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Historically, vagrancy laws made it a crime for a person to wander from place to
place without visible means of support. Basically, these laws criminalized being
homeless and jobless. States used vagrancy laws to arrest, prosecute, and harass
homeless people and poor people who were suspected of criminal activity or who
were considered undesirable.
At Common Law, the term vagrant, 1referred to a person who was idle, refused to
work although capable of doing so, and lived on the charity of others. It added that the
term vagrant has been replaced by Homeless Person as a way of describing a person
who is without means or a permanent home.
Another definition of the word vagrancy is the 2moving about without a means to
support oneself, without a permanent home, and relying on begging. Until recently it
was a considered a minor crime (misdemeanor) in many states. Constitutionally it is
evident that being poor is not a crime. The same is true of "loitering."
Before its amendment on 2011, Article 202 of the Revised Penal Code of the
Philippines States That:
“3Art. 202. Vagrants and Prostitutes; Penalty – the following are vagrants:
4. Any person who, not being included in the provisions of other articles
1
West's Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.
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Copyright © 1981-2005 by Gerald N. Hill and Kathleen T. Hill.
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The Revised Penal Code, 2012 edition, Resyes, LB.
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of this Code, shall be found loitering in an inhabited or uninhabited place
belonging to another without any lawful or justifiable purpose;
5. Prostitutes;
Any person found guilty of any of the offenses covered by this article shall
be punished by arresto menor or a fine not exceeding 200 pesos, and in
case of recidivism, by arresto mayor in its medium period to prision
correccional in its minimum period or a fine ranging from 200 to 2,000.00
pesos, or both, in the discretion of the court”
With the promulgation of 4Republic Act No. 10158, “An Act Decriminalizing Vagrancy,
Amending For This Purpose Article 202 Of Act No. 3815, As Amended, Otherwise Known
As The Revised Penal Code”, which took effect on March 27, 2012, the said article now
reads as follow:
“Any person found guilty of any of the offenses covered by this article
shall be punished by arresto menor or a fine not exceeding 200 pesos,
and in case of recidivism, by arresto mayor in its medium period to prision
correctional in its minimum period or a fine ranging from 200 to 2,000
pesos, or both, in the discretion of the court.”
As can be gleaned upon with the amendment brought by RA 10158, Article 202 of the
Revised Penal Code of the Philippines excludes Vagrancy as a crime.
Before the said amendment, many human rights advocates think that criminalizing
vagrancy runs counter to the very rights protected by the constitution, particularly, the
right to liberty and the right to free expression. One of them, Atty. Evalyn Ursua,
Director of
the Women’s Legal Bureau in arguing in behalf of his client, Mary Salsaba who was
arrested by a police officer for being caught “loitering around San Pedro Street without
any lawful purpose despite their physical capacity to work”, stated that “Loitering or
wandering in public places is an exercise of one’s freedom of expression. And no person
shall be deprived of such rights freedoms without due process of law,” she added that
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The Official Gazette ; RA 10158
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the same law constitutes a violation of the “Equal Protection Clause as safeguarded by
the Bill of Rights of our Constitution. In its decision, the RTC upheld the argument of
Ursua and ruled in her favour. It stated in its decision that:
5 "Loitering about and wandering have become national pastimes,
particularly in these times of recession where there are many who are
without visible means of support, not by reason of choice but by force of
circumstance as borne out by the high unemployment rate in the entire
country...To authorize law enforcement authorities to arrest someone for
no other reason than the fact that she cannot find gainful
employment would indeed be adding insult to injury."
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. 6The 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
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People vs. Salsaba
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The Manila times, Updated March 9, 2000 Bagares, R.
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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.
All laws must be constitutional. This simply means that no law can violate any of the
provisions in the United States Constitution. Many vagrancy laws have been struck down
because they violated the constitution’s prohibition against cruel and unusual
punishment or were vague.
3. Vagueness
A law must also be written so than an ordinary person can determine exactly what acts
are prohibited and what people must do (or refrain from doing) in order to avoid
criminal prosecution. Without clear guidelines for conduct, ordinary folk, police officers,
and judges have no way of knowing what constitutes a crime. 9This uncertainty violates
a person’s right to due process (fairness). Vagrancy laws, particularly laws prohibiting
loitering, have been challenged successfully in court on the basis that they are too
vague.
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Burton's Legal Thesaurus, 4E. Copyright © 2007 by William C. Burton.
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Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962)
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Chicago v. Morales, 527 U.S. 41, 119 S. Ct. 1849, 144 L. Ed. 2d 67(1999).
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replicate the problems of vagrancy laws and that states use them to unfairly jail and
harass poor people.
5. Unnecessary Punishment
Historically, vagrancy laws were misdemeanors. Today, disorderly conduct and public
intoxication are misdemeanors. Misdemeanors are crimes punishable by time in county
or local jail (usually less than one year), a fine, or probation.
Federal cases provides for the challenges in penalizing vagrancy. One of the landmark
case is:
Johnson v. City of Cincinnati, 310 F.3d 484, 2002 WL 31119105 (6th Cir. 2002).
Two plaintiffs, including a homeless man, successfully challenged a Cincinnati ordinance
creating “drug-exclusion zones.” The ordinance prohibited an individual from entering a
drug-exclusion zone for up to ninety days if the individual was arrested or taken into
custody within such a zone for any number of enumerated drug offenses. If the
individual was thereafter convicted of the offense, the ordinance extended the exclusion
to a year. People who violated the ordinance could be prosecuted for criminal
trespass. The ordinance empowered the chief of police to grant variances to individuals
who were bona fide residents of the zone, or whose occupation was located in the
zone. The homeless plaintiff claimed that he had been prohibited from entering the
drug-exclusion zone in question for four years for drug-related offenses and spent four
hundred days in jail for violating the ordinance. He regularly sought food, clothing, and
shelter from organizations located in the zone, and his attorney’s office was located in
the zone.
The district court held the ordinance unconstitutional on its face and as applied to the
plaintiffs, finding that it violated their rights to free association, to travel within a state,
and, as to the homeless plaintiff, to be free from double jeopardy.
The Sixth Circuit affirmed. The court held that the ordinance burdened the plaintiffs’
fundamental right to intrastate travel and the homeless plaintiff’s First Amendment
associational right to see his attorney. Applying strict scrutiny, the court found the
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ordinance was not narrowly tailored to advance the compelling state interest in
enhancing the quality of life of its citizens. The ordinance swept too broadly as it
forbade innocent conduct within the zones. In addition, it did not provide for any
particularized finding that an individual was likely to engage in recidivist drug activity
within the zones. Nor had the city adequately demonstrated that there were no less
restrictive alternatives to the ordinance.
In discussing the homeless plaintiff’s interest in his relationship with his attorney, the
court noted that since he was homeless he had “no readily available, realistic alternative
to communicate with his attorney” other than meeting him at his office in the drug-
exclusion zone. His attorney could not visit him anywhere, and he had no phone
available for a private conversation. “An urban street corner simply does not provide a
sufficient guarantee of privacy and a realistically effective guard against disclosure of
privileged and confidential information to be considered a viable alternative. … [the
plaintiff] is a homeless man, existing at the margin of our society, where he is uniquely
vulnerable and in particular need of unobstructed access to legal representation and a
buffer against the power of the State.”
B. ISSUE: Whether or not the vagrants as defined by article 202 of the Revised
Penal code, prior to its amendment, must be given attention by the government.
C. DISCUSSION
With the enumerated challenges provided for by the Philippine courts and legal practitioners,
together with the affirmative opinion of American jurisprudence on the matter, it is but wise not
to penalize vagrants by putting them in jail or by imposing a fine.
The Constitution provides that no person shall be imprisoned for debt or non-payment of poll
tax (Article III, Sec. 20). The reason behind this constitutional safeguard is to protect the rights
of the poor and to ensure that no one will be prosecuted by reason of poverty. The same is true
with the topic herein. Vagrants, being defined as homeless and unemployed people, should not
be again burdened by the punishments imposed by the State. Instead, the government must
provide for a rehabilitation program for them. Since the Constitution also provides that “ The
Sate shall promote a just and dynamic Social order that will ensure the prosperity and
independence of the nation and free the people from poverty through policies that provide
adequate social services, promote full employment, a rising standard of living , and an improved
quality of life for all.” (Art. II, Section 9)
It is but a responsibility of the State, to provide for a quality life for all with no exceptions. The
vagrants, as can be seen loitering around the streets of Manila, Quezon City and many parts of
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the National Capital Region must be given by the government a means of livelihood to promote
their well being, taking into consideration the fact that majority of them are minors who instead
of going to school and enjoy their youthful days are in the streets, loitering and begging for
money.
We cannot deny the fact that in these days, there is a proliferation of crimes by means of a
“modus operandi” which involves these vagrants. Since, they have no other choice but to do
everything just to live and have something to eat, they now look for an alternative that can give
them an easy access to gain money. That is to perform felonies or crimes even it will lead to
their imprisonment or at worst, their death. The state then, as provide by the Constitution that :
“ The state values the dignity of every human person and guarantee full respect for human
rights” (Article II, Sec. 11), must do something about this dilemma that affects the whole
country. Providing for a rehabilitation program by giving the Department of Social Welfare and
Development (“DSWD”) can be of great help to these people.
REPUBLIC ACT NO. 5416 (an act providing for comprehensive social services for
individuals and groups in need of assistance, creating for this purpose a department of
social welfare) provides, among others, for the creation of the DSWD and stating its
powers and duties.
Section 1. Short Title. — This Act shall be known as the Social Welfare Act of 1968.
Sec. 3. The Department of Social Welfare; its powers and duties. — There is hereby
created a Department of Social Welfare, hereafter referred to as the Department,
which shall develop and implement a comprehensive social welfare program consisting
of (1) preventive and remedial programs and services for individuals, families and
communities; (2) protective, remedial and developmental welfare services for children
and youth; (3) vocational rehabilitation and related services for the physically
handicapped, ex-convict and individuals with special needs; and (4) training and
research and special projects.
The Department shall have the following powers and duties, among others:
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private social welfare programs;
4. To initiate and administer pilot social welfare projects designed to suit local
settings, problems and situations for possible implementation on a nation-wide basis;
6. To license and regulate public solicitations and fund drives for charitable or civic
purposes;
9. To establish such regional, provincial, city and municipal branches and field
offices of the Department whenever and wherever it may be expedient or necessary,
and to supervise such branches;
10. To coordinate government and voluntary efforts in social welfare work to avoid
duplication, friction and overlapping of responsibility in social services;
11. To establish, administer and maintain such facilities as child caring institutions
and others, wherever and whenever it may be deemed necessary to carry out the
objectives of this Act; and
12. To establish such rules and regulations as may be necessary to carry out the
provisions of this Act.
Sec. 6. Bureaus under the Department. — The Department shall have executive
control and administrative supervision over the Bureau of Family Welfare, Bureau of
Child and Youth Welfare, Bureau of Vocational Rehabilitation, Bureau of Field Services
and Bureau of Training, Research and Special Projects.
Sec. 7. Functions of the different bureaus. — (a) Bureau of Family Welfare. — The
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Bureau of Family Welfare shall have, among others, the following functions:
To formulate, administer, develop and implement social welfare services which will
promote the social adjustment of families, prevent family disorganization, develop
social consciousness and civic responsibility. Such services shall include among others
family life, education programs, establishment of family welfare centers and extension
youth centers, of groups for self-help, groupwork and street-corner gang work with
out-of-school youth, pre-vocational and work training, income-producing projects and
employment referral services for handicapped adults and youth, programs for pre-
school children of working mothers.
(b) Bureau of Child and Youth Welfare. — The Bureau of Child and Youth Welfare
shall have, among others, the following functions:
To formulate, administer, develop and implement programs for the care, protection,
training and rehabilitation of children and youth such as the abused, abandoned,
neglected, handicapped and delinquent with emphasis on their preparation for
participation in economically productive activities, initiate demonstration and
experimental projects and administer them for the exploration of improved techniques
of social work with the young adapted to local problems, situations, and culture; and
to perform such other related functions as the Secretary may direct.
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recommendation of the Director of Vocational Rehabilitation.
(d) Bureau of Field Services. — The Bureau of Field Services shall have, among
others, the following functions:
To administer, operate, direct, supervise, and coordinate all welfare functions of the
regional offices subject to direct authority from the Undersecretary for Operation and
Administration; execute and implement approved policies, regulations, and work plans
and render administrative decisions on these matters within limits of delegated
authority; and maintain cooperative and harmonious relationship with other entities
and agencies, public and private, local, national or international, in the promotion of
economic and social development and welfare of the nation.
There shall be regional offices which shall carry out the functions thru the provincial,
city and municipal branch offices all to be located in the same provinces, cities or
municipalities as presently fixed by law for similar offices under the Social Welfare
Administration.
(e) Bureau of Training, Research and Special Projects. — The Bureau of Training,
Research and Special Projects shall have, among others, the following functions:
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