Jab or jail?

By Atty. Eduardo T. Reyes III

News outfits have recently carried as their banner news the pronouncement from the Philippine president that he will order the arrest of those who refuse to be inoculated against Covid-19.

No less than the justice secretary as well as the president’s mouthpiece were quick to playdown the pronouncement by engaging in subtleties in saying that there is no law as yet that punishes the refusal to be vaccinated as a crime and that the president was just being emphatic about his stand on compulsory vaccination.

Then comes the presidential legal counsel.

He asserts that no law need be passed by Congress to undergird the arrest of persons who refuse inoculation. He cites Section 15, Article II of the 1987 Philippine Constitution as legal basis. It states that:

SEC. 15 . THE STATE SHALL PROTECT AND PROMOTE THE RIGHT TO HEALTH OF THE PEOPLE AND INSTILL HEALTH CONSCIOUSNESS AMONG THEM.

Indeed, it is a fundamental policy of the “State” to “protect and promote the right to health of the people and instill health consciousness among them”. However, the mandate is on “the State” which is comprised of three (3) branches of government, ie., the Executive, the Legislative and the Judiciary”- and not just the president alone.

Too,    in Tañada v. Angara (G.R. No. 118295, May 2, 1997), it was held that “these principles in Article II are not intended to be self-executing principles ready for enforcement through the courts. They are used by the judiciary as aids or as guides in the exercise of its power of judicial review, and by the legislature in its enactment of laws”.

Thus it is clear that much of what are found in Article II of the 1987 Philippine Constitution are not self-executing provisions which can be used as legal basis to order the arrest of persons. Instead, they need enabling laws to be passed by Congress to put teeth into these provisions. And in crafting these enabling laws, Congress has to take into account -or be guided by- these policy considerations.

By contrast, the provisions under Article III of the Constitution which is the repository of the people’s civil rights and liberties, had been held to be self-executing. Thus, “x x x The guarantees of civil and political rights found principally in the Bill of Rights are self-executory and ready for use. One can assert those rights in a court of justice. x x x (Gios-Samar, Inc. represented by its Chairperson Gerardo M. Maliano v. Department of Transportation and Communication and Civil Aviation Authority of the Philippines, G.R. No. 217158. March 12, 2019).

Given that a law must be enacted treating the act of refusing to get a jab as a crime, then it is important that such law must be a “penal law”. Which leads to the curious question: What is a penal law?

In Inmates of the New Bilibid Prison, Muntinlupa City, namely: Venancio A. Roxas, et al. v. Secretary Leila M. De Lima, Department of Justice and Secretary Manuel A. Roxas II, Department of the Interior and Local Government/Reynaldo D. Edago, et al. v. Secretary Leila M. De Lima, et al.G.R. No. 212719/G.R. No. 214637. June 25, 2019, the Supreme Court laid emphasis on the duty of courts to “zealously guard” any act that trammels on a “person’s basic constitutional and natural right to liberty”. The Court further held that before a person’s liberty is taken away, there must be a penal law that defines and punishes the act to be criminal. Thus, according to this ruling:

“A penal provision or statute has been consistently defined by jurisprudence as follows: A penal provision defines a crime or provides a punishment for one.  Penal laws and laws which, while not penal in nature, have provisions defining offenses and prescribing penalties for their violation.  Properly speaking, a statute is penal when it imposes punishment for an offense committed against the state which, under the Constitution, the Executive has the power to pardon. In common use, however, this sense has been enlarged to include within the term “penal statutes” all statutes which command or prohibit certain acts, and establish penalties for their violation, and even those which, without expressly prohibiting certain acts, impose a penalty upon their commission.

Penal laws are those acts of the Legislature which prohibit certain acts and establish penalties for their violations; or those that define crimes, treat of their nature, and provide for their punishment.”

Not only that, but the indispensable requirement of a penal law to be in effect in order to warrant the arrest of persons who refuse vaccination goes to the heart of substantive due process which is also guaranteed by the constitution. This harks back to the genesis of the American Constitution (from which the Philippine Constitution is mostly based) which according to James Madison, one of its founders, “is a charter of power granted by liberty x x x not a charter of liberty granted by power”. In other words, any power derived from the constitution is only because the people are free to grant such power. It is not correct to say that the people enjoy liberty because it was granted by the constitution. Liberty therefore is the rule and curtailment the exception.

Almost a century ago, policemen tapped without a warrant the phone lines on the highway of a suspected bootlegger (ie, someone who sells alcoholic drinks illegally). The police claimed that they did not violate the suspect’s rights to privacy and against unreasonable search and seizure because they did not so much as step into the suspect’s premises, and the majority of the US Supreme Court justices agreed. However, Justice Louis Brandeis, dissenting in Olmstead v. United States (1928) otherwise known as the “Alcohol Prohibition case on wiretapping”, held that: “The Fourth Amendment protects people, not places. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding”.

            This dissenting opinion by Justice Brandeis is the controlling constitutional law doctrine today. The rule now is that good intentions do not substitute for the requirement of a penal law to justify an arrest.

And indeed, we must be vigilant in protecting our liberties lest they be eroded by invasive acts that parade in the guise of addressing a pandemic that still shows no signs of going away in our part of the world.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a book author. His website is etriiilaw.com).