TO: Atty.

Mendoza
FROM: Inigo M. Rojas
DATE: May 13, 2017
FILE: Legal Writing Homework
SUBJECT: Constitutionality of OPLAN Tokhang

The Constitutionality of OPLAN Tokhang

I. Background

The purpose of this memorandum is to answer the question of whether or not

OPLAN Tokhang is constitutional and within the limitations of the law. The source of
this order is the Command Memorandum Circular entitled, “Implementation and
Institutionalization of the National Anti-Drug Plan of action”. OPLAN Tokhang is a
campaign by the Philippine government against illegal drugs nationwide. According to the
memorandum, the mission of this campaign is to “clear all drug affected barangays across
the country, conduct no let up operations against illegal drugs personalities and dismantle
syndicated.”. Given the geographical composition of the Philippines, the PNP intends to
address the problems per barangay to ensure the encompassing nature of the campaign’s
objective.

II. Facts

The campaign springs from a pronouncement of President Rodrigo Duterte to

eliminate illegal drugs within the first six months of his term. Several government agencies
such as NAPOLCOM, DILG, PNP, PDEA, etc., are tasked to work together in resolving
this issue.
The Dangerous Drugs Board conducted a survey regarding the issue on illegal drugs.
Based on their study, there are around 1.8 million drug users in the country, most of them
being unemployed. Moreover, it was found that 11,321 out of the 42,075 barangays in the
Philippines are drug affected. Such drug affected Barangays are corrupted with drug users,
pushers, manufactures, and other illegal drug related activities. The study also found that
the NCR has the highest rate of affectation with 92.96% of the region’s barangays. The
study is indicative of the prevalent drug problem in the Philippines, which breeds social
ills.
According to the memorandum, this campaign involves the conduct of house to house
visitations to prevent suspected drug personalities from continuing the illegal drug
activities. Five stages are mentioned herein, namely, Collection and Validation of
Information Stage, Coordination Stage, House to House Visitation Stage, Processing and
Documentation Stage, and the Monitoring and Evaluation Stage.

III. Issues:

1.) Whether or not the Command Memorandum Circular regarding the government’s
Anti-illegal drugs campaign is constitutional?
 a. Whether or not the Collection and Validation of Information Stage violates
the right to privacy?
b. Whether or not the House to House Visitation Stage violates the right to
unreasonable searches?
c. Whether or not the Processing and Documentation Stage amounts to an extra-
judicial confession in violation of the Miranda rights?
d. Whether of not the Monitoring and Evaluation Stage is vague and ambiguous
in choosing drug personalities?

IV. Conclusion

a. The collection and validation of information stage of OPLAN Tokhang is

unconstitutional for violating the right to privacy enshrined in Article 3, section
2 of the 1987 Philippine Constitution.
b. The house to house visitation stage of OPLAN Tokhang is unconstitutional
for violating a persons right to protection against unlawful searches as
provided for in Article 3, section 2 of the 1987 Philippine Constitution.
c. The processing and documentation stage is unconstitutional for violating
Article 3, Section 17 of the Philippine Constitution regarding a person’s right
against self-incrimination and is in violation of the Miranda rights.
d. The monitoring and evaluation stage is unconstitutional for monitoring
persons who are considered to fall under the vague and ambiguous ambit of a
drug personality.

V. Discussion/Analysis

a. Collection and Validation of Information Stage

Yes. The right of persons to privacy is violated by this stage of OPLAN
Tokhang. The acquiring of specific information on suspected drug users and
pushers in every affected barangay without probable cause is an infringement
on the rights enshrined in the Bill of Rights. Article 3, section 2 of the 1987
Philippine Constitution provides. “the right of the people to be secure in their
persons, houses, papers, and effects against unreasonable searches and seizures
of whatever nature and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination xxx”. The statistical
records presented by the memorandum indicating that a big number of drug
affected barangays is not enough to warrant such searches. This stage involves
unreasonable searches against persons and houses because the provision
provides that the persons or things to be searched or seized must but
particularly mentioned in the list. The requirement under section 2 is to be
implemented strictly, thus, mere numbers and figures of drug affected
barangays may not impede on the rights of persons provided for by the
Constitution.

b. House to House Stage

Yes. Actual house to house visitations of suspected drug personalities are to
be conducted in this stage. A team led by the PCO is designated with this task
 along with barangay official to serve as witnesses. Such “suspected drug
personalities” will be taken from the data gained in the collection and
information stage, which as in this stage, violates the right to unreasonable
searches and seizures. This stage provides that it will be done in a manner that
shall not violate the rights of the subject and it also mentions the voluntary
aspect of rehabilitation of those people who fall within the ambit of “suspected
drug personalities”, however, when a person refuses to be subjected to a house
to house visitation, he will be prejudiced by such act. Doing so creates a
suspicion on the part of the person and will be a possible subject of
surveillance by authorities. As provided in the definition of the processing and
documentation stage, persons who refuse to the house to house visitation shall
be referred to the Anti-illegal Drug Units for immediate case build-up and
negation. The right of persons to unreasonable searches and seizures is
likewise enshrined in Article 3, Section 2 of the 1987 Philippine Constitution,
protecting persons from unlawful laws such as in the case at bar.

c. Processing and Documentation Stage

Yes. On its face, the definition of this stage provides that all suspected drug
personalities who shall voluntarily surrender shall be required to fill-out a
Voluntary Surrender Form, would seem to be constitutional. However, the
voluntary nature of this surrender provides considerations, which make it
ultimately involuntary. The provisions this stage states, “All suspected drug
personalities who shall voluntarily surrender xxx. Provided, that they execute
undertakings to cooperate by giving voluntary information regarding illegal
drug activities.” The word “provide”, herein removes the voluntary nature of
giving information. This infringes on the person’s rights because we are
protected by the right against self-incrimination as provided for in Section 17
of the 1987 Philippine Constitution. The act of the voluntarily surrendering
would require a person to commit involuntary acts such as executing
undertakings to cooperate by giving “voluntary” information regarding illegal
drug activities.

d. Monitoring and Evaluation Stage

Yes. This stage is likewise unconstitutional because it involves weekly
monitoring of “drug personalities”. Monitoring per se in not intrusive of any
right, however the identification of who are to be considered as drug
personalities proves to be vague and ambiguous. This mention of “drug
personalities” is overbroad in that it leaves the officials with a wide range of
discretion as to who can be classified as such. Moreover, when one does not
voluntarily allow to be subjected to a house to house visitation, they are to be
considered as drug personalities already as they will be under the suspicion of
the police authorities.
VI. Sources

Command Memorandum Circular No. 16-2016: PNP ANTI-ILLEGAL DRUGS

CAMPAIGN PLAN-PROJECT: “DOUBLE BARREL”.

Investigative Directive No. 2016-13: Guidelines in the Conduct of Financial Investigation

on persons of Interest Involves in Illegal Drugs Activities.

Investigative Directive No. 2016-14: Guidelines Relating to the Taking of Persons Who
Voluntarily Surrender under Project Double Barrel.