Why Duterte doesn’t need special powers to address the coronavirus outbreak

Lian Buan
Why Duterte doesn’t need special powers to address the coronavirus outbreak
'The emergency powers proposed to be granted by Congress are either superfluous and unnecessary, as they are already vested in the Executive Branch by existing laws,' says the Free Legal Assistance Group

MANILA, Philippines – In less than 24 hours, both houses of Congress drastically improved President Rodrigo Duterte’s special powers bill to remove all the “dangerous” provisions, especially his budgetary powers, but lawyers insist he does not need these special powers.

The emergency powers proposed to be granted by Congress are either superfluous and unnecessary, as they are already vested in the Executive Branch by existing laws,” the Free Legal Assistance Group (FLAG) said in a position paper on Tuesday, March 24.

FLAG said Republic Act No. 11332 or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act, signed by Duterte himself in 2019, already gives powers to the government to respond to a pandemic.

Under Section 4 of RA 11332, the government is mandated, among others, to:

  1. Ensure the establishment and maintenance of relevant, efficient, and effective disease surveillance and response system at the national and local levels
  2. Establish effective mechanisms for strong collaboration with national and local government health agencies to ensure proper procedures are in place 
  3. Provide sufficient funding to support operations needed to establish and maintain epidemiology and surveillance units at the DOH, health facilities, and local government units (LGUs) 

These powers are already extraordinary as they contemplate precisely an emergency, i.e., a public health emergency,” FLAG said.

Not a national policy

The bills invoke Article VI, Section 23(2), which says: “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.” (emphasis ours)

FLAG said that the bill, the proposed Bayanihan to Heal as One Act, is not a national policy as required by the Constitution.

“Instead of a national policy, as required in Article VI, sec. 23(2) of the 1987 Constitution, the proposed bills simply set forth objectives,” said FLAG.

A national policy would have laid out greater vision to curb the effects of the pandemic, such as economic policies to mitigate impacts; or policies to provide for better research as it is also RA 11332’s mandate for the government to have stronger disease surveillance.

The bills, FLAG said, merely laid out objectives which can be accomplished using existing laws, like RA 11332.

“Republic Act No. 11332, a law passed precisely to meet these objectives, already provides in its various sections, among others, for a definition of public health emergency, a response to such, and specific objectives, powers, and penalties,” the group said.

Former Supreme Court spokesperson Ted Te, a FLAG member, said, “In fact, strengthening the protections already in RA 11332 would have been a clearer statement of national policy.”

Amending and strengthening RA 11332 could have also been expedited if certified as urgent – as in the case of the special powers bill, which was passed in one day.

‘Takeover’

The final bill also removed the provision in the Malacañang version that would allow Duterte to take over private businesses, including, telecommunications, which could also cover broadcast media.

In the passed version, Duterte is now only able to “direct the operations” of private medical facilities.

Executive Secretary Salvador Medialdea said the provision was merely to provide Duterte a “standby power.”

Again though, Duterte does not need special powers to do so because Section 17 of Article XII of the Constitution allows the State to “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.”

FLAG said the speed in which Congress was able to convene for the special session – which lawmakers joined virtually – is proof that the situation is not so dire that Duterte would need takeover powers.

“That Congress was able to convene in special session in one day and conduct its business through virtual means contradicts any compelling need for this power to be included in any Emergency Powers Act to be passed at this time,” said FLAG.

Budgetary provisions

The bill that Congress passed also amended the budgetary provisions which  retired Supreme Court justice Antonio Carpio deemed to be unconstitutional.

The administration versions of the billl would have allowed Duterte to tap any budget, including outside the executive department, when laws only allow the President to touch savings (not any budget) to augment existing projects within the executive department only.

In less than 24 hours, with the persistence of progressive lawmakers, those budgetary provisions were amended to be more consistent with existing laws.

However, Carpio pointed out that Duterte doesn’t even need special powers to touch savings because Section 25(5), Article VI of the Constitution already allows him to do so.

It states:  “No law shall be passed authorizing any transfer of appropriations; however, 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 Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

The passed bill retained the provision that would allow Duterte to “undertake the procurement of the following as the need arises, in the most expeditious manner, as exemptions from the provisions of Republic Act No. 9184 and other relevant laws.”

Experts said Duterte does not need this because RA 9184 or the Government Procurement Reform Act, already gives him the power to make emergency purchases.

Experts pointed out that if RA 9184’s guidelines on emergency purchases were to be followed, use of funds under the special powers law would most likely be subjected to stringent audit. – Rappler.com

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.