Punishing the innocent

THERE has to be a law passed to confine penalties on corporate violators only to those who are found to have been involved in the act, and those who have ownership and managerial responsibilities over decisions which have bearing on the violations. This, however, is not to prevent the state from suspending the operations when its continuation would further render damage to public interest, but with the caveat that the rights of the innocent should also be protected.

The reason I say this emanates from my serious discomfort, and fundamental disagreement, with the manner in which Berjaya Hotel was summarily ordered closed by the Makati city government simply because some of its personnel had enabled someone to violate the quarantine rules issued by the Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF-EID). This happened without due regard to the affected hotel personnel many of whom were probably clueless about the violation or had nothing to do with it. These are people with families, and losing their source of livelihood due to the closure of their place of employment not because of loss of clients, but because of a state action that punished without due process, is patently unjust.

It is easy to blame the owners of the hotel, and there is nothing in this piece that would tolerate anyone from among the hotel management or employees who knowingly participated in the escapade of their client as she broke quarantine rules. But the very foundation of citizen’s rights is that one can only be penalized for actions that one knowingly took and only after determination of guilt, following a careful investigation where everyone was accorded due process.

What should have been done was to launch an investigation and identify those culpable, and penalize them in accordance with the severity of their offense. It would even be justified to order the preventive suspension of those who are under investigation until their names are cleared.

But what should not have been done was to outrightly close the establishment and deny its other employees the source of their economic security. After all, this is a hotel that performs a public service the continuation of which does not in any way jeopardize public interest or safety. In fact, despite the lapse in its quarantine security, the hotel until its closure continued to serve as a quarantine facility, with current and prospective clients.

It would have been different if the establishment was a place where activities, such as illegal gambling or prostitution or human trafficking, are happening. And there is no problem if the facility emits toxic substances and pollutants in violation of the environmental code. It would have been justified to order its closure.

But these conditions do not in any way present themselves in the case of the Berjaya Hotel.

We can just imagine if the Commission on Higher Education (CHEd) were to order the closure of an entire university just because one of its faculty members was a sexual predator molesting students. We can just muse over the injustice of ordering the closure of a fast-food outlet just because one of its crew was discourteous to a customer, or of an entire hospital just because one of its nurses is involved in the illegal selling of prescription drugs.

The legal protection of workers and employees in companies must be strengthened by regulating and delimiting the power of government, both national and local, to impose suspension and closure orders on establishments. Public interest must be served not to the detriment of the rights of innocent workers and employees. Thus, closure and suspension orders must only be meted if it can be shown that the continuation of operations of an establishment would be a continuing threat to public interest for which there is no other remedy but to order the cessation of its operations, and the burden must rest on the state to prove this. This is without prejudice to the state ordering the preventive suspension of specific individuals involved in an assailed activity or action of the establishment pending investigation and final determination of responsibility and culpability.

It must also be provided in the law that even in situations where the closure order would be warranted, that the rights of workers and employees who are not in any way culpable and have no direct participation or responsibility in the decisions and actions that led to the violation, should be protected. Companies must be required to provide funds for this possibility, or that employment insurance systems should be institutionalized to ensure that workers and employees will get an adequate level of protection should their workplaces be ordered closed or suspended by the government.

Any employee or worker affected by a closure or suspension order can file an administrative case not only against the company, but also against the state agency or authority to seek remedy, including the award of compensation and benefits. The main issue in these cases would not be whether the closure order is legal, but whether the employee affected deserves compensation because of his or her innocence and noncomplicity in the act that led to the closure order. It will be the companies and establishments who will file a case against the government agency or authority on the legality of the order.

It is easy to get lost in the anger of the moment and, in a knee-jerk reaction, order the closure of erring establishments as a way to appease a public crying for blood, demanding that heads roll, or in this case, that doors be padlocked. However, constitutional governments are not designed to satisfy the lust for blood, or for retribution, but exist to protect the interests of everyone. Presumption of innocence and regularity and the right to due process could not be sacrificed simply to win political points, be popular, and quell social media noise. We are a government of laws, and we should be governed by the right of reason, not the might of retribution.