“An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws.” – Thomas Paine, Dissertation on First Principles of Government, 1795

After more than a month of implementing the enhanced community quarantine (ECQ) in response to the COVID-19 pandemic, incidents of alleged abuse of authority by men in uniform and local government officers have surfaced on social and mainstream media. Reports showing alleged violators of ECQ protocol being “punished” in such a way as others would find excessive or degrading have gone viral over the past weeks.

There were those alleged violators who were put inside a cage meant for stray dogs and reportedly, among them were minors. There were those who were made to carry a coffin. Others had to do duck walks, squats and push-ups or were exposed under the heat of the sun for hours. Some were required to pay fines that unfortunately cost them a fortune for alleged violations of social distancing measures. Then, a video had gone viral showing a fish vendor who was beaten and eventually arrested by a group of local officials. And sadly, there goes a video showing a war veteran with Post Traumatic Stress Disorder (PTSD), who was shot and killed by a police officer at a checkpoint. The alleged violations point out to persons going out of their houses without quarantine or relief passes or not wearing face masks outside of their residence. Violations of curfew and social distancing measures have been claimed to be committed as well.

These incidents have stirred and paved the way for exchanges of moral, logical, and legal opinions as to why such events happen, from among lawyers, law students, and from the general public. There are lawyers’ groups that have released their opinion on these ECQ concerns. They have also offered free legal advice and consultation for those who have experienced these alleged violations of their rights.

But is it legal to subject these alleged violators to such kind of punishment and treatment, to begin with? What do our Constitution and our laws say about these?

According to the National Union of Peoples’s Lawyers Question & Answer (Q&A) Legal Bulletin dated April 23, 2020, it says there that a person cannot be arrested without a warrant solely because he went out of his house without quarantine or relief passes, or because he failed to wear a face mask in public places, or because he went out of his residence within the curfew hours imposed in their communities. Why is that so? It is because none of these acts are prohibited under the Bayanihan Law or even the Mandatory Reporting of Notifiable Diseases Law. These statutes have specifically enumerated which acts are prohibited and may constitute violations thereof, as well as the corresponding penalties for each of them. The bulletin also says that if the local government units concerned have enacted valid local ordinances specifically prohibiting the commission of the said acts, the corresponding punishment must be commensurate to the offense committed and must be clearly provided for, whether it is a fine of a certain amount or imprisonment of a number of days.

Meanwhile, it has been expressly provided for in Section 19 of the Bill of Rights under the 1987 Constitution that “excessive fines shall be not be imposed, nor cruel, degrading or inhuman punishment inflicted.” The country is also a signatory to the United Nations Convention against Torture and Other Cruel, Inuman, or Degrading Treatment or Punishment, which sees “cruel, inhuman and degrading treatment or punishment” as offensive and runs counter to human dignity. Then in 2009, Republic Act No. 9745 or the Anti-Torture Law was enacted, which defined “Other cruel, inhuman and degrading treatment or punishment” as a punishment inflicted by a person in authority or his agents against a person which causes him “suffering, gross humiliation or debasement.”

In sum, the rule is that there must be a law or a valid ordinance which must clearly prohibit these acts of non-wearing of face masks in public places or failure to bring quarantine passes when going out of their homes, among others. Equally important, the law must provide for specific penalties that are not excessive, degrading, inhuman, or cruel for the said violation.

Now looking at the “punishment” served upon the alleged violators, who would not cry foul to physical beatings that attended alleged “valid warrantless arrests,” to crowding in and spending a night inside a dog cage, to bearing the scorching heat of the sun for hours, to being made to pay fines that would have been used instead to satisfy their growling stomachs, and to gunshots filling the air drowning pleas of concerned people in the hopes of saving a person with PTSD?

While we all want to see an end to this crisis and certain sectors of society are moving heaven and earth to find solutions, it would not be amiss to remind those who enforce ECQ protocols on the ground that the basic human right against excessive, cruel and inhuman punishment and degrading treatment remains. Again, the COVID-19 pandemic does not suspend the operation of our Bill of Rights. Neither does it reduce our Constitution to a mere scrap of paper. The need to reiterate and underscore that the rights of every human being must be recognized, respected, and upheld, whether in times of crisis or not, continues to be relevant amid these reported incidents.

And hopefully, with the recent addition to the brood of law professionals from the 2019 Bar Examinations, may we all keep an eye against these transgressions on human rights and call them out as the need arises before the courts and tribunals. After all, this has been our sworn duty to our society.(davaotoday.com)

(For the complete copy of the NUPL’s April 23, 2020 Q&A Legal Bulletin in Filipino, you may visit their official Facebook page)

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