Carpio: ‘Tokhang’ a crime against humanity

SINGAPORE — Young lawyers mounted a unique, innovative challenge to “Project Tokhang” in Manila’s San Andres Bukid district. Senior Associate Justice Antonio Carpio liked what he heard at the Supreme Court hearing last Nov. 21.

Inquirer columnist Joel Butuyan leads Centerlaw, founded in 2003. Its young lawyers Gil Anthony Aquino and Cristina Antonio spoke in the media during the groundwork. Dean Jose Manuel “Chel” Diokno leads the second, veteran team of Free Legal Assistance Group or FLAG, founded in 1974.

Diokno launched a conventional top-level attack. Command Memorandum Circular (CMC) 16-2016 outlines “house to house visitations to persuade suspected illegal drug personalities to stop.” He seeks to void this, arguing it uses words “neutralize” and “negate” that order murder.

Butuyan took the opposite, ground-level approach. His young guns documented 35 “tokhang” deaths in San Andres: 23 of 35 involved police; 21 died in a victim’s home; 24 died in a “kill time” from 10 p.m. to 3 a.m.

He seeks to require police to follow their operations manual, not CMC 16. This requires, for example, a prosecutor’s investigation before a corpse is moved after an alleged shootout with police, which was never done in San Andres.

They went even further with a class suit, proposing a community right to security. After two people were killed on one street, its residents slept in the nearby market for three months for fear police would return at night.

Butuyan claimed police had forced barangay captains to disavow this class suit.

Carpio, the hearing’s lead justice, is the Supreme Court’s most lethal questioner. He typically asks only one question, but one’s case falls apart if one cannot answer it.

Diokno critically failed to answer three.

First, Carpio raised the point that manuals in 2014 under then Interior Secretary Manuel “Mar” Roxas also used “neutralize” and “negate.” Diokno conceded Police Chief Ronald “Bato” dela Rosa has used these to mean arrest, surrender or death in legitimate police operations.

CMC 16 explicitly orders police to adhere to all Philippine and international human rights laws, but Diokno dismissed this as mere “lip service.” Justice Marvic Leonen asked if the Supreme Court presumes a circular does not mean what it says.

“I’m not sure how to answer that,” Diokno laughed.

Second, Carpio reiterated that if CMC 16 has multiple interpretations, this bars a simple attack based solely on its wording. Instead, one must do the legwork to attack its implementation — exactly what Butuyan’s young guns did.

Third, Carpio asked what is violated if police knock on a door and are refused entry, then conduct “case buildup” or further investigation. Diokno answered: the right against unreasonable search.

But if police never entered, there was no search to violate this right!

Carpio corrected him and raised the right to privacy, a different right. Chief Justice Maria Lourdes Sereno and Leonen hinted that Butuyan should file a “habeas data” privacy order.
Butuyan explained the actual unreasonable search: There is no real consent if police enter homes during “tokhang.” CMC 16 orders “immediate case buildup and negation” if entry is refused. This veiled threat precludes consent and right not to open the door.

Further, the threat also triggers “custodial investigation” rights such as the right to have a lawyer present, plus the right against self-incrimination.

Astoundingly, Carpio had no real questions for Butuyan. Instead, he gave suggestions to flesh out the ground-level attack.
First, Carpio asked Butuyan to expound on the key “as applied” framework, instead of the typical top-level attack. Second, Carpio highlighted superior officers’ command responsibility in Philippine and international law.

Third, Carpio asked if “tokhang” deaths are “widespread” and “systematic.” Butuyan argued these exceed those of martial law victims and there is an alarming pattern, despite the lack of concrete evidence in individual cases.

Taking the hint to crimes against humanity, he ominously added that we have submitted to the International Criminal Court.

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