What is the legal basis of the lockdown?

Today should mark the 110th day of many parts of our country being under some form of lockdown. And yet the primary law that was supposed to empower the government to issue measures to address the pandemic supposedly expired on June 25, 2020. Which poses the question: under what authority are the continued lockdowns made?

Now, whether lockdowns can be issued under the police power of the State was addressed here previously (“Police power in the time of coronavirus,” March 19) but it comes with the caveat: “it must comply with the Constitution and legislation but also must have a lawful subject and lawful means.” The Constitution does allow the Executive Branch the authority necessary to confront emergencies but, unless specifically mentioned by the Constitution (e.g., Article VII.18), legislation is needed. And in the case of lockdowns, legislation is necessary.

How do we know this? Because Article III.6 expressly points out: “the right to travel [shall not] be impaired except in the interest of national security, public safety, or public health, as may be provided by law.” This provision precludes the argument that the president can simply impose lockdowns, restrict travel, impose curfews, etc., on the basis of his “residual powers.” A law is needed to serve as an exception to this aforementioned constitutional right.

The Bayanihan Act (RA 11496), of which its first avowed policy was to “mitigate, if not contain, the transmission of COVID-19” was enacted on March 24. From its Section 2, we see that it makes reference to Presidential Proclamation No. 929, S. 2020, “declaring a State of Calamity throughout the Philippines and imposed an Enhanced Community Quarantine throughout Luzon.”

But presidential proclamations need constitutional or legislative backing, hence, why PP 929 refers to RA 10121 (or the Philippine Disaster Risk Reduction and Management Act of 2010). Section 16 authorizes the National Disaster Risk Reduction and Management Council (NDRRMC) to recommend to the president declarations of a “state of calamity.”

What does a declaration of state of calamity entail? According to Section 16, it may “warrant international humanitarian assistance.” Section 17 states it also includes “imposition of price ceiling on basic necessities and prime commodities”; prevention of “overpricing/profiteering”; “programming/reprogramming of funds”; for “public infrastructures and facilities”; and “granting of no-interest loans by government financing or lending institutions.”

But where is the authority to issue the lockdown? Note that the NDRRMC’s power is with regard to “policy-making, coordination, integration, supervision, monitoring and evaluation functions.”

Reference was made to the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act of 2018 (RA 11332). One particular provision seems relevant, which is Section 6.e giving the Department of Health the authority to impose “rapid containment, quarantine and isolation, disease prevention and control measures, and product recall.”

Jurisprudence states that legislation granting authority to a departmental office is also authority to the president.

So does this provide authority for the lockdown? Some reasons why it doesn’t. First: the main thrust of RA 11332 is disease reportage, not on the response to it (that is RA 10121 and, for the coronavirus itself, RA 11469). Second, “quarantine and isolation” here clearly means of those that have been infected with a disease and not the locking up of clearly healthy people. Finally, not even PP 929 makes reference to it.

RA 11469 is taken widely as the main authority for the continued lockdown in Luzon and other parts of the country. But since it expired on June 25, what is the authority for the continued lockdowns?

Arguably, there are provisions in RA 11469 that allow continued powers for the president even beyond June 25, but these are more for financials (Section 4.v - .z)

And even for the period of March 24 to June 24, no express authority granting or even mention of the word “lockdown” was made in RA 11469. “Quarantine” was indeed mentioned but only to reference ( but not ratify) PP 929.

The closest is Section 4.a (“prevent or suppress further transmission or spread of COVID-19”) and even that doesn’t seem to authorize lockdowns. Two reasons: the Constitution’s Article III.6 requires a law expressly authorizing restrictions on travel. And finally, Section 4.a itself says that prevention or suppression of the coronavirus should be done by “effective education, detection, protection, and treatment.” In fact, RA 11469’s penal provisions do not even punish private individual violations of 4.a. (most of the penalties mentioned therein are for violations by local officials, obstructing supplies, price gouging, etc.)

The Constitution does allow the president extraordinary powers in cases of “lawless violence, invasion, or rebellion” (Article VII.18), none of which are present. Article VI.23 allows Congress to grant special powers to the president for a limited time, hence RA 11469, but that expired.

So that leaves us with this question: What is the legal authority for the lockdown (starting from March 16, 2020 and still ongoing), including restrictions on businesses, churches, schools, and domestic travel?

The Constitution does allow the president extraordinary powers in cases of “lawless violence, invasion, or rebellion,” none of which are present. Article VI.23 allows Congress to grant special powers to the president for a limited time, hence RA 11469, but that expired. So that leaves us with this question: What is the legal authority for the lockdown, including restrictions on businesses, churches, schools, and domestic travel?

nJEMY GATDULA is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Advertising Manager