Unmasking the problem

Many consider the COVID-19 response to be the outgoing administration’s biggest failure (see Senate President Vicente Sotto’s reply to the question). As for President Rodrigo Roa Duterte, he considers it one of his administration’s major accomplishments.

For those who see it as a win, one important reason is in how we succeeded in crafting a unified response to the pandemic. We can argue ourselves hoarse on whether we were timely or late, strict or relaxed but these are implementation issues. It could have been worse and as fragmented as 7,107 possibilities could make it.

The fact is, despite our hob-nob regional composition as a nation, we presented a united facade. We used a whole of government, whole of society approach under the strategic principle “national government enabled, local government unit led.”

Broken vow. Today, that facade is cracked as we see the spectacle of the Justice, Health and Local Government Departments ganging up on the most powerful local chief executive in the country (Cebu is the largest in terms of population). Twice this past week, The Philippine STAR’s headline referenced the tension between national and local authorities triggered by the province of Cebu’s refusal to toe the IATF line on mask mandates.

The national vs. local turf war is not a new issue. Black swan emergencies like this pandemic expose the soft underbelly of intragovernmental relations. Even from that time two years ago when the NBI summoned Pasig City Mayor Vico Sotto for allowing tricycles to operate on his city roads, tension has always been present. It is not as pronounced, though, as the highly public clashes in the US where a nightmare, fragmented policy patchwork contributed to a slower COVID-19 response.

Police power. Protection of public health is specifically referenced in the classic formulation of police power. Broadly defined, police power is the power of the state to interfere with private rights for the public good. In the Philippines, police power is an inherent power of the nation state but it is also granted by law to LGUs through the general welfare clause, sec. 16 of the Local Government Code (Code).

On the matter of health and safety, the Code further vests each municipality, city and province (secs. 446, 457, 468) with the direct power to “approve measures and adopt quarantine regulations to prevent the introduction and spread of diseases.”

The Code also provides in sec. 105 that “In cases of epidemics, pestilence and other widespread public health dangers, the Secretary of Health may, upon the direction of the President and in consultation with the local government unit concerned, temporarily assume direct supervision and control over health operations in any local government unit for the duration of the emergency, but in no case exceeding a cumulative period of six (6) months.”

Running on empty. The last provision is what Gov. Gwen invokes to observers second guessing her temerity. Indeed, the raison d’etre of the Bayanihan to heal as one act, R.A. 11469, was precisely to declare that national emergency as existing and, for a temporary duration only, in Section 4 (g) grant the President the power to “ensure that all Local Government Units (LGUs) are acting within the letter and spirit of all the rules, regulations and directives issued by the National Government pursuant to this Act; are implementing standards of Community Quarantine consistent with what the National Government has laid down for the subject area, while allowing LGUs to continue exercising their autonomy in matters undefined by the National Government or are within the parameters it has set; and are fully cooperating toward a unified, cohesive and orderly implementation of the national policy to address COVID-19…”

These presidential powers were never questioned in Court. By definition, they went against the Constitution which, recognizing the autonomy of local governments, provides that the President’s power over them is purely of general supervision. Supervision is: “the power of a superior officer to see to it that lower officers perform their functions, in accordance with law.” This is distinguished from the power of control or “the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.”

In a supervision context, the President or his men is limited to seeing if what Cebu is doing has a legal basis. If so, then theirs is not to make reply nor reason why.

If it were a control situation, then they could overrule Cebu. But it is not a control situation nor is it supposed to be. Local government expert, Professor Alberto Agra, postulated that the President exercised what he referred to as “enhanced” supervision over LGUs when Bayanihan was in force. Nonetheless, this power was temporary and expired sine die on Jan. 25, 2020, per the Act’s own sunset provision.

Leadership from the trenches. We can argue over the wisdom of the provincial posture to relax the masking mandate. The senators who have spoken out – Sen. Koko in favor, Sen. Francis against, Sen. Sonny neither for or against – all seem content to discuss this on wisdom considerations. But wisdom, as we know, is the last ditch argument when the position argued against is legally tenable.

Gov. Gwen and the Provincial Board of Cebu are acting within the law; in accordance with what their constituents prefer, and consistent with the fabled Cebuano independence that faced colonizers like a bamboo wall in the early 1500s. Hence, their actions in this regard cannot just be dismissed lightly. Even the avowed strategic direction of the pandemic – national government enabled, local government led – is dishonored by what is being done to Cebu.

We pray they keep their nerve, in the name of the rule of law and so that this face-off reaches the Supreme Court and enriches our jurisprudence on the finer points of local autonomy.

NBA Finals 2022. The Golden State Warriors win! Congratulations Manong Ernie Maceda – your team has their 7th title. Happy Father’s Day to all dads!