MANILA — It took the Department of Justice a year of arrests, another enhanced community quarantine and several dismissals of cases to reverse its position last year that those who violate quarantine protocols may be arrested.

In a major policy shift, Justice Secretary Menardo Guevarra said in a Malacañang presser Monday that he has advised the Inter-Agency Task Force not to arrest or detain violators and impose community service instead.

“I also recommended that in the enforcement, the stricter enforcement of the ordinances, that LGUs consider the possibility of imposing na lamang the penalty of community service for those who will continue to violate our ordinances rather than imprison or rather than putting them in jail or fining them, eh kasi talaga ngang mahirap na ang buhay sa ECQ (because life is really difficult under the ECQ),” he explained.

Guevarra, in March last year, said the “gravity of the present situation” allowed law enforcement agents to “effect arrests” of violators.

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He cited 3 laws as legal bases:

• the Revised Penal Code which punishes resistance and disobedience to a person in authority and direct assault from 6 months to 6 years in prison and fines from P100,000 to P200,000;
• RA 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act which imposes jailtime of up to 6 months and a fine of up to P50,000 for “non-cooperation” of the persons identified as having a notifiable disease and those who are supposed to report it; and
• RA 9271 or the Quarantine Act of 2004 where non-compliance with regulations set by the Bureau of Quarantine could mean 1 year in jail and a fine of up to P50,000.

More than 100,000 people were arrested from March to September of last year as a result of the implementation of this policy, including 21 Quezon City residents waiting for food assistance, individuals holding protests actions in Manila and Cebu, and activists organizing relief missions without a quarantine pass in Bulacan.

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But some of these cases were junked after lower courts and prosecutors ruled that RA 11332, in particular, could not be used as legal basis for the arrests.

A Bulacan court, in June last year, dismissed the RA 11332 charge against former Anakpawis party-list Rep. Ariel Casilao and 8 others who were arrested in April 2020 while on their way to Norzagaray, Bulacan to deliver relief goods without a travel pass.

The court said RA 11332 does not punish going outside residences without travel permit or quarantine pass, contradicting the position taken by then-DOJ Undersecretary Markk Perete, who said the mere act of stepping outside one’s house for a non-essential purpose could lead to immediate arrest.

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A Cebu court, in September, also dismissed the RA 11332 charge against 6 protesters and 2 bystanders arrested during a protest action in June, saying the law only applies to persons affected by notifiable diseases.

But even DOJ’s own prosecutors under its National Prosecution Service rejected its own position regarding RA 11332.

Citing the same reasons raised by the courts, the Manila City Prosecutors Office, in December, also dismissed the complaint against 17 LGBTQ+ activists and allies accosted during a protest action against the Anti-Terrorism Act in June, while the Marikina Prosecutors Office in October junked the complaint against 10 volunteers for a feeding program.

The most high profile, however, was the DOJ’s dismissal of quarantine breach complaint against Sen. Aquilino “Koko” Pimentel II who accompanied his pregnant wife at the Makati Medical Center despite exhibiting COVID-19 symptoms and having taken a test for the coronavirus.

He was informed he tested positive while at the hospital.

“The mandatory reporting under R.A. No. 11332 was meant for public health authorities only,” said the DOJ’s press release in January this year, absolving the senator 9 months after the supposed breach.

• DOJ junks complaint vs Koko Pimentel over alleged quarantine breach

The DOJ has yet to resolve another quarantine breach complaint against Philippine National Police chief Debold Sinas over a "mañanita” or surprise birthday party in May last year.

No less than President Rodrigo Duterte “pardoned” Sinas, whom he promoted to head the PNP in November last year.

LOCAL ORDINANCE OVER NATIONAL LAWS

In Monday’s presser, Guevarra acknowledged that the “better legal basis for enforcing health protocols should be the local ordinances that are issued by the local government units because these are very direct to the point.”

“Yung statutes like Mandatory Reporting of Notifiable Diseases, meron doong provision on non-cooperation but you know medyo hindi siya shoot na shoot eh, hindi sya talagang very exact to the actual violation, kaya we are relying more on the ordinances issued by the local government units rather than a nationwide general statute like RA 11332,” he said.

(Statutes like the Mandatory Reporting of Notifiable Diseases have provisions on non-cooperation but you know, it’s not quite apt, it’s not very exact to the actual violation that’s why we are relying more on the ordinances issued by the local government units rather than a nationwide general statute like RA 11332.)

Guevarra said Metro Manila Development Authority chair Benhur Abalos was receptive to the idea.

“He would immediately request all MMDA mayors/councils to review their existing ordinances on the enforcement of health protocols, and seriously consider imposing community service as an alternative penalty for violation of such ordinances,” Guevarra quoted him as saying.

REACTIONS

Edre Olalia, president of the National Union of Peoples’ Lawyers which represented some of those charged under RA 11332, welcomed the policy change as a “positive idea” but reminded the DOJ it had consistently raised this issue as early as March 19 last year.

“[I]t is our opinion that this crime of ‘non-cooperation’ is not sufficiently defined in the law. The penal provision is so vague that it is open to interpretation and may give way to abuse by law enforcement authorities. It is open to legal challenge,” NUPL said in its legal opinion issued last year.

It explained the prohibited act under the law should be limited to “non-disclosure of a notifiable disease by the infected person, or by any person having knowledge thereof,” not for violation of regular quarantine rules.

“Yet, looking back, it is not only enraging but tragic that hundreds of our citizens who do not have the same entitlements as those in or close to the corridors of power had to endure this manifest injustice through a patently erroneous reading and misapplication of a vague law to justify harsh implementation of quarantine protocols at best and cover up repressive measures at worst,” Olalia said in a statement Monday.

“That it comes more than a year to have epiphany says a lot about the mess we are all in,” he added.

Former Supreme Court spokesperson and Free Legal Assistance Group NCR coordinator Theodore Te, meanwhile, questioned why Guevarra suggested a resort to “community service.”

“‘Community service’ is a criminal penalty, so he would still insist on proceeding to trial? The accused would be forced to secure counsel and courts required to adjudicate?,” he asked in a tweet.

“Prosecutorial discretion could have been used more wisely, or compassionately, in simply desisting,” he added, referring to simply not filing charges.

Guevarra’s statement on Monday came amid reports that a supposed quarantine violator in Cavite, who went out to buy water past the 6pm curfew, died after village guards allegedly forced him to do 300 rounds of “pumping” exercise.

In Cainta, Rizal, meanwhile, a young doctor was arrested and detained for biking without a face shield, despite an inter-agency memorandum exempting bikers from mandatory use of face shields when outside the residence.

According to a relative, he was reportedly thrown into a detention facility with around 200 other detainees, some of whom exhibited COVID-19 symptoms.

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