The vagrancy law: Unconstitutional and often prone to abuse

(Conclusion)

The brouhaha caused by the case of four women booked by operatives of the Central Police District (CPD) for alleged prostitution has moved some legislators from the House of Representatives to resurrect a bill decriminalizing vagrancy.

That is a bit of good news. For in the din of angry words exchanged in the last two weeks between Quezon City Rep. Michael Defensor and National Capital Regional Police Office director Chief Superintendent Edgar Aglipay over the case, the real issue might have been lost on most people, who, in this day and age of multi-media, may not see beyond the clash of personalities what, ultimately, is at stake.

Article 202 of the Revised Penal Code defines a vagrant as:

A) Any person having no apparent means of subsistence, who has the physical ability to work and who neglects to apply himself or herself to some lawful calling;

B) Any person found loitering about public or semi-public buildings or places or tramping or wandering about the country or the streets without visible means of support;

C) Any idle or dissolute person who lodges in houses of ill-fame; ruffians or pimps and those who habitually associate with prostitutes;

D) Any person who, not being included in the provisions of other articles of this Code, shall be found loitering in an inhabited or uninhabited place belonging to another without any lawful or justifiable purpose;

E) Prostitutes;

The last paragraph defines "prostitutes" as "women who, for money or profit, habitually indulge in sexual intercourse or lascivious conduct." First time offense is punishable by imprisonment of between one to 30 days or a fine not exceeding 200 pesos. Repeated offenses are punishable by imprisonment of between two months to two years or a fine ranging from 200 to 2,000 pesos or both, according to the discretion of the court.

In 1978, then President Marcos augmented the anti-vagrancy law with Presidential Decree 1563, the Mendicancy Law. It defined mendicants as persons with no visible and legal means of support or lawful employment and who are physically able to work but fail to apply themselves to some lawful calling and instead, use begging as a means of making a living.

The same law penalizes anyone who abets mendicancy by giving alms.

As early as 1924, Associate Justice Villamor, in his book, Crime and Moral Education, noted that "such simple crimes as theft, swindling, and forgery, are committed in the majority of cases by vagrants. And whenever the evidence in a case would not warrant the conviction of the accused for theft, he is generally charged for vagrancy."

Vagrancy laws are often called "dead letter" laws because they are hardly enforced. When the police do enforce them, it is often because of less than legal motivations. Women's groups complain that prostitutes are arrested for vagrancy but pimps or proprietors of prostitution houses are not.

Law enforcers who "fish for evidence" against people suspected of crime find it a useful "fallback" when they fail to gather enough evidence to prosecute bigger crimes.

Observers note that vagrancy laws are an "improper exercise of the State's police power" because police officers, always presumed to act in good faith, have wide latitude in interpreting these laws. How does one, for example, interpret "without visible means of support"? Philippine jurisprudence on this matter is silent.

This problem leads to another constitutional issue: it is an axiom in criminal law that clear and precise language in penal statutes is an essential requirement for due process of law -- that "sporting idea of fair play," in the words of a noted American jurist.

This simply means that a person accused of a crime has the right to know exactly what he is being charged with.

The Philippine Law Journal notes that Art. 202 "is replete with phrases worded in very general terms making the import of the law itself vague and ambiguous."

Under recognized principles of statutory construction, our vagrancy laws should be declared void for being vague. Another objection to vagrancy laws is the limitation they impose on personal liberty, in the banning of "loitering" in public places. Art. III, Section 6 of the 1987 Constitution guarantees "liberty of abode and of changing the same within the limits prescribed by law shall not be impaired except upon lawful order of the court. Neither shall the right to travel be impaired except in the interest of national security, public safety, or public health, as may be provided by law."

Our vagrancy laws punish a person because he or she belongs to a certain class or indulges in what is only seen as a socially contemptible habit, raising a host of constitutional issues.

Felonies or crimes are "acts or omissions punishable by law," according to The Revised Penal Code, yet in the same breath, it treats vagrancy as a sui generis crime, because it is based on one's status, condition, mode of life or reputation, not his acts.

In simpler terms, the law punishes the poor simply because they are poor.

What is most surprising is that until now, the constitutionality of these laws has not been raised in the Supreme Court, even if they go against constitutional provisions that "no person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of laws."

Perhaps, with the controversy attending the case of the four women booked by police for vagrancy, it is time to re-examine the country's vagrancy laws and see if they are still relevant to the times.

And, perhaps, greatly reduce opportunities for police abuse or mulcting.