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Reflections on the Bayanihan Act or Republic Act No. 11469
(“the Act”) with Matrix of Presidential Powers Under Existing
Laws to Meet Emergencies, Including the Covid-19 Crisis
This document contains a summary of the discussion points through online
engagements within the Constitutional Law Cluster 1 of the UP College of Law. It may
be used to aid students, and interested parties in making their own analysis of the Act.
The views contained here are not definitive and are simply meant to encourage further
discussion and engagement.
Attached to the document is a chart of Presidential Powers found in Existing Statutes
that could have been used sans the Act. The chart is not exhaustive, but is meant to be
a handy reference.
Preliminary Points on the Act
Because of previously circulating views espoused by some government officials, it is
essential to begin with the reminder that the Supreme Court has ruled^2 that emergency
powers do not justify violations under the Bill of Rights, in particular abridgment of
freedom of expression and of the press, repression of the right against unreasonable
searches and seizures, and deprivation of due process.
Another key point raised is that the institutional structure under the 1987 Constitution
allows for a whole-of-government approach to national emergencies. “Sufficient
authority already resides in the President as the singular executive given supervision
and control over the entire bureaucracy and supervision of local government units
(“LGUs”).”
For reference, attached is a Chart of the Scope and Extent of the President’s Powers
under several Existing Statutes, which allow him to perform necessary tasks to meet
emergencies.
What the Act Does
The justification used for the Bill requires no extensive discussion. A nuanced view,
however, raises that, “(t)he justification for this delegation of legislative power is the
national emergency which prevents Congress from discharging its function.” This view
implies that an analysis of the Bayanihan Act (and its broad delegation of powers) may
proceed in the context of not just a national emergency but, one that prevents Congress
from discharging its function. This dovetails with the take of another member:
“Generally, Congress is the repository of emergency powers. However, knowing
that during grave emergencies, it may not be possible or practicable for Congress to
meet and exercise its powers, the framers of our Constitution deemed it wise to allow
Congress to grant emergency powers to the President, subject to certain conditions.”
The Act is a punitive measure, which aspect may be of added interest to Criminal Law
professors, practitioners and their students. Given the nature of the emergency as a
public health concern, criminalizing conduct, and imposing further punitive action
1 The members of the Cluster are: Justice VV Mendoza, Tony La Vina, Alberto Muyot, Char-
lie Yu, Dan Gatmaytan, Gwen de Vera and John Molo.
2 David v. Macapagal-Arroyo (G.R. No. 171396,May 3, 2006)
The Supreme Court has ruled that emergency powers do not justify vio- lations under the Bill of Rights During grave emergencies, it may not be possible or practicable for Congress to meet and exercise its powers, the framers of our Consti- tution deemed it wise to allow Con- gress to grant emergency powers to the President, subject to certain conditions
for acts that are already penalized under existing laws, may be viewed as oppressive and also as undue burden on government resources (law enforcement, prosecutorial service, and our courts )”. It is also observed that the Act imposes “perpetual or temporary disqualification” from office to offenders. With elections a few years away, it was observed that this provision is prone to abuse. The “take-over” power The final version “is a watered-down version of the earlier bill that empowered the President to take over virtually any business.” As passed, it is now limited to privately- owned hospitals and medical and health facilities, including passenger and other establishments and apparently only “to house health workers, serve as quarantine areas, quarantine centers, medical relief and aid distribution locations, or other temporary medical facilities; and public transportation to ferry health, emergency, and frontline personnel and other persons.” The imposition of a criminal penalty appears to be unnecessary considering that the President is given the authority under the law to take over the facilities. The objectives of the Act are achieved without need of criminalizing conduct. Executive’s Power over Budget Items There are different takes on the possible conflict with Art. VI, Sec. 25 (5) of the Constitution, which states in brief: “No law shall be passed authorizing any transfer of appropriations; however, the President... may, by law, be authorized to augment any item in the general appropriations for their respective offices from savings in other items of their respective appropriations.” One view posits that Sec. 4 of the Act does not violate the Constitution: “In giving the President the power to ‘reprogram, reallocate, and realign’ savings from items in the Executive Department, the purpose seems to me to give to him the power to APPROPRIATE public funds to meet the emergency caused by the outbreak of coronavirus. The funds will be drawn from savings from items in the Executive Department.” The other view proceeds thus: “The President has been given the power to ‘reprogram, reallocate, and realign from savings on other items of appropriations in the FY 2020 GAA in the Executive Department.. .’ in clear violation of Article VI, Section 23. Savings are meant to augment appropriations, nothing more. I do not think that emergency powers can be used to circumvent provisions of the Constitution. If we sanction this provision (in the Act), then emergency powers can be used to amend any provision of the Constitution.” Another take focuses on the statutory standards (not) given by the Act: “In general, the Bayanihan Act does not appear to have sufficient guidance for the President in the exercise of the authority granted under §§4(v-y)(dd)(ee). The creation of the oversight committee and rendition of reports are insufficient safeguards considering that the exercise by the committee of the Legislature’s oversight function of supervision is quite limited. Short of revoking the authority granted by subsequent law or withdrawing the declaration by joint resolution, Congress cannot review, modify or rescind any action taken by the President in the exercise of these powers.” Still, another view raises the point that Art. VI, Sec. 23 (2) provides the Constitutional conditions under which Congress may authorize the President and other constitutional heads to transfer appropriations from one item to another in their respective Departments as an exception to the rule that Congress cannot authorize anyone to transfer appropriations it has made. So, while Congress cannot authorize the President to reprogram, reallocate or realign appropriations made by it, Congress itself can do that because the power to appropriate public funds belongs to it. It is this power
Matrix of Presidential Powers Under Existing Laws to Meet Emergencies, Including the Covid-19 Crisis A. Health, Health Care Workers, Supplies §4(a) Adopt and implement measures to suppress further spread of COVID-19, through educa- tion, detection, protection, and treatment Republic Act No. 11332, or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern Act Memorandum from the Executive Secre- tary providing for Additional Guidelines for the Enhanced Community Quarantine (March 18, 2020) Memorandum from the Executive Secretary on the Community Quarantine over the En- tire Luzon (March 16, 2020) DOH Public Advisory No. 16 guidance for institutions if a PUI or confirmed COVID- is detected at the workplace DOH Guidelines for entry, exit, and move- ment for essential and non-essential persons in areas under general community quaran- tine and ECQ §4(b) Expedite and streamline accreditation of test- ing kits and prompt testing by public and pri- vate institutions and compulsory and imme- diate isolation and treatment of patients Cost of treatment for COVID-19 patients shall be covered under the National Health Insur- ance Program (“NHIP”) of the Philippine Health Insurance Corporation (“PhilhHealth”) Republic Act No. 11332, or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern Act PhilHealth Circular No. 2020-04 enhance- ment of packages related to Coronavirus In- fection (February 10, 2020) §4(d) Public health workers (i) Hazard Pay under the Magna Carta of Pub- lic Health Workers (Rep. Act No. 7305) (ii) COVID-19 special risk allowance (amount unspecified) OP Administrative Order authorizing grant of hazard pay to government personnel who physically report for work during the imple- mentation of the ECQ (March 23, 2020) §4(e) PhilHealth to shoulder all medical expenses of public and private health workers in case of (i) exposure to COVID-19 or (ii) any work-re- lated injury or disease for the duration of the emergency PhilHealth Circular No. 2020-04 enhance- ment of packages related to Coronavirus In- fection (February 10, 2020) §4(f) (i) PhP100,000 compensation to public and pri- vate health workers who may contract severe COVID-19 infection while in the line of duty (ii) PhP1,000,000 compensation to public and private health workers who may die while fighting the COVID-19 pandemic Retroactive to February 1, 2020 See GAA and relevant DBM issuances §4(m) Engage temporary Human Resources for Health (“HRH”) (medical and allied medical staff) to complement current health workforce or man temporary health facilities (i) With appropriate compensation and al- lowances (ii) Actual hazard pay duty for those in front line during the state of calamity due to COVID 19 See Republic Act No. 11332, or the Manda- tory Reporting of Notifiable Diseases and Health Events of Public Concern Act and ex- isting DBM and CSC circulars §4(o) Incentives for manufacture and importation of critical or needed equipment or supplies Importation exempt from import duties, taxes and other fees See various Food and Drug Administration and Bureau of Customs issuances
B. Social Amelioration and Safety Nets §4(c) Emergency subsidy to 18 million low income households PhP5,000 – 8,000 / month, for 2 months See GAA and relevant DBM issuances §4(cc) Implement enhanced Pantawid Pamilya Program Republic Act No. 11332, or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern Act §4(l) Partner with the Philippine Red Cross to give aid, distribution of goods and services (subject to reimbursement) Republic Act No. 11332, or the Mandatory Reporting of Notifiable Diseases and Health Events of Public Concern Act §4(p) Ensure the availability of essential goods (food and medicine) See below on Availability of Goods and Services §4(z) Move statutory deadlines and timelines for filing and submission of any document, pay- ment of taxes, fees and other charges [“and grant the benefit of any... .”] BIR Revenue Memorandum Circular No. 29- 2020 extension of deadline for filing and pay- ment of tax (March 19, 2020) §4(aa) Banks, quasi-banks, financing companies, fi- nancial institutions (including GSIS, Pag-IBIG, and SSS) to implement 30-day grace period for payment of loans (i) falling due within the enhanced communi- ty quarantine (ii) no penalties, interests, fees or charges (iii) across multiple loans BSP Memorandum No. M-2020-008 regulato- ry relief for BSP-supervised financial institu- tions (“BSFIs”) See various institutional announcements on extension of payment deadlines SEC Notice on adoption of debt relief mea- sures (SEC strongly encourages financing and lending institutions to adopt measures that will help ease borrowers’ financial bur- den (March 23, 2020) §4(bb) 30-day grace period on residential rents fall- ing within period of enhanced community quarantine Memorandum from the Executive Secretary on the Community Quarantine over the En- tire Luzon (March 16, 2020) C. Availability of Goods and Services §4(i) Enforce measures to protect against hoarding, profiteering, injurious speculations, manipu- lation of prices, product deceptions, and car- tels, monopolies, pernicious practices affect- ing the supply, distribution and movement of food, clothing, hygiene and sanitation prod- ucts, medicine and medical supplies, fuel, fer- tilizers, chemicals, building materials, imple- ments, machinery equipment and spare parts required in agriculture, industry and essential services, as well as articles of prime necessity imported or local Republic Act No. 7581, as amended by Rep. Act No. 10623, or the Price Act Republic Act No. 9502 or the Universally Ac- cessible Cheaper and Quality Medicines Act OP Memorandum Circular No. 77 directs all government agencies and instrumentalities, including LGUs, to implement and ensure compliance with issuances (of DOH and DA) on prices of essential emergency medicines and supplies, agricultural and fishery com- modities (March 17, 2020) DOH Public Advisory No. 19 prohibition on hoarding of drugs and medicines, profiteer- ing, illegal combination and all other acts committed in restraint of trade DTI Memorandum Circular No. 20-07 on anti-hoarding and anti-panic buying (March 19, 2020) [note DTI refers to Republic Act No. 7581 or the Price Act, but there is mistake in calling it the Consumer Act of the Philippines] DOH Department Circular No. 2020- reiterating price freeze of essential emergen- cy medicines and medical devices due to COVID-19 (March 12, 2020) DTI Memorandum Circular No. 20-08 issu- ance on unhampered movement of cargo and transit of personnel of exempt business establishments; measures to prevent unrea- sonable increase in the prices of all basic ne- cessities (March 20, 2020) §4(u) Conserve and regulate the distribution and use of power, fuel, energy, water, and ensure adequate supply of the same See various issuances of regulatory agencies involved
§4(z) Move statutory deadlines and timelines for filing and submission of any document, pay- ment of taxes, fees and other charges [“and grant the benefit of any... .”] BIR Revenue Memorandum Circular No. 29- 2020 extension of deadline for filing and pay- ment of tax (March 19, 2020) §4(aa) Banks, quasi-banks, financing companies, fi- nancial institutions (including GSIS, Pag-IBIG, and SSS) to implement 30-day grace period for payment of loans (i) falling due within the enhanced communi- ty quarantine (ii) no penalties, interests, fees or charges (iii) across multiple loans BSP Memorandum No. M-2020-008 regulato- ry relief for BSP-supervised financial institu- tions (“BSFIs”) See various institutional announcements on extension of payment deadlines SEC Notice on adoption of debt relief mea- sures (SEC strongly encourages financing and lending institutions to adopt measures that will help ease borrowers’ financial bur- den (March 23, 2020) F. Transportation and Traffic §4(r) Regulate and limit operation of all sectors of transportation, public or private Memorandum from the Executive Secretary on the Community Quarantine over the En- tire Luzon (March 16, 2020) DOTr Task Group Guidelines for the Man- agement of Emerging Infectious Diseases [signed by line agency heads: PPD, PPA, LTO, MRT3, LRTA, CAAP, LTFRB, MARINA, PCG, PNR] LTFRB Memorandum Circular No. 2020- (February 1, 2020) IATF Resolution providing for enumeration of health and emergency frontline workers; directive to PNP to allow unimpeded move- ment of all types of cargoes; continued op- eration of capital markets; transportation services for returning OFWs through Over- seas Workers Welfare Administration; exten- sion of period for media personnel to secure PCOO accreditation; directive allowing de- livery services to operate. DILG suppletory guidelines for LGUs during ECQs, including establishment of check- points, prohibition on mass gatherings, strict home quarantine, closure of establishments, suspension of mass public transportation, transportation arrangements for exempt- ed persons, and unrestricted movement of frontline workers and cargoes (March 21,
- [Note cited DILG issuances] Bureau of Quarantine Memorandum Cir- cular No. 2020-07 guidelines at all seaports for Prevention and Spread of COVID- (March 3, 2020) §4(s) (i) Regulate traffic (ii) Prohibit putting up of encroachments or obstacles (iii) Authorize removal of obstacles and illegal constructions in public places DILG suppletory guidelines for LGUs during ECQs, including establishment of check- points, prohibition on mass gatherings, strict home quarantine, closure of establishments, suspension of mass public transportation, transportation arrangements for exempt- ed persons, and unrestricted movement of frontline workers and cargoes (March 21,
- [Note cited DILG issuances]
G. Takeover Provision (Pursuant to 1987 Constitution, Article XII, Section 17) §4(h) Direct the operation of any privately-owned hospitals and medical and health facilities in- cluding passenger vessels and other establish- ments to serve as quarantine areas, quarantine centers, medical relief and aid distribution lo- cations, temporary medical facilities and pub- lic transportation to ferry health, emergency, and frontline personnel and other persons (i) Management and operations shall be re- tained by owners (ii) Owners (operators) to render full account- ing to President or his representative on oper- ations of the utility or business for appropriate compensation (iii) if the enterprise unjustifiably refuses or signifies that they are no longer capable of op- erating their enterprises for the purpose of the Bayanihan Act, the President may takeover their operations Among the requisites for valid delegation of emergency powers is that the delegation must be subject to such restrictions as the Congress may prescribe. (David v. Macapagal-Arroyo) The takeover provision specifies the enti- ties and establishments in whose operations there may be government intrusion or inter- vention for the specific purpose only of serv- ing as quarantine areas, quarantine centers, medical relief and aid distribution locations, temporary medical facilities and public trans- portation to ferry health, emergency, and frontline personnel and other persons. The provision also provides an escalation of inter- vention from (a) retaining management and operations but receiving direction from gov- ernment to (b) government takeover of oper- ations in the even the enterprise (i) unjustifi- ably refuses to operate for the above purposes or (ii) signifies it is not capable of operating. These limitations should be observed. H. Government Procurement §4(k) Procurement exempted from Government Procurement Reform Act (Rep. Act No. 9184) and relevant laws, for: (i) specific goods and providing for their allo- cation and distribution (ii) goods and services for social amelioration measures in favor of affected communities (iii) lease of real property or venue to house health workers, serve as quarantine centers, medical relief and aid, temporary medical facilities (iv) establishment, construction, and opera- tion of temporary medical facilities (v) utilities, telecommunications, and oth- er critical services in relation to operation of quarantine centers, medical relief and aid, temporary medical facilities (vi) related ancillary services Rep. Act No. 9184 or GPRA GPPB Resolution No. 03-2020 Approving the Adoption of Efficient, Effective and Expedi- ent Procurement Procedures During a State of Public Health Emergency (March 9, 2020) I. Local Government Units (“LGUs”) §4(g) (i) LGUs act within the letter and spirit of all the rules, regulations and directives issued by the National Government pursuant to the Bayanihan Act (ii) LGUs to implement standards of commu- nity quarantine consistent with National Gov- ernment standards for the area (iii) LGUs to fully cooperate towards unified, cohesive and orderly implementation of na- tional policy to address COVID- (iv) LGUs authorized to utilize more than 5% of the amount allocated for their calamity fund, subject to additional funding and sup- port from National Government LGUs may continue exercising their autono- my in matters undefined by the National Gov- ernment or within the powers it has set Republic Act No. 7160, as amended (“Local Government Code”) DILG suppletory guidelines for LGUs during ECQs, including establishment of check- points, prohibition on mass gatherings, strict home quarantine, closure of establishments, suspension of mass public transportation, transportation arrangements for exempt- ed persons, and unrestricted movement of frontline workers and cargoes (March 21,
- [Note cited DILG issuances]
§4(x) Reprogram, reallocate, realign from savings on other items of appropriations in FY 2020 GAA in the Executive Department to fund measures to address COVID-19 emergency See Araullo v. Aquino, G.R. No. 209287, July 1, 2014 Among the requisites for valid delegation of emergency powers is that the delegation must be subject to such restrictions as the Congress may prescribe. (David v. Macapagal-Arroyo) The standards or restrictions are insufficient under this provision.
- No amount or figure is offered in terms of the funding required; no measures indicated §4(y) Allocate cash, funds, investments held by GOCC or any national government agency in order to address COVID- See Araullo v. Aquino, G.R. No. 209287, July 1, 2014 Among the requisites for valid delegation of emergency powers is that the delegation must be subject to such restrictions as the Congress may prescribe. (David v. Macapagal-Arroyo) The standards or restrictions are insufficient under this provision.
- No criteria are offered for the selection or prioritization among GOCCs or NGAs
- No amount or figure is offered in terms of the funding required; no measures indicated It is also important to remain guided by the 1987 Constitution in Article VI, §23(4), stat- ing that no law shall be passed authorizing transfer of appropriations; however the Pres- ident, the President of the Senate, the Speak- er 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 respec- tive offices from savings in other items of their respective appropriations. K. General Grant of Authority §4(ee) Undertake such other measures as may be rea- sonable and necessary to enable the President to carry out the declared national policy sub- ject to the Bill of Rights and other constitution- al guarantees Main directives with respect to ECQ (defini- tion of ECQ and consequences of declaration of ECQ on schools, private establishments, government offices, and public services) David v. Macapagal-Arroyo reminds us that During emergency, governmental action may vary in breadth and intensity from normal times, yet they should not be arbitrary as to unduly restrain our people’s liberty.
