Bayanihan Act needs overhaul, not extension

BECAUSE the economic lockdown was set to be lifted in the national capital on the first of June, I decided to spend the weekend reading Republic Act (RA) 11469 or the “Bayanihan to Heal As One Act” word for word.

I realized that it was time to read the text of the law when I read in the papers that:

1. Senate President Vicente Sotto 3rd plans to press the extension of the Bayanihan law and the further granting of emergency powers to President Duterte for another six months, thereby prolonging the emergency;

2. Senate Minority Leader Franklin Drilon will seek the repeal of an entire section of the law to remove much- abused provisions; and

3. Eight business groups and organizations have collectively denounced a double standard and inequity in the enforcement of quarantine rules by the government.

Fighting the virus with prolixity

Reading the Bayanihan Act is a task that cannot be lightly taken. It is a formidable challenge. The statute consists of 3,768 words, nine sections, innumerable subsections, and multiple enumerations. (It is as if our legislators thought the virus could be subdued by prolixity.)

You could fall asleep while reading the thing. Or you could wind up doubting the point of it all.

Startling discoveries

I can now report that I bravely took on the mission. And I will say that it was worth the trouble, not because of any stylistic felicities, but because of several startling discoveries during the reading, to wit:

1. Although RA 11469 says it should be known and cited as the “Bayanihan to Heal As One Act,” there is nothing in the text that explains the title and what it means. The word “bayanihan” is never mentioned or defined in the text.

The phrase “to heal as one” is also not explained. This calls to mind the time when a young Filipino and his friends went to a hospital and inquired whether they could get a group x-ray.

Filipinos like doing things together, so healing from the virus could also be a communal event.

2. The Inter-Agency Task Force for the Management of Emerging Infectious Diseases (IATF- EID), which became the hammer in fighting the pandemic, is nowhere mentioned in the statute.

There is no section anywhere in the law that explains what the IATF-EID’s role would be or what its powers are.

The IATF- EID has become a monstrous enforcer of the community quarantine without being given marching orders.

3. The authorized powers of the President under the law, Section 4, are:

“Pursuant to Article VI, Section 23 (2) of the Constitution, the President is hereby authorized to exercise powers that are necessary and proper to carry out the declared national policy. The President shall have the power to adopt the following temporary emergency measures to respond to crisis brought by the pandemic

“(a) Following World health Organization guidelines and best practices, adopt and implement measures to prevent or suppress further transmission and spread of Covid-19 through effective education, detection, protection, and treatment;

“(b) Expedite and streamline the accreditation of testing kits and facilitate prompt testing by public and designated private institutions of PUIs (persons under investigation) and PUMs (persons under monitoring), and the compulsory and immediate isolation and treatment of patients: Provided, That the cost of treatment for Covid-19 patients shall be covered under the National Health Insurance Program of the Philippine Health Insurance Corp.;

“(c) Provide an emergency subsidy to around eighteen (18) million low income households: Provided, That the subsidy shall amount to a minimum of five thousand pesos (P5,000) to a maximum of eight thousand pesos (P8,000) a month for two (2) months: Provided, further, That the subsidy shall be computed based on the prevailing regional minimum wage rates: Provided, finally, That the subsidy received from the current conditional cash transfer program and rice subsidy shall be taken into consideration in the computation of the emergency subsidy as provided for in this Act.

“( d) Ensure that all public health workers are protected by providing them with a “Covid- 19 special risk allowance, in addition to the hazard pay granted under the Magna Carta of Public Health Workers or Republic Act 7305;

“( e) Direct the Philippine Health Insurance Corp. (Philhealth) to shoulder all medical expenses of public and private health workers in case of exposure to Covid-19 or any work-related injury or disease during the duration of the emergency;

“(f) Provide compensation of one hundred thousand pesos (P100,000) to public and private health workers who may contract severe Covid-19 infection while in the line of duty: Provided, further, That a compensation of one million pesos (P1,000,000) shall be given to public and private health workers, who may die while fighting the Covid-19 pandemic. Provided, finally, That this shall have retroactive application from Feb. 1, 2020;

“(g) Ensure that all local government units (LGUs) are acting within the letter and spirit of all rules, regulations and directives issued by the national government pursuant to this Act; are implementing standards of community quarantine consistent with what the national government has laid down for the subject area, while allowing LGUs to continue exercising their autonomy in matters undefined by the national government or are within the parameters it has set; and are fully cooperating towards a unified, cohesive and orderly implementation of the national policy to address Covid-19.”

4. In enumerating the authorized powers of the president, the Act does not explain the meaning of “necessary and proper.”

This clause was taken straight from the United States constitution (article 1, section 8):

“The Congress shall have power... To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”

It is also known as the elastic clause. It is the subject of much controversy because it seems to confer boundless power on government.

As one example, US constitutionalists today question whether government has the authority to decide what is “essential” in economic and social life.

Business groups on quarantine inequity

Eight business groups have criticized the government for its double standard in implementing the Bayanihan quarantine law after the arrests of thousands of people while top government officials who broke the same rules have gone unpunished.

“Many of those arrested suffered detention, costs, humiliation, and inconveniences, and some endured unwarranted jail time when unopened courts or government offices, or even limited bank branches, could not process their bail in a timely manner,” the groups said in a joint statement.

“We are therefore greatly disappointed — even appalled and dismayed — about news reports of public officials violating with impunity the IATF and Department of Health protocols intended to protect public health,” they said.

The protesting groups are the Management Association of the Philippines, Financial Executives Institute of the Philippines, Makati Business Club, Institute of Solidarity in Asia, Institute of Corporate Directors, Judicial Reform Initiative, American Chamber of Commerce of the Philippines and Canadian Chamber of Commerce of the Philippines.

Three-month extension

RA 11469, signed into law last March 25, will expire on June 24. But even now, Senate President Sotto is already claiming that the Senate would likely approve the statute’s extension up to September.

Really? Have Sotto and other senators read Bayanihan? Can they explain what the Act has fathered?

Drilon seeks to amend the law

Senator Drilon, for his part, wants to repeal the penal provision in the statute because it is being used by the police to arrest people without warrants.

Drilon contends: “The Bayanihan Act is not a penal statute per se, the principal purpose of the law is to address an emergency and not punish a crime … My proposal is to delete the entire Section 6 because the acts in Section 6 are likewise punished in other laws.”

Defective law

Bayanihan, simply put, is a defective law, considering the emergency it seeks to put out. The quality of the drafting is poor by the standards of simplicity and clarity.

The language used is obscure and complex, its meaning elusive and its effect uncertain.

There is over-elaboration in the application of the legislation, and the provision for contingencies.

Structurally, Bayanihan does not cohere into one. The internal structure and sequence of clauses are often illogical and unhelpful to each other.

In England, the British parliament once called for a study to compare legislative drafting in France, Germany, Sweden and the United Kingdom.

Here in the Philippines, such a project is unthinkable because our legislators do not know that their legislative drafting is substandard.