PNP not off the hook

Pasig City Mayor Enteng Eusebio should not claim political persecution when he’s asked to explain his alleged ignorance of that shabu "supermarket" or "tiangge" operating virtually under the nose of City Hall, or to defend the questionable demolition of the tiangge.

The multi-story City Hall overlooks the compound where the shabu den was located, although insiders claim the view of the den is obstructed by other structures. The Eusebios, husband and wife, appear to have a dynastic lock on the city government, having alternated as City Mayor for over a decade. Thus, the line that they knew little about drug activities in their area seems positively incredible.

They would also be the last persons on earth to know that Pasig is a reputed center for the manufacture and marketing of prohibited drugs. All the policemen that have been assigned to Pasig would be equally clueless.

The barangay captain and the recently-sacked Pasig chief of police insist that the war against illegal drugs had been "vigorously" waged. But the only vigor that’s been evident is that exercised by the drug dealers and pushers. Over 300 "users" were arrested in last week’s raid. Of that number, about 200, including four minors, were charged.

Clearly, the Mayor has a lot of explaining to do. He will have an opportunity to do so, in a planed investigation by the Department of Interior and Local Government. To his credit, he has declared his willingness to be subjected to such an investigation.

Having said this, though, the Philippine National Police is by no means off the hook in the peremptory demolition of the drug tiangge. The PNP brass has admitted that a police contingent was with the demolition team. Indeed, television news video of the demolition showed black-shirted men with the word "Police" emblazoned on their backs merrily hacking away at the allegedly illegal structures.

Did the PNP’s left hand know what the right was doing? The acting police chief, Senior Superintendent Romeo Abaring evidently authorized the participation of the police. And yet, a vocal critic of the action, Police Director Marcelo Ele, head of the PNP anti-illegal drugs special operations task force, complained that the site was a crime scene and that critical evidence had been destroyed along with the "shanties".

We had a conversation with Carlos Abesamis, city legal officer, on the legal basis of the Mayor’s action. We were puzzled by published reports that he was citing "Articles 4132 and 4136 of the Civil Code" as basis for the city’s authority to demolish. That was a clear misquote because the Civil Code has only 2270 articles.

It turns out that he meant Articles 432 and 436. That was a bit of a surprise too. Reports had it that the Mayor’s action was in the nature of a summary abatement of a public nuisance or a "nuisance per se" under Articles 699 to 702. (My companeros may now pull out their trusty copies of the Civil Code and review all these provisions.)

Articles 432 and 436 actually refer to a property’ owner’s right to compensation for another person’s interference with his ownership rights. Art. 431 says the owner can’t prohibit such interference if the same is necessary to avert an imminent danger and the threatened damage, compared to the damage to the owner, is much greater. However, the owner may demand an indemnity from the person benefited for the damage to him.

Art. 436 provides that when a property is condemned or seized by competent authority in the interest of health, safety or security, the owner is not entitled to compensation unless he can show that the condemnation or seizure was unjustified.

From these two articles, it appears, the Mayor infers a right to summarily demolish the shabu tiangge.

On the other hand, the law, in general, allows "abatement," meaning removal or elimination, of a "public" nuisance without having to go to court. A nuisance includes anything that injures or endangers the health or safety of others, annoys or offends the senses, or shocks, defies or disregards decency or morality (Art. 694).

A public nuisance affects a community or neighborhood or any considerable number of persons, although the extent of the annoyance, danger or damage may be unequal (Art. 695). As to its nature, a nuisance is a nuisance per se when it is such at all times and under any circumstances, regardless of location or surroundings.

Under the Civil Code, it is the district health officer who determines whether abatement without judicial proceedings is the best remedy against a public nuisance (Art. 702). The law also provides that it is the city or municipal mayor that commences any civil action brought by reason of a public nuisance.

According to Abesamis, the city health officer did send last February 10, the day of the raid, a finding to Mayor Eusebio that the drug den constituted a hazard to public health and safety. That it obviously was, but before the city legal officer told us this detail, I do not recall Mayor Eusebio citing this finding as legal basis for the demolition.

Jurisprudence requires that in cases of abatement without judicial proceedings, the property owner must be given an opportunity to be heard. There is no indication that an opportunity for a hearing was given the owner, Amin Imam Boratong. Abesamis stresses that attempts to reach him proved unsuccessful. He also told us the owner’s title was issued only last August, 2005, although this fact does not directly address the allegation that the drug den had been in operation for over two years.

At the end of the day, whatever Civil Code provisions are relied upon by Mayor Eusebio, substantial questions remain about whether he knew about the shabu tiangee, when he knew, and what he did after he knew.

Moreover, the issues regarding his legal authority for ordering and taking the lead in conducting the demolition of the tiangge, whether he fulfilled all legal requirements for the summary abatement of a public nuisance, and whether he adequately coordinated with police investigators in the disposition of vital evidence, all remain unresolved.

Finally, before the PNP takes the lead in throwing the book at the Mayor, the actions of Pasig police OIC, Sr. Supt. Abaring, should be looked into. While local officials have "operational control" of the policemen assigned to the area, this is not sufficient reason for Abaring to blindly participate in what still may turn out to have been an illegal act, apart from an atrocious exercise of prudence and good judgment.