BY EVANGELINE DE VERA

JUSTICE Secretary Raul Gonzalez yesterday cast doubt on anti-drug operations conducted by Maj. Ferdinand Marcelino, head of the

Special Enforcement Services of the Philippine Drug Enforcement Agency, saying the Marines officer is not authorized to hold any civilian position, being still in active military duty.

Gonzalez said a constitutional provision could in effect invalidate the operations conducted by Marcelino, considering that his appointment to the PDEA is unconstitutional.

Gonzalez cited a constitutional provision that "(n)o member of the Armed Forces in the active service shall at any time be appointed or designated in any capacity to a civilian position in the government, including government-owned or controlled corporations, or any of their subsidiaries."

"Dapat alisin sila (military personnel) diyan. They should go back to barracks. As far as I’m concerned, the act done when you are not authorized should not have any bearing whatsoever. (Marcelino) has no authority, (thus) all his acts are illegal," he said.

The PDEA, through Derrick Carreon, chief of the public information office, said Gonzalez’ argument "remains to be a constitutional debate" and would be "properly debated upon" when the Senate starts its inquiry.

He pointed to sub-paragraph q, Sec. 84 of RA 9165 or the Comprehensive Dangerous Drugs Act of 2002 which he said allows the PDEA to utilize personnel from other government agencies in its anti illegal drugs campaign.

Section 84 is on "powers and duties of the PDEA."

Sub-paragraph q states the PDEA shall "initiate and undertake a national campaign for drug prevention and drug control programs, where it may enlist the assistance of any department, bureau, office, agency or instrumentality of the government, including government-owned and or -controlled corporations, in the anti-illegal drugs drive, which may include the use of their respective personnel, facilities, and resources for a more resolute detection and investigation of drug-related crimes and prosecution of the drug traffickers."

PDEA chief Dionisio Santiago said Marcelino’s case of holding a civilian position is a legal question that has already been supported by previous Supreme Court rulings. He failed to specify these rulings.

Carreon said PDEA has a standing memorandum of agreement with the Armed Forces and other government agencies for them to lend to the PDEA some of their men in the fight against illegal drugs.

To date, he said PDEA has more than 900 organic personnel and needs at least 950 more.

He said other agencies like the Presidential Anti-Smuggling Group and the Department of Foreign Affairs have uniformed personnel detailed with them.

"Sa amin lang nafo-focus because of the present predicament.  Hindi na dapat pinag-aawayan ito. Kami nga tumatahimik na kasi may order na sa taas for us to keep quiet," he added.

The PDEA and the DOJ’s anti-narcotics task force are at odds over the release of three drug suspects arrested by the PDEA in buy-bust operations led by Marcelino in September last year.

The task force, in a resolution dated Dec. 2, 2008, dismissed the charges against Richard Brodett, Joseph Tecson and Jorge Joseph for alleged lapses committed by the PDEA in the conduct of the arrests.

The three yielded illegal substances like ecstasy, marijuana and cocaine.

Gonzalez refused to comment on whether the arrest of the three should be considered invalid because of Marcelino’s supposed lack of authority. He said the issue is now the subject of an investigation and of the petition for habeas corpus pending before the Court of Appeals.

The legality of the previous drug operations involving Marcelino, according to Gonzalez, could be raised before the court by the parties concerned.

Gonzalez said the PDEA should rid its ranks of all active military personnel as their presence in the anti-drug agency as agents violates the Constitution.

He said that if Marcelino would insist on conducting buy-bust operations or hold similar civilian positions, "his acts can be questioned."

He said that even Defense Secretary Gilbert Teodoro raised the concern during their discussion with President Arroyo recently.

"As far as I am concerned, the act done when you are not authorized should not even have any bearing or whatsoever because you have no authority… The Constitution is not just a simple law, it is the Constitution," he said.

Gonzalez said he never raised the issue with the President because he does not want to be accused of trying to get back at the PDEA officers who floated a supposed bribery attempt.

He said PDEA agents must be drilled on the proper way of handling evidence gathered in operations against drug traffickers.

"These PDEA people are basically military oriented. You know, obey first before you complain," he said.

Santiago said he has advised Marcelino to no longer appear before the NBI to give a statement because the major already talked to NBI agent Dulce Ricafort.

He said he advised Marcelino to just give his affidavit to the independent panel that will investigate the alleged bribery attempt.

An affidavit was submitted to the NBI by John "Johnny Midnight" Joseph Jr., father of suspect Jorge Joseph, saying he did not offer P50 million for the dismissal of the charges.

"I am not personally aware nor do I have any personal knowledge of any purported acts of allegedly bribery as narrated by General Santiago and Major Marcelino," he said.