COVID-19 CRISIS: How President Duterte’s emergency powers bill morphed in 36 hours

Mike Navallo, ABS-CBN News

Posted at Mar 24 2020 07:36 AM | Updated as of Mar 24 2020 11:41 AM

MANILA – The Philippine House of Representatives and Senate at around midnight Tuesday passed on third reading their respective versions of a bill seeking to grant special powers to President Rodrigo Duterte to address the growing crisis caused by the coronavirus disease or COVID-19.

In a span of 36 hours or between lunchtime of Sunday, when ABS-CBN News first obtained a copy of Malacañang’s proposed draft bill sent to Senate President Vicente Sotto III, and the passage of the Senate and House bills, substantial changes have been made to the measure.

The House eventually adopted the Senate’s version of the bill which will then be forwarded to the President for his signature.

In this article, we examine key changes to the measure.

SHORT TITLE

The Malacañang draft called the bill Bayanihan Act of 2020. The House retained this title in House Bill No. 6616 but the Senate opted to call the bill “We Heal As One Act” in Senate Bill No. 1413.

Both HB 6616 and Senate Bill 1418, the Senate substitute bill which was eventually passed on third reading, now refer to the bill as the “Bayanihan To Heal As One Act.”

EMERGENCY POWERS OR AUTHORITY?

While Sotto had expressly denied that the President asked for “emergency powers,” the Malacañang draft expressly stated in section 3 that “it is imperative to grant [the President] emergency powers subject to such limitations as hereinafter provided.”

The term “emergency powers” could no longer be found in HB 6616 and SB 1418 and was instead replaced by the term “authority.”

But Carpio pointed out that the law might even be effective until the current session of Congress adjourns in 2022, “under Section 23(2), Article VI of the Constitution, the powers granted to the President under the Act ‘shall cease upon the next adjournment of Congress’ if the Act is not sooner terminated or withdrawn as provided in the Act.”

TAKE-OVER PROVISION

Among the powers granted to the President under the Malacañang draft was 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.” The non-exhaustive enumeration of industries covered by the take over included hotels, public transportation and telecommunications entities.

This provision drew public ire after ABS-CBN News first reported about it on Sunday. Questions were raised about the sweeping coverage of emergency powers like a take-over provision of public utilities and private businesses, while some questioned the need for such a provision while others questioned the trustworthiness of government officials. Sotto himself said such a provision will not fly in the Senate.

Some legal experts like retired Supreme Court Senior Associate Justice Antonio Carpio, however, said he did not see “any constitutional infirmity” in the provision.

On Monday, no less than Executive Secretary Salvador Medialdea acknowledged before the House of Representatives their intention to have the provision included in the bill but conceded that they had to listen to lawmakers and the opinions of their countrymen. Justice Secretary Menardo Guevarra said it would have been prudent to include the provision in the bill now rather than be caught unprepared in dealing with COVID-19.

As a result, the bills filed in the Senate and the House of Representatives no longer mentioned the term “take over of public utilities and private businesses” and instead limited their scope to “directing the operations” of privately-owned hospitals and public transportation.

The versions that passed on third reading in both chambers added “passenger vessels” to the limited number of businesses covered by the provision. They also expressly referred to Art. XII, section 17 of the Constitution which allows the State to “temporarily take over or direct the operations of any privately-owned public utility or business affected with public interest.”

EXEMPTION FROM PROCUREMENT LAW

Malacañang sought exemption from procurement laws in the purchase of goods, lease of real property, construction of facilities and hiring of critical services in connection with the fight against COVID-19.

The Senate and House versions of the bill kept these provisions but added a provision also exempting from procurement laws the purchase of goods and services for social amelioration measures in affected communities.

REALIGNMENT OF FUNDS

A controversial provision in the Malacañang draft of the bill involves authorizing the President to reprogram and reallocate any appropriation in the 2020 General Appropriations Act for any purpose the President may deem necessary to fund efforts to combat COVID-19.

But Carpio told ABS-CBN News Sunday night that this provision “is unconstitutional insofar as reprogramming and reallocation of appropriations are concerned because only savings from appropriations can be realigned or transferred.”

“[T]he President can only realign savings from appropriations in the approved budget of the Executive branch. He cannot realign savings in the Judiciary, the Legislature, or the Constitutional Commissions,” he added.

The Supreme Court had struck down as unconstitutional former President Benigno Aquino III’s Disbursement Acceleration Program over cross-border transfer of funds from one branch of government to another and for declaring “savings” from unreleased appropriations and unobligated allotments.

Addressing this concern, the bills passed in the Senate and the House limited the President’s power to realign funds to “savings” within the Executive Department.

But worth noting is that specific agencies have been indicated as priorities for augmentation in the reallocation of the budget.

Senators have insisted that the primary purpose of the bill was to give 18 million poor Filipino families with P5,000 to P8,000 cash during the national emergency period.

ADDITIONAL POWERS

The House and Senate versions of the bill provided additional powers to the President than originally proposed, including the power to provide for a 30-day grace period for payment of loans and residential rents, moving the deadline for payment of taxes, expanding the Pantawid Pamilya program, exempting from import taxes the importation of equipment and supplies needed for the fight against COVID-19, among others.

REPORTING REQUIREMENT

Instead of the monthly requirement for the President to submit a report to Congress, the House and Senate-passed bills now require a weekly report with details on the amount of funds used.

EFFECTIVITY

The effectivity of the emergency powers bill had also been changed.

Under the Malacañang draft, the law will be effective “for two (2) months or longer if the calamity will persist, without prejudice to the powers that the President may continue to exercise under the Constitution or other laws,” drawing criticisms regarding a possible indefinite extension of the law.

The House and Senate versions of the bills which they passed on third reading expanded the period to 3 months, but gave Congress the sole authority to extend it.

But as Carpio pointed out that the law might even be effective until the current session of Congress adjourns in 2020, “under Section 23(2), Article VI of the Constitution, the powers granted to the President under the Act ‘shall cease upon the next adjournment of Congress’ if the Act is not sooner terminated or withdrawn as provided in the Act.”

JOINT LEGISLATIVE-EXECUTIVE EFFORT

Some of President Duterte’s key Cabinet officials – Medialdea, Guevarra and Finance Secretary Carlos Dominguez – stayed in the Senate until past 2am Tuesday, until after the Senate’s version of the bill was passed on third reading.

Asked who were instrumental in fixing problematic provisions in the original Malacañang draft of the bill, Guevarra said it was a “joint legislative-executive effort.”