NOTE: THIS STORY WAS FIRST PUBLISHED IN THE BOHOL CHRONICLE’S SUNDAY PRINT EDITION.
The controversial trip of Panglao Mayor Nila Montero to Cebu is yet to be resolved amid public indignation on the delaying tactics done as it has already been 40 days since that alleged unauthorized travel was done.
Gov. Art Yap who opted to remain silent while the investigation is still in progress was at the receiving end of public criticism.
Misconstrued best describes the national and local IATF guidelines in the reading by Police police director, PCol. Joselito Clarito, who was tasked to make an inquiry on the alleged violation of Panglao Mayor Leonila Montero of the community quarantine protocols.
Lawyers in the BIATF believe that Clarito’s misconstruction of the different guidelines, laws and issuances relating to the community quarantine protocols led the latter to conclude that local issuances conflict with that of the national IATF’s.
By his reading of the issuances, Clarito concluded the mayor’s travel to Cebu and back to Bohol, together with 15 others from LGU-Panglao on Sept. 14-15 “observed the minimum health standards and the proper health and medical protocols”, based on “facts, documents and application of laws”; and that “they did not violate the National and Regional guidelines and issuances on Covid-19 protocols”.
Clarito, however, stated in his conclusions that “Mayor Montero requested for a clearance from the provincial office to travel to Cebu but the latter did not issue” [any].
In his recommendations, Clarito stated that “premises considered, let the case against Mayor Montero and company be dropped and closed; and “further, let all the members of Bohol IATF convene and to harmonize the variations on the issuances from the Local and National IATF.
This is considering that Clarito argued that LGUs must submit to national issuances.
Gov. Art Yap, however, clarified that “time and again, the national government, even as it gives resolutions always considers the local situation and allows the local chief executive to tailor-fit whatever national issuances there are to the local situation”.
“I think we have to consider what is the legal weight of an IATF resolution as against a provincial ordinance. That is one thing we have to consider. When the IATF issues resolutions, what is the legal effect and weight of that as against a provincial ordinance? When the IATF gives resolutions, it is merely to guide us. It is not mandatory on us. We do not contravene the national, we just supplemented it. I will show you another example. The latest issuance of the IATF on reopening cockpits. Even here in something as not as essential an activity, bisan pa sa cockfighting, ang pag-abli sa mga buwangan, the national government is very sensitive to the local government and what they say is going to be followed,” the governor said.
National IATF Resolution 79 states that “the operation of licensed cockpits and the conduct of cockfighting activities shall hereinafter be allowed in areas placed under MGCQ or lower, subject to strict observance with the health and safety protocols and implementing guidelines as may be issued by the DILG. Provided, that in-person audience, online or remote betting, and the live broadcasting/telecasting of cockfights shall be permitted. Provided finally, that the local government units shall have the final decision on whether such the operation of licensed cockpits and the conduct of cockfighting activities can proceed in their respective localities”.
“That’s why sometimes, I do not understand why there is any confusion, because the first thing we have to understand is what has greater- -does a resolution or the provincial ordinance. Second question to resolve- -is there really a conflict or not. Is there really a reason to be confused?- -because time and again, we have showed that even if there is a national ITAF resolution, there is a very high respect for the local governments to implement what is best for their localities,” the governor pointed out.
MISCONSTRUCTION OF LAW
On the other hand, Clarito’s citation of RA 11469 Section 4(g) drew the attention of Lawyer Em-Em Bernido and the latter said he was prompted to clarify the meaning of the provision.
To the understanding of Clarito, such provision enjoins LGUs to comply with national directives and nothing more.
Bernido explained that while Clarito quoted RA 11469, there is already the subsequent RA 11494.
He cited that RA 11494, Section 4(p) states, “Ensuring that all LGUs are acting within the letter and spirit of all the rules, regulations and directives issued by the national government pursuant to this Act; and implementing standards of CQ consistent with what the national government has laid down for the subject area, while allowing LGUs to continue exercising their autonomy in matters undefined by the national government or are within the parameters it has set; and are fully cooperating towards a unified, cohesive and orderly implementation of the national policy to address Covid-19: Provided, That pursuant to the constitutional right of freedom of movement of persons, the IATF-EID shall be responsible for providing guidance on cross-border concerns, including, but not limited to, Locally Stranded Individuals (LSIs), OFWs, domestic travellers and residents, while the LGUs shall determine the policies and regulations within their respective jurisdictions”.
Bernidro emphasized that the phrase, “the LGUs shall determine the policies and regulations within their respective jurisdictions”, means it is still the LGUs that prevail.
Bernido also said he could not agree on Clarito’s constant elaboration that the guidelines of the national IATF is inconsistent with the guidelines of the local IATF.
Bernido explained that the guidelines of the BIATF has been subsumed by an ordinance which means that even if there are national guidelines, it cannot prevail over an ordinance, because a guideline is not a law and an ordinance is a law; and that an ordinance has penal provisions, while guidelines do not.
On Clarito’s quandary what to issuances or laws to apply as he claimed there are no clear guidelines because he said APORs, under the PNP guidelines, are exempted from other protocols but are only required to present a medical certificate, Provincial Legal Officer Nilo Ahat categorically said it was just a “perceived conflict” because there is actually none.
Clarito cited RA 11469, Section 4(g) as stating “Ensure that all Local Government Units (LGUs) are acting within the letter and spirit of the rules, regulations and directives issued by the National Government xxx”.
The full statement of Section4(g) of RA 11469 actually reads, “Ensure that all Local Government Units (LGUs) are acting within the letter and spirit of the rules, regulations and directives issued by the National Government pursuant to this Act; are implementing standards of Community Quarantine consistent with what the National Government has laid down for the subject area, while allowing LGUs to continue exercising their autonomy in matters undefined by the national government or are within the parameters it has set; and are fully cooperating towards a unified, cohesive and orderly implementation of the national policy to address Covid-19: Provided, That all LGUs shall be authorized to utilize more than five percent (5%) of the amount allocated for their calamity fund subject to additional funding and support from the National Government;”
“Just an advice on the question of Col. Clarito on who to follow whether national, regional or local, because that’s what he has been saying that they are in quandary on what case to file because of the conflict, I would like to point out that this is just a perceived conflict. Allow me to discuss briefly one by one. He cited Section 4(g) of RA 11469. With due respect, the statement was not quoted in its entirety for us to understand what it really said. Based on what is quoted, the LGU is really enjoined to comply with national directives. But if you will read it in full, there is a proviso that while allowing LGUs to continue exercising local autonomy, and this is what we are claiming that this Provincial Ordinance 2020-22 of July 14, 2020 is an exercise of the local autonomy of the Province of Bohol. So, there is no conflict between the two, because while the national policy enjoins compliance with the letter and spirit of the law, at the same time, it allows the exercise of the local autonomy,” Ahat pointed out.
Provincial Ordinance 2020-22 is existing and it has a provision that penalizes all persons who enter Bohol without complying with the BIATF guidelines or protocols. Unless this is repealed or being questioned in court for being unconstitutional or not, this should be followed, Ahat added.
“A good investigator should not entertain that (referring to Clarito’s perception that there is conflict of laws) because a good investigator with zero theory as basis of his investigation will just render what are the findings of facts and what law was probably violated and it is our observation that the action being investigated on is a clear violation of Provincial Ordinance 2020-22. On the issue of NIATF Resolution 79, this is not applicable in the investigation on Montero because this was issued October 15, 2020. How could you consider a law or guideline that was not existing at the time when the questioned incident happened? So, since there is no conflict since this is not yet existing, whatever local regulations on that subject will prevail,” Ahat said.
On the Memorandum from the deputy commander of JTF CV Shield, PMGen. Emmanuel Luis Licup, dated August 7, 2020 that Clarito cited, Ahat said the governor is not be treated as inferior to the police major general, so that on the issue on the power to enforce quarantine measures within the province, it should be the governor who has it.
So, the memorandum of the police ranking official is in no conflict with EO 38 of the governor and the latter shall prevail.
Ahat further pointed out that the part of the Omnibus guidelines that applies to service vehicle drivers which Clarito cited also should not apply on Montero because she does not belong to the same type of persons; and under the principle of ejusdem generis, the mayor is not part of this enumeration of persons.
Ejusdem generis is defined as “a situation in which ‘general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words’”.
However, in the last paragraph as cited by Clarito, stating “Land, air or sea travel by uniformed personnel, government officials and employees for official business with the corresponding travel authority xxx shall be allowed”, Ahat explained that the investigation should focus on this- -emphasizing the phrase “official business with corresponding travel authority”.
“Was it an official business; and if there was corresponding travel authority. The authority for the mayor to travel should come from the governor and such authority was absent as found in the investigation.
Clarito also cited the governor’s EO 10. But Ahat said citing EO 10 is misplaced because the EO was only an interim guidelines to remedy the time gap from March 14 to March 16, because EO 8 that imposed travel ban was signed by the governor on March 13 which was the day the governor announced that by March 16, the travel ban took effect.
Ahat explained that there was a void between the time of the signing and the time that the EO 8 should have taken effect. So, EO 10 was signed to specifically cover the period March 14-16, enjoining all persons who entered Bohol on March 14-16 to submit to voluntary home quarantine and it was expressly stated that it will not apply to government officials but for that period only.
After that, it is misplaced to cite EO 10 as a source of conflict, according to Ahat.
For his part, since Clarito made reference to Provincial Ordinance 2020-007, Vice-Gov. Rene Relampagos had to explain that such ordinance has been amended already by Provincial Ordinance 2020-22 which was approved on July 14 and signed by the governor on August 5, and considering that the travel was made on Sept. 14-15, the issue is governed by laws, and whatever guidelines there may be that are in effect at the time that the travel was made- -thus, Provincial Ordinance 2020-22 applies.
Relampagos elaborated that Provincial Ordinance 2020-22 amended Provincial Ordinance 2020-007 whereby under Section 8 that enumerates the prohibited acts, there is a new paragraph added thereto which is paragraph F which means that under Section 8, paragraph F of the said ordinance, also considered as among the prohibited acts are “Locally Stranded Individuals (LSIs), Returning Overseas Filipinos (ROFs) and all other persons who enter the Bohol shores without complying the necessary documents and standard protocols set by the Bohol IATF”. Thus, the BIATF clearance is required.
Under Section 9 of Provincial Ordinance 2020-22, providing for the penalties and fines, there is an addendum under paragraph 8 that says that “the LSIs, ROFs and all other persons who enter the Bohol shores without proper documents and/or without following the standard protocols set by the BIATF shall undergo mandatory 14-day quarantine together with all the persons who are in direct contact with him/her upon arrival in Bohol at the Provincial Quarantine Facility at his/her own expense. Provided that, after completing the 14-day mandatory quarantine, he/she shall pay an administrative fine in the amount of P5,000, otherwise he/she shall be charged for violating this Ordinance in court with the penalty of imprisonment for a period not exceeding 1 year upon conviction”, Relampagos explained..
This is supposed to contradict Clarito’s insistence that APORs, under DILG guidelines, are exempted from undergoing mandatory quarantine.
On this, PDRRMO Anthony Damalerio presented copies BIATF clearances of officials of Bohol who had previously travelled outside Bohol as APORs who underwent quarantine to show that indeed APORs in Bohol follow the provincial ordinance.
Relampagos also clarified that under the Local Government Code, Section 96(b) permission to leave station or for any travel outside the province, the mayors must get the authority from the governor.
This was supported by the DILG provincial director that the authority for mayors to travel outside the province must come from the immediate supervisor, that would be the governor.
Damalerio also noted an inconsistency in Clarito’s report, pointing at the portion where it is presented that the certification issued by the municipal administrator for Montero was that for an OLSI. But under the sub-section on Findings, Clarito stated as among the following facts established- -“Mayor Montero and company are for APORs”.
This is another issue referred back to Clarito for further review.
The governor also made it clear that when he rejected the two previous reports that Clarito submitted, it was because the framework set in the provincial ordinance must be followed.
“I respected our provincial ordinance. It has a framework. I only followed the framework. If the report was following that, then I would have accepted it. On your third report, it was already on that framework. Mao nga gidawat nako. There is a discussion on the issuances, there is a finding of facts, there is a strong and firm recommendation what to do. There was no referral to the BIATF to make a decision. And, that’s the reason on your third report, Col., ako nang gidawat ang report nimo. So, I hope that clarifies some points coming from me. I have to answer directly why the provincial government or me in my capacity as governor, why I could not accept the first report. It was because I felt that it must follow the mandated structure of the responsibilities of the PNP as contained in our ordinance, in that case, “to act on all complaints and reports of violations of Covid-19 related laws and issuances, initiate or cause the investigation and prosecution of criminal actions against any person, whether public official and employees or private individuals and entities, violating the laws, EOs, rules and regulations providing for the health protocols and all other measures enacted to combat Covid-19’,” Yap said.
He clarified that the he had to return the previous reports because there was no exhaustive comparison or discussion about the national IATF resolutions and our local resolutions and on what action to take.
“There were merely finding of facts in the two reports which why I returned it. A finding of facts is said it is not correlated to the national or local IATF and there is no recommended action moving forward. It was always thrown to the BIATF to decide. Kung BIATF ang magdedesisyon sa lahat, eh di kami nalang ang mag-iimbestiga at hindi nalang namin gagamitin yong institution ng kapulisan. Kami nalang gagawa ng lahat. We understand that we are the implementors of the law but you are the enforcer of the law. That’s why binalik ko sa PNP kasi mag-iimbestiga tayo, imbestigahan natin lahat ng facts, i-discuss natin yong batas, and if there are inconsistencies, ipakita natin, me recommendation tayo at susundin natin yon. Hindi gaya nong first report, wala lahat yon. And then in the second report, wala din lahat yon. Binabato pa nga sa BIATF yong responsibility na BIATF nalang modesisyon. Hindi pupwede yon. That is why I returned it. I want to deal with this directly because I don’t want people thinking that I am forcing the PNP to issue a report tailored-fit to what I want the results to be. That is not the truth. I am following a provincial ordinance where it is encapsulated what is expected, and the mandate of the Task Group Law Enforcement and Public Security. It is written there what the mandate is and what they should be doing. We are guided by that. And the report did not comply with that. That is the reason that we returned it. So, I hope settles it that at least to our people who are also listening I did not return those reports because I wanted the report to come back to me tailor-fit. I’m only following what the provincial ordinance said,” Yap added.