Constitutional basics in a pandemic

Co-authored with Joy Reyes

Filipino translation

The past couple of days witnessed a flurry of events, many of which are legal in character, from the summons of the National Bureau of Investigation (NBI) to Pasig Mayor Vico Sotto to the statement by Presidential Anti-Corruption Commission (PACC) Commissioner Manuelito Luna  that Vice President Leni Robredo should be probed for “illegal solicitations” and for allegedly competing with the national government’s efforts to address the COVID-19 outbreak.

In this article, we will discuss the constitutional basics in a pandemic – things that both a first year law student and the government should know – and discuss why the actions currently taken by the government to suppress dissenters are unconstitutional.

Mayor Sotto’s Summons

Yesterday, Mayor Vico Sotto was summoned by the NBI to appear on April 7 and explain his supposed violation of Republic Act No. 11469, or the Bayanihan to Heal as One Act, which includes a suspension of mass transport as part of the enhanced community quarantine guidelines. Before the law’s passage on March 24, Mayor Sotto ordered the limited mobilization of tricycles in order to ferry health workers and patients with urgent needs to and from hospitals; he had however immediately retracted this order when the national government turned down his request to allow tricycles to continue to operate for the sake of the front liners.

This rejection by the national government and Mayor Vico’s subsequent recall of his order, which took place on March 18, transpired days before the actual passage of the law.

Any first year law student is familiar with the phrase “Nullum crimen nulla poena sine lege,” which is usually taught during the first week of criminal law class. Translated, it means “There is no crime when there is no law punishing the same.” In this case, Mayor Vico’s order for the limited mobilization of tricycles and his subsequent recall took place almost a week before it was deemed prohibited by the law. Without a prohibition in the law at the time, Mayor Vico’s order was neither illegal nor criminal.

Moreover, first law students are also taught the principle of ex post facto laws, or laws with retroactive effect or force. Section 22, Article III of the 1987 Constitution provides that “No ex post facto law xxx shall be enacted,” which means that it is unconstitutional for the government to criminalize an act that was legal when it was committed.

President Duterte’s “Shoot to Kill” Order

In the evening of the same day, President Duterte held an impromptu address ordering the police and military to kill quarantine violators and “trouble-makers,” a warning which came after residents of San Roque, Quezon City held a protest to air out their concerns that they were not receiving aid from the local government. 21 of these protesters were eventually arrested.

This statement – as with his previous statements regarding shooting to kill – is unconstitutional. Section 1, Article III of the 1987 Constitution states: “No person shall be denied the right to life, liberty, or property without the due process of law, nor shall any person be denied the equal protection of the laws.” Without due process in the form of a fair proceeding where both sides are given the opportunity to air out their concerns, the right of a person to his life, liberty, and property reigns supreme, and is guaranteed by the Bill of Rights.

Netizens’ Dissent

After the address, ordinary citizens understandably took to social media in order to voice out their dissent, and the early hours of April 2, 2020 witnessed the rise in the number of tweets and posts pertaining to the same.

In the morning of April 2, human rights lawyer Chel Diokno posted that he accepted a case from one of the netizens who received a subpoena from the NBI, after having posted online criticism regarding the way the administration was handling the COVID-19 crisis. The person was invited to “shed light on alleged violation of Art. 154 of the Revised Penal Code – unlawful use of means of publication and unlawful utterances in connection with your publicly posted article concerning an alleged misused (sic) of government funds.” The subpoena also provided that non-attendance will be penalized.

Although the NBI has the power to issue subpoena for the appearance of any person for investigation or the production of documents through its officers from the ranks of Regional Director to Director (Sec. 4(b), RA No. 10867), it has no contempt powers or the power to punish people for noncompliance. The functions of the NBI are merely investigatory in nature, and it has no judicial or quasi-judicial power. As such, it cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes between contending parties, and has no power to cite people in contempt, much less order their arrest.

The Constitution also guarantees free expression and that includes the right to express one’s opinion in social media.

VP Leni’s “Illegal Solicitation”

Even the Vice President is brought to the forefront. The PACC told the NBI to probe VP Robredo for allegedly competing with the national government’s efforts against the COVID-19 outbreak, including the provision of free shuttle services and dorms, and distribution of personal protective equipment (PPEs), among others.

Firstly, the money that is used by the Office of the Vice President came from private donors, both groups and individuals, and are duly accounted for. They are also donated to a private group – the Kaya Natin Movement for Good Governance. This means that the 40 million PHP amount used to procure equipment and shuttle services did not come from the national treasury and is not being spent by the government. Thus, the probe is patently unfounded and without legal basis.

Secondly, one must be reminded that the Vice-President is an impeachable official and no cases filed against her will prosper unless she is impeached first. Helping fellow Filipinos is it is of course not an impeachable offense, nor is the NBI the proper venue over which to lodge such complaint, according to Sections 2 and 3, Article XI of the 1987 Constitution.

PACC Commissioner Greco Belgica has since said that the call by Commissioner Luna to have VP Leni probed was his personal opinion and did not reflect the views of the body.

We hope it ends there as this is a big distraction from what the country needs to do to address the challenges of the pandemic are unhelpful actions taken by government officials, actions that cause disunity andwhich are illegal and unconstitutional.

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