The Legal Moralsim of Drug War Enforcers

By: Ofel Jemaimah I. Oblan

The society is bound on diversity and complexity wherein morality of every person varies
from each other. This work seeks to discuss the effect of morality to laws and its making. Does
morality depend on law? Does the morality shape the Law? It cannot deny the fact that greater
part of a nation's legislation affects its morality in some way or the other. Hereafter, will the
exclusion of morality in making laws have any effects on the people of a country? The word
"morality" has become associated with conservative values, because the obvious invalidity of
those values to many people tarnishes their attitude towards morality as a whole. The connection
between law and morality or the lack thereof is one of the questions on of legal philosophy. More
likely, several theorist contends that it is simple to explain. Positivists claim that there is no
necessary connection between law and morality (the separation thesis), and non-positivists claim
that there is the connection. For positivists, the definition of law only includes two elements:
“social efficacy” and “proper promulgation.” Non-positivists add morally “substantive
correctness” or “justice” as a necessary third element. It is well agreed that morality has to do
with values and norms, with what is good and worth pursing in life, and with standards that
should guide our conduct. On other hand, the existence of law binds the different views about
morality. By distinguishing what is ought to do and not to do, thus with rule of law it gives
harmony to morality. Thus, Legal moralism is viewed as the law that can legitimately be used to
prohibit behaviors that conflict with society's collective moral judgments even when those
behaviors do not result in physical or psychological harm to others. According to this view, a
person's freedom can legitimately be restricted simply because it conflicts with society's
collective morality; thus, legal moralism implies that it is permissible for the state to use its
coercive power to enforce society's collective morality. As for, Social Morality in connection to
Law varies from time to time and it may due to several circumstances in the rapid change of the
society that resulted to adoption of a new law.1

Man by nature is a gregarious being both in his body and mind. In other words, he likes
to live in a community and as a victim of social inevitability he must live in a society with other
1
Leslie Green, Should Law Improve Morality?(University of Oxford: Legal Research Papers 2013)
beings rather than in isolation. For any society to survive or even exist, it is a need to anchor
itself on law, which in turn governs the behavior of members of the society in question, as well
as their relations, their rights and obligations. Law thus is a mandatory cause of conduct accepted
by members of a given society as established by the legitimate authority of that society. The
Nature of Man likely varies through time as well as it morality and authority will adjust in its
evolution. More likely, the constant thing remains is Law to be binding in a society. Can the law
have its power to shape morality of the people?

The distinctive characteristic of morality is that it tends to direct on lessening of evil or

harm as its goal. Morality is taken as governing only that behavior that directly or indirectly
affects others. Thus, the common good for all the people must be the agenda of Legal Morality.

An example to be examined whether the morality of person affects the implementation of

law is the controversial project of President Duterte “Oplan Tokhang”. Drug addiction in the
Philippines is one of President Rodrigo Duterte's most prominent campaign promises when he
ran in presidency race. It is in connection with The Comprehensive Dangerous Drugs Act Of
2002 or otherwise known as the Dangerous Drugs Act Of 1972, as amended. He has been
claiming there are around 4 million drug addicts in the Philippines so it must be eradicated on his
term.

Thus, the legal basis of Oplan Tokhang, is Republic Act No. 9165, otherwise known as
the Comprehensive Dangerous Drugs Act of 2002. Further, guidance is provided in its
Implementing Rules and Regulations, promulgated by the Executive. We will analyze the actions
under Oplan Tokhang and see whether they follow the guidelines set by both RA 9165 and the
1987 Constitution.

The second question calls into fore the criminal provisions of the Revised Penal Code
which, despite being promulgated in 1930, remains an effective good law. Another legal basis to
be examine is the applications of administrative penalties proposed under Republic Act No.
6713, which contains the Code of Conduct and Ethical Standards for government officials and
employees, including the Dangerous Drugs Board, the Philippine Drug Enforcement Agency,
and the Philippine National Police, the main implementation arm of the Executive when it comes
to preventing and suppressing illegal drug trade.

Thus, the shared morality in this matter is upon implementation of Oplan Tokhang the
implementing enforcement body must abide the Code of Conduct and Ethical Standards for
Government Officials which is under Section 2. Declaration of Policies of R.A 6713, it is the
policy of the State to promote a high standard of ethics in public service. Public officials and
employees shall at all times be accountable to the people and shall discharge their duties with
utmost responsibility, integrity, competence, and loyalty, act with patriotism and justice, lead
modest lives, and uphold public interest over personal interest.2

For example, PNP creed stands on the basic issues, in particular, it describes the police
service as a noble profession which demands from its members specialized knowledge and skills,
as well as high standards of ethics and morality, hence, its members must adhere to and
internalize the enduring core values of love of God, respect for authority, selfless love and
service for people, sanctity of marriage, and family life, responsible dominion and stewardship
over material things, and truthfulness.3

The first year implementation of Oplan Tokhang is said to be resulted on extra-judicial

killing in the Philippines.

There is also the ICC in The Hague, which, in February 2018, opened an investigation
into accusations that Duterte and other Philippine officials had committed crimes against
humanity during the government’s deadly crackdown on drugs.

Moreover, in the recent controversial case of Kian Delos Santos the three Caloocan
police officers were found guilty of murdering the said 17-year-old during an anti-drug
operation. Caloocan Regional Trial Court Branch 125 presiding Judge Rodolfo Azucena
sentenced Police Officer namely (PO) 3 Arnel Oares, PO1 Jeremias Pereda, and PO1 Jerwin
Cruz to 40-year imprisonment without parole. The suspects were also ordered to pay P345,000 in

2
Retrieved from: https://www.lawphil.net/statutes/repacts/ra1989/ra_6713_1989.html
3
Dalizon, Alfred P. (2019, August 10) Police officers to stick with Code of Ethics. Retrieved from:
https://proarmm.pnp.gov.ph/downloads/EthicalDoctrine.pdf
damages to Kian's family. The court ruled that the actions of the three police officers were
"immediate cloaked with impunity" to ensure Kian will be killed because there was no
opportunity for the minor to defend himself.

More likely, in a data presented during a command conference of top police officials at
Camp Crame since the implementation of project, the anti-drug operatives said they arrested
240,565 drug personalities in 153,276 police operations nationwide with 1,283,409 surrendering.
The police reported too that 1,020,244 people surrendered to authorities in the past six months.
More than 940,000 of those who surrendered are drug users while about 75,000 are pushers.

From the data mentioned above, does the “Oplan Tokhang” of President Duterte shapes
the morality of police officers?

Using prohibited drugs is undoubtedly harmful and tends to result on committing more
serious crime in community. Therefore, it is permissible for the state to use its coercive power to
enforce society's collective morality against the harmful tendencies of drugs. The implementation
of Oplan Tokhang is a made-up word, formed by joining common Visayan terms together:
“toktok” or knock, “hangyo” or request or plead. The policemen will knock on suspected drug
user house and he will either surrender or they will forcedly take the allegedly listed drug users
or pushers with them. Accordingly, there are five (5) stages in the conduct of Project Tokhang
namely: Collection and Validation Information Stage, Coordination Stage, House to House
Visitation Stage, Processing and Documentation Stage, and the Monitoring and Evaluation
Stage. The numbers mentioned explicitly displays the number of surrenders. However,
throughout the implementation of the project there were allegedly extra-judicial killings
performed by policemen and certain quota of drug user or pushers must be completed. Thus, the
numbers of surrenders who’s afraid to be killed appears to police station to voluntarily surrender.
It seems that it is appropriate to view it as legal moralism which the law that can legitimately be
used to prohibit behaviors that conflict with society's collective moral judgments even when
those behaviors do not result in physical or psychological harm to others. It can also be
illustrated from the situation discussed that legal moralism implies that it is permissible for the
state to use its coercive power to enforce law to serve the society's collective morality. To sum it
up, the Law can shape morality, but I contend that it is not just the law itself which made it
possible. At the end, I want to argue is the Law shaped morality with other factors such as the
enforcement, degree of punishment and its effect in totality to the society. The enforcement of
Oplan Tokhang became controversial because the alleged stories behind its implementation.

While, the degree of punishment is within the scope of law but because several stories
and mass media the punishment seems does not collide with the law. The scenarios wherein a
dead body was found holding a placard or walking on the street saying “wag tularan, drug
pusher ako” carried different views to the society, whether it was factual or fabricated, it gives
impact to the society. In the Offense principle, it was explained in that good reason in support of
a proposed criminal prohibition that it would probably be an effective way of preventing serious
offense as opposed to injury or harm to persons other than the actor, and that it is probably a
necessary means to that end.4 The effect in totality upon implementation and end result of Oplan
Tokhang for shaping the morality of people is not successful. Yes, there were a lot of people
who surrenders but it is not just because of law which shapes their morality to surrender, it is the
implementation, punishment and effect in totality as they afraid of greater harm for themselves.
Due Process of Law and Human rights on several cases are not explicitly seen nor explained and
the failure of the government to response on alleged extra-judicial killings is up until now a
debatable question. Thus, the exclusion of morality in making the laws nor in its enforcement
convey tendencies which is against the rights of the people.

Even though, the stories of alleged extra-judicial killings were not been proven, the only
reason why people believed in those things was because of the element of morality. The question
here is, how can you believe in something you cannot see but yet take or accept it laws purported
to have come from it? It can be noted that people found it difficult to go contrary to these laid
down rules not because the laws were commanding or had punishment attached to but rather
because it had been part of the society and been instilled in the induvial.

I conclude that, law and morality are just in the two sides of the same coin namely; that
of socialization. Morality seeks to influence our behavior by way of our desires, whereas law is
the 'back-up' option, and targets our beliefs. However, the sole rule on enforcement or
implementation of law mut be bloodless at all cost.

4
Berman, Mitchell N., Attempts, in Language and in Law (September 1, 2012). U of Texas Law, Public Law Research