Gray zone
SKETCHES - Ana Marie Pamintuan (The Philippine Star) - December 2, 2019 - 12:00am

Trial Court Judges Ira Fritzie Cruz-Rojo of Pasig and Teresa Soriaso of Manila had issued temporary restraining orders, stopping the Food and Drug Administration (FDA) from regulating the vaping industry. Interestingly, it seems that the petitioner for a TRO in the two cases appears to be the same person.

Court TROs in this country give a bizarre interpretation of the word “temporary,” and the courts take jurisdiction over practically anything and everything.

With the product regulator’s hands tied, the regulator-in-chief decided to wield his power, sidestepping the TRO and banning vaping in public plus the importation of vapes and e-cigarettes.

President Duterte, who has disclosed illnesses linked to his former nicotine habit, ordered the Philippine National Police (PNP) to enforce the ban. He also warned the courts against interfering in his order.

As of last Friday, there was no court injunction against his verbal order. And as of yesterday, there was no one vaping in public in the shops around my neighborhood.

If petitions are filed, will Judges Cruz-Rojo and Soriaso dare issue a TRO on a presidential order, even if their injunction would be issued to the PNP? Their promotions could be frozen until noon of June 2022.

*      *      *

On Friday night, Duterte defended his verbal order and warned that vapes and e-cigarettes would be confiscated.

Non-vapers and non-smokers are for the most part rejoicing, and are ready to overlook the lack of a solid legal basis for the ban.

The Department of Finance is more cautious – and possibly more worried about lawsuits – and is reportedly waiting for the executive order providing guidelines for the ban on the importation of e-cigarettes and vapes. There is no such ban for regular cigarettes.

Duterte’s impatience with the judiciary is shared by many Filipinos. That public impatience is one of the reasons why people were willing to look the other way when he carried out – as he promised in his campaign – his unorthodox methods of fighting the drug menace.

He has lamented that the laws leave a lot of room for drug suspects to get away. Large-scale drug dealers know enough not to keep their merchandise at home, in their workplace or in their personal possession. To be properly charged with the heavier, non-bailable offense of trafficking rather than possession, a notorious narco must be caught in the act of selling a substantial amount of illegal drugs.

If the narco is indicted for the lighter offense of possession, he might be allowed to post bail, especially by a crooked judge. Once freed on bail, the narco can pay off people to be able to leave the country. Even if the case goes to trial, he could be cleared on a technicality, either on valid legal grounds or after he pays off the judge.

Filipinos have long been frustrated over corruption and the slowness of the justice system. Duterte’s brand of “retribution,” as he calls it, is the closest thing to swift justice that the state can deliver.

A similar principle underpins the muted public protest against his vaping ban. With the court TRO on the FDA as well as the absence of new legislation and local ordinances in most areas, how can people protect themselves from being assaulted by e-cigarette smoke and chemical vapors in public?

The vaping ban is in an area as legally gray as Oplan Tokhang – not the drug killings, but the knocking on doors by police to tell residents about information linking them to the drug trade.

While the President’s order is in a gray zone, practically overnight the ban has eliminated e-cigarette and vape smoke in public.

Cruz-Rojo and Soriaso can issue TROs all they want. But what the FDA has failed to do, Duterte has done better – and quicker. The ordinances and new legislation can come later.

*      *      *

There has also been muted protest so far about the warning aired by Brig. Gen Debold Sinas, police commander for Metro Manila. Sinas had clarified that people vaping in public were merely being “invited” to a police station for recording in the blotter. But if anyone refuses to be taken in, Sinas warned, he or she would be dragged to the police station – “kakaladkarin namin sila for resisting an invitation.”

Sinas is fully aware that this is a legal gray area that cops are entering, which could open them to lawsuits. His reaction? “So sue us.”

Fending off a lawsuit can be a supreme hassle. But I guess cops are figuring that two and a half years is still too long to be frozen or assigned to the kangkungan in case they refuse to enforce a presidential order. Especially now that this President has said he might even take a direct hand in supervising the PNP.

For senior officers in particular who are approaching retirement and aiming for a major promotion before they step down, the benefits of obeying such an order can outweigh the disadvantages.

Even if they are indicted for violating civil liberties, considering the pace of Philippine justice, they could be dead before the case is resolved with finality.

So public vapers, you’ve been warned: you could be dragged, even if you’re kicking and screaming in protest, to the police station for resisting an invitation.

*      *      *

Local ordinances and new laws can clarify the issue. As in the case of tokhang, however, Duterte has decided not to wait for politicians to make the necessary moves. After all, his six years in power could be over before he gets what he needs to get things done.

Having seen how he exploits gray areas, perhaps he should consider similar moves as well in dealing with complicated problems, such as easing the traffic mess in Metro Manila (and, for that matter, other urban centers such as metro Cebu and Baguio City).

In a functioning democracy, we should be relying on laws and ordinances to promote public health and safety.

But we live in a gray zone where the rule of law is iffy at best. So when someone offers swift results in attaining a generally laudable objective, there are people who are ready to go along with the move.

FDA FOOD AND DRUG ADMINISTRATION
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