Vague guidelines on the movement of ‘vulnerable persons’ and wearing of face masks

By Atty. Eduardo T. Reyes III

In yet another twist to what seems to be an unending pandemic saga, the government authorities had again imposed the stay-at-home order on senior citizens 60 years old and above and those below 21 years of age. The decree commands of them to remain tucked inside their homes subject to very few exceptions when they can step outside, such as: to report for work, buy essentials like medicine or food, or seek medical attention.

Also recently, at the eye of another controversy is the string of apprehensions made against citizens not wearing face masks while alone inside their private cars or only with family members on board. Police officers seem to interpret local ordinances mandating the wearing of face masks while “in a public place” as to come within its parameters- those inside their private motor vehicles.

There is serious reservation on the legal soundness of executive orders issued by  heads of local government units (LGUs) to impose such restrictions, curfews and bans in light of the absence of any law that delegates any power on them to do so. What is certain is that through  Republic Act No. 11469 or the “Bayanihan to Heal as One Act”, Congress had delegated emergency powers on the President of the Republic of the Philippines to address the undeniable threat that Covid-19 poses; however, the rule is that a delegated power cannot be further delegated (delegata potestas non potest delegari). Hence, the LGUs cannot claim to have received delegated power from the President especially when their imposition of these bans and other restrictions are solely acts of the local chief executive without any imprimatur from their respective sanggunians as local law-making bodies.

There is no doubt that the power of the President under existing conditions springs forth from the State’s police power which was expressed in R.A. 11469. However, paragraph (ee) of the same law qualifies that the exercise of the power must be “REASONABLE and NECESSARY” to “CARRY OUT THE DECLARED NATIONAL POLICY SUBJECT TO THE BILL OF RIGHTS AND OTHER CONSTITUTIONAL GUARANTEES”.

Again, in order to determine the legal efficacy of these executive orders issued by the local heads of LGUs, they ought to undergo “thermal-scanning” through jurisprudentially-approved guidelines that ferret out symptoms of any legal or constitutional ailment.

At the core of this imposition on seniors and those below 21 years old of hemming them in inside their homes is the impact on their Constitutional right to travel. This right to travel traverses many other important Constitutionally-protected rights; such as, but not limited to, the right to freedom of religion, the right to privacy, right to education and to peaceably assemble. To be sure, if they cannot travel, then they cannot hear mass in church. If they cannot leave their homes, they cannot go to the library or bookstore because these were not listed as “essentials” under the impositions. More sadly, they cannot peaceably assemble to seek redress for grievances against their government.

It has been the consistent assertion in this column that “the police power ends where the Constitutional rights begin”. This is predicated on teachings in jurisprudence foremost of which is the case where the Court struck down the enactments of some LGUs in Luzon which passed ordinances imposing a curfew on minors. The said ordinances heavily restricted the movement of these minors that they could not leave their homes without their parents except for school and church activities. Inevitably, this curfew had meant that these minors cannot attend legitimate non-school and non-church activities.

But who will determine whether these minors on the streets are off to school or church or not?

The executive orders do not say so as they are vague or obscure thus leaving the unbridled discretion to the arbitrary ascertainment by the police and other players of the justice system when the minors are caught on the streets. And as to our case, in so far as the ordinances on mandatory wearing of face masks in “public places” are concerned, they do not define what “public places” mean, which leaves it’s meaning in a vacuum subject to the imagination of the police officers manning the streets.

Citing US jurisprudence, the Philippine Supreme Court enunciated that:

“In Bykofsky v. Borough of Middletown, it was ratiocinated that:

A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis, and vague standards result in erratic and arbitrary application based on individual impressions and personal predilections. X x x Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. X x x (SAMAHAN NG MGA PROGRESIBONG KABATAAN, ET AL. v. QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as represented by MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR JOHN REY TIANGCO, G.R. No. 225442, August 8, 2017)

This being so, laws or ordinances, let alone mere executive orders, must be clear enough as to leave no room for police officers to give their hard-pressed interpretation on the vagaries of such issuances and enactments. Otherwise, these laws or ordinances, including executive orders, will succumb to the Constitutional infirmity known as the “void-for-vagueness” rule.

Furthermore, chiming in with the consistent stand of this column already earlier mentioned that “the police power ends where civil liberties begin”, enactments that would have an impact on freedoms guaranteed by the Constitution have to go through a “strict scrutiny test”.  “Under the strict scrutiny test, a legislative classification that interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect class is presumed unconstitutional. Thus, the government has the burden of proving that the classification (1) is necessary to achieve a compelling State interest, and (i1) is the least restrictive means to protect such interest or the means chosen is narrowly tailored to accomplish the interest. When it is possible for governmental regulations to be more narrowly drawn to avoid conflicts with constitutional rights, then they must be so narrowly drawn.  X x x Although treated differently from adults, the foregoing standard applies to regulations on minors as they are still accorded the freedom to participate in any legitimate activity, whether it be social, religious, or civic. Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure minimal constraint not only on the minors’ right to travel but also on their other constitutional rights”.  (SAMAHAN NG MGA PROGRESIBONG KABATAAN, ET AL. v. QUEZON CITY, as represented by MAYOR HERBERT BAUTISTA, CITY OF MANILA, as represented by MAYOR JOSEPH ESTRADA, and NAVOTAS CITY, as represented by MAYOR JOHN REY TIANGCO, G.R. No. 225442, August 8, 2017)

Applying the “strict scrutiny test”, these executive orders and ordinances miserably falter. In our case, what beset our senior citizens and youths below 21 years old, and even those aged in between, are the erratic and vague restrictions imposed on them and the worrying tendency that their freedoms will be curtailed because the executive orders or even ordinances are unclear. In short, the restrictions are not “narrowly tailored” and if left unchecked, the subjects will be unduly discriminated against simply on account of age without any conclusive scientific or medical basis for the classification.

From the prism of the Constitution in regard to the civil liberties that the citizens enjoy,   Justice John Marshall Harlan, who is known as “The First Great Dissenter”, had remarked  a century ago that:

“There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. (Dissents and the Supreme Court (It’s Role In the Court’s History and The Nation’s Constitutional Dialogue by Melvin I. Urofsky, Pantheon Books New York).

Indeed, our Constitution is ageless, timeless and boundless in protecting its sovereign. Even in the midst of a pandemic, every law that restricts must be assiduously scrutinized and the intentions unmasked- lest the citizen cry out: “I can’t breathe”.

(Atty. Eduardo T. Reyes, III 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 law book author. His website is etriiilaw.com).