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FROM A LEGAL PERSPECTIVE: President Duterte’s “Bayanihan”

On the early morning of Wednesday, President Duterte signed into law Republic Act 11469 entitled “Bayanihan We Heal as One Act” (Bayanihan Act), giving him emergency powers in order to implement necessary public policies in response to the current COVID-19 epidemic. The enactment of the Act came amid public opinion that the President has no need for additional powers over and above that provided for in existing laws. (emphasis supplied)

The Philippine Constitution under Article 6, Section 23 [2] provides that:

In times of war or other national emergency, the Congress may, by law, authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment thereof.

The Supreme Court in the case of David v. Arroyo, G.R. No. 171396 provided a meaningful discussion on the nature of the emergency powers and its requisites. Generally, Congress is the repository of the emergency powers but is authorized by the Constitution to delegate such power to the President subject to the fulfillment of the following requisites:

  1. There must be a war or other emergency
  2. Delegation must be for a limited period only
  3. Delegation must be subject to the restrictions as prescribed by Congress
  4. Emergency powers must be exercised to carry out a national policy of Congress

The declared national policy of Congress as expressed in the Bayanihan Act include the need to mitigate the spread of the virus, to ease the burden on the healthcare system, to mobilize the provision of basic necessities to communities affected by the Community Quarantine and to expedite the procurement of medical resources and equipment.

The current COVID-19 outbreak declared by the World Health Organization as a “global pandemic” falls under the phrase “other emergency” as basis for the grant of emergency power which includes rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect. (emphasis supplied)

The Bayanihan Act in Section 9 provides that the exercise of emergency powers is only for a period three (3) months but may be extended by Congress and shall remain in effect unless sooner withdrawn by resolution of Congress or by Presidential Proclamation. Section 5 of the Bayanihan Act also obligates the President to submit a weekly report on the implementation and utilization of funds provided for in the Act.

Some of the salient features in the Bayanihan Act include:

Fund Realignment and Augmentation

The Bayanihan Act under Section 4 [v] enumerates as one of the authorized powers of the President to:

direct the discontinuance of appropriated programs, projects or activities (P/A/P) of any agency of the Executive Department, including Government-owned or -controlled corporations (GOCC), in the FYs 2019 and 2020 General Appropriations Act (GAA), whether released or unreleased, the allotments for which remain unobligated, and utilize the savings generated therefrom to augment the allocation for any item directly related to support operations and response measures, which are necessary or beneficial in order to address the COVID-19 emergency, consistent with the herein declared national policy. (emphasis supplied)

This provision allows the President to augment allocations of any item in the Appropriations Act which are directly related to support operations and response measures using the savings from the Executive Department. This provision should be read in relation the ruling of the Supreme Court in Araullo v. Aquino, G.R. No. 209287, wherein it was held that a valid transfer of appropriated funds must meet the following requirements:

  1. There is a law authorizing the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices
  2. The funds to be transferred are savings generated from the appropriations for their respective offices
  3. The purpose of the transfer is to augment an item in the general appropriations law for their respective offices.

Savings is realized only in three instances as ruled by the Supreme Court:

it must be a balance from any programmed appropriation free from any obligation or encumbrance which is (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.

Under the foregoing, the Supreme Court declined to recognize unreleased appropriations as savings as they were not considered balances of programmed appropriations. As to unobligated allotments, the Supreme Court also declined to indiscriminately consider it as savings unless it falls under any of the three instances mentioned in Araullo v. Aquino. Therefore, Section 4 [v] of the Bayanihan Act would is a doubtful provision as it granted a power to spend unreleased appropriations and unobligated allotments which was previously ruled as unconstitutional by the Supreme Court.

Stimulus Packages

The Bayanihan Act in Section 4 [c] authorizes the President to provide an emergency subsidy to eighteen million low income households. It also allows the President under Section 4 [d] to grant a “COVD-19 special risk allowance for public health workers” in addition to the hazard pay of the Magna Carta of Public Health Workers.

Further, Section 4[e] allows the President to direct the Philippine Health Insurance Corporation to shoulder the medical expenses of both public and private health workers. An additional compensation may likewise be given by the President to both public and private health workers who contract severe COVID-19 infection while on the line of duty.

These measures are necessary in light of the mass lay-offs and work stoppages caused by the ongoing epidemic.

Grant of Take-Over Power

The Constitution under Article 12, Section 17 provides:

In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.

The President under Section 4[h] of the Bayanihan Act is authorized to

direct the operations of privately-owned hospitals and medical and health facilities including passenger vessels and, other establishments, to house health workers, serve as quarantine areas, quarantine centers, medical relief and aid distribution locations, or other temporary medical facilities; and public transportation to ferry health, emergency, and frontline personnel and other persons; Provided, however. That the management and operation of the foregoing enterprises shall be retained by the owners of the enterprise, who shall render a full accounting to the President or his duly authorized representative of the operations of the utility or business as basis for appropriate compensation; Provided, further. That reasonable compensation for any additional damage or costs incurred by the owner or the possessor of the subject property solely on account of complying with the directive shall be given to the person entitled to the possession of such private properties or businesses after the situation has stabilized or at the soonest time practicable;

Significantly this provision only authorizes the President to “direct” the operations of privately-owned hospitals and medical facilities to serve as quarantine areas for COVID-19 patients. He may also “direct” the operations of privately-owned vessels who will be providing transportation to essential frontline medical personnel. Take note that the same provision still reserves the owners of the private enterprises with respect to thr management and operations of the enterprise. On the other hand, the legislators subjected the exercise of “take-over” power of the President under the Constitution to certain conditions as provided for in the Bayanihan Act:

Provided, finally, that if the foregoing enterprises unjustifiably refuse or signified that they are no longer capable of operating their enterprises for the purpose stated herein, the President may take over their operations subject to the limits and safeguards enshrined in the Constitution;

Under this provision, the power to direct operations would allow the President to designate certain businesses who would facilitate the quarantine of patients and transport of medical personnel, the operators would have the unrestricted prerogative on how to accomplish the tasks given to them. It is only when the operators unjustifiably refused or are incapable of operating that the President may take-over and enact management policies of the private enterprises. There is, in this instance, a distinction between the power to direct and the power to take-over.

Exemption from Procurement

Another key provision in the Bayanihan Act is the power granted to the President to procure in the most “expeditious manner” medical supplies and equipment as exemptions from the Government Procurement Reform Act (Republic Act 9184). This would mean that the President is not bound, for now, to follow the mandatory requirements on the invitation to bid and other mandatory submission under the Government Procurement Reform Act. As to how the President would be able to implement a procurement system with emphasis on “expeditiousness” without sacrificing quality would be a question that is hoped to be answered upon the approval of the relevant issuances.

Local Government Unit Oversight

Section 4 [g] of the Bayanihan Act provides:

Ensure that all Local Government Units (LGUs) are acting in line with the rules, regulations and directives issued by the National Government pursuant to this Act; are implementing standards of Community Quarantine consistent with what the National Government has laid down for the subject area, while allowing LGUs to continue exercising their autonomy in matters undefined by the National Government or are within the parameters it has set; and are fully cooperating towards a unified, cohesive and orderly implementation of the national policy to address COVID-19…..

This provision must be read together with the Local Autonomy doctrine that the President only has the power of general supervision over the local government units. His authority is confined only to ensuring that the local government units are acting within the scope of their authority under existing laws. Thus, this provision may be considered as superfluous. (emphasis supplied)

Penal Provisions

Another important feature of the Bayanihan Act is the power granted to the President to effect an arrest pursuant to the penal provisions.

Disobedience of local government officials to national government policies or directives in imposing quarantine constitutes a crime under the Act, however, this provision must be used sparingly owing to the fact that the local government units have the autonomy on how it would undertake the necessary quarantine measures within their territorial jurisdiction and the President is merely confined to ensuring that the local government units are acting within the law.

The Bayanihan Act also punishes with imprisonment any act of:

Individuals, or groups creating, perpetrating, or spreading false information regarding the COVID-19 crisis on social media and other platforms, such information having no valid or beneficial effect on the population, and are clearly geared to promote chaos, panic, anarchy, fear or confusion; and those participating in cyber incidents that make use or take advantage of the current crisis situation to prey on the public through scams, phising, fraudulent emails, or other similar act;

Social media has been an important medium of communication during this crisis. While some have used it to inform, the term “Fake news” has been a common buzzword. This provision aims penalize any person or entity who would misinform the public and cause chaos, panic, anarchy, fear or confusion. While the purposes of the provision are commendable, it raises questions on the enforcement aspect. As to what constitutes “no valid or beneficial effect on the population” or “clearly geared to promote chaos, panic, anarchy, fear or confusion” may be considered ambiguous taking into consideration the information asymmetry during a crisis situation. Perhaps the “Dangerous Tendency Doctrine” may provide some guidance to enforce the provision as provided in Chavez vs. Gonzales, G.R. No. 168338 where only the presence of a rational connection between the speech restrained and the danger contemplated is needed to justify restraint. There would be in this case, a clear departure from the clear and present danger test commonly used to analyze free speech.

The central idea behind Bayanihan, has always been the sharing of workload to ease the burden of your comrades. Thus, the grant of emergency powers which finds its source in Bayanihan is an attempt to relax bureaucratic inefficiencies and pave the way for immediate responses to the ongoing COVID-19 crisis and ease the burden of local government units. Such emergency powers must be used with the ultimate goal to preserving public health lest it be viewed as a symbol of political incompetence or hindrance to better alternative local government initiatives.

Sources:

Araullo v. Aquino available at https://lawphil.net/judjuris/juri2014/jul2014/gr_209287_2014.html

Chavez v. Gonzales available at https://www.officialgazette.gov.ph/2008/02/15/chavez-v-gonzales-g-r-no-168338-february-15-2008/

David v. Arroyo available at https://www.officialgazette.gov.ph/2006/05/03/david-v-arroyo-g-r-no-171396-may-3-2006/

DOCUMENT: Duterte’s 30 special powers to deal with the coronavirus outbreak available at https://www.rappler.com/newsbreak/iq/255811-document-duterte-special-powers-coronavirus-outbreak

Duterte signs law granting himself special powers to address coronavirus outbreak available at https://www.rappler.com/nation/255718-duterte-signs-law-granting-special-powers-coronavirus-outbreak

Handbook on Philippine Government Procurement available at http://www.ps-philgeps.gov.ph/home/images/legalbases/RevisedIRR.RA9184.pdf

Senate Bill 1418 available at https://www.senate.gov.ph/lisdata/3251429385!.pdf

The 1987 Philippine Constitution

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