‘Tambay’ and a distorted parens patriae

posted June 26, 2018 at 12:30 am
by  Tony La Viña
In response to President Duterte’s order to intensify campaign against loiterers or tambays, the police launched a crackdown on street idlers arresting or accosting thousands to date. Because of the public uproar, President Duterte came out with a statement to deny that he ordered the arrests of these loiterers. He also said that his orders are consistent with his role as parens patriae, as father of the nation. But something is seriously wrong in the President’s understanding of the parens patriae concept. The legal doctrine is not at all about the President or anyone being the father or parent of its citizens. It is the state in its entirety that has this role.

Philippine National Police Chief Oscar Albayalde also does not comfort us when he explains that they are not arresting but only accosting loiterers, and that those who have been arrested are violators of city ordinances.

First, loitering is not a crime. That they pose a menace to society is not an excuse for their indiscriminate arrest. Unless and until these tambays commit an overt act that constitute a crime, they cannot be apprehended much less jailed by the police. Vagrancy has long been erased from our statute books and should not be resurrected whimsically by the police and even by President Duterte without legal basis unless a law is passed penalizing it as a criminal act.

Second, the President’s order offers too wide a latitude for arbitrary determination as to who should be arrested and who should not. Loitering and idling in alleyways and street corners criminalize acts which by normal standards are innocent acts. It gives the police an all-inclusive and generalized authority to arrest even innocent bystanders, a power that is so susceptible to abuse. In this environment, a person who appears to be doing nothing, his only offense being idleness, can be accosted and arbitrarily apprehended by the authorities. It poses a chilling effect on all citizens. This is reminiscent of the Marcos dictatorship.

Third, assuming the arrestee is violating a city ordinance as claimed by the PNP chief, he is entitled to his constitutional rights which the police must respect, foremost of which is his right to be assisted by a lawyer of his choice. It is thus incumbent upon the subject to know his rights. He must remain vigilant and make sure that there are witnesses to his arrest. This is to prevent the planting of evidence and other abuses which is so persistently being attributed to arresting officers. That scores of countries are unanimously clamoring for a halt on the bloody war on drugs is clear indication that rights are being wantonly and flagrantly violated. Early on, critics of this policy by the government scored the familiar pattern in the arrest and killing of victims of the war on drugs. It is staple for the police to “discover” a few ounces of shabu and a rusty low-caliber pistol, supplemented by a report by the police that the hapless victim shot it out with the enforcers forcing the latter to retaliate. Invariably, the police come out in the “shootout” unscathed and always manage to kill the victims who are so inept in the use of firearm even when they had the advantage to shoot first. This narrative is now a nauseating refrain even as witnesses continue to dispute the police version dished out in public. It is laughable that the narrative by the police is so consistent. They dare not deviate from the familiar script.

The arrest of tambays can follow a similar pattern as the war on drugs with rights being abused left and right. This is not to condone criminality. Violators of the law must be arrested and charged. But it must be done the proper and legal way and not through strong-arm tactics employed only by mob bosses and criminal syndicates. The PNP is a professional organization. It exists only for the protection of the citizenry against criminality. If it uses tactics much like its adversaries’, the purpose of its very existence is defeated.

Fourth, the crackdown is anti-poor much like the anti-drug war campaign. Who will be most prone to arrest in this crackdown but the poor, especially those living in depressed areas? They live in crammed makeshift houses built from odds and ends. These houses are so small; their inhabitants swelter from heat. Most of the time they are left with no choice but to stay out of their houses for some fresh air. That they are eyesores and pose a menace to society is not a valid justification to arrest them. This is not what our criminal statutes prescribe. By all indications, this anti-tambay campaign gravely transgresses the due process and equal protection clauses of the Constitution.

Historically, as the legal historian Robert Kidder has pointed out in “The Origins of Law: Conflict, the Critical Perspective” (Chapter 5 in his book Connecting Law and Society), anti-loitering or anti-vagrancy laws have been used by the elite to further marginalize the poor. As I teach in my Legal History and Legal Philosophy classes. these laws were used by feudal lords and later the early capitalists to force peasants and workers to agree to unjust terms of work. Calling these laws “outdated” and “anti-poor,” former Senator Jinggoy Ejercito Estrada led the effort to decriminalize vagrancy in 2012 through Republic Act 10158.

Although the law was criticized for being anti-women in that it continued to criminalize prostitution, Congress did recognize that the vagrancy law has been exploited by authorities to oppress the poor and the homeless. In the explanatory note to the original Senate proposal, it was pointed out: “There are numerous reports of arbitrary arrests by the police because of the wide discretion afforded to law enforcement by the vagrancy law. Police have rounded up the poor, accusing them of vagrancy and holding them in prison cells. Numerous cases of street children arbitrarily arrested by the police have likewise been documented.” The note also recognized the history behind vagrancy laws—supposedly to discourage the idleness of the population but becoming an instrument of oppression.

The resurrection in these times of this outdated thinking must be fought and resisted. President Ramon Magsaysay once said: those who have less in life should have more in law. The state serves and protects the people especially the less fortunate, and not the other way around. This is the essence of parens patriae which is a bedrock principle of a democratic and civilized society.

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Topics: Oscar Albayalde , Rodrigo Duterte , Ferdinand Marcos , Ramon Magsaysay , Robert Kidder
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