THE LEGAL FRONT

By J. ART D. BRION (RET.)

I write this article as my first task of the day after the Easter Sunday mass. It is thus a message that remembers the gloom and despair of the past Good Friday and is filled with the hope of the Risen. Personally, it is an opportunity to dwell on the thought that has nagged me since I last read the report of cases from the Supreme Court.

I refer, in particular, to the nation’s war against illegal drugs.

The campaign against illegal drugs – or the drug war, to use the more commonly used label – has largely been kept in the people’s mind because of allegations of extrajudicial killings that some local politicians and international bureaucrats have harped on. As a result, other aspects of the campaign have been sidelined and have largely been given secondary importance.

But those of us who have kept our eyes and ears open about illegal drugs, locally and internationally, are not so easily swayed into the single focus that those opposing the drug war encourage. We are fully aware that the continued proliferation of these drugs carry deep, pernicious, and lasting effects on our country and must be viewed from the broadest perspectives.

The lure of the illegal drug is very attractive and inviting. Its use promises instant gratification and pleasure for the user, rendering him oblivious to the pains and discomfort of daily living.

The financial rewards for the drug lords and the pushers are high, even astronomical, thus worth – in their view – to the risks they take. Risks, too, can be minimized through corruption or, failing in this, through outright coercion, intimidation, and violence.

All these are not lost on the law enforcers, the prosecutors, and the politicians who may fully support the drug war or who, in some cases, may be enticed to look towards the generosity of the drug lords. Involvement by politicians and those in high offices, through the protection they can provide, promises financial rewards, affluence, and, to the unscrupulously ambitious, may even lead to appointment to higher positions or to election to coveted public offices.

As against all these, a successful drug war promises enhanced welfare for our people through the peace and order, harmony, good governance and economic progress that success can potentially bring. These equally high stakes dictate that the government give the drug war the utmost primacy and priority attention.  Our action and attention cannot be less than the efforts we exerted against the intrusion and terrorism we saw in Marawi City.

Fighting the drug war, however, is not a simple question of logistics where the government’s might and more pervasive presence are pitted against the criminal syndicates’ perversity and all-out efforts for material gains. Unlike the criminals, the government has to fight while limited by rules, i.e., those imposed by our laws and by the Constitution. The government thus wages its drug war while hemmed in by two opposing forces – the forces of evil that it must fight and the rule of law that it must respect.

Hopefully, the President can drive home these perspectives and his sense of priorities to the nation, ad nauseam, if necessary.  And hopefully, too, he can convey these sentiments in words and thoughts that everyone, at their respective levels, cannot help but accept and support.

For the nation needs to marshal the help of everyone, government people and civilians, high and low, blue, white, red, or yellow, without political distinctions if possible.  We ought not forget that “for want of a horseshoe nail,” a war and even a kingdom can be lost.

All these thoughts rushed in as I finished reading a recent Supreme Court decision that again acquitted an alleged drug pusher entrapped while selling illegal drugs. The court attributed the acquittal to a rule that every litigating lawyer and every drug enforcer ought to know by heart – the chain of custody rule.

To convict in a sale of illegal drugs, the prosecution must show by evidence that the transaction took place.  It must likewise establish, also by evidence, every link in the chain of possession of the seized illegal drug, i.e., the seizure and marking of the evidence; the turnover of the seized drug by the apprehending officer to the investigating officer; the turnover to the forensic chemist for laboratory examination; and the turnover and submission of the drug to the court.

Notably in the past, the chain of custody rule had been a problem because of the strict requirements of our drug law, RA 9165. The problem prompted Congress to amend the law to give the prosecution an even chance to prove its case without being unduly hampered by the existing law’s inflexibilities.

The amendatory law – RA 10640 – now provides that “non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizure of and custody over said items.”

Under these terms, the apprehending authorities and the prosecution –through careful preparation – can identify beforehand and meet whatever deficiencies there may be through reasonable justifications and demonstrated efforts to ensure that the integrity of the evidence has not been compromised.

Despite this leeway, time and again, acquittals have resulted, due apparently to the lack of, or lapses in, the rigorous preparation that a drug case requires.

In People v. Romy Lim,  the Supreme Court acquitted the accused because the Court did not accept the prosecution’s explanation and justification for the absence of the officials and the media who are required to witness the physical inventory and photographing of the seized drugs.

In People v. Ameril, the most recent acquittal, the lapse occurred when the seized drugs stipulated to be marked as LAA-1, LAA-2, and LAA-3 were presented in court marked as LLA-1, LLA-2, and LLA-3. The government’s witness testified as well that he used the markings LAA-1, LAA-2, and LAA-3.   The discrepancy led the court to acquit.

These sample cases and many other unheralded acquittals now compel us – as concerned  observers – to ask in the spirit of hope that the Easter fosters: How can we win the drug war when, time and again, “horseshoe nails” are missing?

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