Duterte counsel makes wrong claim on arrests for refusing COVID-19 jabs

Duterte counsel makes wrong claim on arrests for refusing COVID-19 jabs
Residents of Quezon City line up for Pfizer vaccine during the inoculation for A1, A2, A3 and A5 categories at Kia Theatre in Cubao on June 23, 2021.
The STAR / Michael Varcas

MANILA, Philippines (Updated 3:51 p.m.) — Contradicting statements from other government officials, chief presidential legal counsel Salvador Panelo insists people refusing vaccination may be arrested even without a law making vaccines mandatory.

President Rodrigo Duterte earlier this week threatened people who refuse vaccination against COVID-19 with arrest. His justice secretary and his spokesperson downplayed this and said the chief executive was merely emphasizing the need for inoculation amid the pandemic.

Law professor Theodore Te pointed out in a tweet that only a judge, through the issuance of a warrant, can order the arrest of a person. The Revised Rules of Criminal Procedure lists down instances when a warrantless arrest is deemed valid, but Te noted that non-vaccination is not a crime.

Rule 113 Section 5(a) holds that a person may be arrested when a crime is committed, is being committed or attempting to commit an offense, Section 5(b) states that a person may be arrested when an offense has just been committed and the officer has probable cause to believe it based on personal knowledge.

Integrated Bar of the Philippines national president Domingo Egon Cayosa said Wednesday there is no legal basis for potential arrests, as "there is no law as yet punishing refusal to be vaccinated."

Panelo: Drastic times, drastic measures

But Panelo, who is chief presidential legal counsel, on Wednesday said that Duterte’s order "is not without any constitutional basis. Article II, Section 4 of our Constitution mandates ‘[t]he prime duty of the Government is to serve and protect the people.'”

He was quoted in news reports as saying that the country is in a state of national emergency. "Drastic times demand for drastic measures. The Constitution has given sufficient authority to the government to manage the crisis even as it vigorously towards achieving herd immunity while our people look forward to reaching it," he added.

Panelo has used similar arguments — erroneously — in the past.

In 2020, the president's legal adviser claimed incorrectly that President Rodrigo Duterte could declare martial law because "there is an actual invasion of the coronavirus disease." Asked then to comment on Panelo's claim, former Supreme Court justice Antonio Carpio responded only with a brief "Hahahaha."

In 2018, he claimed that a state of emergency authorizing the police and military to "suppress any and all forms of lawless violence in Mindanao and to prevent such lawless violence from spreading and escalating elsewhere in the Philippines" justified putting soldiers in charge of the Bureau of Customs, a civilian agency.

In 2016, he claimed that the country's drug problem could justify the declaration of martial law in the country despite the 1987 Constitution setting specific conditions to allow it. 

Law needed

Justice Secretary Menardo Guevarra on Tuesday pointed out that there is no law yet that compels vaccination or criminalizes refusal to receive jabs vs COVID-19.

Guevarra said Duterte, who is also a lawyer, knows this. “I believe that the president merely used strong words to drive home the need for us to get vaccinated and reach herd immunity as soon as possible,” he added.

Presidential spokesperson Harry Roque, also a lawyer, said in a briefing Tuesday that a law is needed to implement Duterte’s threat of arrest.

“Like I said, ‘nullum crimen, nulla poena sine lege,’” Roque said. The phrase means there is no crime in the absence of law describing the act as felony and a law punishing the same.

The Palace spokesperson added this may be requested from Congress, which he said, knows the importance of vaccination.

“But like what the president said, we wish we do not have to reach that point because many understand that vaccination is key to saving lives,” he added in Filipino.

Interior Assistant Secretary Odilon Pasaraba, acting spokesperson of the Department of the Interior and Local Government, was quoted in a Rappler report as saying that there is no directive for the Philippine National Police to arrest people who thumb down vaccines.

He said the DILG sees the president’s words as “very good, constant reminder to the Philippine people to get vaccinated.”

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