Press Release
March 23, 2020

SENATOR LEILA M. DE LIMA'S STATEMENT ON THE
COVID-19 EMERGENCY POWERS BILL

      I read last night the draft bill, or the proposed Bayanihan Act of 2020, entitled "AN ACT TO DECLARE THE EXISTENCE OF A NATIONAL EMERGENCY ARISING FROM THE CORONAVIRUS 2019 (COVID-19) SITUATION, A UNIFIED NATIONAL POLICY IN CONNECTION THEREWITH, AND TO AUTHORIZE 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" as proposed by the Executive Department for enactment by Congress.

    As of the release of this Statement, both the House of Representatives and Senate are holding separate special sessions. On the assumption that what is being tackled is the aforesaid bill, here are my comments:

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The proposed bill granting extraordinary powers to the President to deal with the COVID-19 crisis is unconstitutional, unnecessary, and ultimately, dangerous.

Unconstitutional

The Constitution, Art. VI, Sec. 25 (5) states that "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."

This provision of the Constitution has been greatly elaborated upon in the two decisions of Araullo v. Aquino (GR 209287; July 1, 2014 and Feb. 3, 2015). Any re-alignment of the budget in the GAA once enacted can only be accomplished in accordance with Araullo.

Emergency powers cannot include unconstitutional powers. The fact that powers are emergency in nature does not mean that they can be crafted in violation of the Constitution. Quite the contrary, emergency powers are and will always be limited by the Constitution.

Congress cannot grant the President powers that it is not allowed to grant under the Constitution. In this case, the Constitution prohibits Congress from passing a law authorizing the transfer of appropriations. As such, Congress cannot enact Sec. 4 (16) of the proposed Bayanihan Act because it authorizes blanket transfer of appropriations by the President outside of that allowed under the Constitution and by the Supreme Court in Araullo.

The solution therefore is to enact a special appropriation law (SAL) or supplemental budget to the GAA of 2020. This SAL will have to itemize new appropriations for the COVID-19 emergency while repealing appropriations in the 2020 GAA. Although this has the effect of re-alignment, this is not re-alignment because these are new itemized appropriations provided for in a new law, funded by revenue taken from repealed appropriations in the 2020 GAA. What the Constitution prohibits is the re-alignment of funds already provided for in an appropriation law. In order to modify the old appropriations law to add new appropriations, or to re-align appropriations, there always has to be a law, a specific law, not a blanket authority, regardless of the existence or non-existence of a state of national emergency.

Congress cannot simply surrender this power of the legislature to enact appropriation laws and to re-align appropriations to the President without destroying the Republican system of separation of powers and checks and balances.

Unnecessary

Several supposed grants of power in the proposed measure are already available to the President under the present laws. For example, GPPB Circular No. 04-2016 issued by then DBM Sec. Ben Diokno already allows government agencies to do Negotiated Procurement during Emergency Cases. Section 3.2 of the same states that Negotiated Procurement under Emergency Cases modality may be resorted to in the following instances:

a. in case of imminent danger to life or property during a state of calamity; b. when time is of the essence arising from natural or man-made calamities; or c. other causes where immediate action is necessary to prevent damage to or loss of life or property, or to restore vital public services, infrastructure facilities and other public utilities.

The President already has broad powers to implement community quarantine, regulate traffic of goods, enforce laws against hoarding and profiteering, and conduct mass-testing and other public health programs.

The President also is given sufficient supervisory power under the Constitution to ensure that the LGU officials perform their duties in accordance with law.

Finally, even without a supplemental budget, the President already has access to emergency funds under the present GAA. By way of examples, there is still 12 billion remaining balance in the Presidential Contingency Fund, 2.16 billion NDDRM Fund (former Calamity Fund), 600 million DOH Quick Response Fund, 9.5 billion DOLE fund for vulnerable workers, and 1.250 billion DSWD Quick Response fund.

It can be argued that even without any new legislation, the President can already take concrete steps in our fight against COVID-19 if he chooses to. To date, the President and his team have yet to express any statutory obstacle that requires immediate Congressional action.

Dangerous

The proposed Bayanihan Act grants the President power to temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest to be used in addressing the needs of the public during the COVID-19 emergency as determined by the President, including but not limited to, hospitals and medical and health facilities, hotels and other similar establishments to house health workers, serve as quarantine areas, quarantine centers, medical relief and aid distribution locations or other temporary medical facilities; public transportation to ferry health, emergency, and frontline personnel and other persons; and telecommunications entities to facilitate uninterrupted communication channels between the government and the public;

What we need to emphasize here is that the private sector has been nothing but cooperative in our ongoing crisis. In fact, it can be argued that they have accomplished more towards fighting COVID-19 than our government. They should be the one taking over government operations and not the other way around. The leaders of the industry, many of whom has endured countless badgering from our President, have stepped up and introduced concrete plans of action to minimize the effect of COVID-19 on our people. There is no reason to doubt their commitment and cooperation during these times of crisis.

I have serious doubts as to the capacity of our present government to take-over and operate private establishments. In taking over their operations, we will not only lose allies against COVID-19, we will also incur serious losses in our economy, now and in the future.

To grant the President the power to take over these institutions sends the wrong message. It tells them that they are not our partners in our fight against COVID-19 and that they are merely tools to be used by the government whenever it feels like it. And this power, in spite of any assurance from Malacañang, will hang over them like the Sword of Damocles and disincentivize any effort on the part of the private sector.

Social Safety Nets

There is also a clear absence of mention of any social safety nets in the proposed Bayanihan bill. It has always been about our people. Everything we do redounds to our people's welfare. To simply ignore the fact that our people needs assurance that our government will take care of them during the COVID-19 crisis is to invite widespread social anxiety.

We are already in the brink of social unrest. The more our government appears indifferent to the plight of our people, the more our people will become vulnerable to desperate and possibly criminal thoughts. We do not have enough police to fight off criminality borne of hopelessness caused by our government's failure to show our people that we care for, and are ultimately working towards, their welfare.

Conclusion

The LGUs, the private sector, and our people, are our partners. We need but ask and they will come running to our side. Our people, especially the poor, just needs some assurance that they will be taken care of at a time when they do not have any means to support themselves. Our partners should not be made to appear as uncooperative in the eyes of our policymakers. To threaten them with sanctions and heavy-handed government action in the face of this crisis will not operate to inspire them to do their part. If we enact this emergency power bill, we are, in effect, telling our people that they are all burdens, if not criminals, that require government subjugation.

I am against this measure.

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