BY now, most of our readers may already suffering an information overload on the not-so-correct procedures followed by the high officials of the Bureau of Customs (BoC) in the 6.4 billion worth of illegal drugs that eluded their watch.
Let me complement this week’s events with an analysis of the legal ramifications of Customs Commissioner Nicanor Faeldon’s actions.
The Dangerous Drugs Act of 1972 (Republic Act 6425) imposed penalties on the importation, sales, distribution, transportation, delivery, and administration of prohibited drugs, among others. Thirty years later, Republic Act 9165 repealed the Dangerous Drugs Act and instituted a Comprehensive Dangerous Drugs Act of 2002. To carry out the provisions of the new law, the Philippine Drug Enforcement Agency (PDEA) was created.
The custody and proper disposition of all seized dangerous drugs are enumerated in Section 21 of the Act. To emphasize the importance of this Section 21, the 16th Congress passed Republic Act 10640 – with the sole purpose of amending the same Section 21.
What do these things tell us? These appointees Act, as amended, provides that the “PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered”
Faeldon admitted during the congressional hearings that even before the PDEA agents arrived they, the Customs people, had already seized the shabu shipment and opened the metal cylinders. He also disclosed that they turned over to the National Bureau of Investigation (NBI) the more than 500 kilograms of shabu and gave the PDEA only 100 kg for the execution of a “controlled delivery” procedure.
Faeldon, and his BoC team, already transgressed the law by violating the directives of Section 21. The law is clear that it is only the PDEA, which should have custody of all seized or surrendered dangerous drugs.
How should the seized prohibited drugs be disposed of? The first paragraph of the same Section 21 enumerates the requisites. One requirement is to “conduct a physical inventory of the seized items and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, with an elected public official and a representative of the National Prosecution Service or the media who shall be required to sign the copies of the inventory.” Were these things followed by Faeldon’s people?
Faeldon might reason out that it was a warrantless seizure and that there were justifiable grounds for its non-compliance. For the sake of argument, let us say that there were “justifiable grounds.” This is where the law’s collatilla will come in.
If “the integrity and the evidentiary value of the seized items are properly preserved,” then non-compliance shall not render void and invalid such seizures and custody over the seized items. Obviously, based on media reports, the proper chain of custody (CoC) was not observed. The CoC, in criminal law context, is the order in which a piece of criminal evidence should be handled by persons investigating a case, specifically the unbroken trail of accountability that ensures the physical security of samples, data and records in a criminal investigation.
The CoC is a very stringent and strict procedure. Once it is broken, the evidence will no longer be admissible in any court of law.
In all probability, any criminal case filed against the importers of this huge haul of illegal drugs will be dismissed for lack of evidence. Faeldon and company may even be charged with tampering with evidence.
Faeldon should worry about Section 92 of the Comprehensive Dangerous Drugs Act, which declares that, “any government officer … who, through patent laxity, inexcusable neglect, unreasonable delay or deliberately causes the unsuccessful prosecution and/or dismissal of the said drug cases, shall suffer the penalty of imprisonment ranging from twelve years and one day to twenty years”
What is most revealing in the hearings is the admission of the BoC personnel, including Faeldon, that they have not read the Comprehensive Dangerous Drugs Act. How about the law governing the BoC? Have they understood it? I don’t think so.
My insight tells me that Faeldon is not alone in this kind of a situation. There are some officials in this administration who are not qualified – professionally or academically – to take on the jobs hat they’re occupying. Some are heading an agency or assuming a managerial job for the first time.
For example, there is one appointee who is not qualified to head his agency because its own charter requires the head to have “recognized competence in relevant fields including, but not limited to, economics, management, international relations, law or engineering.” He does not possess any of these competencies. I am sure there are more of these kinds.
What do these things tell us? These appointees are misplaced. They should be transferred elsewhere before it is too late. Else, they will just bungle their jobs.
In the end, this administration will be denigrated, not by the opposition, but by the incompetence and ineptness of some of its officials.