Dangerous drugs existed way centuries before. From herbal produce to chemical-based drugs, all of them have adverse effects to our body system.
Science has proven the detrimental effects of the usage of these dangerous drugs. Their chemical composition primarily affects our mental state, and their consequences are either short-term or permanent. Even when a person has stopped the use of said drugs, its damage may be continuous.
Dangerous drugs, just as human beings, evolve. When our ancestors discovered drugs as products of herbs and plants coupled with developing societies, people discovered the scientific mixing of various chemicals, which, in effect, produces these detrimental drugs.
Dangerous drugs can now be either injected, ingested, and inhaled. For instance, the effect of a drug injected goes directly in our bloodstream. Thus, the aftermath is immediate. Even a medically prescribed drug, when overused can cause adverse outcome, worse of which is death.
Although not all drugs are dangerous, we should be mindful that what we are taking are:
1) those prescribed by a duly licensed physician;
2) are within the limit of dosage given to us; and
3) the most important is that the drug is not enlisted as one of those narcotics and other dangerous drugs.
| Brief Antecedents |
|---|
| In 1839, a war against drugs commenced between Qing Dynasty of China and Britain as the latter, as part of free trade, included opium in their barter. |
| This has been known as the First Opium War. However, British forces defeated the Qing Dynasty and the former imposed a treaty with open trades with China. |
| The Emperor wrote a letter to Queen Victoria to halt the opium trade completely. The war ended completely after China signed the unequal Treaty of Nanjing which effectively granted Britain’s free trade in the Chinese ports. |
Now, as the international community are well aware of the damaging side effects of these dangerous drugs not only to one’s person, but also to the greater society, these countries have promulgated their respective laws which regulate and sanction the use of dangerous drugs.
The importance of enacting these laws is to protect mainly the health and well-being of every citizen. Also, with the regulation of these dangerous drugs, the public order and integrity of state’s territory is ensured.
What is Dangerous Drug Act?
Dangerous Drugs Act is a piece of legislation which prohibits and regulates the manufacture, trade, usage, and maintenance of illegal drugs in one’s territory.
The first United States Anti-drug law was enacted way back November 15, 1875. It was enacted in San Francisco where it banned opium smoking and opium.
The measure on banning of opium smoking and opium dens were subsequently followed by Virginia City, and Carson in Nevada, Cheyenne, Wyoming and Montana on the succeeding years.
On February 26, 1909, the first international conference was convened in Shanghai, China to discuss the possible measures and regulations to address the world’s narcotic problems.
The Shanghai Opium Commission of 1909 was the precedent of the first international drug control treaty – the International Opium Convention of The Hague of 1912.
Due to this international treaty, the importation of opium has been vastly affected as the same was declined in several countries.
Then came 1946 when the defunct League of Nations transferred the drug control in international sphere to the newly created United Nations.
That same year when the United Nations Economic and Social Council (ECOSOC) created the United Nations Commission on Narcotic Drugs to assist in the supervision on the implementation and application of the international drug control treaties.
Internationally, the control on dangerous drugs is based on three major treaties, namely:
1) The Single Convention on Narcotic Drugs of 1961, which was subsequently amended in 1972;
2) the Convention on Psychotropic Substances of 1971; and
3) the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988.
What is the Dangerous Drugs Act in the Philippines and What is its Purpose?
In the Philippines, the first law that prohibits the use of opium was codified in the Revised Penal Code, specifically in Articles 190, 191, and 193 until it was repealed by Republic Act No. 6425,1 or the Dangerous Drugs Act of 1972.
Until their (Drug Provisions under the Revised Penal Code) repeal in 1972, only opium, cocaine, alpha and beta eucaine, Indian hemp, are classified as prohibited drugs, as provided under Article 190 (1) of the Revised Penal Code.
The new law in 1972 added heroin and morphine; coca leaf and its derivatives alpha and beta eucaine; hallucinogenic drugs, such as mescaline, lysergic acid diethylamide (LSD) and other substances producing similar effects were added in the list of prohibited drugs.
Republic Act No. 91652 or the Comprehensive Dangerous Drugs Act of 2002, as amended by R.A. No. 10640, repealed the Dangerous Drugs Act of 1972, is currently the governing law on prohibited drugs.
RA 9165 basically replaced the term “prohibited drugs” in the old laws, with “dangerous drugs,” thereby enlisting in the law all those dangerous drugs “listed in the 1961 Single Convention on Narcotic Drugs, as amended by the 1972 Protocol.” (Sec. 3,[j], RA 9165)
Moreover, the new law considers as dangerous those drugs “without having any therapeutic value or if the quantity possessed is far beyond therapeutic requirements.” (Sec. 11, RA 9165)
The purpose of the Comprehensive Dangerous Drugs Law is anchored in its Declaration of Policy of the State to “safeguard the integrity of its territory and the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical acts.” (Section 2, RA 9165)
What is the Target of Republic Act No. 9165
The first target of this law is to safeguard the integrity of its territory – When we speak of integrity, it is the quality of honesty, having strong moral principles and uprightness. On the other hand, territory is the “fixed portion of the surface of the earth inhabited by the people of the State.” (Cruz, 2014, Page 22)
We have to see to it that we are complying faithfully with our international obligations, more specially with the international drug control treaties. We have adopted as generally accepted principles of international law under the doctrine of pacta sunt servanda.
By observing this obligation, the State has the duty to ensure that the citizens in its territory, at the very least, are not influenced with dangerous drugs.
The second target of this law is the well-being of its citizenry particularly the youth, from the harmful effects of dangerous drugs on their physical and mental well-being.
The State, in its capacity as Parens Patriae, has the obligation to ensure that its citizenry, particularly the youth, will not be destructed by the harmful effects of dangerous drugs.
Medical researches show that the effect of dangerous drugs are mostly impacted in the brain of its users that is why most users have been labeled “high” due to the manipulations of chemical components of these dangerous drugs to the our systems.
Who are Punished by the Law and Why are they Punished?
Republic Act No. 91653 punishes the following persons:
1] Those involved in the Sale, Trading, Administration, Dispensation, and Delivery:
1.a] Persons who buy and sell dangerous drugs are punished by law. In order to convict them, the prosecution must prove the identity of the buyer and the seller, the object of the sale and its
1.b] Persons who are engaged in the trading or the transactions involving the illegal trafficking of dangerous drugs using electronic devices or acting such a broker in any of those transactions. It is necessary that there is money or consideration
1.c] Persons without the authority to administer dangerous drug into the body of any person, with or without the latter’s knowledge, by injection, inhalation, ingestion or other means, or by assisting any person in administering said dangerous drug to himself, unless these persons are duly licensed practitioner, and the purpose of administration is for medication.
1.d] The law also punishes any person who passed on possession of a dangerous drugs to another, and such delivery is not authorized by law. Further, for a person to be punished, the “accused must knowingly made the delivery. Worthy of note is that the delivery may be committed even without consideration.” (People vs. Maongco, G.R. No. 196966, October 23, 2013)
2] Those who manufacture illegal drugs or those involved in the production, preparation, compounding or processing of any dangerous drug and/or controlled precursor and essential chemical, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and shall include any packaging or repackaging of such substances, design or configuration of its form, or labeling or relabeling of its container. (Sec. 3[u], RA 9165)
3] Those who are in possession of any dangerous drug without lawful authority (Sec. 11, RA9165) and drug paraphernalia. (Sec. 12, RA 9165)
4] Those who operate or maintain a drug den, dive or resort where dangerous drug is used or sold in any form or any controlled precursor and essential chemical is used or sold in any form. Moreover, this provision also punishes the employee of such den, dive, or resort who is aware of the nature of such place, as well as those persons visiting the place who are also aware of the nature of such place. (Sec. 6, RA 9165
5] Those persons using such dangerous
6] Those persons who are unnecessarily prescribing dangerous drugs and who unlawfully prescribe dangerous
7] Those who cultivate or culture dangerous
8] They are punished, even when the criminal intent is lacking. RA 9165 is a special penal law, thus the defense of good faith is inapplicable in crimes mala prohibita.
What are the Common Acts Punished under RA 9165 and their Respective Penalties?
There are several acts punished under RA 9165, but these are the most common acts in our jurisdiction:
Section 5 of RA 9165 punishes any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, with the penalty of life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00. Sec. 5 moreover punishes in its maximum penalty, persons who shall perform these acts within 100 meters from the school, or drug pushers who shall use minors or mentally incapacitated individuals as runners or couriers.
The penalty imposed in these acts are reasonable considering that this law is enacted to protect the integrity of the territory and well-being of the citizenry, specially the youth.
It is reasonable to impose maximum penalty of life imprisonment in acts transgressing and compromising the public order and integrity, and the State in its Parens Patriae capacity, has the obligation to protect to the fullest extent the interests beneficial to the youth of this country.
Section 6 of RA 9165 punishes any person or group of persons who shall maintain a den, dive or resort where any dangerous drug is used or sold in any form with the penalty of life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00, while Section 8 of the law punishes any person who, unless authorized by law, shall engage in the manufacture of any dangerous drug, with a penalty of life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00.
The penalties provided under the aforementioned provisions are again reasonable as the maintenance of drug dens, dives, or resort and the manufacture of any dangerous drugs play vital role in the malignant commerce of dangerous drugs in the society.
With them, the trading of dangerous drugs commences. Hence, by life imprisonment, this law will be of great help to eradicate the roots of dangerous drugs.
The penalty for the illegal possession depends on the quantity confiscated by the authorities upon the person of the accused. Section 11 governs the punishment for illegal possession of dangerous drugs.
The penalty of life imprisonment to death and a fine ranging from P500,000.00 to P1,000,000.00 is imposable upon any person who shall unlawfully posses 10 grams or more of opium, morphine, heroine, cocaine, marijuana resin or marijuana resin oil, ecstasy, paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA), lysergic acid diethylamine (LSD), gamma hydroxyamphetamine (GHB), and those similarly designed; 50 grams or more of methamphetamine hydrochloride or “shabu”; and 500 grams or more of marijuana.
The next lower imposable penalties are applicable in cases of lesser quantities of dangerous drugs seized or confiscated.
The penalty for illegal possession of drug paraphernalia is imprisonment ranging from 6 months and 1 day to 4 years and a fine ranging from P10,000.00 to P50,000.00.
All told, the penalties provided under this law are reasonable. The law itself is a valid exercise of police power. It is the power of the state to promote public welfare by restraining and regulating the use of liberty and property.
It is the most pervasive, the least limitable, and the most demanding of the three fundamental powers of the State. (Gerochi v. Department of Energy, as cited in Southern Luzon Drug Corporation vs. DSWD, G.R. No. 199669, April 25, 2017)
Related Jurisprudence
The Supreme Court, through the years, have promulgated several cases in relation to violations of RA 9165 and set many precedents to be followed by all inferior courts in deciding drugs cases at trial court level.
In cases of illegal possession of drugs or drugs paraphernalia:
Criminal intent is not an essential element.
In the case of People vs. Lagman,4 the Supreme Court held that:
“[i]llegal possession of regulated drugs is mala prohibita, and, as such, criminal intent is not an essential element. However, the prosecution must prove that the accused had the intent to possess (animus posidendi) the drugs. Possession, under the law, includes not only actual possession, but also constructive possession. Actual possession exists when the drug is in the immediate physical possession or control of the accused. On the other hand, constructive possession exists when the drug is under the dominion and control of the accused or when he has the right to exercise dominion and control over the place where it is found. Exclusive possession or control is not necessary. The accused cannot avoid conviction if his right to exercise control and dominion over the place where the contraband is located, is shared with another.” Hence, a person may be held convicted even if the authorities found dangerous drugs, even though not in in his actual possession, but in a location where he can exercise proximate control over the subject to be seized.5
Moreover, “mere possession of a prohibited drug constitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of satisfactory explanation.” (People vs. De Jesus, G.R. No. 198794, February 6, 2013)
The Supreme Court has distinguished as well the terminologies:
“Marking vs. Chain of Custody”
In the case of People vs. Ameril,6 the Supreme Court ruled that:
“Marking” means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized to identify it as the subject matter of the prohibited sale. Marking after seizure is the starting point in the custodial link and is vital to be immediately undertaken because succeeding handlers of the specimens will use the markings as reference. Chain of custody is defined as “the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction.” Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition.7
The Supreme Court moreover added guidelines in chain of custody in a buy-bust situation.
In People v. Kamad8 (624 SCRA 289, 304-306 [2010]), the Court identified the links that the prosecution must establish in the chain of custody in a buy-bust situation to be as follows: first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and fourth, the turnover and submission of the marked illegal drug seized by the forensic chemist to the court.
Come 2018, when the Supreme Court imposed a stricter and mandatory requirement for drug enforcement authorities in conducting anti-dangerous drug operations. This was elucidated in the case of People vs. Romy Lim. Justice Peralta, stressed down the following policy to be enforced in connection with arrests and seizures in cases involving dangerous drugs, viz:
“In order to weed out early on from the courts’ already congested docket any orchestrated or poorly built up drug- related cases, the following should henceforth be enforced as a mandatory policy:
1] In the sworn statements/affidavits, the apprehending/seizing officers must state their compliance with the requirements of Section 21 (1) of R.A. No. 9165, as amended, and its IRR.
2] In case of non-observance of the provision, the apprehending/seizing officers must state the justification or explanation therefor as well as the steps they have taken in order to preserve the integrity and evidentiary value of the seized/ confiscated items.
3] If there is no justification or explanation expressly declared in the sworn statements or affidavits, the investigating fiscal must not immediately file the case before the Instead, he or she must refer the case for further preliminary investigation in order to determine the (non) existence of probable cause.
4] If the investigating fiscal filed the case despite such absence, the court may exercise its discretion to either refuse to issue a commitment order (or warrant of arrest) or dismiss the case outright for lack of probable cause in accordance with Section 5, Rule 112, Rules of Court”
The declaration as unconstitutional the prohibition against plea bargaining in drug cases, is a landmark case in drugs cases. In the case of Estipona vs. Lobrigo,9 the Supreme Court held that:
“[t]he power to promulgate rules of pleading, practice and procedure is now [the Supreme Court’s] exclusive domain and no longer shared with the Executive and Legislative departments.”
The Supreme Court’s sole prerogative to issue, amend, or repeal procedural rules is limited to the preservation of substantive rights, i.e., the former should not diminish, increase or modify the latter.
Thus, the power to promulgate rules of procedure is lodged with the Supreme Court and this cannot be repealed or amended by subsequent substantive laws the Congress has to enact.
Final Thoughts
RA 9165 is a broad yet concise law. It was carefully crafted by our lawmakers. As I have mentioned, this law is a valid exercise of the State’s Police Power.
The proper exercise of the police power requires the concurrence of a lawful subject and a lawful method. (Gerochi v. Department of Energy, as cited in Southern Luzon Drug Corporation vs. DSWD, G.R. No. 199669, April 25, 2017)
The lawful subject in here is the suppression of the dangerous drugs in our country and the lawful method is to impose the maximum penalty imposable in our jurisdiction to those who will be found guilty of the acts punishable under RA 9165.
The Philippine Government’s obligation with international treaties on drug control is clearly complied with in our jurisdiction.
This is evidenced by the pieces of legislations the Congress of the Philippines passed from the first anti- drug prohibition codified in the Revised Penal Code, until it was repealed by the Dangerous Drugs Act of 1972 and the same has been repealed by the current Comprehensive Dangerous Drugs Act of 2002, which is the governing law concerning illegal and dangerous drugs.
This is a special penal law. Thus, defense of good faith is untenable.
The particular provision in illegal possession is the one of the most commonly filed cases in our Courts and by merely in possession is punishable itself.
It is an elementary rule in Criminal Law that the criminal intent in crimes malum prohibitum is not necessary and cannot be invoked as a defense.
It is because, crime malum prohibitum, in a literal term- PROHIBITS one from doing this and that, as in this case, in RA 9165, it is prohibited to possess dangerous drugs without lawful authority or satisfactory justification.
Imagine a future without dangerous drugs, our world would be forever peaceful and in order.
- Republic Act No. 6425, The Dangerous Drugs Act of 1972[↩]
- The Dangerous Drug Act of 2002[↩]
- The Dangerous Drugs Act, Supra.[↩]
- G.R. No. 168695, December 8, 2008[↩]
- People vs. Lagman, Ibid.[↩]
- G.R. No. 203293, November 14, 2016[↩]
- People vs. Ameril, Ibid.[↩]
- G.R. No. 174198, January 19, 2010[↩]
- G.R. No. 226679, August 15, 2017[↩]