"Even in these extraordinary times, due process protection is imperative."
This column is part of a series on the Bill of Rights found in Article III of the 1987 Constitution. It explores how our guaranteed freedoms and rights may be affected by the current public health emergency of international concern – the COVID-19 pandemic – which is continuing to ravage not only the Philippines but most corners of the globe. The protective safeguards and public health measures that governments put in place in order to stem the continued spread of the virus have had deep repercussions on how people exercise their fundamental and essential human rights, including the right to life, liberty and property.
As I mentioned in the first part of this series, most rights, with the exception of some, may allow for some derogation as warranted by the contingencies of the extraordinary circumstances. COVID-19 poses a threat to the health and security, justifying strict interventions by the State to nullify the threats. Yet, there must be a carefully considered balance between the demands of public health and the enjoyment of constitutional rights. Even the suspension of rights is time bound – that is, limited in time as may be necessary or permitted to manage the emergency. But under national emergencies, certain rights enjoy a legal continuum that may not be subject to derogation or limitation. Examples of rights which are immune to any restriction in a state of national emergency are: right to life, (except in respect of deaths resulting from lawful acts of war), right against torture, or right against slavery. Moreover, when the police measure involves deprivation of life, liberty of property, judicial oversight is necessary.
In the 1987 Constitution, the right to life, liberty or property is enshrined in Sec. 1 Article 3. As written, one may be deprived of the right to life, liberty or property but only when the principles of due process and equal protection of the laws are followed. Due process is a fundamental constitutional guarantee that all proceedings, be it criminal, civil or administrative, will be fair and that one is given the opportunity to be heard before one’s life, liberty or property is taken away by the government. It also connotes that a law as implemented is not unreasonable, arbitrary or capricious. Failure to observe these rights will nullify the proceedings. As capsulized in the leading case of Ermita-Malate Hotel and Motel Owner's Association vs. City Mayor of Manila, due process refers to "the embodiment of the sporting idea of fair play." Due process clause affords the basic rights of notice and hearing in all proceedings whether criminal or civil.
Summary, extrajudicial, and arbitrary executions without giving the person his day in court or non-observance of legal and established protocols for effecting arrests or confinement of violators of quarantine protocols, are violative of the due process protection under the Constitution.
Recently, the public was alarmed when Daniel Florendo, a policeman manning a checkpoint, shot and killed Winston Ragos, a former army officer. In a video which circulated online, Ragos could be seen stretching his arms with his back to the police for more than a minute. He was asked to drop to the ground but he instead turned around and asked: “Bakit, anong problema ko sa’yo? Ano’ng problema ko sa’yo,” while stretching both of his hands on a railing before he reached for something on his sling bag. That was when the police officer shot and killed Ragos. Nearby residents can be seen trying to stop the police from shooting him and one can even be heard screaming: “Bakit niyo binaril, sir? Dapat kinapkapan niyo muna!” (Why did you shoot him, sir? You should have frisked him first!).” Florendo insists it was self-defense.
Was the killing extralegal, arbitrary or summary in nature or is it a matter of self-defense? Did the police officer err when he and companions failed to subdue the victim who was seen with his back from them for a considerable period of time? Or was Florendo’s life threatened when, as he insists, he shot the victim after the latter tried to reach for something inside his bag? In short, was there a violation of due process?
Rights groups continue to decry the application of double standards by the authorities who allegedly give due process to certain prominent personalities while thousands of ordinary citizens who violate quarantine protocols are subject to arbitrary arrests and maltreatment – all in violation of due process.
Even in these extraordinary times, due process protection is imperative; fair and equal treatment, avoiding stigma or discrimination against individuals or groups must be duly observed. The power of authorities to enforce the laws in times of national emergency is heightened, and their latitude to ensure obedience is greater, because of this, the probability of abuse is higher, especially against the defenseless, and the weak. It is therefore imperative that the State and all its instrumentalities require from enforcers strict observance of due process protections to all citizens and demand accountability in case of violation.
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