Sunday, December 05, 2021

Nalzaro: ‘Gobiyerno ni Sabas Boang’


TWO Cebu-based lawyers, in their capacity as taxpayers, filed a petition for a declaratory relief before the Regional Trial Court (RTC), asking the court to declare inapplicable and ineffective Inter-agency Task Force for the Management of Emerging Infectious Diseases (IATF-EID) Resolution 114, which requires arriving overseas Filipino workers (OFWs) and returning overseas Filipinos (ROFs) to be swabbed only on the seventh day and to be quarantined for 10 days. The petitioners asked the court to adopt the Cebu Provincial Government’s swab-upon-arrival policy and allow OFWs and ROFs to go home immediately if found negative but still to be swabbed on the seventh day during their home quarantine.

This is a health issue, which may possibly turn into a legal battle. I’m not a lawyer, but I am afraid that this petition will suffer the same fate of similar petitions that also questioned some IATF policies that were dismissed by the Supreme Court (SC). In law, though, each case has its own distinct and uniqueness based on facts and merits. In law, to distinguish a case means a court decides the legal reasoning of a precedent case will not wholly apply due to materially different facts between the two.

Merits, in law, are the inherent rights and wrongs of a legal case, absent of any emotional and technical bias. The evidence is applied solely to cases decided on the merits and any procedural matters are discounted. The term comes from Old French merite, meaning “reward” of “moral worth.”

In September last year, two new petitions were filed challenging the SC to rule — or at least tackle — the constitutionality of the Duterte government’s coronavirus pandemic response. The first petition, filed on Sept. 14, was from a senior citizen who invoked equal protection against the tighter restriction imposed on 60-year-olds and above by the government. The second petition was filed on Sept. 29 by a group of jeepney drivers who also invoked equal protection, questioning why there was a preference for modernized jeepneys in the gradual return of public transport.

Both petitions also questioned the authority of the all-powerful IATF to pass mandatory policies. Two petitions questioning the government’s pandemic response have failed before — the petition which questioned the constitutionality of the Bayanihan Law, or President Rodrigo Duterte’s emergency pandemic powers, and the petition seeking to compel the government to conduct mass testing. Both were outright dismissed, meaning there were no full deliberations and the Duterte government did not even have to answer the petitions.

The jeepney drivers’ plea is largely questioning the IATF’s authority, saying the task force’s policies amounted to legislations which only Congress can do.

“The IATF-EID cannot hide behind the shield of the police power of the State in imposing quarantine measures that forbade PUVs from operating. The Congress did not delegate to it any police power, let alone quasi-legislative powers that could make it a ‘policy-making body.’”

The senior citizen’s plea, filed by Eugenio Insigne, invoked a menu of rights — such as the rights to travel and of self-determination — in arguing that there was no sufficient legal basis to arbitrarily impose tighter restrictions on those 60-year-old and above without empirical scientific data. The government imposed tighter restrictions on the over 60-year-olds, classifying them as more vulnerable. Insigne filed what is called a petition for declaratory relief even though the SC has no jurisdiction over declaratory reliefs. Insigne asked the SC to issue injunctions against the IATF’s Omnibus Guidelines. The SC said the petitioner should have filed it before the lower court. So, wrong venue.

The High Tribunal also dismissed for failure of the petitioners to show that they are entitled to the issuance of a writ of mandamus the petition seeking to compel the government, among others, to conduct pro-active Covid-19 mass testing.

In an En Banc resolution promulgated on Sept. 1,2020 G.R. No. 252556 (Taguiwalo et al. vs. Sec. Duque), the SC held that courts have no authority to issue writ of mandamus, no matter how dire the emergency, without a demonstration that an office in the executive branch failed to perform a mandatory nondiscretionary duty. The job of the court is to say what the law and not dictate how another branch of government should do its job. (Mandamus, it said, is an appropriate remedy only where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion of judgment).

But what will be the most damaging or may be insulting to the judiciary, if ever the RTC will favor the petition of the two lawyers, is that if the executive department will not follow the court order. President Duterte, during his “Talk to the Nation” program, said “he would not follow court orders on quarantine protocols, saying he would insist on “what is necessary” to protect the public against the coronavirus.”

If that is the case, where is the rule of law here if the President himself will not follow court orders? We need a brave judge to decide on this case. Can the court cite a sitting President in contempt for not following a court order? So, kon ang Presidente, kinsa usa usab abogado, dili na motuo sa mando sa husgado, mora na ta ani og “Gobiyerno ni Sabas Boang.”


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