Atienza, Maria Ela L.

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The Philippines a Year underLockdownMaria Ela L. Atienza 2021-04-26T15:20:12The Philippines have one of the longest lockdowns in the world in response toCOVID-19. This post reviews the past year, focusing on the main legal and politicalissues as well as prospects in the country with the second highest total number ofCOVID-19 cases in Southeast Asia.Overview of Legal and Political Response andAdaptation to COVID-19The first imported case of COVID-19 was detected in the Philippines in late January2020. Initially, the national administration downplayed the virus and claimed that thecountry was on top of the situation. However, in early February, the administrationrelented to pressure from some legislators and interest groups and imposed atravel ban on flights from Wuhan, Macau, and Hong Kong. By February, voluntaryrepatriation of Filipinos from Wuhan was initiated.After the first cases of local transmission, President Rodrigo Duterte declared astate of public health emergency in the country on 8 March (Proclamation No.922) and suspendedschool classes in Metro Manila. This declaration adheres tothe 1987 Constitution, particularly the State’s policy to protect and promote theright to health of the people (Article II, Section 15), and the Law on Reporting ofCommunicable Diseases (Republic Act [RA] No. 11332), which provides that thePhilippine President shall declare the state of public health emergency in casethere is an epidemic of national and/or international concern that threatens nationalsecurity and enables the President to mobilize agencies and resources to addressthe 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 entireLuzon group of islands was placed under enhanced community quarantine (ECQ),effectively a total lockdown and the strictest category of lockdown imposed in thecountry. In the next few months, the government would impose various types ofquarantine and the list of allowed and disallowed activities outside homes evolvedbased on the changing evaluations of the Inter-Agency Task Force on EmergingInfectious Diseases (IATF).On 16 March, the President signed Proclamation No. 929 placing the countryunder a state of calamity due to COVID-19 for six months, again adhering to theConstitution’s Article II, Section 15 and the Philippines Disaster Risk Reductionand Management Act (RA No. 10121). The proclamation allows the national andlocal governments ample leeway to utilize appropriate funds in their disaster- 1 -preparedness and response efforts to contain the spread of COVID-19 and continueprovision of basic services to their respective populations. After 15 May, there was a gradual easing of lockdown in certain areas depending onthe 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 publictransportation to operate. However, for certain periods in the year in the country,some areas were put under modified ECQ (MECQ) which further limited economicactivities due to a spike of cases and the demand of health workers’ associationsto allow the health and hospital system to “breathe” and improve as hospitalshadalready 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 otheractivities to open with some limitations.The initial period of the country’s state of calamity was further extended byProclamation No. 1021 (dated September 2020) until 12 September 2021. Dueto a spike of cases again since January 2021, continued limitations in contracttracing, testing and resources of healh facilities, as well as a delay in the purchaseof vaccines, restrictions began to increase again. Metro Manila and neighboringprovinces were once again under ECQ from 29 March to 11 April and under ECQuntil 30 April.    In legislation, in March 2020, Congress upon request of the President approvedthe Bayanihan to Heal as One (RA No. 11469) (“Bayanihan Act”). The law gavethe President some emergency powers for three months to optimize efforts in thepandemic response as support to the first two presidential proclamations on nationalhealth emergency and national calamity. (Bayanihan is a Filipino cultural valueused to refer to a spirit of communal unity and cooperation.) The law expired on 25June 2020 and the Office of the President requested Congress to pass a secondBayanihan law focused on recovery. By September 2020, Bayanihan to Recoveras One (RA No. 11494 or Bayanihan 2), which lays out the country’s COVID-19response and allocates funds to help struggling sectors cope with the pandemic’simpacts, has been approved by Congress and signed by the President. Bayanihan2expired in December 2020 but appropriations made under the law are extended upto June 2021.The Executive and Use of Powers in Response toEmergencyTemporary emergency powers of the President are constitutional when obtainedthrough legislative enactment specifically to allow the executive branch to betteraddress a particular threat facing the Philippines and its people by means of adeclaration. During war or other national emergencies, the two Houses of Congressmay, by law, “authorize the President, for a limited period and subject to such- 2 -restrictions as it may prescribe, to exercise powers necessary and proper to carryout 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 calamitymentioned earlier are based on earlier legislations. These are the first national healthemergency powers legislated by Congress for the President to exercise since theratification of the 1987 Constitution, although this is not the first time that Congressgranted special temporary emergency powers to the President and to the executivebranch of government under the Constitution to address a crisis.The declaration of the national health emergency in the laws did not invalidate theConstitution or any of its provisions, particularly the Bill of Rights. However, as wewill see in other sections of this post and based on an constitutional performanceassessment in the period of a pandemic, despite the constitutional and other legalsafeguards in the exercise of emergency powers, there was greater consolidation ofpowers in the executive branch and a further weakening of the separation of powers.Executive dominance has already been noted in a pre-pandemic performanceassessment 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 coordinatedresponse to the pandemic but also in the further weakening of other institutions anddemocratic institutions, processes, and principles.The current Cabinet has been disproportionately led by former or retired militaryand 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 arelacking clear guidelines, instead of harnessing cooperation, civil duty, and truebayanihan spirit of cooperating and helping fellow citizens. Civilian health and otherexperts have difficulties getting their analyses and suggestions to the executivebranch. Instead of providing concrete plans and comprehensive reports related tothe pandemic response, the President’s weekly public briefings and the daily pressbriefings of Cabinet members and Department representatives have been used toattack and discredit critics, the opposition, activists, and some media groups andbusinesses accused of being enemies of the government. The Effectiveness of Judicial and LegislativeScrutiny and OversightWhile Congress has passed the two Bayanihan Acts swiftly since the Presidentcertified them as urgent, the Constitution and the laws oblige the President’s officeto make an accounting to Congress of all actions taken throughout the period ofnational 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 ofgovernment.- 3 -Yet, even before the pandemic, both Houses have been dominated by blocs alliedwith the President. In a country with weak political parties and personality-orientedpolitics, most traditional legislators/politicians ally themselves with a popular ChiefExecutive, who appears to enjoy high trust ratings even in surveys conducted duringthe pandemic. Even during COVID-19, Congress in July 2020 passed the Anti-Terrorism Act which has questionable provisions that limit the role of the Judiciaryand 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 itof having displeased the President, on the basis of certain questionable technicalitiesin June 2020.   Thus, in this pandemic, there is little information as to the extent Congress hasscrutinized the weekly reports submitted by the Office of the President to Congressor how much deliberation has surrounded their submission. Both Houses’ leadershipand the Congressional Oversight Committee declared satisfaction with the executivebranch’s performance as regards Bayanihan 1, despite opposition legislators’insistence for more scrutiny, especially regarding how the substantive amount ofmoney involved in the pandemic response was spent.What has been more obvious since 2020 has been the targeting of investigationsinto specific Departments. For instance, the two Houses have been conductingcontinuing hearings related to the Department of Health’s (DOH) readiness andcontinuing responses to the pandemic, and corruption allegations in the Philippinehealth insurance system. However, save for a few resignations of some officials inthe insurance system, there has not been much impact on the direction of the DOH’spandemic response.      Lower courts have ruled on issues of alleged violations committed by executiveagencies in the enforcement of the national health emergency. Courts, despite theiroperations being affected by the pandemic, have in several instances pointed outthat law enforcers, i.e. the police and local enforcers, have committed errors in theirapplication of policies related not only to the Bayanihan Acts but also to quarantinelaws and to related local ordinances, particularly in arresting supposed violators, whoare mostly community organizers and poor people trying to continue making a livingdespite the pandemic.Since 2016, the Supreme Court and the Judiciary have weakened in terms ofindependence vis-à-vis the executive and legislative branches, highlighted by theCourt’s removal of the Chief Justice appointed by the previous President through anunprecedented quo warranto petition filed by the Solicitor General in 2018. Therehave also been 61 lawyers, judges, and prosecutors killed in the five years of theDuterte Administration, more than the combined number of those killed from theadministrations of Ferdinand Marcos to Benigno Aquino III.In 2020, the Supreme Court now dominated by Duterte appointees denied a petitionseeking to declare the Bayanihan 1 Act unconstitutional on the grounds that it failedto show grave abuse of discretion. However, proof that various groups still see theSupreme Court as the last bastion of democracy and human rights is the number of- 4 -petitions (37) filed by various groups against the controversial Anti-Terror Law. Oralarguments have begun, amidst observation of strict safety measures and delayedby various forms of lockdown, since February 2021. In an unprecedented move, andgiving in to demands for decisive action from lawyers, the Supreme Court en banchas issued a statement in March 2021 condemning the killings of lawyers, judges,and prosecutors, and vowed to look into institutional changes to better protect them.          Regional and Local Governments’ ResponsesSince the beginning of COVID-19, there have been a number of local governmentunits (LGUs) led by fast-thinking and innovative mayors, which have been proactivenot only in trying to mitigate the spread of the virus in their localities, but in dealingwith the dislocation of constituents and other effects of the lockdown. Some of theseLGUs had good coordination with national agencies, but some had to work with theprivate sector and other civil society groups in the absence of clear instructions fromthe national government, particularly in the beginning of the pandemic. These LGUsand mayors had at their disposal relatively large incomes and resources comparedto others, skilled local bureaucracy, good data management and evidence-baseddecision-making, good partnerships with the private sector and civil society groups,and participatory mechanisms. However, some LGUs failed to meet the challengesof COVID-19 and the responsibilities during the crisis because of limited resources,lack of good management skills, the dominance of patronage politics, corruption, andother problems.The inequity in capacity and access to resources among LGUs, and how it impactsconsistency in effective service delivery, despite significant powers devolved toLGUs since the 1991 Local Government, is further highlighted by the pandemic.Perhaps one potential development of the pandemic is that there might be moreroles for regional bodies or groupings of LGUs, beyond development planning butin localizing many plans and developing appropriate services for their constituents,in the future. Regional Inter-Agency Task Forces were also eventually created tobe the IATF’s local counterparts, though they are supervised by a Cabinet memberassigned to the region by the President. The newly reconstituted autonomousBangsamoro Autonomous Region in Muslim Mindanao, the only autonomous regionwith a regional government created as a result of a peace agreement betweenthe Philippine government and Muslim rebels in the pursuit of lasting peace anddevelopment in the region, has also been working on the additional challengesposed by COVID-19 in trying to combat the spread of the virus in a poor area wherepeace is fragile.Human Rights and Civil Liberties ConsiderationsThe pandemic response of the national government has definitely curtailed a numberof civil, political, social and economic rights. Generally, most people obey thelockdown rules for fear of getting COVID-19. However, many of them, particularlypoor people and those who do not have secure employment would have wanted- 5 -better support for the loss of livelihood as well as equal access to health and otherservices. But the poorly planned and uncoordinated response of the government hasleft a large number of people uninformed, stranded, jobless, and without access toproper health services and social welfare. Some of them have to beg on the streetsand try to earn income despite the lockdown. Even returning overseas Filipinoworkers, who contribute to the economy from their remittances, who lost their jobsabroad face plenty of challenges. In the middle of 2020, the country experienced itfirst recession in 29 years, with unemployment rate in January 2021 at 8.7%.    What is worrying is the very strong, punitive but unequal response to citizensaccused of violating curfew and lockdown policies by implementers (mostly policeand local enforcers). Illegal arrests and detention are cases in point. There arereports of curfew violators placed in dog cages, and some even being killed. Evenstudents and volunteers providing feeding programs and Labor Day protestorswere subjected to so-called “red-tagging” and arrested even if most protests bycivil society follow physical distancing protocols. However, inequality in treatment isclearly shown as most of those arrested or punished for violations are poor peoplewhile influencers, government officials, and rich people who are also violators aretreated humanely and accorded with courtesies by implementors.Together with these violations of people’s rights during the pandemic, extrajudicialkilling of suspected drug users and pushers and “red”-tagging of critics andthose labelled as opposition, even if they are university students and professors,entertainers, legitimate civil society groups, farmers, indigenous peoples, andprofessionals continues.       The above observations are complemented by global indices. The V-Dem PandemicDemocratic Violations Index mentioned the Philippines as one of seven countrieswith a high risk of pandemic backsliding. The International IDEA’s COVID-19Monitor, meanwhile, pointed out three worrying areas of freedom of expression,media integrity, and predictable enforcement.    2021 Outlook: Recommendations for Governance,Democracy, Human Rights, and the Rule of LawUrgent issues that need to be addressed include the need to add more activepressure on the executive branch to be accountable for its actions as regards thepandemic and other issues, more legislators that will use and strengthen Congress’exercise of its legislative and oversight functions, a more independent Judiciarythat would fairly scrutinize all issues brought to it, more civilian oversight overthe military and the police, stronger political parties and reforms in the electoralsystem to increase representation, protecting independent accountability institutions,upholding the rights of citizens and groups, promoting accurate public informationand education, and strengthening the spirit of community and active citizenship thathas been on display more prominently since the pandemic.    Finally, the pandemic is a game changer in the immediate future of the Philippines.Responses to it will be a major issue to check on the administration’s accountability.- 6 -The 2022 national and local elections, which are already in the minds of bothvoters and politicians, will add to the complexities of decision-making and actionsof many actors, including the responses to the pandemic this year. COVID-19will be an election issue, whether candidates and parties like it or not. There arealready indications that some citizens and groups are mobilizing to push for moreappropriate responses to the pandemic as well as more progressive multisectoralgroupings in preparation for the elections next year. We will see how these will besuccessful given the threats to democracy and the rule of law that have been presenteven before but have intensified during the pandemic.*Note: Some sections are updated sections from  the author’s paper for theMelbourne Forum 2020’s Webinar 1: Emergency Powers and COVID-19, heldlast September 2020 and from the report she co-authored entitled ConstitutionalPerformance Assessment in the time  of a Pandemic: The 1987 Constitution and thePhilippines’ COVID-19 Response  (2020).- 7 -

The Philippines a Year under Lockdown

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The Philippines a Year under Lockdown

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