MANILA, Philippines – President Rodrigo Duterte’s verbal order to arrest vapers is the latest legal conundrum in his administration.

The Philippine National Police (PNP) is piecing policy puzzles as they go, filling in the blanks of Duterte’s vague orders given Wednesday night, November 20.

Where is the law?

The first legal question is: is there a law that makes vaping illegal?

None yet. 

“Nevermind the law, the law will come,” said the President, adding up to a list of orders that have no court basis or even a written memoranda.

“The closest thing that I can think of is the President’s subsisting executive order prohibiting smoking in public places,” said Justice Secretary Menardo Guevarra on Thursday, November 21, referring to Executive Order No. 26 or the nationwide smoking ban.

But does E.O. 26 cover vaping or e-cigarettes?

“Vaping is covered by the existing ban on public smoking only if the same uses any tobacco derivative,” said Guevarra.

Not all vapes contain tobacco derivatives.

“It doesn’t include non-tobacco products like vaping devices. There is no law that prohibits possession of vaping and e-cigarettes,” said Law Professor Ted Te. 

Can you vape in a designated smoking area? 

Second question is: will users be arrested even if they vape in designated smoking areas? E.O 26 allows smoking in designated areas.

“I will order your arrest if you do it in a room,” said Duterte.

In a clarification, Duterte said: “Meaning to say, the safest way to do it is in your house.”

Admitting that they are unaware of a law to use against vapers they will arrest, Police spokesman Brigadier General Bernard Banac told Rappler early Thursday that even the Philippine National Police (PNP) has not yet clarified if vaping in designated areas is allowed.

Later, PNP Officer-in-Charge Lieutenant General Archie Francisco Gamboa said vaping in designated areas is okay.

“You can vape there because it’s not a public space, it’s a designated smoking area (DSA),” said Gamboa, a lawyer.

Guevarra has the same opinion.

“By analogy, there is no infraction under the existing EO if the vaping is done in DSAs, but I cannot order the police to refrain from making arrests, I do not have that power,” said Guevarra.

How can you be prosecuted? 

Guevarra said Malacañang is preparing to issue a new EO that would explicitly cover vaping.

Wouldn’t it be prudent to hold off arrests until the new EO is issued? Guevarra deferred to Interior Secretary Eduardo Año.

Under the Constitution, an act cannot be penalized if it was committed at a time when it was not yet illegal, meaning at a time that there was no law yet.

“To arrest is one thing, to prosecute/convict is another,” was Guevarra’s equally vague reply.

As Duterte vowed to ban vape imports, he also warned judges not to block his latest policy and promised not to “obey your orders.”

The Supreme Court has not replied to Rappler’s request for comment on Duterte’s latest threat to the judiciary. – Rappler.com