On 24 March 2020, President Duterte signed into law Republic Act No. 11469 or the “Bayanihan to Heal as One Act (“Act”). The Act placed the entire country under a state of national emergency due to the continuing rise of confirmed COVID-19 cases. The same Act also authorized the President, pursuant to Article VI, Section 23 (2) of the Constitution, [1] to exercise emergency powers necessary to carry out the declared national policy under Section 3 of the Act, for the next three (3) months.
Earlier, on 8 March 2020, the country was placed under a state of public health emergency and then under a state of calamity on 16 March 2020, through Presidential Proclamation Nos. 922 and 929 (“PP Nos. 922 & 929”). But while the President could validly declare a state of national emergency even in the absence of a Congressional enactment, as was the case with PP Nos. 922 & 929, the President’s exercise of emergency powers requires delegation from Congress. [2] Thus, despite the earlier PP Nos. 922 & 929, Congress had to pass Republic Act No. 11469 specifically granting the President the authority to exercise emergency powers.
We may ask:
“Why delegate?”
“When is it considered valid delegation?”
“What happens after the President is granted emergency powers?”
“What if the emergency ceases to exist in less than three months?”
“What if the emergency lasts longer?”
“Is the President entitled under the Act to take-over or direct the operations of any privately-owned public utility or business affected with public interest?”
“What are the emergency powers granted to the President under the Act?”
We attempt to answer these questions here.
Reason for delegation of emergency powers and conditions for delegation
During grave emergencies, like a pandemic, it may not be possible or practicable for Congress to convene, reach a quorum, and exercise its powers. If no quorum is reached, the entire legislative process is put to a halt, making it impossible to pass legislations to respond to urgent needs. The Congress is, therefore, constitutionally permitted to delegate the exercise of emergency powers to the President, through a law, on the following conditions:
(1) There must be a war or other emergency;
(2) The delegation must be for a limited period only;
(3) The delegation must be subject to such restrictions as the Congress may prescribe; and
(4) The emergency powers must be exercised to carry out a national policy declared by Congress.
Constitutional dictatorship
Once the President is granted emergency powers, he essentially becomes a “constitutional dictator” who, aside from performing executive functions, is now empowered to issue legislations in the form of Presidential Issuances, Presidential Proclamations and Presidential Decrees, which have the force and effect of law. The existence of an emergency dispenses with the the long process of law-making, allowing laws that address the COVID-19 health crisis to pass as quickly as possible. It is constitutional because it is allowed by the Constitution, provided the conditions for valid delegation are met.
Cessation of emergency powers
The vesture of emergency powers is self-liquidating and could only be co-extensive and co-existent with the emergency which gave rise to the grant. In short, as soon as the emergency ceases to exist, the grant of emergency powers also ceases to exist.
Hence, while Section 9 of the Act provides that the emergency powers granted to the President shall be in full force and effect for three (3) months, the same provision also says that the emergency powers granted to the President may be withdrawn sooner by means of a concurrent resolution of Congress or ended by Presidential Proclamation.
In case, however, that the emergency lasts longer than three (3) months, the President may no longer continue to exercise emergency powers, unless the period is extended by Congress through another law.
No power to take-over privately-owned public utilities under the Act
Section 17, Article XII of the Constitution provides that 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.” This is otherwise known as the “take-over provision.”
In the case of David v. Macapagal-Arroyo, [3] the Supreme Court said that the take-over provision must be understood as an aspect of the emergency powers clause, and that the “State” described in the provision pertains to Congress, and not the President. Thus, being an aspect of the emergency powers reposed upon Congress, the same may only be exercised by the President upon a valid delegation by Congress pursuant to a law prescribing the reasonable terms thereof.
Although the power to “temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest” was included in the Malacañang draft, the same was removed following news about it which drew public ire. The bills filed both in the House and Senate no longer mentioned the term “take-over of public utilities and private businesses” and instead limited the scope to “directing the operations” of only two enterprises, namely (i) privately-owned hospitals, and (ii) public transportation.
Privately-owned hospitals and medical and health facilities including passenger vessels may be directed to house health workers, serve as quarantine areas, quarantine centers, medical relief and aid distribution locations, or other temporary medical facilities. On the other hand, public transportation may be directed to ferry health, emergency, and frontline personnel and other persons.
However, the President is empowered to take-over the operations of these two enterprises only if (i) the said enterprises unjustifiably refuse, or (ii) signify that they are no longer capable of operating their enterprises for the purpose stated, both subject to the limits and safeguards enshrined in the Constitution.
Emergency powers granted to the President
Among the temporary emergency measures that the President may adopt under Section 4 of the Act include:
Health
Expedite and streamline the accreditation of testing kits to facilitate prompt testing of PUIs and PUMs, and the compulsory and immediate isolation and treatment of patients, provided that the cost of treatment for COVID-19 patients shall be covered by PhilHealth;
Direct the operation of privately-owned hospitals and medical and health facilities to house health workers, serve as quarantine areas, etc.;
Direct public transportation to ferry health, emergency, and frontline personnel and other persons;
Ensure that no unnecessary delays occur in the donation, acceptance and distribution of health products in addressing COVID-19;
Expedite procurement of goods such as personal protective equipment (“PPEs”), as well as surgical, laboratory and medical equipment;
Engage the services of the Philippine Red Cross in dealing with the COVID-19 crisis;
Temporarily enlist help of human resources for health such as medical and allied medical staff to complement or supplement the current health workforce;
Economic and Financial Assistance
Provide Php5,000 – Php8,000 emergency subsidy per month for two months to around 18 million low income households;
Implement an expanded and enhanced Pantawid Pamilya Pilipino Program;
Provide public health workers with special risk allowance, in addition to the hazard pay granted under the Magna Carta of Public Health Workers under R.A. No. 7305;
Direct the PhilHealth to shoulder all medical expenses of public and private health workers in case of exposure to COVID-19 or any work-related injury or disease during the duration of the emergency;
Provide public and private health workers with compensation of Php100,000 each should they contract severe COVID-19 while in the line of duty, and those who died in the process shall also be entitled to Php1,000,000;
Exempt importation of equipment and supplies needed to combat the spread of COVID-19 from import duties, taxes and other fees;
Move statutory deadlines and timeliness for the filing and submission of any document, payment of taxes, fees, and other charges required by law;
Direct banks and other financial institutions to implement a minimum of 30-day grace period for payment of all loans, without incurring interests, penalties, fees or other charges;
Provide for a minimum of 30-day grace period on residential rents falling due within the period of enhanced community quarantine, without incurring interests, penalties, fees, and other charges.
Budget
Direct the discontinuance of appropriated programs of any agency of the executive branch, including GOCCs under the General Appropriations Act (“GAA”) of fiscal year 2019 and 2020, and the unobligated allotments for the said projects may be used to augment COVID-19 response initiatives;
Reprogram, reallocate, and realign from savings on other items of appropriations in the FY 2020 GAA in the Executive Department, as may be necessary to fund measures that address to the COVID-19 emergency;
Appropriate unutilized or unreleased balance in a special purpose fund, which are considered to have their purpose abandoned, for measures to address the health crisis;
Allocate cash, funds, investments, including unutilized or unreleased subsidies and transfers, held by any GOCC or any national government agency for COVID-19 response;
Public order
Regulate and limit the operation of all forms of transportation, as well as traffic along the streets;
Authorize alternative working arrangements for workers in the executive branch, and in other branches of the government and the private sector;
Continue enforcing measures against hoarding, profiteering, injurious speculations, manipulation of prices, product deceptions and cartels, monopolies or other combinations in restraint of trade, or other pernicious practices;
Order the conservation and regulation of power, fuel, energy and water resources to ensure adequate supply;
Ensure that all LGUs are within the letter and spirit of the directives issued by the national government while still allowing them to exercise autonomy on matters undefined by the national government.
The full text of R.A. No. 11469 may be viewed here.
[1] “Emergency powers clause” [2] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, 3 May 2006; Article VI, Section 23 (2) of the 1987 Constitution. [3] G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 & 171424, 3 May 2006.
This article is for informational purposes only and is not intended to be legal advice. For legal concerns, you may send the firm an email at legal@cditlaw.com.
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