Uneasy is the head
In a national emergency, the default response of every administration since 1987 has been to surrender absolute power to the President. The rationale being, only with unfettered authority can he lead the nation out of the crisis.
This reaction also comes with the admonition that citizens must fall in line and obey the commands of the Chief Executive. Which oftentimes means abandoning our adherence to human rights and civil liberties.
International human rights law obligates governments to implement robust and viable measures to address any public health emergency. This means restrictions on some rights and liberties can be allowed provided the same have statutory basis, are justified by scientific evidence as absolutely necessary, are non-discriminatory in application, and of limited duration. But this is definitely not an endorsement for states to consider a resort to one-man rule.
The response of the administration of President Rodrigo Duterte to the COVID-19 pandemic has been par for the course. The latest incarnation of the stubborn reliance on strongman-style emergency governance is Republic Act No. 11469 or the Bayanihan to Heal as One Act of 2020. As advertised, the sole purpose of this law is to give the “necessary special powers” to President Duterte to deal with this national health emergency.
Pertinently, the Supreme Court actually warned against this dalliance with authoritarianism in the case of David vs Macapagal-Arroyo (G.R. No. 171396, May 3, 2006), to wit: “Executive, legislative, and judicial powers are dispersed to the President, the Congress, and the Supreme Court, respectively. Each is supreme within its own sphere. But none has the monopoly of power in times of emergency. Each branch is given a role to serve as limitation or check upon the other.”
Correspondingly, it seems inappropriate to just automatically concede blanket authority to the President in times of national emergency because under the 1987 Constitution, Congress and the Supreme Court actually continue to perform their constitutionally mandated responsibilities. A national emergency does not actually sanction a return to presidential totalitarianism.
Furthermore, Congress in this time of national emergency has the responsibility to look at the bigger picture, which under the present circumstances means providing a coherent and comprehensive relief and recovery response to the COVID-19 pandemic. And sadly, our lawmakers have yet to devise a national action plan covering not just how to deal with the pressing demands of the crisis but also about how we can successfully rise up after the crisis ends.
But it is not just Congress which should not easily surrender power to the President in times of national emergency. One constitutional prescription that comes to mind, which must be reckoned with when evaluating executive action in a crisis scenario, is Article II, Section 25 mandating that “The State shall ensure the autonomy of local governments.”
Section 16 of the Local Government Code (LGC) or the General Welfare Clause is very pertinent as well, to wit: “Every local government unit shall exercise the powers expressly granted, those necessarily implied therefrom, as well as powers necessary, appropriate, or incidental for its efficient and effective governance, and those which are essential to the promotion of the general welfare.”
According to the late Senate President Nene Pimentel, the principal author of the LGC, this provision empowers local governments “to exercise just about any act that will benefit their constituencies.” Arguably, this makes local governments the logical primary responder to any non-military or police related emergency.
Interestingly, this seems to be the instinctive reaction of President Duterte as well. He alluded to this in his March 16 statement: “And he [the Mayor] can come up with any measure to protect public health, public interest, public order, public safety, and whatever is needed to make life more liveable in your place.” However, the President did a quick about face in his March 20 statement: “I know you have the mandate, but it is an emergency of national proportions thus the National Government then should call the shots.”
This evident equivocation from our Chief Executive is understandable. Tension between the national government and local governments will always be a huge challenge for any president. And managing this can even be more acute in the context of a national health emergency.
However, good leaders would put a premium on cooperation and collaboration between the two levels of government rather than on intimidation and domination. So, to see this administration resort to the latter is disappointing, especially since the President claims to be a champion of decentralization and federalism.
If the directive to lockdown Metro Manila and in Luzon were first extensively deliberated on by the President and his Cabinet with provincial governors and city mayors, it would not be unreasonable to imagine that implementation of the lockdown would not have been as chaotic and punishing for the people. At the very least, a coordinated effort between the national government and the local governments concerned would have produced a set of quarantine guidelines that was more accommodating to the realities of everyday life of the affected citizens.
Furthermore, had the local governments in Metro Manila and Luzon been given full responsibility for implementing the community quarantine, the national government could have put more attention and resources in addressing COVID-19 directly by preparing hospitals for the anticipated surge of infected patients, ensuring the safety and welfare of frontliners, and rolling out mass testing.
These did not happen precisely because there was no cooperative and collaborative approach from the very start. The focus of the administration’s immediate response was on strongly enforcing the lockdown order and imposing its unilateral directives on local governments.
Political leaders should never forget that Filipinos have an inherent fear of government itself becoming a force of terror. Hence, draconian measures will always trigger serious anxiety and will likely make the crisis an even heavier burden to bear for many Filipinos.
The ability of our leaders now to shift their thinking will be vital in preparing the country for the next national emergency. In fact, even at this point of the COVID-19 crisis, they should already be keeping note of the actions that achieve the best results for the people. And clearly, an approach genuinely anchored on intergovernmental cooperation and collaboration is proving to be far more effective than the default reliance on strongman-style governance.
Atty. Michael Yusingco is with the Ateneo School of Governance.