“It is a rule in criminal law that before a person is detained it must be clear to the law that such an act is prohibited and imprisonment is imposed.”
By ANNE MARXZE D. UMIL
MANILA – Persons without quarantine passes, those with no face masks and netizens posting threats against the President were recently arrested.
Human rights lawyers, however, said that there are no specific laws that punish those who do not wear face mask, those who do not have quarantine passes and even those who post their criticisms to the government via social media.
In an online Know Your Right forum of the National Union of Peoples’ Lawyers (NUPL) dubbed as Lockdown Crackdown, NUPL Chairperson Neri Colmenares said that Republic Act 11469 or the Bayanihan to Heal as
One Act and even the Republic Act 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act do not have penalties for so-called “violations.”
Colmenares said that while RA 11469 cites “creating or spreading false information regarding the COVID-19 crisis such information having no valid or beneficial effect on the population and are clearly geared to cause panic or chaos, or cyber incidents that prey on the public through scams phishing etc.” as among the prohibited acts, authorities must prove the following:
- The accused created, spread or perpetrated information through social media or platforms;
- The information must pertain to the COVID-19 crisis;
- The information is false;
- The information must have no valid or beneficial effect to the population;
The information must be clearly geared to promote chaos, fear, anarchy, panic or confusion.
Colmenares added that those who will be accused of this violation should undergo due process thus arrests should be with a warrant.
Colmenares said the government should take criticisms as a feedback mechanism on its COVID-19 response so they could work more on weaknesses.
What the laws state
Colmenares said that quarantine should be taken seriously and the protocols such as wearing a face mask and staying at home are important to prevent the virus from spreading. But he also reiterated that the militarist approach does not help but further worsen the situation.
As thousands have been arrested due to the so-called violation of the enhanced community quarantine (ECQ) protocol, Colmenares said that putting them in an already congested jail would only spread the virus as there are now confirmed cases of COVID-19 in jails.
Colmenares said that hundreds have been arrested during the quarantine period allegedly for violating the following, RA 11469 or the Bayanihan to Heal as One Act, RA 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act, Article 151 of the Revised Penal Code or Disobedience to a Person of Authority and Batas Pambansa 880 or the Public Assembly Act of 1985.
Those who were providing aid to the communities were also arrested, Colmenares said.
“It is a rule in criminal law that before a person is detained it must be clear to the law that such an act is prohibited and imprisonment is imposed,” said Colmenares.
RA 11469, according to Colmenares, does not specifically state that those who do not wear a face mask or do not have a quarantine pass will be arrested and later on be sent to jail.
“A person cannot be detained on the basis of the law when there is nothing (in that law) that states imprisonment. There are laws that specifically states that you will be imprisoned if these prohibited
acts will be committed.”
According to Colmenares, other prohibited acts under Section 6 of the RA 11469 are the following:
- Local government unit officials disobeying national government policies;
- Private hospitals and vessels who refuse to operate despite directives;
- Hoarding, profiteering, injurious speculations and similar violations;
- Refusal to accept contracts for necessary materials and services;
- Refusal to provide 30-day grace period required by the law;
Impending access to roads, putting up obstacles or maintenance of illegal construction that have been ordered to removed;
Meanwhile, RA 11332 focuses more on disease surveillance. The law requires hospitals and patients who have illnesses listed in the infectious diseases to report to the government.
Colmenares said violations under Section 9 of the law are the following:
- Unauthorized disclosure of private and confidential information pertaining to a patient’s medical condition or treatment;
- Tampering of records of intentionally providing misinformation;
- Non-operation of the disease surveillance and response system;
- Non-cooperation of persons and entities that should report and/or respond to notifiable diseases or health events of public concern;
Non-cooperation of the person or entities identified as having the notifiable disease, or affected by the health event of public concern;
“Because RA 11332 is mainly on mandatory reporting of diseases, the prohibited acts must be strictly construed to relate to the intention and the police cannot, as the Supreme Court in Centeno vs. Villalon
declared,” said Colmenares.
He said the police cannot make another interpretation of the law and suddenly create a new offense. Thus, the charges against former Anakpawis Rep. Ariel Casilao and aid volunteers for supposedly violating RA 11332 is inappropriate. Colmenares explained that those who were charged were not even identified as persons who have a disease listed in the DOH’s infectious diseases.
Meanwhile Colmenares said in Article 151 of the Revise Penal Code, disobedience can only take place if a person in authority has issued a valid order, the accused resisted or seriously disobeyed the said order or the person in authority was engaged in the performance of official duty.
He said that simply going out without a face mask or without a quarantine pass is not disobedience to a person in authority. He added that the argument of the police that merely going out of the house is already disobedience is absurd.
“Then all those who will violate the law, say illegal possession of firearms or theft will also be charged with Disobedience to a Person in Authority? The law is clear, there should be an order (of a person in authority),” he said.
Another case filed against those arrested during the ECQ is Batas Pambansa 880. Colmenares said that under this law, police intervention is prohibited during rallies.
Colmenares said Section of the BP 880 states that “Law enforcement agencies shall not interfere with the holding of a public assembly.”
Law enforcers are only present for public safety and must be stationed at least 100 meters away from the area of activity, Colmenares said.
He said BP 880 actually punishes public officials under Section 13 for prohibited acts such as:
- Arbitrary and denial or modification of a permit in violation of the provisions of this Act by the mayor;
- Unjustified and arbitrary refusal to accept or acknowledge receipt of the application for a permit by the mayor;
- Obstructing, impeding, disrupting or otherwise denying the exercise of the right to peaceful assembly;
The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly.
“Participants in a rally are not liable and cannot be arrested,” said Colmenares adding that only leaders or organizers of a rally are being charged under Section 13 (a) that requires permit to rally.
Filing counter charges
The NUPL has earlier said that violations committed during quarantine period should be properly documented so that victims may file counter charges in the right time.
Colmenares said that right now, courts are not yet opened or some may have been in skeletal workforce.
He encouraged all victims to stand up and fight if they feel that their rights were violated.
He likened human rights to rubber band. “The amount it covers depends on the extent and the effort to stretch the rubber band to cover more rights. If we will not assert, we will not stretch then only few rights will be covered,” he said.
He also called on law students and lawyers to also help victims of rights violations during the quarantine in drafting counter charges to be filed against the perpetrators.
“It is only just that people fight for their rights for a better society for their children. This is the time where your services are needed when thousands are being arrested and imprisoned unjustly,” he said.
Related story: Know your legal rights under ECQ
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