Is ‘tambay’ a crime?

Roslyn Bianca R. Mangaser

“I dle, shiftless and worthless man who made no attempt to follow any legal calling, and whose habits of life were those of an immoral and dissolute good for nothing.” This is how Justice Carson described a man guilty of vagrancy.

A decade after its enactment, Act No. 519, the law punishing vagrancy, was first put to use in the case of US v. Molina wherein a 33-year-old man was found guilty under the statute and was sentenced to imprisonment for two months. With a previous conviction for violation of the Opium Law, this able-bodied man spent most of his time wandering about in the streets and frequenting cockpits. This was sufficient proof for the Supreme Court to declare him a vagrant.

One may ask: But what is this law on vagrancy for? Who benefits from this? Is this even constitutional?

According to the article “A Short History of English Vagrancy Laws, “originally, the first few anti-vagrancy laws enacted in England were aimed at improving the living conditions of its citizens. Legislators intended it for one purpose: “to force laborers (whether personally free or unfree) to accept employment at a low wage in order to ensure the landowner an adequate supply of labor at a price he could afford to pay.” However, as time went by, legislative acts became discriminatory to the poor, without much regard for their human rights. People were being branded on their skins using hot iron with either the letters “R” for rogue, “V” for vagabond or “S” for slave.

In applying these laws in the Philippine context, one may perceive this move to criminalize vagrancy as directed and disadvantageous to the poor and unemployed as well, given that in our country, 26.1% of the population live below the national poverty line. It may even seem unconstitutional as the provision considers it already a crime just to be in a mere state or circumstance where the person is assumed to be more likely to concoct a plan to commit a crime.

The Supreme Court, however, in affirming the statute’s constitutionality in the case of People v. Siton declared that offenders of this crime are not being punished for their status as a poor member of society. Rather, they are penalized for the way they conduct themselves “under such circumstances as to endanger the public peace or cause alarm and apprehension in the community.”

Modern day vagrancy, therefore, is not so much enacted so as to improve the standard of living of Filipinos, but was included in the Revised Penal Code to deter whatever future crime may be committed by these loiterers who have no apparent means of support to live on.

Although the law’s constitutionality has already been settled, fast-forward to a hundred years after the case of US v. Molina, Section 1 of Act No. 519, then Article 202 (2) of the Revised Penal Code, has been decriminalized through the enactment of Republic Act No. 10158.

Despite Article 202 being a provision concerning public order, purposed to maintain minimum standards of decency, morality and civility in human society, lawmakers saw it fit to decriminalize it, leaving only the provision on prostitution under the current Article 202 of the Code.

According to Palawan Representative Socrates, one of RA 10158’s authors, lawmakers sought this decriminalization since the provision was being used as a “convenient excuse for law enforcers to subject street dwellers to indiscriminate arrest, detention, harassment, or extortion.”

In effect, there being no other provision under the Revised Penal Code or any penal statutes imputing criminal liability, no person can be charged for loitering about in public or semi-public buildings or places, tramping or wandering about the country or streets without visible means of support. Nullum crimen nulla poena sine lege. There is no crime where there is no law punishing it.

Does that, however, mean that no one can ever be detained for wandering the streets? What then is the effect of the decriminalization of vagrancy on every city, municipality, and province?

Pursuant to the decriminalization, people are now precluded from filing a case of vagrancy against his or her neighbors before the fiscal. This is not to say, however, that local government units are left without the power to maintain peace and order, and ward off potential troublemakers in their localities.

An example would be Republic Act No. 7854 or the Charter of the City of Makati, wherein the Sangguniang Panlungsod is permitted to enact ordinances to prevent, suppress and impose appropriate penalties for vagrancy, among others. Pursuant to this directive, the City of Makati issued City Ordinance No. 2005-069 to impose penalties on those drinking intoxicating beverages in public places. Although, it should be noted that the penalties provided for in the ordinance are imposable on drunkards roaming the street. It does not apply to mere loiterers who used to be dealt with by Article 202, paragraph 2.

The same authority was granted to the City of Quezon to enforce all necessary police ordinances, in relation to the confinement and reformation of vagrants. In relation to which, Ordinance No. SP-2541, S-2016 was issued establishing the “Quezon City shelter home for senior citizens” wherein temporary shelter shall be provided for abandoned, neglected, vagrant, and homeless senior citizens. Again, like the Makati City ordinance abovementioned, this is not similar with the decriminalized vagrancy in the Revised Penal Code.

Whether this authority to impose penalties and enact ordinances in city charters still stands and may still be made the basis of imposition of fines and confinement of “tambays” that fall under what used to be considered “vagrants” under the Revised Penal Code, has yet been touched upon by our jurisprudence. In light of current events, we might soon have an answer to this query.

As it now stands, Republic Act No. 101581 has effectively decriminalized vagrancy. Whether there is a need to again penalize an “idle, shiftless and worthless man who made no attempt to follow any legal calling, and whose habits of life were those of an immoral and dissolute good for nothing” however, to allow for a more peaceful and orderly society, is a question only Congress can answer.

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