Novel and unprecedented

As expected, the eight Justices of the Supreme Court (SC) denied Sereno’s Motion for Reconsideration of their previous decision ousting her as their Chief Justice. This is the decision on the petition for quo warranto filed by the Solicitor General questioning the qualification of Sereno to hold the position because she lacks the proven integrity by virtue of her failure to file her Statement of Assets and liabilities (SALNs) during the period when she was already working in the government. It is really far-fetched for these eight Justices to reconsider their decision and change their minds because that is a virtual admission of a mistake. It must be recalled in this connection that most of them have even testified against her in the hearing of the impeachment complaint at the Lower House of Congress.

As citizens of this democratic republic, it is really our duty to accept this ruling of the highest court of the land which has the ultimate “authority to settle justiciable controversies or disputes involving rights that are legally enforceable and demandable and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the government” (Article VIII Section 1, Constitution; Lopez vs. Roxas, 17 SCRA 756, 761).

But of course in a democracy like ours, people can still express and manifest their beliefs and opinions on the actions and decisions of those who are in public service whether in the Executive, Legislative or Judicial branch of government. Hence, even with this SC ruling on the ouster of their own Chief, the controversy rages on obviously because it appears that the issues raised in the case have not been convincingly and incontrovertibly resolved, from the point of view especially of legal experts and even ordinary lawyers.

One of the nagging questions that still lingers on and remains in the minds of a lot of people is why the SC gave due course to the petition for quo warranto when a complaint for impeachment of Sereno as Chief Justice has already been filed by the members of the House of Representatives after proper hearing. Indeed, impeachment is the only process set forth in our Constitution for the removal, not only of the Chief Justice and members of the Supreme Court but also of the President, Vice President, members of the Constitutional Commissions and the Ombudsman (Section 2, Article XI). The filing of this petition for quo warranto by the Office of the Solicitor General which is under the Department of Justice of the Executive branch, stirred a lot of controversy because a lot of people believe that this is a violation of the principle of separation of powers among the Executive, the Legislative and the Judicial departments, which are supposed to be separate and independent branches of government. Apparently, this move is quite novel and virtual disregard of the fundamental law of the land that the SC itself should uphold and protect.

Another “novel” move that is currently being carried out by this administration and likewise creating a lot of controversy is the crackdown and arrest of “tambays” a tagalog word for “bystander” or a person doing nothing and just waiting or loitering or hanging out in some places. This latest move of the administration really appears to be for a laudable purpose of preventing crimes and maintaining peace and order. But it is also fraught with danger and may be abused as there are no specific guidelines and definite rules to be observed in its implementation.

It must be pointed out in this connection that “arrest is the taking of a person into custody to answer for the commission of an offense (Section 1, Rule 113 Rules of Court). It can be lawfully done only when a warrant has been issued by a court upon the filing of a criminal complaint by the State Prosecutor after the necessary preliminary investigation has been conducted finding probable cause that the person to be arrested has committed an offense (Section 6, Rule 112, Rules of Court).  A peace officer or a private person can make an arrest without a warrant: (1) when in his presence, the person to be arrested has committed, is actually committing or is attempting to commit an offense; (2) when an offense has just been committed and he has probable cause to believe based on personal knowledge of the facts or circumstances that the person to be arrested has committed it; and (3) when the person to be arrested is a prisoner who has escaped (Section 5, Rule 113).

Thus, with regards to the current move of the Philippine National Police (PNP) against the tambays loitering the streets, it is important to determine and establish first of all whether he has committed, or is actually committing or about to commit an offense. “Offense” here actually refers to acts or omissions punishable by law technically known as a felony or a crime (Article 1, Revised Penal Code). So the vital question that must be resolved in the current crackdown on “tambays” is whether it is an “offense” within the contemplation of the law.

The offense that perhaps closely resemble this term is that found and defined in Article 202 of the Revised Penal Code about vagrancy particularly “any person found loitering about in public or semi public buildings or places or tramping or wandering about the country or the streets without visible means of support, or any person found loitering in any inhabited or uninhabited place belonging to another without any lawful or justifiable purpose” (Pars 2 and 4, Article 202, RPC).

The PNP officers making the arrest should therefore ensure that the tambays they are arresting falls within the above description. And they should also see to it that “no violence or unnecessary force shall be used in making an arrest” (Rule 113 Section 2, Rules of Court).

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