A HISTORICAL ARGUMENT FOR THE DECRIMINALIZATION OF

DRUGS IN THE PHILIPPINES

By

Antonio M. Lapid
SN 2009-22127

Submitted in partial fulfillment

of the requirements for the course of
Legal History

University of the Philippines

Diliman
 INTRODUCTION

On June 30, 2016, President Rodrigo Roa Duterte took an oath 1 to fulfill his
duties as President of the Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and consecrate himself to the
service of the Nation. Since then, the Philippine National Police (PNP) has
reported 22,983 killings2 - a hotly disputed number, all related to the war on
drugs President Duterte promised his voters during his campaign. To give
us a sense of proportion, historians peg President Ferdinand Marcos’
martial law death toll at 3,257, 3 making Pres. Duterte’s death toll more than
700% greater than the late strongman’s. But this game of numbers is
meaningless in the face of the ultimate question of whether government is
justified in taking the life of even just one Filipino. What is the value of a
Filipino life? Senator Benigno “Ninoy” Aquino, Jr. answered thus: “I have
weighed all the virtues and faults of the Filipinos, and I have come to the
conclusion that he is worth dying for because he is the nation’s greatest
untapped resource.”4

That Pres. Duterte enjoys an approval rating of 78% of Filipinos 5 despite the
reported death toll, is indicative of a widespread cultural indifference to the
lives of so called “drug addicts” and “pushers”. The author of this paper
attributes this cultural phenomenon in large part due to a lack of
appreciation for the historical context surrounding the war on drugs. This
myopic view of history has allowed us as a nation to forget our brothers and
sisters, and carve out an exception from our once deeply held notion of

1
Nestor Corrales, Duterte takes oath as PH’s 16th President, PHIL. DAILY
INQUIRER, Jun. 30, 2016, available at https://newsinfo.inquirer.net/793306/duterte-
takes-oath-as-phs-16th-president
2
Romina Cabrera, PNP: Official death toll from drug war at 5,526 PHIL.
STAR, Jul. 19, 2019 available at
https://www.philstar.com/headlines/2019/07/19/1936032/pnp-official-death-toll-
drug-war-5526#YQM0CosuxHFXSM8Y.99
3
Rachel Reyes, 3,257: Fact checking the Marcos killings, 1975-1985 Apr. 12,
2016 available at
https://www.manilatimes.net/2016/04/12/opinion/columnists/3257-fact-checking-
the-marcos-killings-1975-1985/255735/255735/
4
Benigno “Ninoy” Aquino, Jr. (Aug. 4, 1980) (speech delivered before Asia
Society, New York)
5
Krissy Aguilar, Duterte’s approval and trust ratings drop in September poll
– Pulse Asia, Oct. 07, 2019 available at
https://newsinfo.inquirer.net/1174305/dutertes-approval-and-trust-ratings-drop-in-
september-poll-pulse-asia
kapuwa-tao against people who use drugs. The purpose of this paper is to
help us remember.
 I. A Short History of Philippine Drug Use

Pre-Colonial Drug Use

Throughout pre-Hispanic Philippine history, indigenous peoples within the
islands had a relatively peaceful relationship with psychoactive substances.
Indigenous communities used intoxicants for rituals and social intercourse, 6
but this was limited mostly to betel chewing and alcoholic beverages
brewed from local flora.7 There seems to be little to no evidence of narcotic
addiction prior to Spanish colonization.8

Spanish Occupation
1565 saw the arrival of Miguel López de Legazpi, marking the start of
Spanish occupation, but it was not until 1631 opium would first appear in
the literature. De Bodabilla narrated that opium was used by the Moros as
an intoxicant in preparation for war. 9 However, the use of opium was
probably not widespread during this time, even among the Chinese in the
Philippines,10 and its use was probably not harmful either to the Chinese or
the native Filipinos. The lack of concern over opium persisted until the early
1800s. In his Reforms Needed in Filipinas, Manuel Pizarro Bernaldez
thought that “it should not be prohibited in Filipinas, since its use appears
not to injure the Chinese there, or to be necessary for the Indians.” 11 Opium
served a cultural, and medicinal purpose among the Chinese in the
Philippines. As Ferdinand Victoria describes it,

“The affluent Philippine Chinese offered opium in their private

homes as a symbol of hospitality, a marker of social status and
as part of a household’s medicine kit. Their poorer classes
consumed opium as a work drug and the dens served as their
places of interaction and escape from the vicissitudes of life as
migrant workers in an alien land. While there were no official
estimates on the number of opium smokers during the Spanish
regime, Gamella has suggested that the consumer population
was in the order of fifteen thousand with an average dose of

6
Ricardo Zarco, A Short History of Narcotic Drug Addiction in the
Philippines, 1521-1959, 43(1/4) PHIL. SOC. REV. 1-15 (1995).
7
Id.
8
Id.
9
Id.
10
Id.
11
EMMA BLAIR & JAMES ROBERTSON, THE PHILIPPINE ISLANDS 1493-1898,
(1907).
 3.1 grams, which as will be shown below, was indicative of
mild addiction.”12

This, however, did not stop governor José de Gardoqui Jaraveitia who in
1814, “prohibited the introduction of opium into Filipinas, imposing on
those who should violate this law six years of confinement in a presidio and
the confiscation of the opium; and to those who were found smoking the
drug a fortnight’s imprisonment for the first offense, thirty days for the
second, and four years in presidio for the third.” 13 This marked the first
recorded drug prohibition in the Philippines. However, in 1828, a Spanish
royal decree gave permission to any person to cultivate opium in the
Philippines and export it.14 By 1843, a system of regulation was in place
whereby the monopoly of the opium trade was auctioned off to the highest
bidder, and the sale of the drug to, and its use by Filipinos was strictly
forbidden.15 Thus, the prohibition was stratified based on class, where only
the Chinese were allowed to consume opium, and the Spanish reaped the
benefits of trade. This classist treatment, however, was not the model of
prohibition that would eventually grip the nation.

American Occupation
The absolute and morality-driven prohibition on drugs as we know it today,
really has its roots as an imposition of American colonialism. The first ban
was on opium, which was influenced deeply by racist attitudes against the
Chinese. The American government in the Philippines, through William
Howard Taft, established the Opium Investigation Committee in 1903 which
eventually led to the ban on opium in 1908, despite the report of the
commission being clear in that it was mostly the Chinese who used opium,
and that the number of Filipino consumers of opium was insignificant. 16 In
narrating the history of the creation of the Committee, Victoria stated the
considerations present in the American mindset:

12
Ferdinand Victoria, The Most Humane Of Any That Could Be Adopted,
(2015) at
https://www.academia.edu/20652806/_The_Most_Humane_of_Any_that_Could_be_A
dopted_The_Philippine_Opium_Committee_Report_and_the_Imagining_of_the_Opiu
m_Consumer_s_World_in_the_Colonial_Philippines_1903-1905._ (last accessed Dec.
2, 2019).
13
Supra note 11.
14
Supra note 6.
15
Arnold Taylor, American Confrontation with Opium Traffic in the
Philippines, 36(3) PAC. HIST. REV. 307-324 (1967).
16
Supra note 12.
 First, was the belief that opium users posed a threat because
they were inconsistent with the colonial vision of a “model
society of industrious, thrifty citizens;” and second, American
officials viewed the Philippine Chinese as outsiders and
thought prohibition “might help the whole ethnic Chinese
problem...literally go away,” and thus enable the Americans to
focus on reforming the Filipinos in their image. Another factor
was the American public’s “association of Chinese migrants
with lurid, filthy opium dens which ensnared and corrupted
innocent whites.”17

Since opium was banned by the Americans in the Philippines in 1908, the
harshness of the law has only intensified as it carried over into the Revised
Penal Code in 1930, and later in the Dangerous Drugs Act of 1972 and the
Comprehensive Dangerous Drugs Act of 2002. The historical basis for this
intensification has little to do with the Filipino experience. Throughout our
entire history, from pre-colonial times until American occupation, it was
clear that the use of opium, and consequently any problems related to it,
was confined to the Chinese, and any use by Filipinos was negligible. To this
day, opium and its derivatives have never been in widespread use among
Filipinos. In 2015, the Dangerous Drugs Board (DDB) published the last
comprehensive report on drug use in the Philippines before the war on
drugs started. Based on the report, only 0.02% of Filipinos use heroin, the
most widely used opiate.18 Some will argue that the reason we remain
resilient against the scourge of opium and its derivatives is precisely
because of our strict criminal laws against it, but the validity of this notion,
and the underlying myths that support it are debunked by looking at the
history of addiction studies, discussed below.

Philippine Independence (1946-1986)

It was not until we achieved independence that we first experienced
marijuana. Cannabis entered the Philippines in 1954 or 1955. 19 By this time,
it was heavily taxed and regulated, but not absolutely prohibited in the
United States through the Harrison Act in 1914, the Marihuana Tax Act of
1937, among other laws. Our own revised penal code, however, made no
mention of marijuana as only opium was feared at the time. The history of

17
Id.
18
Dangerous Drugs Board, NATIONWIDE SURVEY ON THE NATURE AND EXTENT
OF DRUG ABUSE IN THE PHILIPPINES, (2015).
19
Supra note 6.
our ban on marijuana, and ultimately the ‘War on Drugs’ as we know it,
really kicked off when U.S. President Richard Nixon came into power in
1969. By the time he was elected, the Vietnam war had been raging for 13
years, and anti-war opposition was strong, especially from the left. In order
to quell dissent among the so-called hippies, President Nixon hatched a plan
that would take out the anti-war left as well as the African-Americans in one
fell swoop. 1970 saw the passage of the Controlled Substances Act which
criminalized marijuana and heroin, the objectives of which are less than
benevolent. The words of John Ehrlichman, Nixon’s former domestic policy
advisor, are particularly straightforward:

“You want to know what this was really all about? The Nixon
campaign in 1968, and the Nixon White House after that, had
two enemies: the antiwar left and black people. You
understand what I’m saying? We knew we couldn’t make it
illegal to be either against the war or black, but by getting the
public to associate the hippies with marijuana and blacks with
heroin, and then criminalizing both heavily, we could disrupt
those communities. We could arrest their leaders, raid their
homes, break up their meetings, and vilify them night after
night on the evening news. Did we know we were lying about
the drugs? Of course we did.”20

The Philippines followed suit in 1972 when we passed our first Dangerous
Drugs Act. RA 6425 banned the importation, sale, manufacture, cultivation,
possession, and use of the drug, as well as possession of any drug-related
paraphernalia. The prohibition carried over into the Comprehensive
Dangerous Drugs Act of 2002. Since the passage of the Controlled
Substances Act in the US in 1970, a number of movements have arisen to
decriminalize marijuana, sparked by numerous studies clarifying the lack of
danger that the plant poses to individuals and to society. Not least of these
was the 1972 Report of the National Commission on Marihuana and Drug
Abuse, informally known as the Shafer report, which favored the end of the
prohibition on marijuana. While the report failed to decriminalize marijuana
at the federal level, the non-medical use of cannabis has been
decriminalized in 15 states (plus the U.S. Virgin Islands), and legalized in

20
Tom LoBianco, Report: Aide says Nixon's war on drugs targeted blacks,
hippies, Mar. 24, 2016, available at
https://edition.cnn.com/2016/03/23/politics/john-ehrlichman-richard-nixon-drug-
war-blacks-hippie/index.html
another 11 states (plus Guam, the Northern Mariana Islands, and the
District of Columbia), as of June 2019. 21 The Philippines, however, is not as
quick on the uptake, despite the clear absence of any reasonable basis for
the prohibition.

Modern Era (1986-present)

Globalization and transnational trade have seen the illegal importation of all
kinds of drugs in the Philippines from cocaine, ecstasy, valium, opium
derivatives such as heroin, codeine, and methadone, and a whole range of
other drugs including “designer drugs” of unknown chemical composition.
But none of these are anywhere near as infamous in the Philippines as
methamphetamine hydrochloride, locally known as shabu. Shabu takes up
49.4% of the drug market share, with marijuana coming in second at 36.5%,
together taking up the vast majority of the drug market at 85.9%. An
estimated 1.23% of the Philippine population uses marijuana, and 0.83% of
us use shabu,22 while all other drugs have such tiny incidences of use as to
be negligible. It is easy to play with the names and numbers in order to
create a culture of fear and hate for people who use and peddle illegal
drugs, but when we challenge the underlying assumptions fueling the
common discourse, we must concede that our current punitive policy is not
supported by history or evidence.

II.A Short History of Addiction

Rat Park
Most people take it for granted that drugs are addictive, and therefore
dangerous; that even one hit of heroin, cocaine, or shabu can cause one to
be dependent on the drug; that the source of the addiction is the drug itself.
The belief that the drugs themselves cause addiction is often justified by
experiments done on animals in the early 1960’s. Researchers set up
experiments where individual rats were put in cages and provided with a
mechanism for self-injecting heroin, cocaine, amphetamines, and a number
of other drugs. Those experiments showed that the rats would indeed self-
administer large doses of the drugs to the detriment of their health, and in
many cases, to their death.23 It seemed reasonable to conclude that if

21
Marijuana Overview, Oct. 17, 2019, available at
http://www.ncsl.org/research/civil-and-criminal-justice/marijuana-overview.aspx
22
Supra note 18.
humans were given the same opportunity, they would also inject themselves
to death.

This notion was debunked by Bruce Alexander who realized that there were
fundamental flaws in the way those experiments were carried out. Rats are
social creatures, and isolating them in a cage with nothing to do but self-
inject drugs is a recipe for disaster. Alexander hypothesized that it was not
the drugs per se that caused the addiction, but that the rats were using the
drugs to cope with depression brought about by isolation. 24 To test this
hypothesis, he designed a different experiment. 25 Alexander designed a rat
colony in a large open-topped enclosure with small boxes for hiding and
nesting, and most importantly, with other rats. He provided them with two
fluid dispensers, one with just water, and one with water laced with
morphine. He also setup isolated rats in cages as control, and found that
compared with his isolated rats, the colony rats took significantly less
drugs, none of them got addicted, much less died. The isolated rats did not
fare so well.

Unfortunately, it would be impossible to replicate this experiment with

people due to the ethical considerations of locking up human beings in
isolation and providing them with drugs to kill themselves with.
Fortunately, history has provided us with a natural experiment – the
Vietnam War.

Vietnam War
The Vietnam war saw an epidemic of heroin addiction among American G.I.s
serving in the field.26 Considering the widespread belief that heroin
addiction was impossible to overcome, there was a fear that the return of
thousands of American veterans from the war would bring the heroin
epidemic home to the US. Hence, the government, through the Special
Action Office for Drug Abuse Prevention sponsored a study 27 conducted by
Lee Robins to track the heroin use of the veterans upon returning to US

23
Bruce Alexander & Linda Wong, The Myth of Drug-Induced Addiction,
Department of Psychology, Simon Fraser University
24
Id.
25
Bruce Alexander, Effect of Early and Later Colony Housing on Oral
Ingestion of Morphene on Rats, 15 PHARMAC. BIOCHEM. AND BEHAV. 571-576 (1981).
26
Lee Robins et. al., How Permanent Was Vietnam Drug Addiction?, 64 AJPH
SUPPLEMENT 38-43 (1974).
27
Lee Robins, The Vietnam User Returns. Final Report, US Government
Printing Office, (1973).
soil. Robins, who interviewed the veterans, found that in the 8-12 months
between returning from war and the interview, only 10% used narcotic
drugs, and only 1% became readdicted.28 The findings flew in the face of
many of the underlying assumptions about heroin use and addiction, and
strongly supports Alexander’s hypothesis against drug-induced addiction.

III. Conclusion

The current discourse supporting the war on drugs rests on more myths
than can be discussed in a single paper. Some of them, such as the ‘shabu
brain’29 are easily debunked30, but the others, such as the notion that drugs
make people violent, are more difficult to address because they are rooted
in stories. Often, TV news reports depicting violent crime will end with a
statement that drug results of the suspect are pending, despite drugs not
having anything to do with the story. Stories of drug-induced robbery, rape,
and murder are rampant in media and among Filipino communities, without
anyone questioning the causal relation between the drug use and the
violence. People who have tried to study the link have found that alcohol – a
legal drug – has the highest correlation to violence among psychoactive
substances, and still the vast majority of people who drink alcohol are not
violent. Alcohol is by far the most harmful drug,31 which supports the notion
that the true reason other drugs are prohibited are not because of science,
biology or psychology, but history. But a deeper appreciation of that same
history must lead us in a different path.

When we consider the history of drug prohibition, and its link to the
marginalization and oppression of vulnerable communities, it is not hard to
see what is really happening in our country. Amnesty International
describes the President Duterte’s war on drugs is a war on the poor, 32 as the
28
Id.
29
Leila B. Salaverria, Duterte insists shabu can cause brain damage, May 10,
2017, available at https://newsinfo.inquirer.net/895885/duterte-insists-shabu-can-
cause-brain-damage
30
Bea Cupin, Shabu shrinks brains? Drug abuse expert debunks 'myth', May
6, 2017, available at https://www.rappler.com/nation/169046-carl-hart-myth-shabu-
shrinks-brains
31
David Nutt et al., Drug harms in the UK: a multicriteria decision analysis,
376 LANCET 1558-1565 (2010).
32
Matt Wells, Philippines: Duterte's 'war on drugs' is a war on the poor, Feb.
4, 2017, available at https://www.amnesty.org/en/latest/news/2017/02/war-on-
drugs-war-on-poor/
overwhelming majority of the casualties are inflicted on them. The fear
tactics used by the Duterte administration are taken straight out of the
dictator’s playbook. Only by understanding the history, and by presenting
the actual facts about drugs can we disabuse ourselves of the notion that
war is the way forward. And the facts are not hard to find.

The 2017 World Drug Report 33 by the United Nations Office of Drugs and
Crime estimates that problem drug use – meaning those who engage in
high-risk consumption of drugs – constitute 0.6% of the population,
compared to the 5.3% of all illicit drug use. This means that only a fraction
of people who use drugs develop problems, and the vast majority of people
who use drugs, are able to live relatively normal lives. Yet we have deemed
it worthwhile to persecute all of the people who use drugs, instead of
leaving them alone, and figuring out how to help the few that do develop
problems. Precisely how is the topic of another paper.34 Suffice it to state
for this one, that as far as history is concerned, there is no rational basis for
the criminal approach to drugs.

33
United Nations Office of Drugs and Crime, 2017 World Drug Report, available at
https://www.unodc.org/wdr2017/index.html (last accessed Dec. 3, 2019).
See International Drug Policy Consortium, A Public Health Approach to
34

Drug Use in Asia, (2016).