Farcical arrests

President Duterte’s declaration two weeks ago of a ban on the importation of electronic cigarettes and an order to the police to arrest people vaping in public places has not been followed by any formal official document, or any implementing regulations, or even a position paper from the Department of Justice offering a legal rationale for the order — a critical requirement, since, as many observers were quick to point, there is not, in fact, any law at present that penalizes vaping.

As is his wont, the President appeared to have simply conjured up the directive in the course of yet another freewheeling, rambling peroration, without benefit of careful study or planning, let alone any consideration of the idea that he was acting beyond his powers by criminalizing actions that aren’t in the penal code yet.

Mr. Duterte did indicate he knew about this problematic point, but couldn’t care less. “What’s the law? Never mind the law,”he said. “The law will come. Tell them I ordered it.”

“Never mind the law.”And just like that, the Philippine National Police, ironically called the “law” enforcement agency, scrambled to implement Mr. Duterte’s verbal order.

In a matter of days, these are the numbers: 2,878 antivaping operations conducted nationwide, resulting in the arrest of 243 people, the confiscation of 666 vape juice products and 318 pieces of vaping gadgets, and the closure of at least 100 vape shops in Metro Manila.

But what would be the charges?

The police who were so eager to round up citizens were themselves at a loss. Asked what cases would be filed against those they had detained, PNP officer in charge Lt. Gen. Archie Gamboa could only sheepishly reply, “Wala nga eh (None).”
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So why were the police arresting people if there was no crime to begin with?

The arrests, Gamboa said, were “just to implement the directive of the President.”The PNP OIC’s marching order to his policemen sounds even more absurd: “Arrest [violators], put them on the blotter and then release them.”

What a terrible waste of precious hours and effort, the PNP already saddled as it is by a long list of peace and public order tasks and a mountain of unresolved cases.

What is the logic in hauling people to police stations, listing their names and particulars in the blotter and then, because there was actually no violation of the law committed, releasing them?

But the illogic extends further in Gamboa’s mind.

“We can arrest but we cannot punish. Arrest is not punishment,” he declared — as if the inconvenience, humiliation and sheer outrage of being hauled to precincts for a non-existent crime were not punishment enough.

Following the public outcry, and in the seeming absence of any further assistance from Malacañang to clarify or make sense of the President’s latest instant preoccupation, the PNP scrounged around for some semblance of basis to justify its operations.

The memorandum it issued for the operations cited the “PRRD directive,”referring to the President’s initials; the two-year-old antismoking Executive Order No. 26, which mandates a “smoke-free environment in public and enclosed places”— but which makes no explicit reference to vaping; and even a Marcos decree, Presidential Decree No. 984 issued in 1976, when the technology and practice meant as an alternative to traditional smoking had not been invented.

Mr. Duterte aggravated his unwarranted act of law-making by warning judges not to get in the way of his directive, prompting a lawyer, Alnie Foja, to warn in a Facebook post: “This is wrong. The President is criminalizing an act that is not a crime under our existing laws. He is undermining the independence of a co-equal branch of government, the Judiciary, by issuing a warning and notice that he will not obey any restraining order that may be issued. He is placing himself above the law and demonstrates absolute lack of regard to other institutions such as the courts and the police. He has no power to order arrest nor to issue warrants of arrest. Even modern-day monarchs have no such powers the President imagines he has.”
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Indeed, if the President were this concerned about the public-health menace of vaping, he’d have no trouble asking his supermajority coalition in Congress to prioritize legislation on it.

Instead, once again he resorts to autocratic action to short-circuit the democratic process, by imposing on the public a made-up law he doesn’t have the power to make, and ordering a police force desperate to please him to willy-nilly implement it.

The results have been farcical, but the entire thing, and what it signifies about the further erosion of the rule of law, is no laughing matter.