By: Earl Anthony Reyes
The end of Marcos’ dictatorial regime signaled the end of the Fourth Republic and the dawn of a new constitutional order. With the ratification of the 1987 Philippine Constitution, the Filipino people renewed its commitment to the ideals of republicanism and democracy, “preventing the concentration of the sovereign powers of state in one body.”[1] However, this adherence to the principle of separation of powers that distinguish republics from the rest will always be tested by fire. For there will be moments when the lines separating the powers shall appear to blur and a one-man rule shall seem to dawn again. These moments are “emergencies.”
One such emergency is the ongoing COVID-19 Pandemic. Due to this pandemic that, on March 6, 2020, President Rodrigo Duterte declared a State of Public Health Emergency throughout the Philippines due to COVID-19 via Proclamation No. 922. This was followed by Proclamation No. 929 through which the President declared a State of Calamity throughout the same, placing the entire island of Luzon under “Enhanced Community Quarantine” or lockdown. As a response, the Congress enacted Bayanihan to Heal As One Act[2], granting the President temporary emergency powers, among others.
The aim, then, of this article is to explore how the present constitution attempts to deal with emergency and mitigate the possible excesses of government response.
Republics are neat, orderly systems. Under normal circumstances, a republic projects a seamless interplay between the organs of the government. The legislative organ enacts laws. The executive implements them. Meanwhile, in cases of actual legal controversies, the judiciary mediates between concerned parties. However, nothing shows its true fragility better than an incoming onslaught of emergency. Emergencies and the rule of law, which the republican system represents, are two things that hardly ever mix well.
An emergency is the total opposite of the rule of law. While the rule of law blossoms and relies on a state of normalcy, emergency is a situation or condition that exists outside it. In the words of Carl Schmitt, “there exists no norm that is applicable to chaos.”[3] Thus, “the requirement that the government’s powers be defined and constrained by law tends to yield in times of emergency to calls for government to respond in ways that exceed its regular legal powers.”[4] But what exactly is an emergency?
There is no one way to define an emergency. Nevertheless, one may define an emergency as “a situation that produces a grave disturbance of the political system or order, threatening its survival.”[5] As such, emergencies are the bane of any given State or regime. In anticipation of these exceptional conditions, most constitutions have opted for mechanisms by which the delegation of certain powers to a president or to other constitutionally-designated authority is permitted. The reason for this delegation is quite simple: to resolve the threat to the system “in such a way that the legal/constitutional system is restored to its previous state.”[6] This is the concept of “emergency powers” that modern republics have inherited from the classical Roman Republic.
Throughout the existence of the Roman republic, emergency powers were granted under the apparatus of Roman dictatorship. According to the humanists of the Renaissance, “dictatorship was a wise invention of the Roman Republic and the dictator was an extraordinary Roman magistrate, introduced after the expulsion of the kings, so that a strong imperium [military power] may still be possible in times of insecurity.”[7] This apparatus became a necessity as the elaborate system of checks championed by the republican system became source of obstructing division of authority during times of crisis.
This, then, is the Roman model of emergency powers: the Senate directs the consuls to appoint a dictator for a period of up to six months. The dictator is authorized to suspend rights and legal processes and to marshal military and other forces to deal with the threat against the Republic. When the threat has been resolved, the dictator is expected to step down and return to his farm, or wherever his former station may be. Meanwhile, the orders he may have issued are terminated and the status quo ante is restored, including the rights and legal processes.
This model is quite different from the modern model in practice today. While the Roman dictator was chosen from among virtuous men of great renown and ability, the modern model requires that the person who is to wield the emergency powers “enjoys a kind of popular or democratic mandate,”[8] usually the president or the head of the executive branch. Another key difference between the two models is that advanced democracies prefer to deal with emergencies through ordinary legislation. Through this legislation, traditional emergency powers as well as those that are yet to be created by the legislature are delegated to the executive and may be enacted for temporary periods. As such, the legislature plays a fundamental role not only in recognizing the existence of an emergency but also in creating powers to be delegated to the executive branch. This is in stark contrast with the Roman practice of heteroinvestiture, “where the party declaring an emergency is completely separated from the one that exercises that authority.”[9]
The present 1987 Philippine Constitution provides for three kinds of emergency powers that may be exercised during a state of emergency:
Of these three, only the third kind is fully lodged in President and within his discretion as Commander-in-Chief of the Armed Forces, subject only to the restraints provided by the Constitution. The other two are reposed in Congress as the Supreme Court declared in no uncertain terms in David v. Arroyo.[13] However, given that during crisis, Congress may fail to function properly as it may not be practicable for it to meet and exercise its powers, the Constitution permits it to delegate these emergency powers and grant the same to the President, subject to the following conditions:
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- There must be a war or other emergency;
- The delegation must be for a limited period only;
- The delegation must be subject to such restrictions as the Congress may prescribe; and
- The emergency powers must be exercised to carry out a national policy declared by Congress.[14]
So, who declares the existence of the state of exception, that is, of war or other emergencies? For the declaration of war or its existence, the present Constitution is clear that Congress shall have the sole power to declare it, “by a vote of two-thirds of both Houses in joint session assembled.”[15] But what of the other instances of emergencies? It appears that it is still Congress who has the prerogative to declare it. However, as constitutionally provided, its prerogative to declare the existence of such may be delegated to the President. This is how the President was able to declare a State of Public Health Emergency and a State of Calamity throughout the Philippines because of COVID-19.
Under the “Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act,” Congress empowers the President to declare a state of public health emergency and mobilize governmental and nongovernmental agencies to respond to the threat when the same threatens national security.[16] This was the legal basis of Proclamation No. 922. While Proclamation No. 929 finds its basis in the “Philippine Disaster Risk Reduction and Management Act of 2010.” This law authorizes the President to declare a State of Calamity following the recommendation of National Disaster Coordinating Council.[17]
From these attempts to anticipate and arrest emergencies before they disrupt the political order or system, that is, by legislating emergencies, one can surmise that the constitutional system attempts to bring into its ordinary competence what has hitherto been declared as an emergency – its traditional antithesis, antithetical to the constitutional order itself. As such, the republic should fear not as “new powers may be granted as often as emergencies contemplated in the Constitution arise.”[18]
As can be taken from the foregoing discussion, the constitutional order in force in the Philippines requires the interplay between the legislative and executive branches of the government, the so-called “political” branches of the government. But what if a collusion exists between these two “political” branches? For example, under the guise of an emergency, Congress delegates a number of emergency powers to the President in exchange for prolonged and extended possession of congressional power by the same individuals. Then when such emergency has passed, the President, with the plenipotent fiat of Congress, refuses to lift the declaration of emergency. This situation would undoubtedly create an unprecedented constitutional crisis. What would the course of action be to remedy the situation?
It is suggested that there are three possible remedies: two intra-constitutional and the one extra-constitutional. The first intra-constitutional remedy is to file a petition before the Supreme Court under its expanded judicial power “to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.”[19] This expanded version of the judicial power has severely undermined what was the otherwise insurmountable “political question” doctrine. The second intra-constitutional remedy is one coursed through “The Initiative and Referendum Act.[20]” (R.A. No. 6735) Through this law, the Filipino people can reject the law granting the emergency powers to the President in an election called for that purpose and, thereby, lift the declaration of state of emergency. Last but definitely the least is the extra-constitutional but proven remedy: People Power.
In Letter Of Associate Justice Reynato S. Puno, the Supreme Court said that “the locus of positive law-making power lies with the people of the state and from there is derived the right of the people to abolish, to reform and to alter any existing form of government without regard to the existing constitution.”Even then, according to the esteemed constitutionalist, Fr. Joaquin G. Bernas, S.J., the People Power, as a display of the sovereign will of the Filipino people, is deemed written and institutionalized in the 1987 Philippine Constitution itself, especially when it described the Philippine state: “democratic.”[21] He further opined that “the import of this addition, a monument to ‘people power’ which re-won democracy in EDSA, is that the Philippines under the new Constitution is not just a representative government but also shares some aspects of direct democracy.”[22]
Conclusion
A state of emergency is not only cause of discomfort but also distress. It is a threat not only to the existence of the State but also to the people under its protection, to their rights and interests. But above all else, its mere existence betrays the latent reality that a republican system of government, like any other government, is a fragile creation. Sometimes, it can be helpless against the rise of dictators as the Philippines saw in the dictatorship of the President Ferdinand Marcos. Thus, one of the lasting legacies of the 1987 Philippine Constitution is to curb and suppress, when it can, an impending rise of a dictator at every turn and, most specially, in moments of crisis and emergency.
However, the Constitution can only do so much. For, after all, it is only a creature of the sovereign people’s own making. It is only its instrument and servant, though most original and supreme as such, of its sovereign will. It is like the mythical household gods of Illium brought by Aeneas from Troy to Italy: it can only protect if it in turn be protected. Hence, constant vigilance!
[1] Salvador T. Carlota, The Three Most Important Features of the Philippine Legal System that Others Should Understand, http://www.ialsnet.org/meetings/enriching/carlota.pdf (Last accessed 29 August 2020).
[2] An Act declaring the Existence of a National Emergency arising from the Corona Virus Disease 2019 (COVID-19) situation and a National Policy in connection therewith, and authorizing the President of the Republic of the Philippines for a Limited Period and subject to Restrictions, to exercise Powers Necessary and Proper to carry out the Declared National Policy and for other Purposes, Republic Act No. 11469, (2020).
[3] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, University of Chicago Press, 13 (2005).
[4] Clement Fatovic, Emergencies and the Rule of Law, https://oxfordre.com/politics/view/10.1093/acrefore/9780190228637.001.0001/acrefore-9780190228637-e-93 (Last accessed 29 August 2020)
[5] John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of Emergency Powers, International Journal of Constitutional Law, 231 (2004).
[6] Id. at 210.
[7] Carl Schmitt, Dictatorship: From the Beginning of the Modern Concept of Sovereignty to the Proletarian Class-Struggle, Cambridge: Polity Press, 1 (2014).
[8] FEREJOHN, supra note 4, at 214.
[9] FEREJOHN, supra note 4, at 218.
[10] CONST., art. VI, sec. 23, par. 2.
[11] CONST., art. XII, sec. 17.
[12] CONST., art. VII, section 18.
[13] David v. Arroyo, G.R. No. 171396, May 3, 2006.
[14] Id.
[15] CONST., art. VI, sec. 23, par 1.
[16] An Act Providing Policies and Prescribing Procedures on Surveillance and Response to Notifiable Diseases, Epidemics, and Health Events of Public Health Concern, and Appropriating Funds Therefor, Repealing for the Purpose Act No. 3573, Otherwise Known as the “Law on Reporting of Communicable Diseases, Republic Act No. 1132, sec. 7 (2019).
[17] An Act Providing Policies and Prescribing Procedures on Surveillance and Response to Notifiable Diseases, Epidemics, and Health Events of Public Health Concern, and Appropriating Funds Therefor, Repealing for the Purpose Act No. 3573, Otherwise Known as the “Law on Reporting of Communicable Diseases, Republic Act No. 10121, sec. 16 (2019).
[18] Rodriguez v. Gella, G.R. No. L-6266, February 2, 1953.
[19] CONST., art. VIII, sec. 1.
[20] An Act Providing for a System of Initiative and Referendum and Appropriating Funds Therefor, Republic Act No. 6735, (1989).
[21] CONST., art. II, sec. 1; See Joaquin G. Bernas, S.J., From One-Man Rule to “People Power”, 46 ATENEO L.J. 44, 60 (2001).
[22] BERNAS, id.
Featured Image Credit to the Presidential communications Operations Office.
