The Philippines have one of the longest lockdowns in the world in response to COVID-19. This post reviews the past year, focusing on the main legal and political issues as well as prospects in the country with the second highest total number of COVID-19 cases in Southeast Asia.
Overview of Legal and Political Response and Adaptation to COVID-19
The first imported case of COVID-19 was detected in the Philippines in late January 2020. Initially, the national administration downplayed the virus and claimed that the country was on top of the situation. However, in early February, the administration relented to pressure from some legislators and interest groups and imposed a travel ban on flights from Wuhan, Macau, and Hong Kong. By February, voluntary repatriation of Filipinos from Wuhan was initiated.
After the first cases of local transmission, President Rodrigo Duterte declared a state of public health emergency in the country on 8 March (Proclamation No. 922) and suspendedschool classes in Metro Manila. This declaration adheres to the 1987 Constitution, particularly the State’s policy to protect and promote the right to health of the people (Article II, Section 15), and the Law on Reporting of Communicable Diseases (Republic Act [RA] No. 11332), which provides that the Philippine President shall declare the state of public health emergency in case there is an epidemic of national and/or international concern that threatens national security and enables the President to mobilize agencies and resources to address the threat.
A partial lockdown of Metro Manila from 15 March to 14 April was announced, together with suspension of travel to and from Manila. On 16 March, the entire Luzon group of islands was placed under enhanced community quarantine (ECQ), effectively a total lockdown and the strictest category of lockdown imposed in the country. In the next few months, the government would impose various types of quarantine and the list of allowed and disallowed activities outside homes evolved based on the changing evaluations of the Inter-Agency Task Force on Emerging Infectious Diseases (IATF).
On 16 March, the President signed Proclamation No. 929 placing the country under a state of calamity due to COVID-19 for six months, again adhering to the Constitution’s Article II, Section 15 and the Philippines Disaster Risk Reduction and Management Act (RA No. 10121). The proclamation allows the national and local governments ample leeway to utilize appropriate funds in their disaster preparedness and response efforts to contain the spread of COVID-19 and continue provision of basic services to their respective populations.
After 15 May, there was a gradual easing of lockdown in certain areas depending on the number of COVID-19 cases, with the main aim of enabling economic recovery. Metro Manila’s ECQ was lifted on 1 June, replaced by general community quarantine (GCQ), which allowed some economic activities to resume and limited public transportation to operate. However, for certain periods in the year in the country, some areas were put under modified ECQ (MECQ) which further limited economic activities due to a spike of cases and the demand of health workers’ associations to allow the health and hospital system to “breathe” and improve as hospitalshad already exceeded the capacity to handle COVID-19 patients. Later in the year, most of the rest of the country was under modified general community quarantine (MGCQ), the loosest quarantine phase that permits many businesses and other activities to open with some limitations.
The initial period of the country’s state of calamity was further extended by Proclamation No. 1021 (dated September 2020) until 12 September 2021. Due to a spike of cases again since January 2021, continued limitations in contract tracing, testing and resources of healh facilities, as well as a delay in the purchase of vaccines, restrictions began to increase again. Metro Manila and neighboring provinces were once again under ECQ from 29 March to 11 April and under ECQ until 30 April.
In legislation, in March 2020, Congress upon request of the President approved the Bayanihan to Heal as One (RA No. 11469) (“Bayanihan Act”). The law gave the President some emergency powers for three months to optimize efforts in the pandemic response as support to the first two presidential proclamations on national health emergency and national calamity. (Bayanihan is a Filipino cultural value used to refer to a spirit of communal unity and cooperation.) The law expired on 25 June 2020 and the Office of the President requested Congress to pass a second Bayanihan law focused on recovery. By September 2020, Bayanihan to Recover as One (RA No. 11494 or Bayanihan 2), which lays out the country’s COVID-19 response and allocates funds to help struggling sectors cope with the pandemic’s impacts, has been approved by Congress and signed by the President. Bayanihan 2 expired in December 2020 but appropriations made under the law are extended up to June 2021.
The Executive and Use of Powers in Response to Emergency
Temporary emergency powers of the President are constitutional when obtained through legislative enactment specifically to allow the executive branch to better address a particular threat facing the Philippines and its people by means of a declaration. During war or other national emergencies, the two Houses of Congress may, by law, “authorize the President, for a limited period and subject to such restrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy.” (Article VI, Section 23)
Emergency powers are granted to the President by Bayanihan 1 and 2 Acts. Other declarations regarding the health emergency and the state of calamity mentioned earlier are based on earlier legislations. These are the first national health emergency powers legislated by Congress for the President to exercise since the ratification of the 1987 Constitution, although this is not the first time that Congress granted special temporary emergency powers to the President and to the executive branch of government under the Constitution to address a crisis.
The declaration of the national health emergency in the laws did not invalidate the Constitution or any of its provisions, particularly the Bill of Rights. However, as we will see in other sections of this post and based on an constitutional performance assessment in the period of a pandemic, despite the constitutional and other legal safeguards in the exercise of emergency powers, there was greater consolidation of powers in the executive branch and a further weakening of the separation of powers. Executive dominance has already been noted in a pre-pandemic performance assessment of the Constitution; the trend has been exacerbated with COVID-19. The executive branch has dominated the pandemic response, for better or for worse, and its implementation has resulted not only in a poorly planned and coordinated response to the pandemic but also in the further weakening of other institutions and democratic institutions, processes, and principles.
The current Cabinet has been disproportionately led by former or retired military and police generals and they largely dictate national responses to the pandemic. Thus, citizens are mostly instructed to “obey” the rules even if some of them are lacking clear guidelines, instead of harnessing cooperation, civil duty, and true bayanihan spirit of cooperating and helping fellow citizens. Civilian health and other experts have difficulties getting their analyses and suggestions to the executive branch. Instead of providing concrete plans and comprehensive reports related to the pandemic response, the President’s weekly public briefings and the daily press briefings of Cabinet members and Department representatives have been used to attack and discredit critics, the opposition, activists, and some media groups and businesses accused of being enemies of the government.
The Effectiveness of Judicial and Legislative Scrutiny and Oversight
While Congress has passed the two Bayanihan Acts swiftly since the President certified them as urgent, the Constitution and the laws oblige the President’s office to make an accounting to Congress of all actions taken throughout the period of national emergency and to submit regular reports to Congress of all acts performed, including the amount and utilization of funds pursuant to addressing the pandemic. Congress, after all, exercises oversight functions over the other branches of government.
Yet, even before the pandemic, both Houses have been dominated by blocs allied with the President. In a country with weak political parties and personality-oriented politics, most traditional legislators/politicians ally themselves with a popular Chief Executive, who appears to enjoy high trust ratings even in surveys conducted during the pandemic. Even during COVID-19, Congress in July 2020 passed the Anti-Terrorism Act which has questionable provisions that limit the role of the Judiciary and the Commission on Human Rights and threaten the rights of people “suspected” of committing “terrorist” acts. Congress has also denied a new franchise to ABS-CBN, the largest broadcast network with the widest reach nation-wide and accused it of having displeased the President, on the basis of certain questionable technicalities in June 2020.
Thus, in this pandemic, there is little information as to the extent Congress has scrutinized the weekly reports submitted by the Office of the President to Congress or how much deliberation has surrounded their submission. Both Houses’ leadership and the Congressional Oversight Committee declared satisfaction with the executive branch’s performance as regards Bayanihan 1, despite opposition legislators’ insistence for more scrutiny, especially regarding how the substantive amount of money involved in the pandemic response was spent.
What has been more obvious since 2020 has been the targeting of investigations into specific Departments. For instance, the two Houses have been conducting continuing hearings related to the Department of Health’s (DOH) readiness and continuing responses to the pandemic, and corruption allegations in the Philippine health insurance system. However, save for a few resignations of some officials in the insurance system, there has not been much impact on the direction of the DOH’s pandemic response.
Lower courts have ruled on issues of alleged violations committed by executive ag