By: John Kristoffer P. Pereda
In light of the threats of the COVID-19 pandemic, government action is imperative to prevent the further spread of the disease, to cushion the effects of the pandemic, and to spearhead society as it charters the waters of the new normal. Although the exigencies of the pandemic require massive government action, such government action must be founded on law. A democratic society such as ours does not forsake the rule of law even in times of dire situations. Thus, we are pressed with the following question: ‘What is the legal basis of the issuances by the President imposing quarantine restrictions throughout the country?’
Institutionalizing government response
On March 8, 2020, President Duterte issued Proclamation No. 922 which placed the entire country under a state of Public Health Emergency. Few days later, on March 16, 2020, he issued Proclamation No. 929, declaring a State of Calamity throughout the Philippines. In the same proclamation, he also placed entire Luzon under strict lockdown.
Realizing that the powers of the President under the Constitution and existing laws were insufficient to effectively address the crisis brought about by the pandemic, Congress deemed it necessary to grant President Duterte emergency powers pursuant to Article VI, Sec. 23 (2) of the Constitution. Thus, on March 24, 2020, Congress enacted R.A. No. 11469, also known as the Bayanihan to Heal as One Act (Bayanihan Law). It granted the President temporary emergency powers which include, among others, the power to (a) the adopt and implement measures, following World Health Organization guidelines and best practices, to prevent or suppress further transmission and spread of COVID-19 through education, detection, protection and treatment[1]; (b) ensure that all Local Government Units (LGUs) are acting within the letter and spirit of all the rules, regulations and directives issued by the National Government and are implementing standards of Community Quarantine consistent with what the National Government has laid down for the subject area[2]; and (c) regulate the operation of all sectors of transportation through land, sea or air, whether private or public[3].
The Bayanihan Law, being an emergency powers measure contemplated under Article IV, Sec. 23 (2), was effective for only a limited period. Although there were doubts as to the actual expiration of said law (the administration maintained that said emergency powers ceased on June 25[4], citing the sunset clause[5] in the Bayanihan Law, as opposed to the constitutional provision[6] that emergency powers shall cease upon adjournment of Congress, which took place on June 5), the emergency powers had, at some point, definitely ceased. Nonetheless, even after the lapse of the Bayanihan Law, quarantine restrictions have remained in place.
Legal foundations: the clear and the anomalous
In placing the country under a state of Public Health Emergency as specified in Proclamation No. 922, President Duterte derived his authority from R.A. No. 11332[7], which authorized the President to declare epidemics and mobilize governmental and nongovernmental agencies to respond to the threat. Conversely, President Duterte’s declaration of State of Calamity as stated in Proclamation No. 929 was grounded on R.A. No. 10121[8], which empowers the President to declare a State of Calamity. Thus, these two proclamations were aptly made by President Duterte in the exercise of his statute-based powers.
Curiously, it was also in Proclamation No. 929 in which President Duterte imposed quarantine restrictions. To stress, while the authority of the President to declare State of Calamity has statutory basis in R.A. No. 10121, the same law does not expressly provide that the President is authorized to impose lockdowns. Hence, when President Duterte imposed quarantine restrictions in Proclamation No. 929, the legal foundation in doing the same was unclear. It was only upon the effectivity of the Bayanihan Law when there had been clear statutory basis for such act, particularly in Sec. 4(a),(g) and (f) of said law. However, with the expiration of the Bayanihan Law, the quarantine restrictions remained in place, while the clear legal basis for imposing the same had ceased.
Filling the void
Article III, Section 6 of the Constitution provides that “the right to travel [shall not] be impaired except in the interest of national security, public safety, or public health, as may be provided by law.” Hence, the unauthorized imposition of quarantine restrictions would not only signify a case of presidential overreach, but also a clear impairment of the constitutionally protected right to travel. As worded, Article III, Section 6 provides a limitation to the right to travel – it may be impaired only in the interest of national security, public safety or public health, as may be provided by law. Therefore, it is only Congress which may curtail the right to travel when exigencies of times call for it.
Considering that Congress, in enacting the Bayanihan Law, granted President Duterte the powers stated in Sec. 4(a),(g) and (f), its power to regulate the right to travel implied in Article III, Section 6 must be considered as a component of the emergency powers granted to the President. Thus, the President’s imposition of restrictions pursuant to the Bayanihan Law does not violate the right to travel since it was made pursuant to a validly delegated legislative power. In contrast, the validity of quarantine restrictions made outside the authority of the Bayanihan Law is, at the very least, questionable.
This in no way suggests that the President’s actions in response to the pandemic beyond the scope of the emergency powers measure is altogether without legal basis. Even without an emergency powers measure, the President has the power to ensure that the laws be faithfully executed[9] (known as the “take-care” power), including existing local ordinances[10] that impose quarantine restrictions. In the exercise of this function, the President may employ all the powers attached to his office, most especially the power to control all executive department, bureaus, and offices.[11] Thus, the President may employ all the existing powers of executive agencies that regulate aspects of public life (e.g. work suspensions, public transport regulations).
This does not discount the existence of certain gray areas such as in certain LGUs which did not issue any ordinance from which the President may derive power to impose quarantine restrictions. In this case, there is no authority for the President to impose measures in such LGU that would have the effect of curtailing the right to travel. Hence the need for another congressional grant of emergency powers authorizing the President to impose quarantine restrictions. Without such grant, the President could combat the pandemic by exercising the gamut of powers within the executive branch , but cannot curtail the right to travel.
The country is no stranger to national emergencies. Yet the emergency brought by the COVID-19 pandemic is unprecedented. And when the most critical measure to address this crisis rubs against a constitutionally protected right, the observance of constitutionally sanctioned mechanisms is indispensable. The observance of such constitutionally sanctioned mechanisms in the imposition of quarantine restrictions is thus illustrated as follows: the legal foundations for the imposition of quarantine restrictions during the lifetime of the Bayanihan Law is direct i.e., upon the authority of an emergency powers measure, while outside of it, the authority is indirect i.e., in the exercise of “take-care” power enforcing local ordinances.
As pointed out, in the absence of an emergency powers measure, the authority of the President to impose quarantine regulations is sourced from only local ordinances of the LGUs across the country. However, when tested against the postulate that government powers must be centralized in times of emergencies so as to enable prompt government action, the prudence of having a decentralized legal foundation in the form of local ordinances is put into question. If the President had to source authority from local ordinances which might possibly differ from one another in terms of the extent and gravity of regulation, the net result is the divergence of quarantine restrictions across the country. The most prudent action to address this is definitely to enact another emergency powers measure so as (1) to address the inconvenience on the part of the President, who has to source authority from local ordinances, and (2) to allow uniform quarantine regulations, so as to rule out the possibility of confusion on the part of the public.
While the source of authority of the President to impose quarantine restrictions is put into inquiry here, how he exercises such authority is entirely a different matter. It should be put into inquiry by the people themselves, who must always be vigilant so as to prevent any government action that exceeds what the present situation calls for.
[1] R.A. 11469, sec. 4(a)
[2] R.A. 11469, sec. 4(g)
[3] R.A. 11469, sec. 4(r)
[4] Aika Rey, Malacañang says Bayanihan Act to expire June 25, but Constitution says no, Rappler, June 6, 2020, https://rappler.com /nation/malacanang-bayanihan-act-expire-june-25-2020
[5] R.A. 11469, sec. 9
[6] CONST., art. VI, sec. 23(2)
[7] also known as known as the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act
[8] also known as the Philippine Disaster Risk Reduction and Management Act of 2010
[9] CONST., art. VII, sec. 17
[10] Isagani Cruz & Carlo Cruz, Philippine Political Law, 419 (2014 ed.)
[11] CONST., art. VII, sec. 17
Featured Photo by: Walter Bollozos of The Philippine STAR
