FLAG opposes, raises questions on Congress' special powers grant bill

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.

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