Face Off: Invoking your Constitutional Right Not to Use a Face Mask.

couple wearing face mask drinking milkshake
Photo by cottonbro on Pexels.com
IMPORTANCE OF PROPERTY LINES

This week, we gather around an early morning news clip from an online tabloid Rappler, featuring a foreign man being accosted by the local police. All of which happened within the confines of a premier village in Makati City. The mess started from an alleged infraction of the foreigner’s employee who was not wearing a face mask, while watering their outdoor garden. The man’s wife can be heard protesting against the actions of the police, who we now fondly know as “Kuya.” (News clip here.)

Germane to the topic of property law, the importance of one’s property line cannot be over-emphasized in a situation like this. Property lines may define the rights of a person under the eyes of the law.

APPLICABLE RULES AND REGULATIONS: MEMORANDUM FROM THE EXECUTIVE SECRETARY & MAKATI CITY ORDINANCE NO. 2020-089

On 13 March 2020, President Duterte through the Executive Secretary issued a Memorandum addressing Local Government Units (Makati City), among others, to adopt “stringent social distancing measures and further guidelines for the management of the COVID19 situation.”

In response to this Memorandum, the Makati City Council on 08 April 2020 enacted an ordinance that requires residents and workers within Makati to wear a face mask outside their home premises (public street, village street, village sidewalk, curb, etc.). Fines range from P 1,000.00 for the first offense to P 5,000.00 or a maximum of 6 months imprisonment, for the third offense and beyond.

KING OF YOUR CASTLE: MAY I BE PENALIZED FOR NOT WEARING A MASK WHILE INSIDE MY PROPERTY?

NO. The ordinance clearly says that a person is required to wear a mask only when outside their home premises. It is important to note however, that wearing or not wearing a mask inside your property is not the constitutional concern. Rather, the real message is the freedom to do what you please inside the security of your own abode (including the garage, driveway, outhouse, tool shed, and the like.).

“KUYA, YOU DON’T HAVE A WARRANT. YOU CANNOT GO INSIDE OUR HOUSE!”

There are two separate and distinct underlying issues that can be uncovered from “Kuya’s” video clip: Question #1: May the police reprimand/penalize a person for not wearing a mask while standing on the village sidewalk? Question #2: May the police apprehend a homeowner even upon reaching his property line?

In my previous article (link here), I discussed that village sidewalks, streets, curb, etc. are owned and controlled by the Homeowners Association (HOA), even those located in front of your property. Hence, if the employee was anywhere within those open spaces mentioned and found not wearing a mask, the ordinance was clearly violated.

Second, in “Kuya’s” clip, the foreigner can be seen shouting, berating, and insulting a person in authority (police officer). Interestingly enough, the crime of resisting and seriously disobeying a person in authority is punishable under Art. 151 of the Revised Penal Code. If you watch the clip closer, you will notice that the foreigner was standing on the sidewalk and even stepped on the street several times while committing all of this.

Let us discern, because emotional reading may mislead us to conclude that all of the violence and commotion were much ado about a mask and a fine.  The foreigner was being apprehended not for a face mask violation, but for resisting and seriously disobeying a person in authority.

man standing beside vehicle
Photo by Sunyu Kim on Pexels.com
DOES “KUYA” NEED A WARRANT TO ARREST A PERPETRATOR?

NO. While your house is your sanctuary, one’s home can never be a refuge to evade a lawful arrest. If a person violates a law (Art. 151), the police may arrest the person (1) after committing, (2) in the act of committing, or (3) attempting to commit the crime in his presence. It makes no difference whether the person is arrested in the street or if the chase ends up in his own home.

Let us remember that these are extraordinary times. We need to exercise patience and better judgment. Let’s be safe and stay at home.

 

Karl S. Borja is a Partner at Borja Salem Panis Baldonado and Associates. His practice includes real estate transactions, property law, and government regulatory compliance.

You may reach him at:

ksborja@bspba.law

6B Vernida I Condominium, 120 Amorsolo St. Legazpi Village, Makati City. Tel No. 02-847888395

 

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