So, the government will use “martial law-type” approach in implementing the Extreme Enhance Community Quarantine (EECQ). As confirmed by the PNP’s top brass, there will forego warnings, instead there will be outright arrest of people caught violating the EECQ, or those found outside their homes without the required quarantine pass. This administration is treading on dangerous waters. Abuses by the law enforcers are bound to happen.
Here are the reasons why:
First, there is no law that punishes as crime the act of an individual who leaves his house without a quarantine pass. RA 11469 (“Bayanihan to Heal as One Act”) does not punish such act. Thus, what is there to implement? Worse, if arrested, what specific provision of RA 11469 will be charged to the alleged violators? One cannot be charged with a non-existing crime. As reported in the news, different LGUs have adopted different “penalties” to those caught violating the EECQ. Some violators were asked to do push-ups, some carried coffins while others were forced to watch documentary films about covid 19. These news reports prove that no law punishes the act. And since there is no law, there is also no penalty that can be imposed to those caught doing the act. These approaches being done by the LGUs, while creative, have no basis in law, hence, can easily be assailed in court for being illegal.
Second. The mere fact of being outside your home without the required quarantine pass is not a violation of Art 151 (Resistance and disobedience) of the Revised Penal Code. Bear in mind that the two key elements of Art 151 are: (1) That a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and (2) That the offender resists or disobeys such person or his agent. Being merely out on the street without the required pass cannot be treated as disobedience to the lawful orders of the authorities. This crime, based on the decision of the Supreme Court, is committed when a person in authority or his agent directly and personally ordered a person to do a particular act but deliberately refused to do so. An example of which is refusing or disobeying a law enforcer’s order to go home after being found in the street without the quarantine pass. There must be a personal and direct interaction between the one giving the order and the one defying it which will show the latter’s clear intention to disobey the order. However, there may also be instances where this crime is committed although there is no direct and personal interaction between the one giving the order and the offender like (i) having a drinking spree outside your house during EECQ or (ii) promoting cockfights during the same. In these instances, the personal and direct interaction between the law enforcer and the offender need not preceed the violative act because the intention of the offender to disregard the order is already clear from his acts. Being merely outside your house without engaging in activities that will show your deliberate intention to breach the EECQ is not by itself “disodience” within the contemplation of the law. Kung umihi ka lang sa labas ng bahay ninyo during EECQ, hindi iyon “disobedience” under RA 151.
Third, RA 11332 or the “Mandatory Reporting of Notifiable Disease and Health Events or of Public Health Concern Act“ does not include as crime the act of being out on the street without a quarantine pass. What RA 11332 punishes, among other things, is “(n)on-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern”. This particular act is committed by someone who is infected by the disease and who refused to cooperate with the authorities.
No stretch of imagination can render RA 11332 applicable to a person who just happened to found outside his house.
The term “martial law” has a very dark connotation in our history. The last time it was resorted to by the government, a lot of individuals- good men and women- were thrown in jails without being charged in court. Worse, penalties imposed on the individuals arrested were not based on law, but on the whims or “creativity” of their captors. Now tell me, do you still agree with the government’s decision to use “martial law-type” of approach in enforcing a penal law that exists only in the minds of the law-enforcers and not in our statues? If yes, well, think again.
Atty. Apollo V. Atencia