This photo taken March 23, 2020 shows the House of Representatives in a special session to tackle proposed measures to grant President Rodrigo Duterte with additional powers to address the COVID-19 pandemic.
The STAR/Felicer Santos
FLAG opposes, raises questions on Congress' special powers grant bill
Kristine Joy Patag ( - March 24, 2020 - 11:43am

MANILA, Philippines — While Congress is pushing to grant emergency powers to President Rodrigo Duterte to address the crisis brought by the novel coronavirus, a group of lawyers argued that provisions of the bill are unnecessary and unconstitutional.

“The proposed bills seek to confer powers that are already conferred by existing laws and fail to set forth a national policy, as required by the Constitution,” the Free Legal Assistance Group said in their public opinion released Tuesday.

The proposed measure to grant President Rodrigo Duterte with additional powers to address the pandemic is up for his signature.

The House of Representatives adopted the Senate version of the “Bayanihan to Heal as One Act” dawn of Tuesday.

FLAG, however, said that giving emergency powers to the president “may not be the solution to the COVID-19 pandemic at this time.”

They pointed out that other countries have not resorted to extraordinary measures in fighting the pandemic, but are instead relying on “evidence-based strategies and scientific resolutions.”

The legal opinion was penned by rights lawyers Chel Diokno and Theodore Te, also former Supreme Court spokesperson.

Unduly delegation of legislative power to executive branch

Citing Abakada Guro Partylist v. Ermita et. al, FLAG said that the Supreme Court ruled that Congress is “prohibited from delegating powers that are strictly or inherently and exclusively, legislative,” subject to exceptions.

The SC said in the mentioned case legislative was defined as the “authority to make a complete law—complete as to the time when it shall take effect and as to whom it shall be applicable—and to determine the expediency of its enactment.”

They noted in particular the following provisions are powers that are strictly, inherently and exclusively legislative and cannot be validly delegated:

  • Section 4(10) Ensuring the availability of credit to productive sectors of the economy
  • Section 4(11) Liberalize the grant of incentives of manufacture or importation of critical or needed equipment or supplies
  • Section 4(12) Require businesses to prioritize and accept contracts...for materials and services necessary to promote the declared national policy

Meanwhile, they said that the proposal to grant an alternative working arrangement for workers in the Executive branch is “a superfluity and need not be included in a grant of emergency powers,” while the following phrase—“whenever it becomes necessary, in other independent branches of government and constitutional bodies, and the private sector”—violates the separation of powers and is thus unconstitutional.

Powers that are legislative in nature

FLAG also said that the grant of additional powers to “allocate public funds, determine the objectives for spending, characterize the nature of public funds” are purely legislative in nature.

They cited Section 4(17) which allows the discontinuance of appropriate programs of Executive department agencies and utilize the savings, Section 4(18) appropriation of unspent funds to address COVID-19 situation and Section 4(19) realignment of savings on other items in the Executive department to fund measures for severely affected areas sectors and industries are powers that are purely legislative.

In particular, FLAG said Section 4(17) is a violation of the Constitution and is “inconsistent” with what the SC held in Araullo v. Aquino III.

Part of the cited SC case states that “the transfer of appropriated funds” can only be valid under certain conditions.

FLAG pointed out that by directing the discontinuance of programs, the president “creates” savings, without regard of whether the funds are actually savings, a violation of the Constitution.

They also said that declaring funds from the discontinued programs as savings violates jurisprudence that held that the Executive “could not declare unreleased appropriations and unobligated allotments as savings prior to the end of the fiscal year.”

Powers that are superfluous and unnecessary

FLAG said that Republic Act 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concert Act already provides for “a definition of a public health emergency, a response to such, and specific objectives, powers and penalties.”

The same law allows the declaration of a Public Health Emergency, which Duterte did on March 8.

The power to “expedite and streamline the accreditation of testing kits and facilitate prompt testing” included in the proposed bill was already covered by RA 11332.

Expeditious procurement of goods “as the need arises” is also included in the Government Procurement Policy Board memorandum issued March 9, 2020 which allows easing of procurement process under a state of public health emergency.

If Congress believes RA 11332 is inadequate to address the pandemic, FLAG said, then they should “err in favor of amending” the said law.

As It Happens
LATEST UPDATE: March 28, 2020 - 2:40pm

Photo shows members of the Philippine National Police deployed in Manila amid COVID-19 threat. The STAR/Edd Gumban

President Rodrigo Duterte on March 16, 2020 declares an enhanced community quarantine over all of mainland Luzon, an expansion of an earlier general community quarantine over the National Capital Region.

The entire National Capital Region—16 cities and a municipality—is under community quarantine from March 15 to April 14, which means the enforcement of social distancing measures like letting fewer people on public transportation, reduced store hours, and the possibiity of curfews.

According to a memorandum issued by the Palace on Saturday, March 14, the quarantine means that "movement of people shall be limited to accessing basic necessities and work; and uniformed personnel and quarantine officers shall be present at border points."

Travel restrictions in and out of the capital will also be implemented.

March 28, 2020 - 2:40pm

Laguna Gov. Ramil Hernandez announces that the whole province is now on total lockdown amid the COVID-19 outbreak.

March 28, 2020 - 12:33pm

The city government of Cebu announces that the city is placed under enhanced community quarantine. 

The quarantine will last until April 28, 2020 until further notice.

March 27, 2020 - 4:33pm

Filipino seafarers repatriated from coronavirus-infected Grand Princess cruise ship calls on the government to test all crew members before their 14-day quarantine ends on Sunday.

The 538 seafarers are currently quarantined at New Clark City in Capas, Tarlac but testing remains "random" and "unsystematic". Those who tested positive were sent to Bataan.

"If the politicians and their families are able to avail of testing, then we, who were exposed continuously to COVID-19 for a long time, need and deserve the testing even more," the group said in an open letter.

March 27, 2020 - 4:02pm

Foreign Affairs Secretary Teodoro Locsin Jr. informs members of the diplomatic community that foreign governments would have to take full responsibility in mounting sweeper flights from the Philippines and back to their countries starting Friday.

In an online video conference, the DFA chief told the diplomatic corps that the last of sweeper flights funded by the Philippines ended on Thursday.

Locsin also said foreign nationals should return to their home countries while flights are still available. Otherwise, they would have to stay in the Philippines until the end of the enhanced community quarantine period.

"If that is the case, he advised foreign missions on the steps that they should take in the coming days and weeks with regard to assisting their nationals who are still in the Philippines while the ECQ is enforced," the DFA said in a statement. — Patricia Lourdes Viray

March 27, 2020 - 1:24pm

Tourism Secretary Bernadette “Berna” Romulo-Puyat says she is on quarantine after being exposed to Armed Forces of the Philippines chief of staff Gen. Felimon Santos Jr. who tested positive for COVID-19.

"I will be undergoing self-quarantine as I was exposed to him [Santos] in a meeting last March 20," Puyat says.

"Since I do not show any signs nor symptoms, I will not be having myself tested in order to save the limited supply of testing kits to people who truly need it. By staying at home, I will not put anyone I come in contact with at risk," she adds.

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