Harm Reduction Program (Giving of Free Syringes to Drug Injecting Users) : Not Just Against Commom Sense, It is Against the Law

The Harm Reduction Program, a United Nations Office on Drugs and Crimes sponsored program to address the problem of HIV/AIDS simply thinks that in order to minimize or prevent the spread of the disease is to just give syringes to drug injecting users.

The Department of Health has made Cebu City as it guinea pig or experimental site for its program starting last year. The HARM Reduction Program has been implemented in Cebu City for decades, though at that time in underground with the use of international non government organizations. In 1992 when the Cebu City Council enacted an ordinance regulating the sale of nubain or nalbuphine hydrochloride, the distribution was done prudently.

When Republic Act 9165 was enacted in on July 4, 2002 the City Council petitioned the Dangerous Drugs Board to reclassify nalbuphine hydrochloride as dangerous drugs, a public hearing in Cebu City was held sometime in 2003 with the former Director General of the PDEA, Genl Anselmo Avenido presiding. This was made through the efforts of Cong. Antonio V. Cuenco, the Chairman of the House Committee on Dangerous Drugs. The reclassification was opposed by pharmaceuticals which were armed with their legal counsels.

When Vicente C. Sotto III was appointed Chairman of the Dangerous Drugs Board in 2008, with this writer as its Vice Chairman, the former was able to convince the Board that the country will not adopt the HARM Reduction Program as it is a defeatist attitude and against the very law he authored. The DOH then relented and stopped adopting the program.

The Cebu City Council through the efforts of the former Co-Chairman of the Cebu City Anti Drug Abuse Council, former Councilor Augustus Pe Jr. made repeated calls for the DDB to reclassify nubain as dangerous drugs. Presenting numerous evidences, the last of which was the report of the death due to use of nubain in different parts of Cebu City, one of which was in Barangay Kinasang-an. Another was the incident of the arrest of a woman who attempted to smuggle nubain by hiding it in her vagina. The DDB then reclassified nubain as dangerous drug in a DDB Regulation passed on December 2010 and took effect on January 2011.

When Sotto resigned from the DDB and ran for the senate, the Department of Health again promoted the idea of implementing the Harm Reduction Program in Cebu City. Senator Sotto during the budget hearings warned the DDB and DOH of implementing the program.

The Cebu City Anti Drug Abuse Council has repeatedly passed a resolution opposing the program, but was just ignored by the DOH. This time the DOH brags of legitimizing the program with a DDB Resolution granting them to conduct the program as an aid to a clinical study or research.

Let us not belabor with the issue of common sense, as no sane or reasonable man with agree to the implementation of the program, for how could you right a wrong with another wrong? The only way to stop or prevent HIV/AIDS is for people to stop from unsafe sex.

Is the DDB resolution valid?

Under Section 81 of Republic Act 9165, the law enumerates the powers and duties of the Board, among of them:

(c) Conduct policy studies, program monitoring and evaluations and other researches on drug prevention, control and enforcement;

(d) Initiate, conduct and support scientific, clinical, social, psychological, physical and biological researches on dangerous drugs and dangerous drugs prevention and control measures;

According to the DOH this is the legal anchor of the DDB Resolution which even extends to the declaration of Brgy Kamagayan’s center as FREE ZONE (at the 3rd floor of its barangay hall). It said that the beneficiaries of the program are immune from arrest from law enforcers.

This is legally misplaced. Two basic principles of Criminal Law should guide us:

1. Only Congress could amend a national law.

The DDB is not empowered to grant any group, body or agency to conduct clinical study in pursuit of HIV/AIDS prevention. What the law under Section 81 empowers them is that the study is for “drug prevention and control measures”.

The HARM Reduction Program is a program for AIDS/HIV and not for drug prevention or control in fact it even sabotages the government’s campaign for drug prevention and eradication.

The DDB Resolution could not justify the unlawful act of giving syringes to drug injecting users. The law is clear, much more when DDB itself has reclassified nubain as dangerous drugs, thus syringes are considered as its paraphernalia:

“Section 12. Possession of Equipment, Instrument, Apparatus and other Paraphernalia for Dangerous Drugs. –The penalty of imprisonment ranging from six (6) months and one (1) day to four (4) years a fine ranging from Ten thousand pesos (P10,000) to Fifty thousand pesos (P50,000) shall be imposed upon any person, who unless authorized by law, shall possess or have under his/her control any equipment, instrument, apparatus, and other paraphernalia fit or intended for smoking, consuming, administering, injecting, ingesting, or introducing any dangerous drug into the body; Provided, that in the case of medical practitioners and various professionals who are required to carry such equipment, instrument, apparatus and other paraphernalia in the practice of their profession, the Board shall prescribe necessary implementing guidelines thereof.”

The act of giving syringes to drug injecting users, tantamount to violating Section 5, Article II of R.A. 9165 which is administration of dangerous drugs simply because the giving of syringes is not for medical or health purpose but for abuse of the dangerous drugs.

2. DDB has no power to make an exemption to the Principle of Territoriality by declaring Brgy Kamagayan Center as “Free Zone”.

No student of law, law enforcer or lawmaker would agree that a Board has the power to declare a certain area as FREE ZONE or making the criminals or offenders immune from arrest or prosecution.

It is basic in Criminal Law that penal laws shall be enforced within the Philippine Territory, unless Barangay Kamagayan has been declared not part of Cebu City or of the Philippines, our penal laws, much more a national statute (Republic Act 9165) the idea may be given leverage. However, this is very clear, Republic Act 9165 is still in effect and no penal provision therein has been amended or repealed. Therefore the DDB Resolution is beyond the powers the law has bestowed on them.

Worth mentioning is the fact that the CITICENTER, which was situs or dens for drug injecting users, has been demolished. Why do we invite people from othter barangays and cities to go to Kamagayan for them to ask for free syringes?

No less than the Regional State Prosecutor of Central Visayas, Fernando Gubalane, a sitting member of the CADAC has opined that the HARM Reduction Program is against the law. May I add my voice to opposing the program, as this representation has written the book, “TEXBOOK ON THE COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002”, the only book so far quoted twice by the Supreme Court in a drug case. Unless the DOH or DDB could present a legal thesis justifying the distribution of syringes as valid under our present laws, our objection (Cebu City Anti Drug Abuse Council) remains.

There is no other way to stop AIDS/HIV and that is for people to stop engaging in unnatural and unsafe sex, let us not dilute our drug campaign by promoting distribution of syringes to drug injecting users. In the same way, that the only way to stop drugs IS FOR PEOPLE TO STOP using drugs.

About the Author: Clarence Paul V. Oaminal is a lawyer and author of ‘The Textbook on The Comprehensive Dangerous Drugs Act of 2002’. He is the Vice-chairman and Undersecretary of the Dangerous Drugs Board and is the current adviser and presiding officer of Cebu City Anti-Drug Abuse Council. He also hosts the local advocacy program ‘Krimen ug Drugas’ in CCTN Channel 47.