The Department of Justice (DOJ) was ready with its guideline for pandemic arrests as early as May 18, but with a new public order by President Rodrigo Duterte to arrest barangay officials who fail to stop superspreader events, the justice department is rushing to include it.

“In a very general sense [it will be included],” said Justice Undersecretary Adrian Sugay on Friday afternoon, May 28.

Duterte told law enforcers in a late night public briefer on Wednesday, May 27, that they can arrest barangay officials who cannot stop unnecessary mass gatherings. “The police will arrest the barangay captain first, together with those doing the picnic, have them investigated and detain them,” said Duterte.

Sugay said the guideline will provide as legal basis the local government code, which punishes dereliction of duty; the revised penal code, which punishes reckless imprudence as earlier cited by chief presidential legal counsel Salvador Panelo; and the Bayanihan Law, which imposes jailtime and fine for local officials who disobey pandemic response directives.

“The Philippine National Police (PNP) shall strictly observe the Rules of Court, particularly the rule on warrantless arrests, and relevant policies protocols in the enforcement of all relevant rules, guidelines, and ordinances,” said Sugay.

The question is: Are any of the laws cited by Sugay covered by the valid grounds of warrantless arrest – caught in the act of committing the crime and probable cause that a crime has just been committed?

In previous other arrest orders of Duterte that the DOJ had to justify, the department cited the principle of continuing crime. Under this principle, even if you were not committing a crime at the moment per se, your crime overall is perceived to be continuing. Generally, this was applied to rebellion.

“I guess these are things that we still really need to look into. This is new to us. We will look into it. And when cases are filed, you can all be sure that the Department of Justice will study this very carefully,” Sugay told ANC’s Rundown on Thursday, May 27.

The guideline will be transmitted by Friday for the signatures of the interior secretary and the police chief, and may be released next week, said Sugay.

Covering for the president

The DOJ had to craft that guideline for an earlier announcement by Duterte to arrest people who use face masks improperly.

It was a departure from Justice Secretary Menardo Guevarra’s earlier recommendation to scrap arrests, and just impose community service on violators of quarantine, but the DOJ had to whip up rules just the same to avoid jail overcrowding.

“Even assuming na tama [ang basis na ibibigay ng DOJ], ang problema ‘yung bigger picture – kapag sinabi ng Presidente parang batas,” said Edre Olalia, president of the National Union of Peoples’ Lawyers (NUPL).

(Even assuming that the basis provided by the DOJ is correct, the problem is the bigger picture – whatever the President says becomes law.)

For the last years, the DOJ has had to provide legal basis for Duterte’s warrantless arrest orders.

In the pandemic, it took the DOJ a year’s worth of arrests to concede that the “broad” Republic Act 11332 or Mandatory Reporting of Notifiable Diseases Act was a wrong law to use, and settled for using ordinances as basis for arrests.

Now, it faces this.

“Parang ginagawan ng paraan para hindi mapahiya ang kanilang principal (It’s like they’re looking for a way so their principal does not lose face),” said Olalia.

– Rappler.com