Prosecutorial discretion can quickly stop ‘tanim bala’ scam

Departing OFW’s with their wrapped baggage wait in line to check in at the Ninoy Aquino International Airport (NAIA) terminal 1 on Monday, November 2, 2015.
INQUIRER PHOTOS / GRIG C. MONTEGRANDE

When airport security officers detain a passenger because they find a bullet that has been converted into an amulet on grounds that possessing a bullet is a crime, they are not exercising common sense but are either exhibiting moronic tendencies or simply looking for a convenient way to extort money from the helpless passenger. Even if say they found five bullets in a passenger’s’ luggage but no gun, it makes no sense to make a big deal out of it. Bullets without guns cannot really harm anyone.

Truthful common sense answers to the questions below provide the public with a thorough understanding of the “tanim bala” (bullet planting scam).

What is this scam about?

It’s about various airport personnel involved in conspiring in planting bullets in outgoing passengers’ luggages and then accusing them of violating the law. They isolate victims in a room, scare them with threats of filing serious charges against them; detaining them indefinitely; preventing them from boarding their planes which are about to depart. It then becomes so easy to extort money from them; the amount depends on how much money the passenger is carrying.

Why is the victim so helpless?

Because he (or she) is isolated in a room surrounded by individuals with guns. He is prevented from communicating with anyone. He cannot reason with them even if he keeps denying any wrongdoing. Of course, they already know that as they were the ones who planted the bullets there. Their end goal is just to extort money from him. If he becomes belligerent, they could beat him up and claim that he was resisting arrest, and even plant illegal drugs in his luggage.

Why is the victim so intimidated?

Because he knows that he can, in fact, be charged with a crime and possibly banned from leaving the Philippines. And if he is prevented from boarding his plane, which is about to leave, he likely will also lose his job overseas if he is not able to return to work at the expected date.

What therefore is he likely to do?

What else can he do except fork over the money they are demanding which they find in his person or his luggage in exchange for their leniency and what he believes is their sympathy. In his confusion, he often does not suspect that those interrogating him are part of a scam.

Is he likely to complain when he gets to his destination, when he realizes that he was victimized?

Very unlikely. He does not even know the identity of those persons involved. He does not even know whom to complain to. And how will he prove his case? He has no witnesses. Some victims are even grateful to the interrogators when they let them go, not knowing that they are part of a syndicate scamming outgoing passengers.

How many outgoing passengers have been victimized?

We may never know because victims are not likely to complain. They’ve already left the Philippines and just want to forget the sorry experience.

What is the main purpose of pre-flight screening and search of passengers and their luggages?

The main purpose is to protect the security and safety of passengers from terrorists or lunatics. The screeners’ purpose is to look for dangerous weapons or explosives.

Without guns, can bullets pose any danger?

Bullets without guns are not dangerous, unlike guns without bullets which can still intimidate as people would not know if they are loaded. It’s justifiable to detain and question a passenger with a gun found in his luggage. But obviously, one can easily conclude that a few bullets found in a passenger’s luggage but without guns are absolutely harmless.

Why, therefore, do airport security personnel detain and hassle passengers found with bullets sometimes including those with bullets which have been converted into amulets which clearly pose no danger?

The scammers or extortionists are really not concerned about safety or security issues. They know that bullets without guns are harmless. And bullets converted into amulets are no longer bullets but are good luck charms. But they still cite the law that says possession of bullets by itself is a crime and prohibited. So they conveniently use this law to carry out their extortion scam. They plant one or more bullets in the luggage of passengers.

What’s the intelligent thing to do if passengers are caught with amulet bullets or a few bullets?

If the screeners and their law enforcement support are acting in good faith, all they have to do is confiscate the bullets and let the passenger go. Having a few harmless bullets in one’s luggage is referred to in law as a de minimis situation. That is, it’s no big deal. There is no threat of harm to anyone nor is there any serious criminal act involved.

News of this planted bullet scam in Philippine airports has gone viral worldwide, giving the country a bad image, causing a continuous loss of significant income for the tourism industry. It gives the impression that it’s not more fun in the Philippines. The bleeding has got to stop.

What should the government do?

This scam is actually happening, victimizing mostly overseas Filipinos who contribute so much to the country’s wellbeing and economy with their sacrifices. The country’s image and tourism industry are also drastically affected. Government officials should stop being so defensive and recognize that this is a real and serious problem.

Some Administration officials are even claiming that this problem was instigated by opposition groups as elections are just around the corner. The government should immediately determine effective ways to stop this scam, arrest perpetrators and announce to the world that effective measures have been put in place.

What has the government done so far?

The government has announced that serious investigations are taking place and that they are studying the problem. A certain number of screeners and other airport personnel have been laid off as a preventive measure. More cameras will supposedly be installed. Watchers watching the screeners and other airport personnel will also be stationed.

Can he lawyers from the Public Attorney’s Office and those from the private sectors who volunteered to help the victims really help?

Of course, it’s good to have well-intentioned lawyers who are willing to help. However, the reality is, when a passenger is accused of having bullets in his luggage he is taken inside a room and isolated from communicating with anybody. I don’t expect the airport law enforcement extortionists to show eagerness in reading him his Miranda rights as to his right to a lawyer and his right to remain silent.

Instead, they will be telling him that having a bullet or bullets or bullet amulet in his luggage is a serious charge and could land him in jail for years. They also will be threatening to detain him indefinitely which would mean missing his flight and his job overseas. But they will also tell him that they are just carrying out the law and want to sympathize with him. Their purpose is plain and simple: To scare and coerce him to give them money and after that to release him just in time for him to board his plane.

The helpless victim, while very resentful, then feels that he was fortunate enough and even grateful that he was able to board his plane and leave. He has no idea how the bullet or bullets got into his luggage.

It is only if he refuses to pay and is detained and charges filed against him can he subsequently utilize the services of the PAO and volunteer lawyers. But he still pays the heavy price. He misses his flight, probably loses his job, is subjected to more investigations, has to attend court hearings and faces other hassles and inconveniences as the result of being a victim of this scam.

What is the simplest, cheapest, most effective way to stop this scam, protect innocent outgoing passengers and rectify the nation’s bad image that was projected by “tanim bala”?

“Prosecutorial Discretion” is a very important procedural principle in criminal and immigration law. Essentially, it is the broad discretionary power given to government prosecutors to proceed or not to proceed in prosecuting cases or to lessen the charges that are filed.

While I acquired my law degree in the U.S. and all of my professional life as a practicing California lawyer has been in the U.S, I know that Philippine government prosecutors referred to as “Fiscals” also have this broad prosecutorial discretionary powers. The head of all prosecutors in the Philippines is the Secretary of the Department of Department of Justice. Alfredo Benjamin Caguioa is currently the newly appointed Secretary. He is part of the Executive Branch of Government and his immediate boss is President Benigno “PNoy” Aquino III. The President can order Department Heads to follow a certain policy if these orders serve the public interests and is consistent with legal principles.

Unlike in the U.S., in the Philippines, this principle of Prosecutorial Discretion is generally not utilized by the Department of Justice or the Bureau of Immigration or other agencies as a useful tool for creating general public policy that serves the interests of its citizens.

In the U.S., the Attorney Generals of various States, the Head of the US Federal Department of Justice, the Head of the US Citizenship and Immigration Service and the Head of other agencies – and even the U.S. President have repeatedly utilized this principle of “Prosecutorial Discretion” in order to: Create policies that make sense; protect citizens from indiscriminate non-judicious application of the law; implement humanitarian considerations; utilize limited government resources for more important priorities.

For example, in some states, mere possession of Marijuana is a crime. But the Attorney Generals of some of these states, utilizing the principle of Prosecutorial Discretion, have issued general directives to prosecutors and law enforcement personnel that simple possession for medical or recreational purposes and not for sale will no longer be prosecuted. Not only did this judicious exercise of Prosecutorial Discretion keep many good citizens from being arrested, getting jail time, having criminal records, spending money for lawyers and facing other hassles, but it also saved a lot of money for these states and freed prosecutors to utilize their time on more serious crimes.

On the basis of Prosecutorial Discretion, the Head of the U.S. Immigration and Customs Enforcement has also issued general directives to prosecutors and agents not to proceed to arrest or deport undocumented immigrants when obvious humanitarian considerations are present, but to prioritize the use of limited government resources to go after criminal aliens.

US Attorney General Eric Holder also used this principle of Prosecutorial Discretion when he announced that the U.S. government would no longer proceed to enforce the Defense of Marriage Act (DOMA) federal law, which limited marriages to those with opposite sexes. This eventually led to the US Supreme Court declaring same sex marriages as legal.

With all due respect to President Benigno Aquino III and Secretary of Justice Alfredo Benjamin Caguioa, please allow me to suggest utilizing this principle of Prosecutorial Discretion to immediately stop this “Tanim Bala” scam. I do not wish to give the impression that I am a “know it all” U.S. Fil-Am lawyer dictating to Philippine officials what to do. I am simply humbly wanting to help my fellow human beings, that is, keeping innocent outgoing passengers from being hassled and victimized. I also want to remedy the bad global image that this “Tanim Bala” scam has given to the Philippines and to our people.

This suggestion is also very important and valuable in serving the people’s interest. It shows how government can use an important legal principle as a policy making tool now and in the future to prevent corrupt law enforcers and regulators from abusing existing laws. Citizens of the Philippines encounter this abuse of the laws by corrupt government personnel in their everyday lives. Laws are implemented without utilizing common sense and fairness principles when used for corruption purposes.

I draw from my experience as a lawyer officially certified by the California State Bar as an expert on Immigration Law continuously for more than 25 years now, as well as being a human rights lawyer, to provide whatever help I can give to my fellow human beings and country of origin, offering an effective proven way to solve this serious problem. I know from experience that the principle of Prosecutorial Discretion, when utilized by government prosecutors acting in good faith, really makes a big difference in bringing about order and justice in many situations.

The intent of the law that makes the possession of bullets a criminal offense whether by airline passengers, or in some other contexts, was for a good purpose, just like so many other laws. It is meant to prevent shootings that cause death or injuries. This law was certainly not meant to be used by scammers to extort money and hassle innocent people.

The whole purpose of airport screenings and scrutiny of passengers and luggage is to detect deadly weapons and explosives that threaten the safety and security of passengers and crew. Obviously, a few bullets by themselves without a gun are not deadly weapons. This is more obviously so with bullets that have been converted to amulets. As such, just confiscating the bullets is a simple common sense summary procedure to terminate further hassles.

On the basis of the principle of “Prosecutorial Discretion,” President Aquino can order Secretary Caguioa, or even Secretary Caguioa by himself, can just issue a general directive to prosecutors and airport security personnel that finding ten or fewer bullets in passengers’ luggage will no longer be prosecuted. Instead, just confiscate the bullets.

The “Tanim Bala” scam will immediately be effectively stopped if Secretary Caguioa issues this directive. The scammers will no longer plant bullets in luggage as they can no longer conveniently and wrongfully use the law banning bullets to victimize helpless passengers.

It also costs the government nothing to stop this scam. No need for watchers to watch the screeners and other airport personnel. No need for extra cameras. It also saves the government time and money as prosecutors will be freed from having to prosecute passengers with bullets. They can then utilize their time and efforts in more important priorities – such as prosecuting really serious crimes.

Instant provable results are accomplished and the government can proudly and immediately announce to the world that it has effectively stop the “Planted Bullet” scam. This erases the country’s projected bad image and gives the impression of a well-meaning government that knows how to effectively protect people and solve problems.

As of the moment, extended hearings and discussions are going on in the Philippine Congress as Senators and Congressmen look for solutions to the “Tanim Bala” scam, to come up with remedial legislation. With all due respect to the legislators who mean well, drafting bills, engaging in various studies, meetings between representatives of the Senate and the House is a time consuming, vexatious and expensive legislative process.

The immediate use of Prosecutorial Discretion by either President Aquino or the Secretary of Justice Caguioa will instantly solve this serious “Tanim Bala” problem. Again, with all due respect, I hope they use this important principle to serve the people’s and the nation’s interests.

Note: Atty. Ted Laguatan is a human rights lawyer based in the San Francisco Bay Area. Email: [email protected], Tel 650-991-1154. He is only one of 29 lawyers whom the California State Bar has officially certified continuously for 25 years now as an expert lawyer in Immiration Law. He also does accident injuries, wrongful death and complex litigation cases.

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