VI.

Young Philippine Lawyers Arrested Today for “Obstruction of Justice” in the

Philippines’ Drug War

Published on August 16, 2018 Author: Diane Desierto

I’ve been up since 3 am here in Notre Dame making urgent calls and preparing
petitions. I was contacted by my law partner in Manila early this morning, alerting me that
three of our 16 year-family law firm’s young lawyers – Attorney Jan Vincent Sambrano
Soliven (34, and currently a law professor at the Lyceum of the Philippines College of
Law), Attorney Lenie Rocel Elmido Rocha (25, who just passed the bar exam last year
and was a former National Jessup Champion for the Philippines and competed in the
International Rounds in Washington DC), and Attorney Romulo Bernard Bustamante
Alarkon (33, and who just passed the bar exam this year) – were suddenly arrested earlier
today in Makati City, Metro Manila, while they were monitoring the police’s
implementation of a search warrant on the premises of a famous arts Makati City bar that
the police have dubbed a “drug den”. They identified themselves as legal counsels for the
owner – my Manila law firm was engaged as counsel by the owner (foreign national) of
the Times bar, after the Makati City police made the raid last Saturday. Because two
cabinets were locked and could not be opened, the police got a search warrant to inspect
the cabinets. Our client asked the firm to send lawyers to monitor and watch the search
of those two cabinets to safeguard against any planting of evidence or theft. Standard
procedure. The police opened the cabinets, took their inventory, and then turned to my
three young lawyers and said they had no authority to be there. My lawyers respectfully
said they were legal counsels of the owner and were just sent by the firm to take notes
and photograph the opening of the cabinets. But instead, one of the police team members
thought they were being “arrogant” and immediately arrested them on a charge of
“obstruction of justice” (punishable with minimum 6 months imprisonment, maximum 6
years imprisonment). The police did not explain why, and how, the passive and quiet acts
of note-taking and phone camera photography of cabinets being opened amounted to an
“obstruction of justice” under the Philippines’ Presidential Decree No. 1829:

“(a) preventing witnesses from testifying in any criminal proceeding or from reporting
the commission of any offense or the identity of any offender/s by means of bribery,
misrepresentation, deceit, intimidation, force or threats;

(b) altering, destroying, suppressing or concealing any paper, record, document, or

object, with intent to impair its verity, authenticity, legibility, availability, or
admissibility as evidence in any investigation of or official proceedings in, criminal
cases, or to be used in the investigation of, or official proceedings in, criminal cases;

(c) harboring or concealing, or facilitating the escape of, any person he knows, or has
reasonable ground to believe or suspect, has committed any offense under existing
penal laws in order to prevent his arrest prosecution and conviction;

(d) publicly using a fictitious name for the purpose of concealing a crime, evading
prosecution or the execution of a judgment, or concealing his true name and other
personal circumstances for the same purpose or purposes;

(e) delaying the prosecution of criminal cases by obstructing the service of process or
court orders or disturbing proceedings in the fiscal’s offices, in Tanodbayan, or in the
courts;
 (f) making, presenting or using any record, document, paper or object with
knowledge of its falsity and with intent to affect the course or outcome of the
investigation of, or official proceedings in, criminal cases;

(g) soliciting, accepting, or agreeing to accept any benefit in consideration of

abstaining from, discounting, or impeding the prosecution of a criminal offender;

(h) threatening directly or indirectly another with the infliction of any wrong upon his
person, honor or property or that of any immediate member or members of his family
in order to prevent such person from appearing in the investigation of, or official
proceedings in, criminal cases, or imposing a condition, whether lawful or unlawful, in
order to prevent a person from appearing in the investigation of or in official
proceedings in, criminal cases;

(i) giving of false or fabricated information to mislead or prevent the law enforcement
agencies from apprehending the offender or from protecting the life or property of the
victim; or fabricating information from the data gathered in confidence by
investigating authorities for purposes of background information and not for
publication and publishing or disseminating the same to mislead the investigator or to
the court.”

To our surprise, for four hours, we were unable to reach our young lawyers when
they were taken because they were not permitted to make any calls to counsel or their
families, and neither were they informed of what the charge was against them but instead
they were intimidated and verbally harassed. When I and the law firm in Manila finally
got to speak with them, they were already being hauled for medical inquest, and then
being moved to the Makati City Police Station to spend the night in jail. Because we could
not find them and did not learn of the arrest until hours afterwards, we were unable to file
a petition for a writ of habeas corpus because the Makati City regional trial courts are
closed. As of this writing, it is already 8.30 pm in the evening, and my three young lawyers
are detained in the Makati City Police Station.

While my family’s law firm on the ground will certainly file all necessary petitions in
Philippine courts and elsewhere, I narrate the circumstances above because it is a
firsthand account witnessing to a demonstrated potential for abuse in the Philippines’ anti-
drug operations. The Philippines is a long-time party to the International Covenant on
Civil and Political Rights, and has repeatedly upheld the ICCPR as part of the law of the
land under Article II, Section 2, of the 1987 Philippine Constitution. Article 9 of the ICCPR
make it clear that arbitrary arrest and detention are anathema to every human being’s
civil and political rights:

“Article 9.

1. Everyone has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty except on such
grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for
his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before

a judge or other officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to release. It shall not be the general rule
 that persons awaiting trial shall be detained in custody, but release may be subject to
guarantees to appear for trial, at any other stage of the judicial proceedings, and,
should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation.”

Much has been written about the thousands of extrajudicial killings cases in the
Philippines – and, as we did in 2005 when then Chief Justice Puno convened all of us in
academia, the bar, and the courts to come up with the new human rights remedies on the
writs of amparo and habeas data – many of us today are quietly working pro bono to
pursue domestic remedies and justice before Philippine courts for victims’ families. But
this is the first instance I have ever heard of since the start of the Philippines’ drug
war – one where the government has repeatedly defended the “necessity”,
“proportionality”, and “legality” of its operations publicly and internationally – that
the police have started going after the lawyers directly, using “obstruction of
justice” as their trump card. As of this writing, the police have not shown any report
or evidence of what amounts to “obstruction of justice” from the note-taking and
banal photography that those three young lawyers did.
It is now nearly 9 pm in Manila (and 9 am in Notre Dame), and as I and my
colleagues race to file the necessary court petitions and alert the Integrated Bar of the
Philippines (I have just contacted President Abdiel Dan Fajardo), I cannot help but wonder
what Asian Society of International Law President and Presidential Legal Adviser on
Human Rights Secretary Harry Roque – my former law professor at UP Law and beloved
coach when my team won the Jean Pictet International Humanitarian Law competition in
2004 at Mejannes-le-Clap, France – will say to this course of events on the
ground. Attorneys Soliven, Rocha, and Alarkon are young, idealistic, honorable, and
patriotic lawyers – and none of them ever imagined that *this* is now what the “rule of
law” looks like in the Philippines. I’ve witnessed and borne my share of detention and law
enforcement abuse in another country, so tonight I’m telling them to clutch hard inside,
and stand by due process and the rule of law. We are working hard to get them out as
soon as possible.

*Update as of 18 August 2018: The young lawyers were released late Friday evening
and are in recovery. Thankful that this matter has moved to the judicial process and out
of being incommunicado in illegal detention. No further statements from us here
following the sub juice rule for pending cases. The Integrated Bar of the Philippines,
Free Legal Assistance Group (FLAG) Lawyers, many other organizations and volunteer
lawyers have now taken up this matter at many levels.
*Update as of 28 February 2019: The Makati City Prosecutor has dismissed all the
complaints filed by the police against the lawyers.
 The Philippine Drug War has been an ongoing operation ever since President Rodridgo
Duterte assumed office. The said operation’s goal and objective might be to completely eradicate
the issue of drugs inside the country but the measures taken with these extrajudicial killings have
been considered to be inhumane by most. In view of CANON 10 – LAWYER OWES CANDOR,
FAIRNESS AND GOOD FAITH TO THE COURT: 10.03 – A lawyer should always observe the
rules and procedure and shall not misuse them to defeat the ends of justice. The role as well as
the responsibility of a lawyer in his field of legal profession is to uphold the fundamental law of the
land and to provide due process as a matter of human right thereby justice may be served to
whom it is due1. In the article cited, there has been a rather unexpected turn of events when
instead of apprehending the usual drug dealers, the lawyers themselves were arrested and even
accused by the police of exhibiting an ‘obstruction of justice’ without really explaining why.

As you can see, the author of the article is also the owner of the firm from which the three
arrested lawyers belong. As an advocate of human rights, they did everything they can to fight for
their own rights as citizens because according to the author that the unlawful arrest was a manifest
of abuse of anti-drug operations. It also does seem unjust and illegal to immediately detain highly
respected lawyers without the benefit of giving them the information as to why. This is violative of
the equal protection clause provided by our constitution. The lawyers on this topic has shown how
flawed our legal system can be that despite the fact they were trying to help their client by closely
monitoring the ocular inspection of the police they were the ones who were perceived to be the
bad guys.

As a future administrator of justice in the practice of law, I would have done the same as
what the lawyers did in their situation. I will stood firmly on my ground and pursue justice I
knowingly well deserve (also to those who deserve it) notwithstanding the fact that there might be
bumps and delays along this process. I will exhaust all my resources and exert all efforts in
accomplishing what I am supposed to do: solving legal problems. Aside from responsibilities as
a lawyer, I also have the duties toward: the courts, the society, colleagues in the profession, and
to my client2. I shall at all times give my highest regard toward these four categorized groups by
abiding the rudimentary requirements of fair play. Without a doubt, being a good lawyer takes
time, experience, and devotion. Mistake is inevitable but that should not keep me from pressing
on for what the legal profession truly is.

1
Code of Professional Responsibility
2
Four-Fold Duties of a Lawyer