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Change in PNP chiefs will test ‘genuineness’ of DOJ drug war review

Nov 30, 2021, Lian Buan

The data sharing agreement between PNP and NBI does not spell out the extent of access. It also can be terminated any time.

MANILA, Philippines – A change in leadership in the Philippine National Police (PNP) will test how far the bannered Department of Jusice (DOJ) drug war review will go, as the government prepares to submit proof to the International Criminal Court (ICC) of a working local investigation.

Justice Secretary Menardo Guevarra said, “I hope [new PNP chief Dionardo Carlos] will be as cooperative as [former police chief Guillermo] Eleazar.”

The DOJ was able to produce a matrix of 52 cases of police killings in the drug war because Eleazar allowed access to police documents.

Guevarra said that kind of access had been elusive in previous years, but finally happened under Eleazar because of the “political will to do what is right.”

But even then, Eleazar allowed only limited access, from opening up all documents to trimming it down to 52, citing President Rodrigo Duterte’s concern with national security. The 52 case folders were shared because the PNP’s internal affairs service had already finalized its resolution on these.

The DOJ’s matrix unveiled to the public revealed that these cases were mostly kept internal with light penalties imposed.

Eleazar’s short term as PNP top cop has ended, however, and it is now Dionardo Carlos at the helm. Carlos took over on November 12.

Rappler asked whether the PNP under Carlos will grant full access to all of the documents of drug war killings, both the 7,000 deaths in police operations, and the rest of estimated 20,000 killings by vigilantes.

“We will take the cue from the DOJ on what documents they will need from the PNP. We will be transparent in providing the documents as long as these will undergo the proper legal procedure,” said PNP spokesperson Colonel Roderick Alba on Tuesday, November 30.

‘We trust PNP will keep its word’

Before Eleazar left, he signed on November 3 a Memorandum of Agreement (MOA) with the National Bureau of Investigation (NBI). NBI is under DOJ.

The MOA did not spell out specifics on the extent of access to documents one must give to the other. It just said the NBI and the police “shall collect, provide, and/or transmit documents, records, and any and all relevant evidence in such manner as may be deemed convenient and appropriate to ensure confidentiality.”

The MOA also gave any party the power to terminate the agreement, just as long as there was 30 days prior notice.

For Guevarra, full access to PNP records was a “commitment of the PNP under the MOA.”

“We trust that the PNP as an institution will keep its word of honor,” said Guevarra.

The most that Carlos has said himself was: “The PNP gives its full trust to DOJ’s handling of the drug cases.”

What does all this mean?

As of now, the ICC investigation is on pause after the Philippine government, through Ambassador to the Netherlands Eduardo Malaya, filed a deferral request, mostly citing the DOJ’s drug war review. A deferral request is an option under the Rome Statute which asks the ICC to stop the probe, and defer to its own local investigation.

Primary jurisdiction of local investigations is a crucial design of the ICC, but this was already the subject of the more than two years worth of preliminary examination done by former ICC prosecutor Fatou Bensouda. In requesting, and then securing, the authorization from the pre-trial chamber to investigate, Bensouda has established there was a “failure to take meaningful steps to investigate or prosecute perpetrators of war on drugs killings.”

“It appears that only a handful of token cases – focused on low-level, physical perpetrators – have proceeded to trial,” said Bensouda, which was recognized by the pre-trial chamber.

After the pre-trial chamber authorized the investigation, covering killings made by the so-called Davao Death Squad (DDS), the Philippines filed the deferral request which prompted ICC prosecutor Karim Khan to pause the investigation as part of procedure, while he assessed the request.

Khan said though that he would be asking the Philippines for proof or “tangible evidence, of probative value and a sufficient degree of specificity, demonstrating that concrete and progressive investigative steps,” have been taken.

Guevarra said “if requested by the ICC and authorized by the Philippine government, the DOJ will provide such information as may be needed.”

Rise Up, a group representing drug war victims at the ICC, sent a letter to Khan Tuesday saying that the deferral request was “intended to delay, frustrate, and abort the ICC proceedings.”

Malacañang spokesperson Karlo Nograles said “the ICC prosecutor’s request for information is an acknowledgment that alleged victims can seek redress in Philippine legal institutions because these are independent, impartial, and competent.”

That ICC is a court of last resort is not in dispute. The Rome Statute gives premium to local investigations, that is why there is a preliminary examination to check if the domestic systems are indeed working.

The Center for International Law (CenterLaw) said that by filing the deferral request, the Philippines government “subjects itself to the intrinsic review mechanisms under Article 18 of the Statute.”

Article 18 says that should Khan defer the investigation, he can still review it six months after “or at any time when there has been a significant change of circumstances based on the State’s unwillingness or inability genuinely to carry out the investigation.”

Khan’s resumption of investigation into Afghanistan, after its own deferral request, is believed by some to be prompted by the takeover of Taliban, which can count as “significant change of circumstances.”

Rise Up’s letter to Khan Tuesday said “a domestic proceeding carried out by officials and agencies under the complete control of President Duterte will not be impartial, independent, or credible.”

“It will serve to protect the President and other officials most responsible for the crimes in question,” said Rise Up, represented by the National Union of Peoples’ Lawyers (NUPL).

Rappler has exclusively learned that before the deferral request, ICC has granted limited immunity to self-confessed DDS hitman Arturo Lascañas.

With reports from Jairo Bolledo/Rappler

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