang Boys demonstrate, they can begin during the inquest or preliminary investigation when prosecutors block the filing of cases against drug suspects in court. Abad, whose resolution not to file charges against Cai was approved by Senior State Prosecutor Philip Kimpo as vice chairman of the DOJ’s Task Force on Anti-Dangerous Drugs and Chief State Prosecutor Jovencito Zuno, accepted Cai’s defense that law enforcers kidnapped him two days before the raid. In this case, Abad said, “The presumption that police authorites performed their duties in a regular and proper manner cannot be applied." Fortunately for law enforcers, Cai was facing another case in a Quezon City court, this time under the alias Randy Chua Ngo and arising from a raid in 2003 on an abandoned property in New Manila, Quezon City he had supposedly turned into a shabu factory as well. In April 2008, Justice Secretary Raul Gonzalez ordered the city prosecutor to withdraw the case for “insufficiency of evidence," citing Cai’s defense that the property was being leased by someone else. But Judge Rafael Lagos would not hear of it. Said the judge: “Considering that the PDEA and the NBI (National Bureau of Investigation) had him (Cai) in their ‘most wanted’ drug personalities list and he appears to be have been arrested in different clandestine drug laboratory raids both here and abroad, the DOJ should not have actually believed his defense hook, line and sinker." Lagos also called the DOJ’s attention to a report from the Anti-Money Laundering Council detailing Cai’s multi-million-peso bank accounts. One savings account recorded transactions of up to P142 million from 2000 to 2003, while a current account held P53 million during the same period. Cai is currently detained at the Philippine National Police Custodial Center. The Cai case also shows how powerful the justice secretary is in deciding the fate of suspects in drug cases. When a drug case reaches the court, it is the DOJ secretary himself who would at times set aside a prosecutor’s resolution finding probable cause and order the prosecutor to withdraw the case or information. This usually puts the prosecutor in a bind: How vigorously should he still pursue the case, especially when the court refuses to junk the charges? Like Judge Lagos, Quezon City Judge Fernando Sagun Jr. rejected last May a DOJ resolution dated June 20, 2007 in which Gonzalez directed the prosecutor to withdraw the information filed against suspected drug pusher Herberto Belino, calling it “too premature and definitely not proper at this stage." Gonzalez said he found it “very incredible" that Belino sold the drugs “in broad daylight, in a busy street and open to the public." The DOJ secretary also noted that the money used in the buy-bust was not pre-marked, not pre-dusted by flourescent powder and not indicated in the pre-operation coordination sheet according to procedures. In his ruling, however, Sagun said, “The elements necessary in every prosecution for the illegal sale of dangerous drugs are the identity of the buyer and seller, the object, and the consideration; and the delivery of the thing sold, and the payment therefor." He added, “Jurisprudential rule abounds that so long as the sale of the dangerous drugs is adequately proven and the drug itself was presented in evidence in court, the accused can be convicted on the basis thereof." Similarly, on Jan. 24, 2008, Sagun spurned the prosecutor’s motion to withdraw the case against Hung Ching Wei on yet another order from Gonzalez, who again cited “blunders" in the buy bust operation: The police purportedly failed to photocopy the marked money before the operation, failed to hand over the marked money to Hung, and interrogated him without a counsel. But, invoking Supreme Court rulings, Sagun said, “There is no textbook method of conducting buy bust operations." He also cautioned that it would be unwise early on in the case for the DOJ to give more credit to Hung’s alibi, stressing that “rules and jurisprudence abound that the police have in their favor the presumption of regularity in the performance of official duties." Withdrawing the case, the judge also said, “would be doing great injustice unto the complaining witnesses, who like the respondents, are also entitled to prove the merits and demerits of their allegations before the courts of law." Drug cases pass through the justice secretary’s desk as part of “automatic review," a process where the DOJ chief either upholds or reverses cases dismissed by Metro Manila city prosecutors, the chief state prosecutor or regional prosecutors. Often, however, the decision on whether to pursue or dismiss a case rests on the prosecution at the inquest or preliminary investigation level. Law enforcers are sometimes baffled at the speed with which prosecutors dismiss cases, such as that of Thai national Anchulee Yonganukul. Anchulee was caught on Jan. 27, 2007 at the Ninoy Aquino International Airport transporting prohibited drugs. Police filed a case against her before the Pasay City prosecutor’s office on Jan. 28. A hearing was held on Jan. 29. The case was submitted for resolution on Feb. 1. On Feb. 2, the prosecutor dismissed the case against Anchulee and ordered her release. All these happened in just seven days. Even more puzzling are cases where prosecutors contradict themselves, asking the courts to dismiss cases they themselves filed. Motions to dismiss, in general, are filed by the defense and not by the prosecution, which files motions to withdraw information. No one perhaps beats the record of Cotabato City Prosecutor Wilfred Buyco who in one year moved to withdraw or dismiss 34 drug cases in the different courts in the Autonomous Region of Muslim Mindanao. Since 2003, the government has clinched only four convictions out of the 674 cases filed in the ARMM. A total of 159 cases or about a fourth have been dismissed. The reasons oft-cited by Buyco for seeking to withdraw or dismiss a case range from procedural lapses by arresting officers and insufficient evidence, to what he deemed as the more convincing accounts of the accused than police operatives and the lack of legal basis to charge the suspects. Although small quantities of drugs—usually just a few grams of shabu—are involved, Buyco’s acts have become a “cause for concern" for PDEA, which has gone to the courts various times to oppose his motions. “There are so many cases. If you total all these few grams, they amount to something big," said a PDEA official, who added that the agency suspects drug trafficking profits being used to buy firearms for bandit or rebel groups. To the credit of Gonzalez and regional state prosecutors, there have been instances when they reversed recommendations of prosecutors to dismiss drug cases. Last Nov. 10, the justice secretary contradicted Assistant Provincial Prosecutor Patrick Noel de Dios’s position dismissing the case against Anselmo Raagas and ordered the filing of charges in connection with his arrest in Taguig City in December 2006 for possession of shabu. On two occasions last year, Cagayan Valley’s Regional State Prosecutor Rommel C. Baligod rejected the resolutions of the provincial prosecutor and Santiago City’s prosecutor clearing drug suspects, and directed them to file the information in court. Baligod explained in his order: “The objective of a preliminary investigation is to determine only the existence of a probable cause, whether or not there is a probability that the respondent committed the crime charged. It is not a venue to determine the guilt of the respondent with moral certainty, neither is it the proper forum for a full display of all evidence. It does not deal with certainties but instead, it aims to establish a mere probability. It does not end all hopes for the respondent for a vindication in case the resolution is adverse to him. His innocence, if indeed he is, can still be claimed in a full-blown trial before the courts. On the other hand, dismissing the case on preliminary investigation on flimsy grounds prematurely deprives the State of its opportunity to prove the case and demand retribution." Sometimes, though, it takes the Supreme Court to notice the mistake committed by government prosecutors in drug cases. In August 2000, the High Court’s Second Division affirmed the conviction of Arnel Montano, who was arrested in January 1996 along with Hector Tinga, a cousin of former Taguig congressman and now Supreme Court Associate Justice Dante Tinga, for the sale of 229.7 grams shabu in Taguig City. Prosecutor Ferdinand Abesamis only charged Montano in court, citing “insufficiency of evidence" against Tinga. The tribunal, however, ordered a copy of its decision given to the justice secretary “for whatever action he may deem necessary to take in the case of Hector Tinga." The court took note of the testimonies of the arresting team that it was Tinga who had brought out two plastic packets of shabu from his pocket and counted the purchase money together with Montano. Provincial Prosecutor Emmanuel Velasco acknowledged the “few rotten eggs" in their midst, saying the new round of charges of corruption is a “wake-up call" for the prosecution service. But he insisted, “We have many excellent and professional prosecutors in the DOJ who work with integrity." Another state prosecutor, meanwhile, lamented Gonzalez’s inaction of complaints against erring government lawyers. “He (Gonzalez) knows who these people are," the prosecutor said. “He should show his political muscle by removing these people." The Alabang Boys case drew attention to the flaws on the prosecution side of the anti-drug campaign. What set the case apart from others where state lawyers had previously recommended for dismissal is the Dec. 2 resolution signed by Resado and approved by Kimpo and Zuno: It contained both the recommendation to dismiss the case and the order to immediately release Brodett, Joseph and Tecson. The recommendation to dismiss and the release order in other cases came in separate resolutions. But if there was one thing good that came out of the ruckus over the Alabang Boys, it compelled Gonzalez to clarify last Jan. 7 that a case dismissed by a prosecutor that is pending automatic review does not mean that the suspect can already be set free, as the state prosecutors, several DOJ officials and the lawyers of the Alabang Boys had insisted. Recently, the Court of Appeals that heard the writ for habeas corpus of the Alabang Boys concurred with Gonzalez. The PDEA had long asked the DOJ to clarify the automatic review process provided in then Justice Secretary Simeon Datumanong’s Department Order No. 46 issued in 2003. Under the order, the justice secretary reviews cases dismissed by the chief state prosecutor, regional state prosecutors and Metro Manila’s city prosecutors, while the regional state prosecutors review those dismissed by city and provincial prosecutors. But the order was silent on whether a suspect ought to be released while the review was ongoing. As a result, the PDEA and other anti-drug agencies had, until recently, left regional offices to “exercise their best judgment" in deciding whether or not to free a suspect whose case was being reviewed. PDEA’s Metro Manila office, for example, once held a suspect in its custody for two years while awaiting the outcome of the justice secretary’s review. In contrast, its Region 2 office released a suspect on the local prosecutor’s order. When it later learned that the regional state prosecutor had reversed the order, the suspect had gone into hiding. (VERA Files is put out by veteran journalists taking a deeper look into current issues. Vera is Latin for “true.")