Curfews on minors: Does DILG actually have the power?

Interior Secretary Jonvic Remulla announced on Monday, April 6, the operational details of a “Safer Metro Manila Plan” which includes a 10 pm curfew for minors — defined as anyone 18 years old and below — unless they’re headed to, or coming from, school or work.

But can the Department of the Interior and Local Government (DILG) really do that, given that the Supreme Court not so long ago ruled similar ordinances unconstitutional?

Let’s discuss.

“Let’s make that clear. Meron na tayong enhanced curfew ordinances para sa mga 18 years old and below, kapag hindi kayo nag-aaral, kapag hindi kayo nagta-trabaho — proof of employment, proof of education, na nag-aaral kayo sa panahon na ‘yun at pauwi kayo — bawal na kayo sa kalye after 10 pm. Umuwi na kayo sa mga bahay ‘nyo,” Remulla said during a press conference on Monday.

Under this verbal order, minors must be able to provide proof that they are coming home from school, or coming from or going to work, to be allowed to be outside their homes beyond 10 pm.

In 2017, in the case SPARK vs Quezon City, the Supreme Court struck down as unconstitutional the local ordinances of the cities of Manila and Navotas imposing curfews on minors (also defined as being below 18) for “run[ning] the risk of overly restricting the minors’ fundamental freedoms.”

The Philippine Constitution (Section 6, Article III) guarantees the right to travel, and that is an equal right across ages. However, the clause says the exemptions to this right are those “in the interest of national security, public safety, or public health, as may be provided by law.”

In the 2017 SPARK vs Quezon City case, the Supreme Court was faced with three ordinances — from Manila, Navotas, and Quezon City. For the justices, only Quezon City passed the necessary test when it came to limiting a constitutional right.

The Supreme Court said the right to travel is such an important right because it relates to all other fundamental rights like freedom of religion, freedom of association, freedom of speech, etc. For example, if minors are not allowed to go out after 10 pm to attend a political rally, their freedom of speech is curtailed. The Supreme Court said to “restrict movement is…equivalent to a denial of those rights.”

Remulla’s curfew on minors order, except when it involves school or work, is similar to the struck-down Manila and Navotas ordinances. The Navotas ordinance even provided for an exemption for Church activities, apart from school. But the Supreme Court said, “it bears stressing that participation in legitimate activities of organizations, other than school or church, also contributes to the minors’ social, emotional, and intellectual development, yet, such participation is not exempted under the Navotas Ordinance.”

Strict scrutiny test

The Supreme Court used the strict scrutiny test, or a two-level test to check whether the restriction of a right is justified.

The first level is whether the curfew on minors is necessary to achieve a compelling state interest. The Supreme Court said this first level was passed because the local governments “have sufficiently established that the ultimate objective of the Curfew Ordinances is to keep unsupervised minors during the late hours of night time off public areas, so as to reduce — if not totally eliminate — their exposure to potential harm, and to insulate them against criminal pressure and influences which may even include themselves.”

This aligns with Remulla’s logic, thus falling under the mantle of a “Safer Metro Manila” plan.

The second level of the strict scrutiny test is whether the restriction is the “least restrictive means” to achieve that goal. That test asks: could the government do something else, something less restrictive on their rights, to make the city safer? The Supreme Court said the Manila and Navotas ordinances did not pass this second-level test.

“To be fair, both ordinances protect the rights to education, to gainful employment, and to travel at night from school or work. However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the Manila Ordinance still do not account for the reasonable exercise of the minors’ rights of association, free exercise of religion, rights to peaceably assemble, and of free expression, among others,” said the Supreme Court.

Only the Quezon City ordinance passed the second-level test, and therefore was upheld, because their ordinance had eight exemptions such as accompaniment by an adult guardian. Most importantly for the justices, the QC ordinance exempts the minor from the curfew if the minor was “attending an official school, religious, recreational, educational, social, communitv or other similar private activity sponsored by the city, barangay, school, or other similar private civic/religious organization/group (recognized by the community) that supervises the activity or when the minor is going to or returning home from such activity, without any detour or stop.”

Juvenila Justice Act

In his press conference, Remulla threatened with arrest those who do not follow the order.

“‘Yung mga rugby boys diyan, ‘yung mga geng geng diyan, mga gago sa kalye diyan, magtago na kayo, umuwi na kayo kapag 10 o’clock, huhulihin namin kayo, klaro ‘yan ah, sinasabi ko na dito ngayon,” said Remulla.

(The rugby boys, the gangsters, the assholes on the streets, hide, or go home at 10 pm, we will arrest you. That’s clear. I am telling you now.)

Per the same Supreme Court case, penalty on minors violating a curfew is also invalid because they “directly and irreconcilably conflict” with Section 57-A of the Juvenile Justice Act which says “no penalty shall be imposed on children” for violations such as curfew violations, and that “they shall instead be brought to their residence or to any barangay official at the barangay hall to be released to the custody of their parents.”

Penalty, the Supreme Court said, is a fine and/or imprisonment. While Remulla didn’t say they would jail the violators, he did say they would arrest them. Arrest tends to lead to being held in custody. – Rappler.com