Lockdown Law  

Atty. Raymund Martelino
/in /by

Several incidents of conflict between law enforcement officers and private citizens have become viral in the past weeks while Metro Manila is under Enhanced Community Quarantine (ECQ) or lockdown due to COVID-19.

Legal opinions have been posted on social media condemning or defending the actions of both sides. As far as these opinions are concerned, everyone is entitled to express themselves under the protection of our Constitutional right to free speech and expression. I will not even dare engage in a debate or legal argument with anyone on these cases because at the end of the day, it should be a judge or the court that will decide on their legal merits. I reserve my right to express my legal opinion on the merits of each case for lack of personal knowledge as to the truth and access to competent evidence that would qualify in court.

The cases, however, are good springboards to discuss existing laws and jurisprudence on the rights of the people, citizens and foreigners alike vis-a-vis the enormous power of the government and law enforcement officers especially during exigent times like this health emergency.

We should all remember that even during emergency situations, the rule of law and the Constitution, particularly the Bill of Rights, should prevail and continue to operate. It is basic that the Bill of Rights serves to protect people against possible abuse in the exercise of governmental powers. Sometimes, people forget that these Constitutional rights are the only thing we have against a despotic, arbitrary and whimsical government.

A motorist offers packed food at a checkpoint.

The Constitution likewise provides that public officers are accountable to the people at all times. Article XI, Section 1 provides: Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

The first case was the alleged “overkill” of police in Taguig City, who barged into a condominium building and shouted at residents, including some diplomats, their families and children to enforce ECQ rules like social/physical distancing and wearing of masks. The residents claimed that the police berated and shouted at them for not following guidelines while in the pool area.

The second case is the shooting incident in Quezon City where a former military man suffering from mental illness was shot dead by a police officer after an altercation at a checkpoint. The police said that the victim approached and started shouting and uttering intimidating words against them. The victim also allegedly ignored the police after identifying himself as a former soldier.

The third case was the attempted warrantless arrest of a man over an alleged quarantine violation in a gated subdivision in Makati City. Reports say that the incident stems from the act of the police accompanied by a barangay tanod attempting to impose a fine of P1,000 against the kasambahay who was not wearing a mask while watering their plants. The homeowner was called out and the matter escalated to a point where he was taken down by the police officer in an attempt to place him under arrest. Makati City has an ordinance requiring all persons within the city to wear facemasks or similar protective gear when outside the premises of their home during this health emergency.

The most recent incident was the mauling of a vendor by barangay officials in Quezon City, also for violating ECQ rules. Videos uploaded on social media by witnesses showed the victim being manhandled and beaten with sticks by at least five barangay enforcers while he was pleading with them.

Article III, Section 2 of the Constitution guarantees every individual the right to personal liberty and security of homes against unreasonable searches and seizures: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The purpose of the constitutional provision against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasion of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted.

The Supreme Court held in Valeroso v. Court of Appeals (2009) that unreasonable searches and seizures are the menace against which the constitutional guarantees afford full protection. While the power to search and seize may at times be necessary for public welfare, it may still be exercised and the law enforced without transgressing the constitutional rights of the citizens, for no enforcement of any statute is of sufficient importance to justify indifference to the basic principles of government. Those who are supposed to enforce the law are not justified in disregarding the rights of an individual in the name of order. Order is too high a price to pay for the loss of liberty.

Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions.

The Bill of Rights is the bedrock of constitutional government. If people are stripped naked of their rights as human beings, democracy cannot survive, and government becomes meaningless. This explains why the Bill of Rights, contained as it is in Article III of the Constitution, occupies a position of primacy in the fundamental law way above the articles on governmental power.

The general rule regarding searches and seizures is that no person shall be subjected to a search of his person, personal effects, or his residence except by virtue of a search warrant or on the occasion of a lawful arrest. The difficult part is that the court admits that there is no hard and fast rule when a search and seizure is reasonable. The court held in Veridiano y Sapi v. People (2017) that in any given situation, “what constitutes a reasonable . . . search . . . is purely a judicial question,” the resolution of which depends upon the unique and distinct factual circumstances. This may involve an inquiry into “the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured.”

The general rules, however, allows exceptions. The court listed these exceptions in People v. Sarap (2003). Exceptions where search and seizure may be conducted without warrant in the following instances: 1) search incident to a lawful arrest; 2) search of a moving motor vehicle; 3) search in violation of customs laws; 4) seizure of the evidence in plain view; 5) search when the accused himself waives his right against unreasonable searches and seizures; 6) stop and frisk; and 7) exigent and emergency circumstances.

The only requirement in these exceptions is the presence of probable cause. Probable cause is the existence of such facts and circumstances that lead a reasonable, discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched.

The above exceptions, however, should not become unbridled licenses for law enforcement officers to trample upon the constitutionally guaranteed and more fundamental right of persons against unreasonable search and seizures. The essential requisite of probable cause must still be satisfied before a warrantless search and seizure can be lawfully conducted, according to the Court in People v. Aruta (1998).

One may argue that the country is in state of national emergency as provided by Republic Act No. 11469 or the Bayanihan to Heal as One Act. This law, in fact, provides for penalties, including imprisonment and/or fines for offenses like LGUs disobeying national government policies or directives in imposing quarantines, hospitals and medical facilities unjustifiable refusal to operate, engaging in hoarding, profiteering, injurious speculations, manipulation of prices, etc., spreading false information or fake news, among others.

Another law that comes into play at this time is Republic Act No. 11332 or the Mandatory Reporting of Notifiable Disease and Health Events of Public Concern Act. The state recognizes epidemics and other public health emergencies as threats to public health and national security, which can undermine the social, economic, and political functions of the state. In March 2020, the World Health Organization declared that COVID-19 outbreak a global pandemic.

Now, what is an arrest? Rule 113 of the Rules of Court provides that arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense. An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention.

The rules further provide that an arresting officer has the duty to deliver the person to the nearest police station or jail without necessary delay. When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the person is either engaged in the commission of the offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has the opportunity to inform him, or when giving such information will imperil the arrest.

A person who is being arrested may be criminally liable for resistance and disobedience to a person in authority or their agents defined in Article 151 of the Revised Penal Code should the person resist or seriously disobey any person in authority, or the agents of such person, while engaged in the performance of official duties. The two key elements of resistance and serious disobedience under the law are: 1) that a person in authority or his agent is engaged in the performance of official duty or gives a lawful order to the offender; and 2) that the offender resists or seriously disobeys such person or his agent.

The PNP Police Handbook prohibits the use of excessive force during police operations. In fact, police are required to first issue a verbal warning before they could use force against an offender, in a language known to the offender. Non-lethal, non-deadly weapons such as batons/truncheons, pepper spray, stun gun or others are preferred if less physical measures have been tried and deemed inappropriate. The use of a firearm is justified only if the offender poses imminent danger of causing death or injury to the police officer or other persons.

A police officer can invoke that he is fulfilling his duty as a defense against a complaint for the use of force. The Supreme Court held in Cabanlig v. Sandigabayan (2005) that a policeman in the performance of duty is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and protect himself from bodily harm.  In case injury or death results from the policeman’s exercise of such force, the policeman could be justified in inflicting the injury or causing the death of the offender if the policeman had used necessary force. Since a policeman’s duty requires him to overcome the offender, the force exerted by the policeman may therefore differ from that which ordinarily may be offered in self-defense. However, a policeman is never justified in using unnecessary force or in treating the offender with wanton violence, or in resorting to dangerous means when an arrest could be affected otherwise.

A person claiming self-defense as a justifying circumstance for injury or death of a victim has the burden of proof to prove the claim. Self-defense is appreciated as a justifying circumstance only if the following requisites were present, namely: 1) the victim committed unlawful aggression amounting to actual or imminent threat to the life and limb of the person acting in self-defense; 2) there was reasonable necessity of the means employed to prevent or repel the unlawful aggression; and 3) there was lack of sufficient provocation on the part of the person claiming self-defense, or, at least, any provocation executed by the person claiming self-defense was not the proximate and immediate cause of the victim’s aggression. The justifying circumstance of self-defense must be established with certainty through satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the persons invoking it. Self-defense cannot be appreciated where it was uncorroborated by competent evidence, or is patently doubtful, says the Court in People v. Lopez (2018).

Residents of condominiums and private subdivisions must abide by the rules of their respective homeowners’ associations. The Supreme Court held that a homeowners’ association may regulate passage into a subdivision for the safety and security of its residents, even if its roads have already been donated to the local government. It has the right to set goals for the promotion of safety and security, peace, comfort, and the general welfare of its residents. This may be taken to include the power to regulate and impose reasonable rules on health and safety.

Republic Act No. 9904 or the Magna Carta for Homeowners and Homeowners’ Associations enumerate the powers of homeowners’ associations including the power to regulate access to, or passage through the subdivision/village roads for purposes of preserving privacy, tranquility, internal security, and safety and traffic order: provided that 1) public consultations are held; 2) existing laws and regulations are met; 3) the authority of the concerned government agencies or units are obtained; and 4) the appropriate and necessary memoranda of agreement are executed among the concerned parties.

In a perfectly legal world, a strict enforcement and application of the letter of the law may seem like a good idea to achieve the goal of flattening the curve and eradicating the threat of the virus. Unfortunately, legal remedies will not cure the pandemic. We leave this difficult burden to our medical and scientific experts. This does not mean, however, that we should descend into a state of lawlessness or despotic rule. While lawyers may not serve in the frontlines of the battle against a virus, defending the rule of law is essential in keeping order in society at all times. The challenge we face is to find the right balance between protecting and ensuring the safety of the people while upholding their legal rights.

Admittedly, we are in a very peculiar situation with this COVID-19 pandemic. The ECQ/lockdown is taking a toll on everyone. Tensions are high and anxieties are building up. Violence should never be resorted to as the primary response though. Now, more than ever, we must exercise restraint, compassion, tolerance, empathy and understanding towards one another. Given the uncertainties, perhaps it would be best to heed the wise words of Guns ‘N’ Roses — all we need is just a little patience.

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