Local government in the Philippines plays an important but infrequently discussed role in President Rodrigo Duterte’s so-called war on drugs, also known as Oplan Tokhang, which has left anywhere from 3,967 to 20,322 dead by the government’s own count. Between the regulations of the Department of the Interior and Local Government (DILG), the Philippine National Police (PNP), and the Office of the President, the central government of the Philippines has converted local government into the front line of the war on drugs.
With the constitutionality of Oplan Tokhang under scrutiny in the Supreme Court, it is essential to recognize that the foundations of Oplan Tokhang long predate the Duterte administration in order to curb expectations for major reforms. By the time Duterte first announced Oplan Tokhang in 2016, the institutional infrastructure to implement it was already in place, though dormant and underdeveloped. As a consequence, the Supreme Court is not likely to fundamentally transform the structures that underpin the prosecution of Oplan Tokhang, regardless of its decision. Oplan Tokhang is essentially an outgrowth or extension of policies that preceded its inception; policies that are likely to remain largely intact by virtue of their longstanding basis in law.
The legal foundations of Oplan Tokhang can be traced back to Section 16 of Republic Act (RA) No. 7160, also known as the Local Government Code (LGC) of 1991. Section 16 states that local governments shall exercise both explicit and implied powers to promote general welfare, including the improvement of “public morals” such as drug-free communities. Failure to exercise these powers can result in the disciplining and/or removal of the liable local executive per Section 60 of the LGC. Additional penalties regarding the revocation of local government authority are stated in the RA 6975 or “Department of the Interior and Local Government Act of 1990.” In summation, RA 6975 and RA 7160 provide the foundation for the relationship between the DILG, PNP, and LGUs with respect to illegal drugs. Through this legislation, the DILG is empowered to regulate and assess the conduct of LGUs, setting standards for local governance through the issuance of documents known as Memorandum Circulars, and penalize noncompliance.
Pursuant to Section 16 of the LGC, DILG Memorandum Circular (MC) No. 98-227 mandated the creation of Anti-Drug Abuse Councils (ADACs) at the provincial, municipal, and barangay levels of governance. Since MC No. 98-227, the composition, activities, and oversight of ADACs shifted over the course of numerous revisions by the DILG. MC No. 2004-007 called for barangays to form BADAC Auxiliary teams of at least 25 volunteers per every 2,000 residents, with the “suggested” duties of identifying drug users and pushers to the BADAC, engaging in community anti-drug advocacy, and reporting on the progress of these efforts. MC No. 2012-94, “Strengthening the City, Municipal, and Barangay Anti-Drug Abuse Councils,” did as entitled by formalizing the structure and duties of each level of ADAC, while the “powers and functions” of BADACs were formalized under MC No. 2015-63.
BADACs are led by the Barangay Captain (Punong Barangay) and the Barangay Chairman of the Peace and Order Council. The additional membership of BADACs varies somewhat according to each LGU, but is generally comprised of local government executives, NGOs, and religious representatives. Reporting to the BADAC leadership are the Operations and Advocacy committees, each with their respective duties.
The Operations Committee is responsible for compiling reports of “users, pusher, financiers, and/or protectors of the illegal drug trade,” to be sent to the Municipal and City ADACs, in addition to the PNP. Prior to anti-drug operations, the Operations Committee is responsible for briefing PNP and Philippine Drug Enforcement Agency (PDEA) authorities, conducting administrative searches of suspects’ premises, witnessing PNP/PDEA operations, preserving evidence, and reporting after-action reports of drug-clearing operations to ADACs and DILG field offices. Meanwhile, the Advocacy committee is responsible for maintaining relations between the BADAC, PNP/PDEA, and the community by such methods as organizing an award/commendation system for citizens reporting drug suspects, and organizing livelihood programs for former addicts and pushers.
To enhance the community participation of ordinary citizens in the anti-drug campaign, the DILG issued MC No. 2016-116 implementing the Mamamayang Ayaw Sa Anomalya, Mamamayang Ayaw Sa Iligal na Droga (MASA MASID) program. Subsequently revised by MC No. 2017-112, which is now under judicial review, MASA MASID enjoins the community members across LGUs to organize volunteer groups that cooperate with local government and law enforcement in order to counter the drug trade, corruption, and violent extremism through advocacy programs and reporting.
Evaluation standards for MASA MASID and ADACs are laid out by the Dangerous Drug Board’s Board (DDB) Regulation No. 3, which list three classifications for barangays; (1) Drug Unaffected; (2) Drug Affected; and (3) Drug Cleared. In order for a Drug Affected barangay to be declared Drug Cleared, they must meet 14 parameters including the absence of a drug-supply, the absence of drug production facilities, the absence of drug users, pushers, protectors, financiers, and the active maintenance of community anti-drug advocacy programs.
To classify the status of a barangay, Board Regulation No. 3 establishes an oversight committee chaired by a PDEA representative, vice-chaired by a DILG representative, and additionally comprised of representatives from the PNP, Department of Health, and the LGU. This committee undertakes constant monitoring of the barangay, and submits quarterly validations of the barangay’s status. In addition, barangay-stationed PNP are to submit monthly reports on their activities to the higher echelons of the PNP command, while the BADAC must submit a record of its activation to the Municipal ADAC to which it reports.
Of course, the preceding selection of legislation and regulations do not comprise a comprehensive account of the Philippine legal canon in the area of local government and counter-narcotics programming. However, they are representative of the Philippines’ administrative approach to the war on drugs at the local level. This approach is characterized by the deployment of parallel groups including BADAC Operations Committees, MASA MASID volunteers, local police units, and paid PDEA civilian informants sharing the task of reporting and monitoring drug suspects.
The information gathered is then stove-piped through a hierarchy of municipal, provincial, regional, and national offices for use by BADAC auxiliary units, police, and PDEA agents tasked with apprehending suspects. Even as LGU representatives are included as stakeholders in this system, they are nevertheless subject to strict penalties if they do not comply with the standards mandated by these regulations or fail to coordinate sufficiently with the PNP; effectively placing them at the mercy of the DILG.
By the end of 2016, 50 percent of barangays in the Philippines did not have BADACs, however by the end of 2017 that number dropped to 30%. Nevertheless, the PDEA estimates that 58.10 percent of all barangays nationwide are still affected by the presence of illegal drugs per the ratings system of DDB Regulation No. 3. As the government aims to draw that percentage down to zero by the year 2022, the Oplan Tokhang now faces its first challenge in the Supreme Court.
On October 11, 2017 the Free Legal Assistance Group (FLAG) and the Center for International Law filed two petitions with the Supreme Court challenging the legal basis of the PNP Command Memorandum Circular No. 16-2016, also known as PNP Anti-Illegal Drugs Campaign Plan -Project: “Double Barrel, and the DILG’s MC 2017-112. On 5 December the court issued a resolution ordering government to submit documents pertaining to the drug war within 60 days of issuance. In turn, the Office of the Solicitor General filed a motion of reconsideration on 18 December, arguing that these documents were sensitive to national security, and not relevant to the case. The court emphatically rejected these arguments in its 3 April resolution, and denied the motion.
These documents cover a range of requested topics, including a list of persons killed in legitimate police operations from 1 July 2016 to 30 November 2017, a list of deaths under investigation from 1 July 2016 to 30 November 2017, documents pertaining to drug-watchlists in affected areas, and records of high value target arrests. If police and local officials have conformed to the reporting standards mandated by the regulations discussed, these documents will shed much-needed light on the processes that lead suspects to being listed, detained, and/or killed.
By exposing the role of local governments and law enforcement in violating the constitutional rights of citizens, this case will hopefully prompt a much-needed discussion on how barangays and cities can curtail the potentially criminal excesses of the central government in the maintenance of peace and order.
Luke Lischin is an academic assistant at the National War College.