The false premise and promise of emergency powers

I believe that in times of crises such as today, it is imperative on the part of government to act swiftly and effectively. While it is tempting to invoke emergency powers – and definitely the draft bill that has been widely circulated does that – our national experience tells us that emergency powers have frequently been based on a false premise – that the President needs them to address an emergency, and makes a false promise – that their exercise will solve the problems created by that emergency.

According to the proposed bill, the President is authorized to, among others, temporarily issue rules and regulations regarding measures to prevent or minimize further transmission of COVID-19. He is also given authority to temporarily take over or direct the operation of privately-owned public utilities or businesses affected with public interest, public transportation, and telecommunication entities. Further, the bill has provisions on the conservation and regulation of the distribution and use of power, fuel, energy, and water. It also authorizes the President to temporarily reprogram, reallocate, or realign any appropriation in the FY 2020 General Appropriations Act (GAA) for whatever purpose the President “may deem necessary and desirable to fund measures to address and respond to the COVID-19 emergency.”

This is not the first time a President has asked for emergency powers.

In the early 1990s, I was asked by the Senate to review the exercise of emergency powers by President Cory Aquino, powers granted to her by Congress after the 1989 coup attempt devastated the economy. I have also studied the exercise by President Fidel V. Ramos of emergency powers to address the power crisis of the 1990s. I have also observed how Presidents Arroyo and Estrada declared states of national emergency during their respective terms and more lately President Duterte’s issuance of Proclamation 55 when Davao City was bombed and in putting Mindanao under martial law for nearly two years. President Noynoy Aquino could have done the same in the Zamboanga siege and after Typhoon Yolanda but he wisely did not take this option. Before all these presidents, we had of course President Marcos who took upon himself to exercise legislative powers and do what he pleased as a dictator.,

There are lessons to be learned from all of these experiences. The first is that the President really did not need such far reaching powers to solve whatever issue needed to be addressed. In fact my study of the Cory Aquino exercise of emergency powers concluded with the finding that none of the issuances she issued during that time exceeded the powers she already had as President. The same can be said of our most recent experiences of Duterte’s Proclamation 55 and martial law in Mindanao.

As for Marcos, we know the outcome of giving him emergency powers, including the ability to enact legislation. That corrupted many of our institutions and left a bankrupt country.

The better approach is surgical, addressing specific problems. Giving the President broad powers are not as effective as giving attention to the particular concerns at hand.  A law that is limited to addressing concrete issues and challenges is much better than a law that would grant the President extraordinary powers. The latter law is for the lazy and unfocused, for the incompetent, for those who are at a loss on what has to be done. A broad grant of emergency powers is like using a bazooka  when sniper guns with telescopic sights are more effective.

For example, a law that grants relief to businesses, workers, and the poor would be a good law.

A law that would allow the government to mobilize private hospitals and transportation companies  for the greater good would be useful at this time but a take-over, even if temporary, is not advisable as the government has no capacity to manage such operations.

A law  requiring wide-spread testing and provides the budget for that would be essential.

All of the above can be in one omnibus law responding to the COVID-19 emergency.

Whatever law Congress enacts, rights must be absolutely protected.

Our right to information and freedom of the press is in peril under the draft law because of the provision on telecommunications. There are concerns that state-controlled telecommunications might become a source of indoctrination, misinformation, or underreporting, which are not baseless.

The rights of business owners are endangered by the take-over provisions.

The autonomy of local governments will be seriously diminished under the draft bill.

In this time of grave danger for the nation and our people, we need more than ever a free press, dynamic local governments, and a vibrant private sector. This bill if it becomes a law endangers such a press, will severely restrict the options of local governments, and destroys the private sector. It will have the opposite effect and undermine our efforts against COVID-19.

By providing criminal penalties for violating its issuances, the proposed emergency powers act also threatens individual rights.

Finally, Congress must not easily surrender its power to legislate as well as it oversight and budget powers. It can provide flexibility to the President and enact supplementary budgets.

In sum, emergency powers should be resorted to only as a last result, because it ultimately grants to the Executive a wide array of powers that is heavily guarded against by the Bill of Rights and the provisions on the independence and separation of the three branches of government.


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