In PH pandemic: Due process for allies, warrantless arrests for the rest

Cases of violations of quarantine protocols under a pandemic situation paint a clear picture of double standard: there is due process for allies of the administration, while the rest are subjected to warrantless arrests

The latest is the birthday party of National Capital Region Police Office (NCRPO) Chief Major General Debold Sinas, attended by dozens inside Camp Bagong Diwa on May 8. Photos by the NCRPO itself show the attendees hardly observed physical distancing.

Yet mass gatherings are strictly prohibited during the lockdown.

After initially defending the party and downplaying it as just being done in bad taste, the Philippine National Police (PNP) was forced Wednesday, May 13, to launch an investigation that will be handled by the  Internal Affairs Service (IAS).

But IAS is concerned only with administrative sanctions of policemen. When it comes to criminal culpability, Justice Secretary Menardo Guevarra committed the National Bureau of Investigation (NBI) to look into it.

"I will ask the NBI to look into this too," Guevarra told reporters Wednesday.

All the actions taken are part of due process which wasn't afforded previous lockdown violators – hungry residents of the San Roque community in Quezon City who were demanding food aid, feeding program volunteers in Marikina, and a fish vendor in Navotas – all of whom were arrested without warrants and detained.

In the case of discharged schizophrenic soldier Winston Ragos, his violation – being outside without a mask – got policemen to shoot him dead. (READ: POLICING A PANDEMIC: Philippines still stuck with drug war blueprint)

Warrantless arrests

The administration, backed by the Department of Justice (DOJ), had warned about warrantless arrests of quarantine violators – whether or not they resist.

The DOJ has defended this policy, citing Republic Act 11332 or the Mandatory Reporting of Notifiable Diseases Act, which punishes "non-cooperation" in a health crisis. This has been slammed by human rights lawyers for being too broad and prone to abuse.

Asked why Sinas was not arrested on the spot given the government policy, Guevarra did not categorically answer and recited the standard procedure for arrests.

"An arrest is immediately effected by law enforcement agents if a person is caught in the act of committing a crime, or continues to commit a crime," Guevarra said, zeroing in on the "caught in the act" element of a valid warrantless arrest, which had been applied to previous quarantine violators.

"Otherwise, a complaint has to be filed first, a preliminary investigation conducted, and charges filed in court if probable cause is found, before a warrant of arrest is issued. That is our standard procedure," Guevarra added. This is what happened to administration ally Senator Koko Pimentel who breached quarantine when he visited a hospital even though he knew he was a suspected coronavirus patient. 

Pimentel later tested positive for the coronavirus.

The DOJ acted on a complaint filed by a former law dean, and has scheduled a preliminary investigation for Pimentel on May 20 if the lockdown is lifted.

The benefit of a preliminary investigation without jailtime was not extended to 48,132 people arrested on the spot for violating quarantine rules, according to PNP data as of May 11. 

Of that number, 36,000 have been charged in court; 12,132 are undergoing prosecution, and 2,235 remain in jail.

While they are different cases, former Supreme Court spokesperson Ted Te said it is fair to compare them since they will be charged under the same law, which is RA 11332.

"(They are) mala prohibita or acts that are prohibited by law, the mere performance of which results in the violation without need of criminal intent. It does not matter what the reason is. Comparing San Roque and the May 1 arrests with Sinas and even Pimentel is fair because all are being charged with violating quarantine protocols under RA 11332," said Te.

Te added that warrantless arrests made under RA 11332 are "difficult" cases since the Supreme Court has never interpreted the specific offenses under that law.

"The formulation of the offenses under the law are also unclear, thus leading to the possibility of the police mistaking an innocent act for the prohibited act," said Te.

Death threats

The NBI said on Wednesday it will also investigate death threats against Vice President Leni Robredo, after the bureau was called out for its selective investigation.

"Yes [we will investigate]," said NBI media officer Nick Suarez, but he added he has "no idea" about its status.

The NBI arrested without a warrant 25-year-old public school teacher Ronnel Mas who posted on Twitter that he will give P50 million to the person who will "kill President Rodrigo Duterte."(READ: Habal-habal driver who offered P100-M reward to 'kill Duterte' arrested, too)

Guevarra refused to comment on the validity of Mas' warrantless arrest, given that the Twitter account was already deactivated, and Mas was interrogated without the presence of a lawyer.

"Let's leave it to the inquest prosecutor. I don't have all the facts. In any case, the rights of the person arrested will be respected at all times, including his right to counsel," said Guevarra.

The NBI has also sent more than a dozen subpoenas to individuals who have social media posts critical of the administration.

Amid mounting criticisms, Guevarra said: "As justice secretary, I have always advised the NBI to enforce the laws fairly and uniformly."

"My instruction is to look into all reported cases of non-cooperation/violation of quarantine protocols, regardless of who is involved. The NBI knows who these people are," said Guevarra.

Double standards

Using Guevarra's earlier statament on extending compassion to Pimentel, human rights lawyer Edre Olalia said it is tragic that there is "hypocritical compassion only for the rich, famous and/or powerful when they step out of the line or go out of bounds."

"But for the poor and obscure, the hard role of law – found in the books or impersonated by pseudo deities – is getting beaten up, locked in jail, humiliated, demonized, and starved, that is, if you are 'lucky' to come out alive and given tokenist rights for show," said Olalia, the president of the National Union of Peoples' Lawyers (NUPL) and the transitional president of the International Association of Democratic Lawyers (IADL).

Sinas, while denying some details of his birthday party despite photos, has apologized.

Guevarra earlier said, referring to Mas' apology for the death threat: "Apology is not one of the grounds for extinguishing criminal liability. I cannot feloniously injure another and get away with it by merely saying sorry." Rappler.com

Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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