Explainer: Duterte orders arrest of unvaccinated. Guv Gwen orders prosecution of those obstructing electricity, telecom workers. Legality questioned but not yet raised in court.

·5 min read

AMID the flurry of preparations for the Covid-19 variant Omicron, two orders from two high officials, national and local, seized public attention:

[1] President Duterte, in a pre-recorded briefing Tuesday, January 4, said barangay captains should arrest unvaccinated persons who violate stay-at-home orders.

[2] Cebu Governor Gwen Garcia, in an executive order (EO) announced Thursday, January 6, said individuals and groups that obstruct personnel of electric cooperatives and telecommunication companies in their repair work in the province will be charged. Heavy penalties -- fine of from P50,000 to P500,000 or jail sentence of from six years and one day to 12 years, or both -- will be imposed, according to the EO, the governor’s first in 2022.

BASIS, JUSTIFICATION. Duterte’s order was not in writing, at least not yet publicized, and he cited no law that punishes refusal to remain at home if one is not vaccinated. The president merely said the barangay captain, “as a person in authority,” can arrest and take to the police station any unvaccinated person who refuses to leave a public place and return to his home.

The governor’s order -- EO # 1, series of 2022 -- provides that “persons currently obstructing or preventing telecommunication companies, electric cooperatives, or their personnel are hereby ordered to immediately cease and desist from doing the same.” Supporting the warning to sue is Section 19 of Republic Act (RA) 10121, which also provides the stiff fine-and/or-jail penalties for the violation.

The moves can be easily justified: the sudden surge in number of Covid infections, believed to be caused by the variant Omicron, from just 3,617 cases on January 1 to the record-high number on January 7, a 40-percent positivity rate, well above the five-percent threshold of the World Health Organization.

But is there a legal basis, a law or ordinance supporting the separate orders of the president and the governor?

NONE YET. There’s none yet for Duterte’s order, not an act of Congress signed into law or local government ordinance approved by the governor or mayor that specifically prohibits an unvaccinated person from leaving his house.

Domingo E. Cayosa -- former president of IBP or Integrated Bar of the Philippines and husband of Cebu’s Maria Milagros N. Fernan-Cayosa (a former member of the Judicial and Bar Council) -- in a DzBB interview noted the absence of legislation, saying the new ordinance in Metro Manila merely provides that “under Level 3 and you are not yet vaccinated, you cannot go to public places.” Metro Manila mayor agreed to limit movements of the unvaccinated but have yet to enact ordinances to bar them from public places like restaurants and malls.

The crime, as well as what constitutes a public place, has to be defined. “Absent any crime, you will not have basis to arrest,” said Atty. Cayosa.

GETTING AROUND IT. The basis for the arrest, as conceived by the president, is not the loitering of the unvaccinated at a public place but the refusal to obey the barangay captain.

That was suggested by Duterte before so that police can make an arrest for violation of health protocol when there’s no law or ordinance yet covering the “offense.” The crime supporting the arrest is the disobedience or resistance to the PNP officer or, in Duterte’s order this week, the barangay captain.

THE LAW GWEN LEANS ON. An individual or group charged with the crime may question Capitol’s legal basis for the filing of charges. RA 10121 principally covers the system of the country’s disaster risk reduction and management, providing for its management framework and institutionalizing the DRRM plan. It is all about relief goods during a calamity.

The prohibited acts listed in Section 19, which the EO invokes, refer to preventing entry and distribution of relief goods in disaster-stricken areas. The criminal acts include buying, selling, seizing, repacking, diverting profiting, substituting, soliciting falsifying, tampering and similar acts that are deemed illegal – but all in connection with RELIEF GOODS, not personnel or equipment of a repair crew from the electric or telecom companies.

Apparently, the link or connection between the act sought to be prohibited by the EO and the offensive obstruction of repair crew work is that it might delay the distribution of relief goods. The law mentions “prevention of the entry of relief goods” with the clause “including appropriate technology, tools and equipment, accessories, disaster teams or experts.” Does the qualifier include experts and equipment of the repair crews of electric and telecom firms?

Vincent Isles, a law practitioner in Cebu, sought by Explainer for comment, said “The law says the prohibited act is the prevention of the entry and distribution of relief goods. The word ‘including’ particularizes such an act.” Atty. Isles said, “‘Appropriate technology’ in the said context may include portable water purification systems, but not telecom or electric companies.”

Penal laws, as law professors pound on their students, must be strictly interpreted for the accused. A law that deals with relief goods during disasters could’ve been more specific and clear if barring entry of repair crews is included.

If the lawmakers intended to include those repair crews, they could’ve made the law say so.

Relevantly, Atty. Cayosa also cited that criminal law precept in the case of ordinances punishing violations of a lockdown against the unvaccinated. Loitering outside of, but near, one’s house, he said, may not be punishable. Thus, the importance of defining what constitutes a public place.

OTHER LEGAL SUPPORT. Capitol may still prosecute violators though, using such laws as, say, coercion or resistance to arrest.

Issuing the warning through the governor’s EO, like President Duterte’s rattling of the arrest threat on national television, might be enough to instill fear among local obstructionists in the restoration of power and communication.

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