Even from a purely restrictive legal standpoint, the proposed measure seeking to grant emergency powers to the President for the purpose of addressing the COVID-19 pandemic is constitutionally unsound. 

The practical implications   and the endless possibilities for its abuse, despite formal yet unreliable guarantees, make it even worse. It is scary, can become widespread and uncontrollable, even fatal to democracy.

Focusing for now on its constitutionality, the NUPL legal eyes saw features that stand out most – both for their vagueness and lack of discernible parameters:

(a) Give the Chief Executive the power to “[c]ontinue to adopt and implement measures to prevent or minimize further transmission and spread of COVID-19” as stated in Sec. 4(1), and “to undertake such other measures as may be reasonable and necessary to enable the President to carry out the declared national police subject to the Bill of Rights and other constitutional guarantees” as stated in Sec. 4(18); and

(b) The penal provision in Sec. 6 which prescribes penalties of imprisonment for a period of two (2) months or a fine of up to Php 1,000,000.00, or both, for “[a]ny violation of the rules, regulations and directives of the National Government issued pursuant hereto, xxx.”

Clearly, the proposal envisions the grant of emergency powers as one under Section 23(2) of Article VI of the 1987 Constitution: “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.”

The bill’s cited provisions, among so many other problematic ones spread all over the place (centralization of budget powers, blanket takeover of communications, open-ended duration of the powers upon a subjective determination by the omnipotent power wielder etc.) fail to satisfy even the most basic standards for the delegation of legislative authority, i.e. the completeness test and the sufficient standard test.

The first test, obviously, requires the law which delegates legislative power to be “complete” in all its terms and conditions, in that, when it leaves Congress and reaches the delegate, the only thing he will have to do is to enforce it. The second mandates adequate guidelines or limitations in the law itself to determine the boundaries of the delegate’s authority. 

Sec. 4(1) and 4(18) of the draft measure amount to a general and therefore invalid grant of legislative power, with no parameters that could limit the President’s exercise of authority. It is not enough for the law to state that the exercise of delegated authority be for the purpose sought to be achieved. Case law also demands that there be clear limitations to the exercise of such delegated power.

Both aforementioned provisions are simply too broad that, in effect, they amount to a relinquishment of Congress’s duty to enact laws that would govern the government’s response to the emergency at hand. 

Such was never the intention of Section 23(2) of Article VI. It must be borne in mind that legislative power, through which extraordinary measures are exercised, remains in Congress even in times of crisis. 

An equally alarming aspect of the proposed measure is the penal provision embodied in Sec. 6.

If passed, Congress is essentially criminalizing acts which have not yet been defined, by prescribing penalties for “[a]ny violation of the rules, regulations and directives of the National Government issued pursuant hereto, xxx.” 

Apart from also being a complete relinquishment of legislative prerogative, this provision would give the President carte blanche to define and penalize crimes, in gross violation of the principle of separation of powers.

Where the act has not been criminalized by the law delegating legislative authority, and said act later becomes criminal simply because the Chief Executive, in his discretion, has issued a proclamation that makes it so, then, the law is unconstitutional and void. 

It may be argued that the purpose of the delegation of broad powers would be to enable the President to act expediently and decisively on account of the public health emergency.

Still, the Constitution – providing for a separation of powers and a system of checks and balances – was put in place precisely to prevent the concentration of power in one person or a group of persons. 

This purpose should ring even more true during national emergencies, when people are gripped by fear and uncertainty, and government is inclined to act according to its own whims and caprices, to the detriment of fundamental rights.

An emergency in itself cannot and should not create power. Omnipotent power to fight a potent invisible enemy is not the solution. The government and the privileged must put their feet on the ground.

It is disturbing because in reality the powers being sought are practically infinitely overbroad. And this makes the people even more scared and edgy bordering on dangerous desperation and widespread discontent. #

Edre U. Olalia
NUPL President

The National Union of Peoples’ Lawyers was founded September 15, 2007 as a nationwide association of human rights lawyers as well as law students, paralegals and legal workers in the Philippines united by a commitment to the defense, protection, and promotion of human rights especially of the poor and the oppressed. nupl2007@gmail.com | 02 9206660