PLJ Special Online Feature On COVID-19 and The Law

FOREWORD
THE POST-COVID WORLD WHERE

LAW AND ECONOMICS MEET
Stella Luz A. Quimbo
ESSAYS
THE DEMAND AND SUPPLY OF HUMANITY: ON THE
LABOR ISSUES IN THE TIME OF COVID-19: FROM ECQ, LEGALITY AND JUSTIFICATION OF ADOPTING
MECQ, TO GCQ, AND BACK AGAIN COMPULSORY LICENSING MEASURES
Anna Maria D. Abad FOR COVID-19 MEDICINES
Julia Therese D. Pineda
PHILIPPINE HUMAN RIGHTS IN THE TIME OF PANDEMIC:
ANALYZING THE CHALLENGES TO THE EFFECTIVENESS OF TIPPING POINT: WILL THE PANDEMIC MAINSTREAM ONLINE
THE COMMISSION ON HUMAN RIGHTS AS AN NHRI LEARNING IN PHILIPPINE LEGAL EDUCATION?
IN THE MIDST OF COVID -19 Justin D.J. Sucgang
Mario C. Cerilles, Jr.
A FRAMEWORK FOR ANALYZING THE LEGALITY OF
COMPETITION AND GOVERNMENT RESPONSE COVID-19 EMERGENCY MEASURES
TO THE COVID-19 PANDEMIC Paolo S. Tamase
Gwen Grecia-De Vera, Jolina Pauline Tuazon Eraña, Raizza Dawn
Angeli C. David & Johanne Daniel M. Negre OF BASELESS ARRESTS AND COVID-19:
A TALE OF TWO PANDEMICS
THE EXECUTIVE & LOCAL GOVERNMENTS VERSUS Juli Ann Rosette M. Sibi
COVID 19: A CYCLE OF BLAME AND BURDEN
Kent Almadro Alonzo PROTECTING RIGHTS WHILE PROTECTING LIVES:
PERMISSIBLE DEROGATIONS OF HUMAN RIGHTS
(UN)FORTUITOUS EVENT: THE COVID-19 IN THE COVID-19 PANDEMIC
PANDEMIC AS A FORTUITOUS EVENT PHILIPPINE STATE OF EMERGENCY
Czar Matthew Gerard Dayday & Amer Madcasim, Jr. Anton Miguel A. Sison
A PANDEMIC OF MISINFORMATION: LEGAL ISSUES LIFE AND DEATH SENTENCE: A CASE FOR THE
CONCERNING INTERMEDIARY LIABILITY ACCELERATED DECONGESTION OF PRISONS AND
IN THE COVID-19 ERA JAILS IN THE PHILIPPINES IN LIGHT OF COVID-19
Shiela Marie L. Rabaya Nicole Beatriz Y. Veloso
FAKE NEWS IN THE TIME OF THE PANDEMIC

Paulo Romeo J. Yusi
VOLUME 93 AUGUST 2020 SPECIAL ONLINE FEATURE

UNIVERSITY OF THE PHILIPPINES
COLLEGE OF LAW
ADMINISTRATION
BOARD OF REGENTS
HON. J. PROSPERO E. DE VERA III, HON. DANILO L. CONCEPCION,
Chairperson, Commission on Higher Education Co-Chairperson, President of the University
HON. JOEL VILLANUEVA, HON. MARK O. GO,
Chairperson, Senate Committee on Higher, Technical, and Chair, House Committee on Higher and Technical Education
Vocational Education
HON. REYNALDO C. LASERNA, HON. ANGELO A. JIMENEZ
Alumni Regent, President of the UP Alumni Association
HON. RAMON G. GUILLERMO, Faculty Regent HON. FRANCIS C. LAUREL
HON. MYLAH R. PEDRANO, Staff Regent HON. MARIA ARLISSA AGUILUZ
HON. ROBERTO M. J. LARA, HON. JOHN ISAAC B. PUNZALAN,
Secretary of the University and of the Board of Regents Student Regent
THE UNIVERSITY
OFFICE OF ADMINISTRATION — UP SYSTEM
DANILO L. CONCEPCION, B.S., LL.B., LL.M., President
TEODORO J. HERBOSA, M.D., F.P.C.S., F.P.C.E.P., Executive Vice President
CYNTHIA ROSE B. BAUTISTA, B.A., M.S., Ph.D., Vice-President for Academic Affairs
NESTOR G. YUNQUE, B.S., M.S., Vice-President for Administration
JOSELITO G. FLORENDO, B.S.B.A.A., I.M.S.M.Es., Vice-President for Planning & Finance
ELVIRA A. ZAMORA, B.S.B.A., M.B.A., D.B.A., Vice-President for Development
JOSE Y. DALISAY, JR., B.A., M.F.A., Ph.D., Vice-President for Public Affairs
HECTOR DANNY D. UY, LL.B., M.N.S.A. Vice-President for Legal Affairs
ROBERTO M.J. LARA, B.A., LL.B., LL.M., Secretary of the University and of the Board of Regents
OFFICE OF ADMINISTRATION — UP DILIMAN
FIDEL R. NEMENZO, B.S., M.S., D.Sc., Chancellor
MA. THERESA T. PAYONGAYONG, B.A., M.A., Ph.D., Vice-Chancellor for Academic Affairs
GONZALO A. CAMPOAMOR II, B.A., M.A., Ph.D., Vice-Chancellor for Research & Development
LOUISE JASHIL R. SONIDO, B.A., M.A., Vice-Chancellor for Student Affairs
ALELI B. BAWAGAN, B.S., M.A., Ph.D., Vice-Chancellor for Community Affairs
ADELINE A. PACIA, B.S., M.T.M., Vice-Chancellor for Administration
RAQUEL B. FLORENDO, B.S., Ph.D., Vice-Chancellor for Planning and Development
MARIA VANESSA L. OYZON, B.E.ED., M.A., Ph.D., University Registrar
UP LAW COMPLEX
FIDES C. CORDERO-TAN, B.S., LL.B., Dean
JAY L. BATONGBACAL, B.A., LL.B., M.M.M., J.S.D., Associate Dean; Director, Institute for Maritime Affairs and Law of the Sea
MICHELLE B. SAN BUENAVENTURA-DY, B.A., LL.B., College Secretary
ROMMEL J. CASIS, B.A., LL.B., LL.M., Director, Institute of International Legal Studies
DANTE B. GATMAYTAN, B.S., LL.B., M.S.E.L., LL.M., Director, Institute for the Administration of Justice
ELIZABETH AGUILING-PANGALANGAN, B.A., LL.B., LL.M., Director, Institute of Human Rights
SOLOMON F. LUMBA., B.S., LL.B., Director, Institute of Government and Law Reform
EDGARDO CARLO L. VISTAN II, B.S., LL.B., LL.M., Director, Office of Legal Aid
RENE B. MANLANGIT, M.L.S., Head, Law Librarian
BERTRAND THEODOR L. SANTOS, B.A., LL.B., Head, Administrative Division
EMERSON S. BAÑEZ, B.A., LL.B., LL.M., Head, Information and Publication Division
GLENDA T. LITONG, B.A., LL.B., LL.M., Head, Training and Convention Division
ISSN 0031-7721
PHILIPPINE LAW JOURNAL
Published by the College of Law, University of the Philippines,
Diliman, Quezon City, Philippines
EDITORIAL BOARD
DEANNA CLARISSE M. HECETA

Chair
TAMARA MICHAL C. NATIVIDAD
Vice Chair
AMER M. MADCASIM, JR.
CZAR MATTHEW GERARD T. DAYDAY
YVETTE B. MORALES
GENESIS IJAY R. LEAL
GERALDINE MARIE V. PAULO
ANA REGINA A. BUBAN
MARIA ANALYN S. ILAGAN
SAMANTHA ISABEL A. MENDIOLA
Members
RAFAEL A. MORALES
Faculty Adviser
THE CLASS OF ‘74
Alumni Adviser
ROWENA E.V. DAROY-MORALES
Business Manager
ARMIE O. CRISOSTOMO
Administrative Assistant
NORMA A. FRANCO
Circulation Manager
The Editorial Board, under the aegis of the University of the Philippine College of Law, publishes
contributions of interest and value to law students and the legal profession, but the views of the
contributions to the PHILIPPINE LAW JOURNAL do not necessarily reflect those of the College of Law or
the Editorial Board.
Communications of either an editorial or business nature should be addressed to the PHILIPPINE

LAW JOURNAL, Malcolm Hall, University of the Philippines, Diliman, Quezon City, Philippines, faxed to
927-0518 (Phone: 920-5514 loc. 207), or emailed to plj@up.edu.ph. It will be assumed that a renewal of
subscription is desired unless a notice of discontinuance is received by the Editorial Board on or before
the expiration date.
ACKNOWLEDGMENTS
The Editorial Board of the PHILIPPINE LAW JOURNAL Volume 93 would like to
recognize and give its sincerest gratitude to the interns under the PLJ Editorial
Assistants Program. In addition to assisting the Editorial Board in their regular
editorial and administrative tasks, the interns of Volume 93 authored the JOURNAL’s
Recent Jurisprudence section—a brief analysis of notable Supreme Court decisions
from the year 2018 up to the issue’s writing—under the guidance of their respective
editors-in-charge. The completion of this issue would not have been possible without
them.
VOLUME 93 EDITORIAL ASSISTANTS
Stephanie Kate A. Agor Carriz Andrea F. Nana

Katrina Crista M. Artiaga Justine A. Navarro
Alain Lorenzo C. Aycardo Alexandra Mojica Pascua
Troy John G. Butac Joshua Ejeil A. Pascual
Angeline Kaye A. de Vera Hannah Bianca L. Perdigon
Katrina Kaye N. Estrada Shannen Alyssa A. Pua
Joseph Sebastian R. Javier Bianca Marie J. Angela M. Rañola
Charles Kenneth F. Lijauco Kyle Gino M. Salazar
Queena M. Marticio Kristine Bernadette F. Soriano
Maria Angela T. Mercado Anne Renee T. Suarez
Ray Lemuel D. Molabola Samantha Nicole M. Warren
Eunice Martha A. Nadal Paulo Romeo J. Yusi

CONTENTS
FOREWORD: THE POST-COVID WORLD

WHERE LAW AND ECONOMICS MEET i
Stella Luz A. Quimbo
ESSAYS
LABOR ISSUES IN THE TIME OF COVID-19: FROM ECQ,

MECQ, TO GCQ, AND BACK AGAIN 1
Anna Maria D. Abad
THE EXECUTIVE & LOCAL GOVERNMENTS VERSUS

COVID 19: A CYCLE OF BLAME AND BURDEN 24
Kent Almadro Alonzo
PHILIPPINE HUMAN RIGHTS IN THE TIME OF PANDEMIC: ANALYZING

THE CHALLENGES TO THE EFFECTIVENESS OF THE COMMISSION
ON HUMAN RIGHTS AS AN NHRI IN THE MIDST OF COVID -19 47
Mario C. Cerilles, Jr.
(UN)FORTUITOUS EVENT: THE COVID-19 PANDEMIC

AS A FORTUITOUS EVENT 71
Czar Matthew Gerard Dayday & Amer Madcasim, Jr.
COMPETITION AND GOVERNMENT RESPONSE

TO THE COVID-19 PANDEMIC 88
Gwen Grecia-De Vera, Jolina Pauline Tuazon Eraña,
Raizza Dawn Angeli C. David & Johanne Daniel M. Negre
THE DEMAND AND SUPPLY OF HUMANITY: ON THE LEGALITY

AND JUSTIFICATION OF ADOPTING COMPULSORY LICENSING
MEASURES FOR COVID-19 MEDICINES 107
Julia Therese D. Pineda
A PANDEMIC OF MISINFORMATION: LEGAL ISSUES CONCERNING

INTERMEDIARY LIABILITY IN THE COVID-19 ERA 126
Shiela Marie L. Rabaya
OF BASELESS ARRESTS AND COVID-19:

A TALE OF TWO PANDEMICS 140
Juli Ann Rosette M. Sibi
CONTENTS
PROTECTING RIGHTS WHILE PROTECTING LIVES: PERMISSIBLE

DEROGATIONS OF HUMAN RIGHTS IN THE COVID-19
PANDEMIC PHILIPPINE STATE OF EMERGENCY 155
Anton Miguel A. Sison
TIPPING POINT: WILL THE PANDEMIC MAINSTREAM ONLINE

LEARNING IN PHILIPPINE LEGAL EDUCATION? 183
Justin D.J. Sucgang

COVID-19 EMERGENCY MEASURES 198
Paolo S. Tamase
LIFE AND DEATH SENTENCE: A CASE FOR THE ACCELERATED

DECONGESTION OF PRISONS AND JAILS IN THE PHILIPPINES
IN LIGHT OF COVID-19 217
Nicole Beatriz Y. Veloso
FAKE NEWS IN THE TIME OF THE PANDEMIC 238

Paulo Romeo J. Yusi
PHILIPPINE LAW JOURNAL ISSN 0031-7721
Published quarterly during the academic year at the University of the Philippines. Editorial and
Business Offices: College of Law, Malcolm Hall, University of the Philippines, Diliman, Quezon City,
Philippines. Re-entered as Second-Class Mail at the U.P. Post Office, Diliman, Quezon City on September 1, 1978.
Phone: 9205514 loc. 207.
NOTICE
The JOURNAL accepts unsolicited contributions written in Microsoft Word or Rich Text format.
Since each submission is subjected to an identity-blind deliberative process, authors are discouraged from
including, in the body of their written contributions, language that would unnecessarily reveal their
genders, offices or occupations, and similar information. Contributions must be emailed to
plj@up.edu.ph or sent in CD-ROM. Submissions must follow the Bluebook citation format.
Local Subscription Rate: Foreign Subscription Rate:

One (1) year . . . . . . . . . . . . . . PHP 1,000.00 One (1) year . . . . . . . . . . . USD 120.00
Single Copy . . . . . . . . . . . . . . . PHP 250.00 Single Copy . . . . . . . . . . . USD 30.00
(Excluding shipping costs) (Excluding shipping costs)
FOREWORD: THE POST-COVID WORLD—WHERE
LAW AND ECONOMICS MEET*
Stella Luz A. Quimbo**
Before the COVID-19 pandemic, I thought that the nexus of law and
economics was best exemplified by the enforcement of anti-trust law, under
which the legal standard for a violation requires an economic determination.
For example, the question of whether a dominant firm is abusive requires an
economic analysis of what constitutes a market, whether a firm dominates
such market in terms of sales, whether its conduct prevents competitors from
participating in the market on equal footing, and whether such exclusionary
behavior results in loss of consumer welfare by way of price increases, quality
deterioration, narrowing of choices, or loss of innovation. All of these require
economic analysis. Clearly, anti-trust law is a complex space where law and
economics are intricately intertwined.
Fast forward to today. It turns out that the post-COVID world is the
better shared working space for law and economics, for at least two economic
problems that we have faced during this pandemic—uncertainty and the free-
rider problem—require solutions that are provided by the law. Hence, now
more than ever, these times call for relevant and responsive regulation.
Economic theory suggests that if markets are “perfect”—buyers and

sellers are small in size, infinite in number, and thus unable to influence the
price—then such markets maximize consumer welfare. “Perfect” markets are
also frictionless, in that transaction costs are zero and most importantly,
uncertainty is absent.
It is this last assumption that fails miserably in the post-COVID

world.
The end of the pandemic remains unknown. While we certainly

anticipate that we will revert to some form of normality with the advent of a
* Cite as Stella Luz Quimbo, Foreword: The Post-COVID World—Where Law and
Economics Meet, 93 (Special Online Feature) PHIL. L.J. i, [page cited] (2020).
** District Representative (Marikina City, 2nd District), House of Representatives
(2019-2022); Commissioner, Philippine Competition Commission (2016-2019); Professor,

University of the Philippines School of Economics; M.A. Economics for Competition Law,
King’s College London (2018); Ph.D. Economics, University of the Philippines (2000); M.A.
Economics, University of the Philippines (1993); B.S. Business Economics, summa cum laude,
University of the Philippines (1991).
i
ii SPECIAL ONLINE FEATURE [VOL. 93
vaccine, we do not know when that time will be. No one can predict with
certainty when the epidemic curve will peak, nor how many of such curves we
will have.
Similarly, there is still much yet to be known about the virus itself. No
one absolutely knows who has COVID-19, and its transmission is likewise
not fully understood. Is it airborne? Can asymptomatic individuals infect
others? Will having COVID-19 and surviving it result in immunity from the
virus? Still, no one knows, much more with complete certainty.
Uncertainty is the biggest enemy in the post-COVID world. With

uncertainty, people hoard essential goods, causing unnecessary price
increases. Faced with uncertain demand for their goods and services, firms
begin to retrench employees and, with the rising cost of capital, postpone their
investment decisions. Despite requiring hospital care, the sick opt instead for
self-medication in fear of hospital-acquired COVID-19—all with grave
consequences. Similarly, markets cease to function as a mechanism for price
determination and resource allocation.
Thus, the required response is Keynesian: the government must

spend to boost the animal spirits. Legislation is needed for this purpose.
As our economy transitions into the new normal, there is now a need
to enact a recovery plan. Last June 4, 2020, the lower house passed the
Accelerated Recovery and Investments Stimulus for the Economy of the
Philippines Bill1 (“ARISE Philippines Bill,” in short) on its third and final
reading. The bill proposes a 1.3 trillion-peso, multi-year economic stimulus
plan that includes spending programs to promote business continuity.
Ultimately, the goal is to protect workers from massive layoffs. 2 The
proposals include mass testing, 3 especially for workers returning to their
workplaces, wage subsidies 4 and interest-free loans with labor retention
conditionalities, 5 unemployment assistance, 6 regulatory relief, 7 credit
guarantees, 8 subsidies for the most critically impacted sectors (including
tourism, export and import industries, transportation, agriculture, and
1 H. No. 6815, 18th Cong., 1st Sess. (2020). Accelerated Recovery and Investments
Stimulus for the Economy of the Philippines.

2 § 2.
3 § 6.
4 § 7.
5 § 17.
6 § 8.
7 § 12.
8 § 15.
2020] FOREWORD iii
education),9 and infrastructure for the new normal,10 especially those needed
to improve internet connectivity.11
With increased government spending, the hope is to reduce

uncertainty and boost confidence among businesses, workers, and consumers,
so that we can safely re-start the economy.
The other noteworthy economic concern in the time of COVID-19

is the free-rider problem. This occurs when people benefit from an activity
without having to shoulder the cost for it. In the end, the activity becomes
under-provided. Take the case of wearing masks. One might decide not to
wear a mask, thinking he is still safe since others will do so. If everyone thinks
this way, many will not wear masks! In effect, no one is protected.
Again, the solution requires regulation. As a first step, the lockdown

was imposed. This was a good call at the beginning of the outbreak when the
free-rider problem was at its peak, given minimal information on the nature
of disease transmission. The government should have used this time to get
ahead of the problem. Policymakers should have set the policy direction based
on the data being collected. Citizens should have been clearly informed to
encourage them into a routine of mask-wearing, social distancing, hand
washing, and other preventive measures. By now, the to-do’s at the onset of
any sign of COVID-19 should be top of mind. But today, the question
remains: did we optimize the use of the lockdown?
Nonetheless, the classic solution to any free-rider problem is

coordination, which in turn requires information. In the context of COVID-
19, the platform for that coordination is regulation, including imposing
minimum health standards, mandatory disease surveillance, targeted
quarantines, border control, penalties, and other enforcement tools.
From the lens of an economist and lawmaker, this Special Online

Feature on COVID-19 and the Law, a collection of 13 5,000-word essays on
various aspects of the law in a time of pandemic, is both timely and relevant.
Amidst the pandemic, law and economics continue to intersect in

competition law. In Competition and Government Response to the COVID-19
Pandemic, the UP Law Center’s Competition Law and Policy Program
(“CLPP”) examines the measures under the ARISE Philippines Bill. Here, the
9 Ch. V.
10 § 26.
11 § 26(b).
iv SPECIAL ONLINE FEATURE [VOL. 93
CLPP reminds us of the relevance of competition law in promoting consumer

welfare, as well as public interest, in times of emergency. The CLPP warns
against provisions that may erode the enforcement of competition policy,
which is key to ensuring economic recovery.
In her essay A Pandemic of Misinformation: Legal Issues Concerning

Intermediary Liability in the COVID-19 Era, Shiela Marie L. Rabaya talks
precisely about the biggest source of uncertainty in a time of pandemic:
misinformation. She highlights an important concern in light of the increasing
reliance on social media for information, which is the appropriate liability of
“middlemen,” such as internet service providers (“ISPs”) in the spread of fake
news. Rabaya reviews the safe-harbor provisions under the Cybercrime
Prevention Act and the approaches to content moderation taken by various
platforms. She concludes that, although ISPs can afford to employ a hands-
free approach, the conditions of the pandemic call on them to take on a more
proactive role in regulating fake news.
The issue of fake news is also the topic of Paulo Romeo J. Yusi’s work
entitled Fake News in the Time of the Pandemic. Yusi discussed the
constitutionality of the State’s efforts to punish fake news during a pandemic,
given the penalties for fake news provided under the Bayanihan to Heal as
One Act. He points to the consequences of the proliferation of fake news and
argues that it is not included in the constitutional protection of freedom of
speech, particularly in the context of a pandemic.
Businesses, which thrive on predictability and thus prefer to avoid

uncertainty, must now weather through the unprecedented uncertainty of this
pandemic. Many of them are in “non-essential” sectors and were unable to
operate at full capacity for months, yet continued to pay for overhead
expenses, including payroll. Now, employees and employers alike must adapt
how they conduct their work, as workplace and transportation conditions
continue to change amid the government’s imposition of various lockdown
measures. In Labor Issues in the Time of COVID-19: From ECQ, MECQ, to GCQ,
and Back Again, Anna Maria D. Abad surveys existing and newly enacted labor
guidelines. She explains that the pandemic has resulted in a “paradigm shift”
in workplace management—from employees, to their respective working
arrangements, to the physical workspace itself. She also explores the remedial
and cost-cutting measures that companies may impose in light of their
reduced profit and productivity, as well as the conditions in which they may
be invoked.
The education sector is one of those most critically impacted by

COVID-19, and therefore, it is in dire need of government assistance. Schools
2020] FOREWORD v
were among those not allowed to operate during the lockdown, leaving many
educators at risk of job loss. If internet connectivity worked effectively, then
shifting to online learning would have been the best approach to education in
the post-COVID world. But the reality is that the country’s education system
is not ready for a permanent transition to online learning, as argued by Justin
D.J. Sucgang in Tipping Point: Will This Pandemic Mainstream Online Learning in
Philippine Legal Education? Instead, given various hindrances—such as our
limited connectivity capabilities, the current design of our legal education, and
various administrative barriers—Sucgang provides his own pragmatic
assessment of the state of legal education post-COVID.
While the classic economic response to uncertainty by the State is

increased government spending, such pump-priming can be supplemented by
legal remedies made available to affected businesses. In (Un)Fortuitous Event:
The COVID-19 Pandemic as a Fortuitous Event, Czar Matthew Gerard T. Dayday
and Amer M. Madcasim, Jr. explore a possible remedy for such affected
businesses—the invocation of force majeure or fortuitous event clauses. Here,
they argue that the COVID-19 pandemic should not be treated as a singular
event that automatically entitles contracting parties to avail of the fortuitous
event defense. There is a need to assess a range of factors, including
community quarantine policies, social distancing measures, locations of the
parties, and business operations, among others, in order to determine the
applicability of such a defense to each case.
One can think of many forms of free-rider problems arising from the
pandemic. In the context of the Philippines, important government functions
are relegated to the local government units (“LGU”) based on the Local
Government Code, including those pertaining to health care. Yet, the
government’s COVID-19 response has largely been centralized through the
Inter-Agency Task Force (IATF) of the national government. The potential
free-rider problem in this situation is as follows: why would an LGU take
action and decide on COVID-related matters, such as the repatriation of
OFWs, when any failure will result in blame? Why act—possibly fail and take
the blame—when the national government is expected to act anyway and
thus, will have to own up on the failure? Once again, economic theory
provides a solution: coordination. In The Executive & Local Governments versus
COVID–19: A Cycle of Blame and Burden, Kent Almadro Alonzo examines the
legal framework for the COVID-19 response of national and local
governments, mainly provided in the Local Government Code and the
Bayanihan to Heal as One Act. He analyzes why the division of powers
between the levels of government has resulted in disjointed response efforts.
He concludes by encouraging multi-level government coordination in order
to lessen costs to the Filipino people and avoid exacerbating systemic issues.
vi SPECIAL ONLINE FEATURE [VOL. 93
The advent of a COVID-19 vaccine hinges heavily on research and

development (“R&D”), which is fraught with the free-rider problem. R&D
entails huge upfront investments, and its outcome is uncertain. No right-
minded private entity will engage in R&D for the vaccine unless successful
developers have sufficient protection in the form of intellectual property
rights. Without such protection, other firms can take a free ride on whoever
invests in the R&D, and the original developer will not make up its
investments. However, the ongoing pandemic also asks us to consider legal
solutions, which will facilitate timely access to COVID-19 medicine. In her
essay, The Demand and Supply of Humanity: On the Legality and Justification of
Adopting Compulsory Licensing Measures for COVID-19 Medicines, Julia Therese D.
Pineda addresses the balance between the intellectual property concerns of
pharmaceutical companies and the global call to altruism amid a pandemic.
Here, she argues for the possible adoption of compulsory licensing measures,
while considering existing international and domestic laws.
Perhaps the most powerful approach to curbing the free-riding

tendencies of free-thinking individuals is to impose penalties. Without
penalties, behavior, such as mask-wearing and staying at home, will likely be
under-provided. Hence, the Bayanihan to Heal as One Act imposed certain
penalties relating to the control of the spread of COVID-19. In A Framework
for Analyzing the Legality of COVID-19 Emergency Measures, Paolo S. Tamase
analyzes the emergency measures provided under the Bayanihan to Heal as
One Act and highlights the legal defects of certain regulations that
compromised public compliance. He also proposes a framework for
scrutinizing the legality of emergency regulations and their incidents, with the
objective of balancing the need for swift action in times of emergency with
the perpetual need to preserve the constitutional system.
Similarly, in Of Baseless Arrests and COVID-19: A Tale of Two Pandemics,

Juli Ann Rosette M. Sibi scrutinizes the penalty framework provided for by
the Bayanihan to Heal as One Act, in light of the arrest of more than 57,177
supposed community quarantine violators as of June. Sibi highlights
weaknesses in the framework and argues, based on the principle of nullum
crimen, nulla poena sine lege, that these supposed violations are outside the scope
of the criminal law regime and therefore cannot be grounds for an individual’s
arrest.
Finally, with the ongoing lockdown, millions of Filipinos have lost

their jobs, countless small businesses have closed shop, and almost all families
worry not only about protecting themselves from the virus, but also about
putting food on the table every day. As we focus on economic and health
2020] FOREWORD vii
needs, we are also reminded that now more than ever is a time to preserve our
dignity as human beings. In Protecting Rights while Protecting Lives: Permissible
Derogations of Human Rights in the COVID-19 Pandemic Philippine State of
Emergency, Anton Miguel A. Sison examines the derogation clause provided in
Article 4 of the International Covenant on Civil and Political Rights and its
potential application in how our government handles the COVID-19
pandemic. He asserts that a declaration of a state of emergency is in no way a
justification to suspend all human rights.
With the recent controversy on the increasing number of deaths

among high-profile prisoners and the possible breaches by government
officials in charge of the penal facilities, as well as the generally poor condition
of prison facilities, the time of COVID-19 is also a time to reflect on the
protection of the human rights of prisoners. Nicole Beatriz Y. Veloso’s Life
and Death Sentence: A Case for the Accelerated Decongestion of Prisons and Jails in the
Philippines in Light of Covid-19 sheds light on the conditions of overcrowded
prisons and jails in the context of the ongoing pandemic. She discusses the
lawfulness of accelerated decongestion in light of Philippine and international
laws, and recommends steps to implement these in the face of the new
normal.
Is the Commission on Human Rights (CHR) fully equipped to protect

our human rights in the post-COVID world? In Philippine Human Rights in the
Time of Pandemic, Mario C. Cerilles, Jr. analyzes the institutional capacity of the
CHR to meet the complications the pandemic has injected into the country’s
human rights situation, which was already previously deteriorating. Cerilles
points to severe limitations in the CHR’s legal structure which hinder
enforcement, while also reflecting on the adequacy of the prevailing
international framework in the context of the Philippine experience.
Dear reader, these are 13 excellent essays, well-written and highly

relevant to today’s ongoing challenges. I congratulate the writers and enjoin
the public to read and reflect on these works. While the framework and
analysis are legal, the soul is economic. I believe these thoughtful and nuanced
policy recommendations are necessary, particularly at a time where markets,
if left to their own devices, may be doomed to fail.
-o0o-
LABOR ISSUES IN THE TIME OF COVID-19:
FROM ECQ, MECQ, TO GCQ,
AND BACK AGAIN*
Anna Maria D. Abad**
I. INTRODUCTION
After various medical associations called for the imposition of stricter

quarantine measures in light of the continuing rise in confirmed COVID-19
cases, 1 President Rodrigo R. Duterte re-imposed the Modified Enhanced
Community Quarantine (“MECQ”) last August 2, 2020 in the National
Capital Region, and the provinces of Laguna, Cavite, Rizal, and Bulacan.2 The
re-imposed MECQ, which takes effect from August 3 to August 18, aimed to
arrest the sudden spike in COVID-19 infections.
As of August 4, 2020, the Department of Health (DOH) reported

6,352 new cases of COVID-19, bringing the total number of infected
individuals to 112,593, with 2,115 deaths and 66,049 recoveries. This was the
highest number of confirmed COVID-19 cases for a single day.3
Naturally, the priority of the Philippine government has been in

preventing the further transmission of the COVID-19 virus and ensuring the
protection and continued health of its citizens, while balancing the need to
keep the economy afloat and mitigate the pandemic’s socioeconomic impacts.
As such, the government has convened the Inter-Agency Task Force for the
* Cite as Anna Maria Abad, Labor Issues in the Time of COVID-19: From ECQ, MECQ,
to GCQ, and Back Again, 93 (Special Online Feature) PHIL. L.J. 1, [page cited] (2020). An earlier
version of this Essay was presented in the Peer Learning Discussion on Commercial Dispute
Resolution, held on July 23, 2020 and organized by USAID, National Center for Mediation,
and the American Bar Association Rule of Law Initiative.
** Dean, Adamson University College of Law; Managing Partner, Abad Abad &
Associates Law Offices; LL.B., University of the Philippines (1990); B.A. Political Science,
University of the Philippines (1986).
1 Kristina Hallare, Medical Frontliners to Gov’t: Time-out, revert Mega-Manila to ECQ,
INQUIRER.NET, Aug. 1, 2020, available at https://newsinfo.inquirer.net/1315204/medical-

frontliners-to-govt-time-out-revert-metro-manila-back-to-ecq
2 Philippine Communications Operations Office (PCOO), Metro Manila put under
stricter MECQ for two weeks, PCOO WEBSITE, Aug. 3, 2020, at

https://pcoo.gov.ph/news_releases/metro-manila-put-under-stricter-mecq-for-two-weeks
3 Dep’t of Health (DOH), Updates of COVID-19, HEALTHY PILIPINAS, at
https://covid19.healthypilipinas.ph/updates-covid
1
2020] LABOR ISSUES 2
Management of Emerging Infectious Diseases (IATF) in preparing a “multi-

sectoral response” to the pandemic.4
While the COVID-19 pandemic is primarily a public health issue, the

government has undertaken a militaristic approach in response to the
problem, by declaring a six-month state of calamity 5 and imposing strict
quarantine measures in specified areas. This meant that movement of
individuals and communities within, into, or out of the areas under
community quarantine has been restricted in various stages.6
The National Capital Region (“Metro Manila”) is considered to be the

epicenter of the COVID-19 pandemic in the country and, as such, had been
placed under Enhanced Community Quarantine (“ECQ”) for a cumulative
period of two months, from March 15 to May 15, 2020.7 The quarantine was
later relaxed to MECQ for a two-week period, and then further relaxed to
General Community Quarantine (“GCQ”) for a two-month period, from
June 1 to August 3, 2020.8
Public transportation was halted during ECQ and MECQ. 9 Mass

gatherings and face-to-face classes in school campuses were likewise
prohibited.10 Except for some establishments classified under Category I,11
most businesses were generally closed—or at least, not allowed to work—
during the ECQ and MECQ.12 The gradual relaxation and lifting of travel
4 World Health Organization, 100 Days of COVID-19 in the Philippines: How the WHO
supported the Philippine Response, WHO WESTERN PACIFIC, May 9, 2020, at

https://www.who.int/philippines/news/feature-stories/detail/100-days-of-covid-19-in-the-
philippines-how-who-supported-the-philippine-response
5 This became effective last March 16, 2020. See Proc. No. 929 (2020), declaring a
State of Calamity throughout the Philippines due to Corona Virus Disease 2019.
6 IATF Omnibus Guidelines in the Implementation of Community Quarantine in
the Philippines [hereinafter “IATF Guidelines”], § 1.3.

7 IATF Res. No. 11 (2020). See also Third Anne Peralta-Malonzo, Quarantine Takes
Effect: Police Still on Warning Mode, SUNSTAR MANILA, Mar. 15, 2020, available at
https://www.sunstar.com.ph/article/1848530/Manila/Local-News/Quarantine-takes-
effect-police-still-on-warning-mode
8 See IATF Res. No. 37 (2020); IATF Res. No. 41 (2020); IATF Res. No. 55-A
(2020).
9 IATF Guidelines, §§ 2.12 & 3.11.
10 §§ 2.10, 2.11, 3.9 & 3.10.
11 § 4.6.a. Category I includes government work, hospitals, clinics, optical clinics,
public utilities, public markets, supermarkets, groceries, convenience stores, drug stores, water
refilling stations, manufacturing and processing plants of food, medical and hygienic products,
delivery services, energy companies, gasoline stations, telecommunications companies, media
establishments, banks and capital markets, among others.
12 §§ 2.4 & 3.15.
3 SPECIAL ONLINE FEATURE [VOL. 93
restrictions under the GCQ enabled most businesses classified under

Category II13 and Category III14 to resume operations up to 50% capacity,
subject to their compliance with health protocols and the guidelines imposed
by the IATF.15
Unfortunately, however, the industries classified under Category

IV—composed of businesses relating to tourism, entertainment, and leisure
activities—remain restricted even under GCQ and, as such, have suffered
steep declines in revenues for the past five months.
Much has been said about the debilitating effect of government-

imposed community quarantine on business establishments throughout the
country, as well as the Philippine economy in general.
According to statistical data from the Department of Labor and

Employment (DOLE), as of July 2020, 112,000 workers have already been
displaced during the community quarantine,16 precisely because around 2,000
companies have undertaken retrenchment or redundancy programs, or have
been forced to partially close down their own facilities.17
As a consequence, the unemployment rate in the Philippines has

tremendously risen—from 5.1% in the second quarter ending June 2019, to
17.7% in the same quarter this year. 18 Note that, from 2.39 million
unemployed persons in the first quarter of 2020, there are now 7.25 million
13 § 4.6.b. Category II includes other manufacturing sectors, such as electrical
machinery and equipment, textiles, paper and paper products, computer, electronic and optical
products, wood and furniture, tobacco, transport; cement, steel, mining, postal courier and
delivery services, house repairs, legal and accounting services, capital market, architectural and
engineering activities, among others.
14 § 4.6.c. Category III refers to retail trade activities such as malls, hardware stores,
clothing and accessories, bookstores, pet food and pet care supplies, IT, communications and
electronic equipment, perfume, jewelry, among others.
15 §§ 4.6.b & 4.6.c.
16 Jovic Yee, 112,000 workers displaced by COVID-19 – DOLE, INQUIRER.NET,
July 8, 2020, available at https://newsinfo.inquirer.net/1303439/dole-112000-workers-

displaced-by-covid-19
17 Bernie Cahiles-Magkilat, Closure of 26% of businesses alarms DTI, MANILA BULLETIN,
July 16, 2020, available at https://mb.com.ph/2020/07/16/closure-of-26-of-ph-businesses-

alarms-dti. See also Ben De Vera, P2.2 Trillion in losses: Cost of COVID-19 impact on PH economy,
INQUIRER.NET, May 28, 2020, available at https://business.inquirer.net/298536/p2-2-trillion-
in-losses-cost-of-covid-19-impact-on-ph-economy
18 Philippine Statistics Authority, Employment Situation in April 2020, PSA WEBSITE,
at https://psa.gov.ph/content/employment-situation-april-2020
persons reportedly without work in the second quarter, 19 an increase of

around 203% within a four-month period.
The pandemic quarantine has also deeply impacted the Philippine

economy, translating to 2.2 trillion pesos in losses. 20 The economy is
anticipated to decline even more so, with the recent re-imposition of the
MECQ, 21 which unfortunately followed the two-month GCQ when
businesses were allowed to resume operations.
II. PARADIGM SHIFT IN PERSONNEL MANAGEMENT

AND SUPERVISION UNDER THE MECQ
A. “Stay Home, Save Lives”
Under MECQ, work is not entirely suspended. As previously

intimated, and except for Category I industries, certain establishments (now
identified as Category II and III) are still allowed to continue operations, but
only up to 50% of its capacity. 22 Generally, this means that half of the
workforce will be allowed to work within the business premises, while the
other half will be placed on a work-from-home arrangement.
However, inasmuch as health is now prioritized over the economic

and financial considerations of businesses, it is imperative that the employer
should seek to prevent the transmission of the virus among its staff, clientele,
and suppliers while maintaining business operations.
This necessitates a shift in the usual practice of personnel

management, as well as a modification of company rules and regulations.
As such, for companies allowed to continue operations,23 the Joint

DTI–DOLE Interim Guidelines on Workplace Prevention and Control of
19 Id.
20 Ben De Vera, P2.2 Trillion in losses: Cost of COVID-19 impact on PH economy,
in-losses-cost-of-covid-19-impact-on-ph-economy.
21 Ben De Vera, Return to MECQ risks reversing economic recovery path, INQUIRER.NET,
Aug. 3, 2020, available at https://business.inquirer.net/304287/return-to-mecq-risks-

reversing-economic-recovery-path
22 IATF Guidelines, § 3.5.
23 This is subject to strict compliance with the IATF health and monitoring
protocols.
COVID-1924 exhorts the management to develop policies and procedures for

the prompt identification of sick employees.25
Contrary to the business norm of telling employees to come to work

“by hook or by crook,” managers are now required to actively encourage sick
employees to stay home and not to go to work.26
Thus, the manager or supervisor should prohibit any employee from

going to work if the latter shows any of the symptoms related to COVID-19
(such as coughs, colds, muscle or joint pain, fever, shortness of breath,
diarrhea, headache, or conjunctivitis) and has traveled abroad or to local areas
with reported cases, or had direct exposure to any Person under Investigation
(“PUI”) for COVID-19.27 On the other hand, employees who exhibit the
above-mentioned symptoms are required to notify their managers or
supervisors of such fact, and to stay home.28
Employers are also required to provide clear information to their

employees on what to do and where to go should symptoms persist, as well
as to continue monitoring for contact tracing, in case the employee is placed
under investigation by health authorities.29
B. Protocols at the Workplace
The management is required to provide employees clear information

on proper respiratory etiquette and hygienic practices in the workplace and
post such information in conspicuous places within the company premises.30
24 Dep’t of Trade and Industry (DTI) & Dep’t of Labor and Employment (DOLE)
Interim Guidelines on Workplace Prevention and Control of COVID-19 (2020).

25 V.1. “Employers shall […] [p]rovide the necessary company policies for the
prevention and control of COVID-19 in consultation with workers.”

26 World Health Organization (“WHO”), Getting your workplace ready for
COVID-19, Mar. 3, 2020, available at https://www.who.int/docs/default-

source/coronaviruse/getting-workplace-ready-for-covid-19.pdf
27 DOH Adv. No. 3 (2020). Assessment of Patients in response to 2019-Novel
Coronavirus Acute Respiratory Disease (2019-nCoV ARD) Health Event, available at

https://www.doh.gov.ph/sites/default/files/basic-page/2019-nCoV-Advisory-No3.pdf. See
also Bonz Magsambol, When Should You Get Tested for Coronavirus?, RAPPLER, Mar. 16, 2020, at
https://rappler.com/newsbreak/iq/signs-when-does-person-need-get-tested-coronavirus
28 WHO, supra note 26. See also DOH Mem. No. 2020-0220 (2020). Interim
Guidelines on Return to Work, available at https://www.doh.gov.ph/sites/default/

files/health-update/dm2020-0220.pdf
29 DOH Mem. No. 2020-0220 (2020), annex A.
30 DTI & DOLE Interim Guidelines, V.
The quarantine has caused additional expenses for business

establishments, as they are now required to provide for tissue, soap, alcohol,
or hand-sanitizers, place these in multiple locations within the workplace
(especially at the entrance/exit points and conference rooms), and ensure its
adequate supply.31 It is also incumbent upon management to perform routine
environmental cleaning and disinfect touched surfaces, such as countertops,
desks, conference tables, doorknobs, computer keyboards, monitors, elevator
keys, and light switches.32
Within the workplace, management should also provide appropriate

face masks for their workers,33 and strictly require them to wear said face
masks at all times, removing the same only when eating and drinking. A social
distancing policy34 should likewise be rigorously enforced. Whenever possible,
the personnel must keep a distance of at least three feet, or around one meter,
away from each other to reduce the possibility of person-to-person
transmission at the workplace. 35 Work premises may likewise need to be
reconfigured to address the distance requirements for on-site work. This may
be accomplished by expanding spaces between desks and/or placing acrylic
barriers in between desks.36
Unlike the usual corporate practice prior to the pandemic, companies

are now encouraged at this point to limit face-to-face meetings and
unnecessary out-of-town business trips. 37 Aside from electronic mail and
cellphones, there are numerous online conferencing applications that may
facilitate digital face-to-face interactions, such as Skype, FaceTime, Zoom,
Google Hangouts, and Microsoft Teams. Necessarily, therefore, it is advisable
for companies to make provisions for increased expenses on cellphone and
internet usage for its managers, supervisors, and account owners.
31 Id. See also US Dep't of Labor & Dep’t of Health & Human Services, Guidance on
Preparing Workplaces for COVID-19 (2020), available at http://www.seiu1training.com/
OSHA_Covid19.pdf. See also US Centers for Disease Control and Prevention, Environmental
Cleaning and Disinfection Recommendations, CDC WEBSITE, May 27, 2020, at
https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/cleaning-
disinfection.html
32 DTI & DOLE Interim Guidelines, IV.B.2.a.
33 IV.B.1.a.i.
34 DTI & DOLE Interim Guidelines, V. See also Society for Human Resource
Management (SHRM), Social Distancing Guidelines at Work, SHRM WEBSITE, Mar. 5, 2020, at
https://www.shrm.org/resourcesandtools/tools-and-samples/pages/social-distancing-
guidelines.aspx
35 DOLE Labor Adv. No. 11 (2020). Supplemental Guidelines Relative to Remedial
Measures in View of the On-going Outbreak of Coronavirus Disease 2019 (COVID-19).

36 DTI & DOLE Interim Guidelines, IV.C.3-5.
37 IV.C.2.
C. Implementation of Alternative or Flexible

Work Arrangements
To offset the negative economic impact of the quarantine on business

activities, companies are allowed to implement coping or remedial
mechanisms, such as alternative or flexible work arrangements (“FWA”)
whenever feasible, as well as undertake cost-cutting measures to ensure its
survival.
FWA refers to “alternative arrangements or schedules other than

traditional or standard work hours, workdays, or workweek.”38 It can be “any
one of a spectrum of work structures that alters the time and/or place that
work gets done on a regular basis,” 39 and may refer to flexibility in the
scheduling of hours worked (as seen in alternative work schedules), in the
number of hours worked (such as part-time work), or in the place of work
(e.g. work-from-home arrangements). 40 As coping mechanisms in times of
economic difficulties and national emergencies, FWAs are encouraged as cost-
cutting measures short of termination of employment or closure of business.41
These may include, but are not limited to, work-from-home (“WFH”)
arrangements, forced leave, work rotation, and reduced workweek schemes.
38 DOLE Dep’t Adv. No. 2 (2009), II, ¶ 2. Guidelines on Adoption of Flexible Work
Arrangements.
39 Workplace Flexibility 2010, Georgetown University Law Center, Flexible Work
Arrangements: A Definition and Examples (2006), at 1, available at

https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1009&context=legal
40 Id.
41 See DOLE Dep’t Order No. 02 (2009), I. See also DOLE Labor Adv. No. 17
(2020), II (Concept). Guidelines on Employment Preservation upon the Resumption of

Business Operation; DOLE Labor Adv. No. 9 (2020), Guidelines on the Implementation of
Flexible Work Arrangements as Remedial Measure due to the Ongoing Outbreak of
Coronavirus Disease.
1. Work from Home (Telecommuting Law)
“Telecommuting” is defined as “a work arrangement that allows an

employee in the private sector to work from an alternative workplace with the
use of telecommunication and/or computer technologies.”42 Simply stated, a
“work-from-home” arrangement is telecommuting from one’s home or
residence.
A telecommuting arrangement is not mandatory. Similarly, the

employees cannot demand their employer to place them under the said
arrangement as a matter of right, since the law explicitly provides that the
employer may offer the same on a voluntary basis or as a result of collective
bargaining (if any), and upon such terms and conditions as they may mutually
agree upon.43
Those placed on this arrangement are considered at work. As such,

these employees are to be paid compensation for all the time they are placed
on the said WFH arrangement; and hence, there should be no deductions
from their salaries. This must be so, because it is presumed that the employer
has made arrangements with its employees for the submission of required
target outputs on agreed-upon due dates, for which they may rightly be paid
their full salaries or compensation.
A telecommuting arrangement is allowed, provided that the terms and

conditions thereof are not less than the minimum labor standards set by law.44
This shall include those relating to compensable work hours, minimum
number of work hours, overtime, rest days, entitlement to leave benefits,
social welfare benefits, and security of tenure.45 Additionally, the employer is
required to ensure that telecommuting employees are treated in the same
manner as comparable employees working at the employer’s premises.46 In
relation to this, all telecommuting employees shall be covered by the same set
of applicable rules and existing collective bargaining agreement, if any.47
42 Rep. Act No. 11165 (2018), § 3. See also DOLE Dep’t Order No. 202-19 (2019), §
2(b). Implementing Rules and Regulations of Republic Act No. 11165 Otherwise Known as
the “Telecommuting Act.”
43 Rep. Act No. 11165 (2018), § 4. See also DOLE Dep’t Order No. 202-19 (2019),
§ 3.
44 Rep. Act No. 11165 (2018), §§ 4-5. See also DOLE Dep’t Order No. 202-19 (2019),
§§ 4(a)-(f).
45 Id.
§ 4.
47 DOLE Dep’t Order No. 202-19 (2019), § 4.
In all cases, the employer shall provide the telecommuting employee

with relevant written information on the terms and conditions of the
telecommuting program, including the duration of the program, as well as the
latter’s rights, duties, and responsibilities.48
2. Forced Leave
Forced leave refers to a work arrangement wherein the “employees

are required to go on leave for several days or weeks, utilizing their leave
credits if there are any.”49 This contemplates a situation in which there is a
dearth of work that can be offered by the company to its employees because
of the low demand for their goods, products, or services. In the present case,
such is due to the mandatory restrictions on movement brought about by the
quarantine. In such an instance, employees are not terminated, but are merely
required to go on leave for several days or weeks on a “no work, no pay”
basis, akin to a “floating status.”
From a practical viewpoint, and as a general rule, employees whose

jobs cannot be placed on a WFH or telecommuting arrangement may be
placed on a “no-work, no-pay” arrangement during this pandemic, unless the
employee agrees to charge the said days to remaining sick or vacation leave
credits, such that that the employee will still be paid despite not doing any
actual work for the employer.
Note that, at the very least, the employee who has worked for at least
one year in the company is entitled to a minimum of at least five days of
service incentive leave entitlement under the Labor Code.50 This means that
the employee has at least five days of full-pay leave credits for the year which
may be used for the employee’s benefit, unless he or she has already utilized
the same.
A “forced leave” arrangement may be applied simultaneously with

other flexible work arrangements, such as the reduction of the workweek or
the rotation of employees, or in cases wherein the management decides to go
on temporary closure not exceeding six months.
§ 3.
49 DOLE Dep't Adv. No. 2 (2009), III.4.
50 LABOR CODE, art. 95.
3. Reduction of Work Hours and/or Workdays or

Rotation of Workers
Employers may also reduce the number of work hours (or workdays
per week) of the employees, 51 as well as rotate employees or alternately
provide them work within the workweek.52 Understood to be cost-cutting
measures, these arrangements generally arise from a decrease in demand for
the employer’s goods and services.53
The employee will only be required to work for three or four days, as
opposed to a regular workweek of five or six days. Since this will result in the
diminution of salary or wages, this arrangement should either be (a) voluntary,
with the consent of a majority of the employees having been secured; or (b)
unilaterally imposed by the management, provided that it can show substantial
evidence of business losses or projections on anticipated business losses.
Since this will necessarily result in the diminution of salaries or wages,

it is best for the employer to duly notify and discuss the proposed reduction
with the employees, and seek feedback from them, so that other viable and
feasible options offered by the employees may be considered.
Operationally, in cases wherein the employer unilaterally decides to

implement the same as an exercise of its management prerogative, they should
come up with projections on anticipated or actual losses, as evidenced by
independently audited financial statements. It is also understood that, by
careful consideration of the market and other economic variables during the
pandemic, the employer has already determined the optimum personnel
workforce required for the reduced demand for their goods or services and
make the corresponding arrangements for the changes in scheduling. Of
course, the management must give written notices to both the affected
employees and the DOLE.54
4. Temporary closure or suspension of operations
The suspension of operations of an employer’s business or

undertaking is bona fide,55 when there is a need for renovation works, or an
anticipated slump in customer demand for goods or services which makes the
51 DOLE Dep't Adv. No. 2 (2009), III.2.

52 III.3.
53 I.
54 DOLE Labor Adv. No. 9 (2020), V.
continuous operations of the business not feasible. Note that, in this situation,
there is an expectation that the business will resume; and hence, the temporary
suspension of operations shall not terminate the employment of the affected
employees but is merely considered a “temporary displacement.”56
The law sets a six-month period within which the

operation of a business or undertaking may be suspended, which in turn also
suspends the employment of the employees concerned.57 Since there is no
work to be done, and following the general principle of “no work, no pay,”
the employees are placed on a “floating status,” and are thus not paid during
this period. This is analogous to a “forced leave;” and similarly, the employees
may charge their sick or vacation leave credits for the days they are placed on
“floating status.”
As the law admonishes indefinite lay-offs, the employer is obliged to

recall employees back to work or consider them permanently retrenched
pursuant to law at the end of the said six-month period.58 Should the employer
fail to do so, the employees are deemed to have been constructively dismissed,
for which the employer is held liable.59
III. WORST CASE SCENARIO: WHEN PUSH COMES TO SHOVE
As had previously been stated, the COVID-19 pandemic and the

consequent government-imposed lockdown have severely disrupted the
operations of Philippine businesses and caused an unprecedented decline in
revenues. The continuing uncertainty and fluidity of the situation have
constrained companies to reassess their economic and financial viability to
ensure its survival.
Preliminarily, it may be well to state that an employer has the perfect

right to transfer, reduce, or lay-off personnel in order to minimize expenses
and ensure the stability of the business, provided that the same is done in
56 Innodata Knowledge Services, Inc. v. Inting, G.R. No. 211892, Dec. 6, 2017.
57 Id.
58 Sebuguero v. Nat’l Lab. Rel. Comm’n, 318 Phil. 635 (1995); See also PT&T Corp.
v. Nat’l Lab. Rel. Comm’n, 496 Phil. 164 (2005).

59 Spectrum Security Services, Inc. v. Grave, 810 Phil. 590 (2017). See also SKM Art
Craft Corp. v. Bauca, 722 Phil. 128 (2013).

good faith and in the pursuit of the valid interests of the company, not for
purposes of circumventing the rights and benefits of the employees.60
A. Retrenchment
Retrenchment is the termination of employment by the employer as

an exercise of its prerogatives, through no fault of the employees.61 This is primarily
resorted to avoid or minimize economic or business reverses “during periods
of business recession, industrial depression, seasonal fluctuations, lulls
occasioned by lack of orders, or shortage of materials.”62
When the employer suffers serious and actual business losses, the
management has the final say as to whether it will continue to risk its capital.63
However, the employer bears the burden to prove such allegation of business
losses.64 The normal method of proving this is the submission of financial
statements duly audited by independent external auditors, 65 covering a
sufficient amount of time to “enable both the NLRC and the CA to appreciate
the nature and vagaries of the business.”66
Under Article 298 of the Labor Code, and in conjunction with Section
2, Rule XXIII of its Implementing Rules, the following elements must be
strictly complied with in order that the retrenchment may be considered as
valid:
1. The losses expected should be substantial and not merely de

minimis in extent.
2. The substantial losses apprehended must be reasonably
imminent;
3. The retrenchment must be reasonably necessary and likely to
effectively prevent the expected losses; and
60 Malcaba v. ProHealth Pharma Phil., Inc., G.R. No. 209085, June 6, 2018, citing San
Miguel Brewery v. Ople, 252 Phil. 27 (1989). See also San Fernando Coca-Cola Rank-and-File
Union v. Coca-Cola Bottlers Phil., Inc., 819 Phil. 326 (2017), citing Abbott Laboratories, Phils.,
Inc. v. Nat’l Lab. Rel. Comm’n, G.R. 76959, 154 SCRA 713, Oct. 12, 1987.
62 See Sebuguero v. Nat’l Lab. Rel. Comm’n, 318 Phil. 635 (1995). Beralde v.
Lapanday Agricultural and Development Corp., 761 Phil. 476 (2015).

63 San Pedro Hospital of Digos, Inc. v. Sec'y of Labor, 331 Phil. 390 (1996).
64 Genuino Agro-Industrial Development Corp. v. Romano, G.R. No. 204782, Sept.
18, 2019.
65 Anabe v. Asian Constr., 623 Phil. 857 (2009).
66 Malayang Nagkakaisang Manggagawa ng Pacific Plastic Corp. v. Pacific Plastic
Corp., G.R. No. 171617 (Notice), Oct. 11, 2017.

4. The alleged losses, if already incurred and the expected

imminent losses sought to be forestalled, must be proved by
sufficient and convincing evidence.67
In order for a retrenchment to be valid, the same must be reasonably

necessary and is likely to prevent business losses which, if already incurred, must
be substantial, serious, actual, and real; or if only expected, are reasonably
imminent as perceived objectively and done in good faith by the employer.68
In addition, it must be proven that the employer should have taken

other measures prior or parallel to the retrenchment to forestall losses, e.g.
cutting other costs. Thus, the Supreme Court has ruled that retrenchment
undertaken by a company was invalid, since it was shown that the company
likewise continued to dispense fat executive bonuses to its officers.69
Under Article 298 of the Labor Code, the affected employees shall be
entitled the following: a notice to both the affected employee and the DOLE
one month prior to the effective date of retrenchment, as well as a one-month
guaranteed separation pay or one-half month pay for every year of service,
whichever is higher. 70 A fraction of at least six months of service will be
considered as a whole year, for purposes of computing separation pay.
Moreover, the notice requirement cannot be dispensed with, even in

instances in which the company had placed the employees on “forced leave”
or “floating status.” In such cases, the employees continue to be on a “no
work, no pay” status during that one-month period. Failure to give notice may
lead to the imposition of an indemnity amounting to PHP 50,000.0071 on the
part of the employer for failing to comply with the procedural requirements
of the Labor Code.
67 Flight Attendants and Stewards Ass'n of the Phil. v. Phil. Airlines, Inc., G.R. No.
178083 & A.M. No. 11-10-1-SC (Resolution), Mar. 13, 2018, citing DOLE Dep't Order No.
147-15 (2015), Rule I-A, 5.4(c), amending the Implementing Rules and Regulations of Book
VI of the Labor Code of the Philippines.
68 Id.
69 Lopez Sugar Corp. v. Federation of Free Workers, 267 Phil. 212 (1990).
71 Jaka Food Processing Corp. v. Pacot, 494 Phil. 114 (2005). See also Veterans
Federation of the Phil. v. Montenejo, G.R. No. 184819, Nov. 29, 2017.
B. Redundancy
Akin to retrenchment, redundancy is another authorized cause for the

termination through no fault of the employees. 72 Under this circumstance, the
employer may thus validly terminate an employee because he has no legal
obligation to keep in his payroll more employees than those necessary for the
economical operation of the business.73
Redundancy exists when the services of an employee are in excess of

what is reasonably demanded by the actual requirements of the business
operations. Stated otherwise, a position may be declared redundant, and the
employee terminated, if it has become superfluous or a mere duplication of work,
e.g. caused by the “overhiring of workers, decreased volume of business, or
dropping of a particular product line or service activity previously
manufactured or undertaken by the enterprise.”74
The affected employees shall be entitled to the following under

Article 298 of the Labor Code, to wit: (a) one-month notice to both the
affected employee and the DOLE prior to the effective date of termination
by reason of redundancy; and (b) a one-month guaranteed separation pay or
one-month pay for every year of service, whichever is higher.75 A fraction of
at least six months of service will be considered as a whole year, for purposes
of computing separation pay. As with retrenchment, for those companies that
have already implemented a “no work, no pay” arrangement, the affected
employees are simply not paid during the one-month period where there is no
work.
Similarly, the notice requirement to the affected employee and the

DOLE is mandatory and cannot be dispensed with. Absent compliance with
the notice requirement, the Supreme Court has imposed the amount of PHP
50,000.00 as an indemnity for failing to comply with the procedural
requirements of the law.76
As opposed to retrenchment, the employer need not prove the

existence of business losses in terminating employees by reason of
redundancy. Characterizing an employee’s services as no longer necessary or

73 Mejila v. Wrigley Phil., Inc., G.R. No. 199469, Sept. 11, 2019, citing Wiltshire File
Co. Inc. v. Nat’l Lab. Rel. Comm’n, 271 Phil. 694 (1991).
74 Id. Acosta v. Matiere SAS, G.R. No. 232870, June 3, 2019.
76 Veterans Federation of the Phil. v. Montenejo, G.R. No. 184819, Nov. 29, 2017.
See also Jaka Food Processing v. Pacot, 494 Phil. 114 (2005).
sustainable—and hence, properly terminable—is an exercise of the business

judgment of the employer, which in turn is not subject to discretionary review
by the Labor Arbiter or even the Supreme Court, provided that the same is
done in good faith.77
On the other hand, the disadvantage is obviously the higher financial

outlay that will be incurred by the company if this option were to be used, e.g.
one month for every year of service.
C. Permanent Cessation or Closure of

Employer’s Business
The partial or total closure or cessation of operations may be classified

into two categories: those due to serious business losses or financial reverses,
and those that are not.78
Under the first kind, the employer must sufficiently and convincingly
prove its allegation of substantial losses.79 Where the employer has indeed
suffered serious business losses akin to bankruptcy, then he is not obliged to
pay separation pay to his employees.80
In contrast, under the second kind, the employer can

lawfully close shop anytime, as long as the cessation of or withdrawal from
business operations was bona fide in character and not impelled by a motive to
defeat or circumvent the tenurial rights of employees.81 When such closure
was done in bad faith, it cannot serve as an authorized cause for the dismissal
of respondents.82 In addition to this, the employer shall pay his employees
their termination pay in the amount corresponding to their length of service.83
Note that separation pay must be paid, if the closure or cessation of

operations of the company is not due to serious business losses or financial
reverses. 84 For obvious reasons, the Labor Code does not impose any
77 Arabit v. Jardine Pacific Finance, Inc., 733 Phil. 41 (2014). See also Vda. de
Lecciones v. Nat’l Lab. Rel. Comm’n (Resolution), 616 Phil. 254 (2009).
78 LABOR CODE, art. 298. See also Manila Polo Club Emps. Union (MPCEU-FUR-
TUCP) v. Manila Polo Club, 715 Phil. 18 (2013).

79 Angeles v. Polytex Design, Inc., 562 Phil. 152 (2007).
80 North Davao Mining Corp. v. Nat’l Lab. Rel. Comm’n, 325 Phil. 202 (1996). See
also G.J.T. Rebuilders Machine Shop v. Ambos, 752 Phil. 166 (2015).
81 Id.
82 Peñafrancia Tours & Travel Transport, Inc. v. Sarmiento, 648 Phil. 494 (2010).
84 Art. 298.
obligation upon the employer to pay separation benefits when the closure is
due to serious business losses, as “[i]ndeed, one cannot squeeze blood out of
a dry stone […] [n]or water out of parched land.”85
Just as no law forces anyone to go into business, no law can compel

an employer to continue its operations. It would be stretching the intent and
spirit of the law if a court interferes with the management's prerogative
to close or cease its business operations just because the business is not
suffering from any loss or because of the desire to provide continued
employment to the workers.86
In sum, under Article 298 of the Labor Code, three requirements are
necessary for a valid cessation of business operations: (a) service of a written
notice to the employees and to the DOLE at least one month before the
intended date thereof, (b) the cessation of business being bona fide in character,
and (c) the payment of termination pay amounting to one month pay or at
least one-half month pay for every year of service, whichever is higher.87
In cases wherein the company had filed for rehabilitation, and a

rehabilitation receiver had been appointed by the Securities and Exchange
Commission, all actions for claims before any court, tribunal, or board against
the company shall ipso jure be suspended.88 Hence, even when the employees
have been declared illegally dismissed and duly awarded the corresponding
backwages and benefits, the employees are not yet able to enforce the
payment of their separation pay.89
85 North Davao Mining Corp. v. Nat’l Lab. Rel. Comm’n, 325 Phil. 202 (1996).
86 Zambrano v. Phil. Carpet Mfg. Corp., 811 Phil. 569 (2017). See also Alabang
Country Club, Inc. v. Nat’l Lab. Rel. Comm’n, G.R. No. 157611, 466 SCRA 329, 345, Aug. 9,
2005.
87 LABOR CODE, art. 298. Manila Polo Club Emps. Union (MPCEU-FUR-TUCP) v.
Manila Polo Club, 715 Phil. 18 (2013).

88 Garcia v. Phil. Airlines, 596 Phil. 510 (2009).
89 Case law recognizes that, unless there is a restraining order, the injunction or
suspension of claims by legislative fiat partakes of the nature of a restraining order that
constitutes a legal justification for respondent's non-compliance with the reinstatement order
and payment of the backwages and benefits. Neither can the company under rehabilitation be
compelled to pay said salaries which the employee should have received during the period that
the Labor Arbiter decision ordering his reinstatement is still pending appeal. See Philippine
Airlines, Inc. v. Paz, 748 Phil. 661 (2014).
IV. SPECIAL CONCERNS DURING THE PANDEMIC
A. On probationary employment
Probationary employment is generally for a six-month period,90 and

is intended to enable the employer to determine whether the probationary
employee has qualified for regular status in accordance with reasonable
standards made known to him or her at the time of engagement or hiring.91
As explained by the Supreme Court, such probationary period “afford[s] the
employer an opportunity to observe the fitness of a probationer while at work,
and ascertain whether he will become a proper and efficient employee.”92
On March 30, 2020, the DOLE issued Labor Advisory No. 14 (2020),
which caused some confusion among employer-establishments because of its
apparent mandatory wording, i.e. “for purposes of determining the six-month
probationary period, the one-month Enhanced Community Quarantine93 is
not included thereof.”94 Consequently, the employer is presumably allowed to
extend the probationary period for the entire period that the ECQ was in
force.
Its mandatory pronouncement notwithstanding, the Labor Advisory

should only be applied—and the ECQ (or MECQ/GCQ) period excluded
from the computation of the probationary period—in instances wherein the
probationary employee was not suffered to work during the said period.
90 This is subject to exceptions. For instance, there is a three-year probationary
period for teachers under the CHED Mem. Order No. 40 (2008), otherwise known as the
Manual of Regulations for Private Higher Education (for College); and DepEd Mem. Order
No. 88 (2010), otherwise known as the Manual of Regulations for Private Schools in Basic
Education (for elementary and high school level). There can also be a longer period of
probationary employment where the parties agree to a longer period at the time of the
engagement or hiring [Ver Buiser v. Leogardo, Jr., G.R. No. L-63316, 216 Phil. 144 (1984)];
or when the parties agreed to an extension of the probationary period [Mariwasa Mfg, Inc. v.
Leogardo, Jr., G.R. No. 74246, 251 Phil. 417 (1989)].
92 International Catholic Migration Comm’n v. Nat’l Lab. Rel. Comm’n, 251 Phil.
560 (1989).
93 ECQ was later on extended to May 16, 2020, and later extended for another 15
days until 31 May 2020 under IATF Res. No. 37 (2020). See also PCOO, President Duterte extends
restriction in Metro Manila, Central Luzon, other areas until May 15, PCOO WEBSITE, Apr. 24, 2020,
at https://pcoo.gov.ph/news_releases/president-duterte-extends-restriction-in-metro-
manila-central-luzon-other-areas-until-may-15
94 DOLE Labor Adv. No. 14 (2020), II. Clarification on the Non-Inclusion of the
One-Month Enhanced Community Quarantine Period on the Six-Month Probationary Period.

This must be so, because it would be highly unfair and grossly

inequitable to exclude the ECQ period wherein the probationary employee
was placed on a “work-from-home” arrangement or such other flexible work
arrangement. Verily, the probationary employee is considered at work, and as
such, any extension of the probationary period under said circumstances
should be deemed invalid. So, when the company imposes a reduced workday
or work-week arrangement, then the company may make the corresponding
deduction for only such days or such time that the employee was not required
to work.
In instances in which the company has implemented a retrenchment

program, probationary employees who have been included among those
retrenched are likewise entitled to separation pay, despite not completing the
six-month probationary period. It is believed that the practice of simply
considering the probationary employee to have “not completed” the period,
or that the probationary period is considered to have “lapsed” in order to
avoid payment of separation pay, may actually be legally questionable.
Albeit its limited nature, the probationary employee is entitled to

security of tenure. In order to terminate a probationary employee, there must
either be just or authorized cause, or failure to qualify in accordance with
standards made known to him or her at the time of engagement. Obviously,
the failure of the probationary employee to complete the period was not of
his or her own doing but rather, on account of the exercise of management’s
prerogatives.
B. On failure to go to work on account of

transportation or comorbidity
Under ECQ and MECQ, public transportation is suspended.95 As

such, employers are exhorted to provide shuttle services and/or decent
accommodation on near-site location to reduce travel and movement,
whenever feasible.96 Note that this is not mandatory, but merely voluntary
depending on whether the company finances will allow. Hence, employees
cannot be expected to go to work during ECQ/MECQ if the employer-
establishment is unable to provide for shuttle services.
Additionally, strict home quarantine is to be observed in all

households, and the movement of all residents shall be limited to accessing

96 DTI & DOLE Interim Guidelines, V.5.
essential goods and services, working in permitted offices, and going to

establishments and activities allowed by the IATF Guidelines.97
This is especially true for certain categories of individuals—such as

persons below twenty-one years old, those who are sixty years old and above,
and pregnant women, as well as those with immunodeficiency, co-morbidity,
or other health risks—who are required to remain in their residences at all
times, subject to specific exceptions.98 Such restriction extends to any person
who resides with these individuals.99
Under these circumstances, these categories of individuals cannot be

compelled to go to work. Indeed, the said employees may validly refuse to go
to work even as against the explicit directive of the employer. Note further
that, aside from the explicit restriction relating to pregnant women, the
Reproductive Health Act of 2012 prohibits using pregnancy as a ground for
termination of employment.100
Consequently, an employee who fails to go to work during

community quarantine cannot be terminated on account of abandonment of
work or gross insubordination, as there are justifiable reasons for failing to
report for work. Under these circumstances, the employee is simply placed on
a “no work, no pay” arrangement.
C. On reduction of company personnel

benefits
DOLE Labor Advisory No. 17 (2020) provides guidelines on

employment preservation upon resumption of business operation for
establishments allowed to do so under ECQ, MECQ, or GCQ, reiterating the
call for employers to undertake alternative work schemes as an alternative to
termination of employment or closure of business.101
Noteworthy is Section 5 thereof, which provides that “[e]mployers

and employees may agree voluntarily and in writing to temporarily adjust
employees’ wage and wage-related benefits as provided for in existing
employment contract, company policy or collective bargaining agreement
(CBA).”102 Such adjustment shall not exceed a period of six months, upon

98 §§ 2.3, 3.3 & 4.3.
99 §§ 2.3, 3.3 & 4.3.
100 Rep. Act No. 10354 (2012), § 23(c).
101 See DOLE Labor Adv. No. 17 (2020), §§ 3-4.
102 § 5. (Emphasis supplied.)
which the employer and employees are mandated to review and/or renew the
agreement as may be necessary under the circumstances.
This is in stark contrast to the general principle of non-diminution of

benefits found in the Labor Code103 and jurisprudence, and in cognizance of
the dire effects that the COVID-19 pandemic quarantine has caused upon
businesses in general. In fact, there are quite a number of companies that had
implemented cost-cutting measures and wage adjustments across the board,
from managers down to the rank-and-file. Thus, the managers had already
been asked to give up some of their allowances, such as representation costs
and their transportation allowances during the pandemic. Still, other
companies have opted to defer the payment of benefits until such time the
economy improves, and the company’s revenues return to normal levels.
D. On the extent of employer liability

in case of sickness
Could the employer be held liable for all expenses incurred for
hospitalization and treatment for an employee who tests positive and falls ill
due to COVID-19?
The general rule is that the company cannot be held liable, as long as
the company has undertaken measures showing due diligence and strict
compliance with the IATF health protocols. Even assuming that the employer
neglected to comply with their obligation to exercise due diligence in this
regard, such is not a form of strict liability under tort law.104 Note that the
employee bears the burden of proving that he or she had contracted the virus
at work, and the employer’s failure to comply with the required health
protocol is the proximate cause of the illness.
E. Some suggestions for government action

from business owners
To estimate the impact of COVID-19 on local businesses in the

Philippines, the Asian Development Bank (“ADB”) conducted an enterprise
survey between April to May 2020.105 The findings reveal that the quarantine

104 See also CIVIL CODE, art. 2187, 2183, 2193 & 1711; Rep. Act No. 7394 (1992), art.
100; Rep. Act No. 9514 (2008), § 3.
105 ASIAN DEVELOPMENT BANK (“ADB”), THE COVID IMPACT ON PHILIPPINE
BUSINESS: KEY FINDINGS FROM THE ENTERPRISE SURVEY (2020), available at

https://www.adb.org/sites/default/files/publication/622161/covid-19-impact-philippine-
business-enterprise-survey.pdf
restrictions had a significant impact on business activity: around 65.9% of

surveyed businesses temporarily closed, while 29.1% continued limited
operations. 106 Of those with limited operations, 78.4% of those surveyed
operate at 50% capacity or less. 107 Only 4% remained fully operational. 108
Most of these severely hit establishments are comprised of micro, small, and
medium-sized businesses (“MSMEs”).109
It has been reported that micro enterprises constitute 88.5% of

businesses in the Philippines, employing around 28.9% of employees in the
private sector.110 Dua, Jain, and Mahajan point out that:
Small businesses are a recognized proving ground for

entrepreneurs, a vibrant source of innovation and competition, and
an essential source of employment. They are suppliers and
customers to the broader economy and deeply embedded in local
communities.111
While the pandemic lockdown has generally affected bigger corporate

businesses, there is no doubt that micro and small businesses have been
impacted more disproportionately, as they are more vulnerable to market
changes and demands than large-scale enterprises and have thinner cash
reserves. Some are barely hanging on with just nearly a month-worth in cash
buffer. In fact, in the ADB survey, around 41% micro enterprises surveyed
had already run out of cash and savings, while another 36.3% are expected to
run out over in the next one to three months.112 Constraints on additional
credit were also binding: just over half (53%) could not borrow PHP 50,000
within a week, if needed.113 Even more disturbing is the fact that over 5.7
million workers work in MSMEs—about 3.8 million of which are located in
Luzon.114
106 Id. at 7.
107 Id. at 7-8.
108 Id.
109 Id. at 4.
110 Pauline Macaraeg, ‘Sariling Diskarete’: The heavy impact of lockdown on micro, small
businesses, RAPPLER, Apr. 7, 2020, at https://rappler.com/newsbreak/in-depth/heavy-impact-

coronavirus-lockdown-micro-small-medium-enterprises
111 Andre Dua, Neha Jain, Deepa Mahajan & Yohann Velasco, McKinsey & Company
Report: COVID-19’s effect on jobs at small businesses in the United States, MCKINSEY & COMPANY,
May 5, 2020, at https://www.mckinsey.com/industries/public-and-social-sector/our-
insights/covid-19s-effect-on-jobs-at-small-businesses-in-the-united-states
112 ADB, supra note 105, at 17-18.
113 Id. at 23.
114 Macaraeg, supra note 110. DTI, 2018 MSME Statistics, DTI WEBSITE, at
https://www.dti.gov.ph/resources/msme-statistics
Unfortunately, the most vulnerable of these jobs tend to belong to

those working in industries that require the lowest skills or educational
attainment and, correlatively, employing mostly minimum wage earners.
According to National Economic and Development Authority (NEDA)
statistics, the top industries most affected by government’s quarantine
measures are: (a) arts, entertainment, and recreation; (b) travel, hotel, and
restaurant industry; (c) technical repair services; (d) education; (e)
construction; (f) car repairs; among others. 115 Ironically, these are affected and
vulnerable workers who can least afford to lose their jobs.
Thus, the results of the ADB is unsurprising:
The situation and needs assessment questions in our survey

revealed that the most pressing payment concern was wages and
related social security contributions (37%). In line with this, a wage
subsidy was the most frequently requested government support
measure (57%). Micro and small enterprises were about 10
percentage points more likely to request a wage subsidy than large
enterprises. Some 33% of those surveyed availed of the
Department of Labor and Employment’s grant program for
workers unable to receive wages (Clarificatory Guidelines on the
COVID-19 Adjustment Measures Program). Use of the program
was higher among small and medium-sized enterprises (38%) than
for microenterprises (28%) or large firms (35%).
Deferment of tax payments was the second most common policy

support desired, cited by 52% of respondents. The third most
common request was for low-interest or subsidized loans (36%)
followed by tax reductions or credits (35%). Those surveyed were
allowed multiple responses.116
It is for this reason that the government should give immediate

financial assistance to small- and medium-sized businesses now. While giving
financial assistance to the marginalized members of society is well-meaning
and commendable, it is earnestly believed that such policy does not spur actual
economic growth.
Thus, in addressing the economic concerns brought about by the

pandemic, some countries have given financial subsidies (also known as
“jobkeeper incentives”) to assist employers in sustaining payment to their
115 Andrew Masigan, Numbers Don’t Lie: Why the IATF’s strategy did more harm than good,
BUSINESSWORLD, June 14, 2020, available at https://www.bworldonline.com/why-the-iatfs-
strategy-did-more-harm-than-good
116 ADB, supra note 105, at vii.
workers, even if there is no business.117 Simultaneously, in order to stimulate

economic growth, increased government lending (with minimal or no rates)
and tax cuts have been released to businesses. This is being done in the United
States,118 Australia,119 and the United Kingdom.120
With the re-imposition of MECQ over Metro Manila until August 18,
2020, it is sincerely hoped that the government would take time within the
two-week period to recalibrate and realign its priorities to economic and fiscal
policies, rather than political concerns, and address the increasing call of both
employers and employees and stave off a spiraling decline in the national
economy.
-o0o-
117 Gabe Alpert, Here's what countries are doing to provide stimulus and relief,
INVESTOPEDIA, May 6, 2020, at https://www.investopedia.com/government-stimulus-

efforts-to-fight-the-covid-19-crisis-4799723
118 Id. The US Federal Government released a series of relief packages, the largest of
which is called the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”).
Amounting to more than 2.3 trillion U.S. dollars, the CARES Act includes loans and grants to
small businesses, health care providers, state and local governments, and schools around the
country. See Mark Kolakowski, Paycheck Protection Program Liquidity Facility (PPPLF),
INVESTOPEDIA, July 28, 2020, at https://www.investopedia.com/paycheck-protection-
program-liquidity-facility-ppplf-4802298
119 Alpert, see supra note 117. Australia has announced a series of stimulus packages
worth around 140 billion dollars, which includes payments, loans, and subsidies for businesses
worst hit by the pandemic.
120 Id. The United Kingdom has granted a tax cut for retailers, cash grants to small
businesses, and provisions for sick pay for sick employees. The UK government likewise
extended government benefits to self-employed and unemployed workers. This came with a
series of stimulus packages, composed of loans and grants for industries worst hit by the virus.
THE EXECUTIVE & LOCAL GOVERNMENTS VERSUS
COVID–19: A CYCLE OF BLAME AND BURDEN*
Kent Almadro Alonzo**
ABSTRACT
Overcoming the COVID-19 pandemic requires a

coordinated and unified effort from both the Executive
branch and local government units. However, instead of a
harmonious relationship between them, a detrimental blame
game has arisen. This Essay seeks to first map out the
foundational legal framework in effect at the onset of the
pandemic and its gaps. These consist of the Local
Government Code and the Bayanihan to Heal as One Act.
This Essay then attempts to enumerate the general powers
and duties granted to government officials by law that are
relevant to the COVID–19 pandemic. From this framework
and the duties and responsibilities given to officials, it will be
seen how the Executive and local government units can
derive arguments in order to pass the blame to the other.
Unfortunately, this will remain an endless cycle, leaving
Filipinos burdened with the negative impacts that come part
and parcel with a pandemic.
* Cite as Kent Almadro Alonzo, The Executive & Local Governments versus COVID-19:
A Cycle of Blame and Burden, 93 (Special Online Feature) PHIL. L.J. 24, [page cited] (2020).
** J.D., University of the Philippines (UP) College of Law (2021, expected.); B.A.
Philosophy, cum laude, UP College of Social Sciences and Philosophy; Editorial Board,
PHILIPPINE LAW JOURNAL Vol. 92; Student Editorial Assistant, PHILIPPINE LAW JOURNAL
Vol. 91. The Author would like to thank Augustine Diaz, Rainier David, Camille Cruz, and
Gabrielle Gueco for their comments, especially the ones that nitpicked my curlicue-laden
sentence construction.
24
“Don’t depend on the enemy not

coming; depend rather on being
ready for him.”
—Sun Tzu1
I. PANDEMIC IN THE PHILIPPINES
Since the advent of March, our country has been battling with the
pandemic brought about by COVID-19. Clamors for mass testing generally
remain unheeded, even while the National Economic and Development
Authority (NEDA) has stated that “[t]he key to a successful medical response
is mass testing.”2 There have been allegations of anomalies in the coordination
of Social Amelioration Measures.3 Further allegations of corruption in the
procurement of Personal Protective Equipment4 and Test Kits,5 as well as
1 Excerpt from ROBERT GREENE, THE 33 STRATEGIES OF WAR (2006).

2 National Economic and Development Authority (NEDA), Addressing the Social
and Economic Impact of the COVID-19 Pandemic, Mar. 19, 2020, available at
http://www.neda.gov.ph/wp-content/uploads/2020/03/NEDA_Addressing-the-Social-
and-Economic-Impact-of-the-COVID-19-Pandemic.pdf. The NEDA report stated that
“[t]he key to a successful medical response is widespread testing […] Moreover, early diagnosis
will lead to early initiation of quarantine procedures and, therefore, limit or prevent the spread
of the virus.”
3 Department of Interior and Local Government (DILG), DILG: 134 barangay
officials now facing criminal raps for SAP anomalies, DILG WEBSITE, May 26, 2020, at
https://dilg.gov.ph/news/DILG-134-barangay-officials-now-facing-criminal-raps-for-SAP-
anomalies/NC-2020-1166; Catherine Gonzales, 134 barangay officials charged over SAP ‘anomalies’,
INQUIRER.NET, May 25, 2020, available at https://newsinfo.inquirer.net/1280543/134-
barangay-officials-facing-charged-for-sap-anomalies
4 Marlon Ramos, Lacson flags overpriced medical supplies for DOH, INQUIRER.NET, May
18, 2020, available at https://newsinfo.inquirer.net/1276632/lacson-flags-overpriced-medical-

supplies-for-doh. See also Christia Marie Ramos, Procurement of ‘overpriced’ PPEs may be scrutinized
by Congress, INQUIRER.NET, Apr. 1, 2020, available at
https://newsinfo.inquirer.net/1252421/procurement-of-overpriced-ppes-may-be-
scrutinized-by-congress. But see Jeannete Andrade, Galvez clarifies editorial, report on purchase of
PPE for P20B, INQUIRER.NET, May 15, 2020, available at
https://newsinfo.inquirer.net/1275360/galvez-clarifies-editorial-report%E2%80%8D-on-
purchase-of-ppe-for-p20b
5 DJ Yap & Marlon Ramos, Drilon flags ‘overpriced’ PhilHealth virus testing, PHIL. DAILY
INQUIRER, May 21, 2020, available at https://newsinfo.inquirer.net/1278485/drilon-flags-

overpriced-philhealth-virus-testing. See also CNN Philippines Staff, Ex-health chief accuses local
supplier of jacking up prices of test kits, CNN PHIL., May 20, 2020, at
https://www.cnnphilippines.com/news/2020/5/20/Overpriced-COVID-19-test-machine-
DOH-corruption.html
2020] CYCLE OF BLAME AND BURDEN 26
issues on the presentation of data,6 have been thrown left and right. In fact,
the Ombudsman has also initiated an investigation on the recent activities of
the Department of Health.7 Hunger is now an inevitable reality for Filipinos
perennially condemned to isang kahig, isang tuka. 8 This is exacerbated by a
transition to General Community Quarantine,9 which is unsupported by the
availability of mass public transportation. 10 As of June 29, 2020, the
Philippines has been on lockdown—a “Community Quarantine”—for more
6 CNN Philippines Staff, 'Garbage in, garbage out': Senators slam DOH for erroneous
COVID-19 data, CNN PHIL., May 13, 2020, at

https://www.cnnphilippines.com/news/2020/5/13/DOH-COVID-19-data-error-Duque-
Senate.html. See also Eimor Santos, Experts see 'alarming errors' in DOH's coronavirus data, CNN
PHIL., May 12, 2020, at https://www.cnnphilippines.com/news/2020/5/12/doh-covid-19-
data-.html
7 Inquirer Staff, Ombudsman probe: DOH, DBM documents sought, INQUIRER.NET, June
20, 2020, available at https://newsinfo.inquirer.net/1294568/ombudsman-probe-doh-dbm-

documents-sought. But see Department of Health (DOH), Statement on the Ombudsman
Investigation, June 17, 2020, at https://www.doh.gov.ph/press-release/STATEMENT-ON-
THE-OMBUDSMAN-INVESTIGATION
8 Gabriel Pabico Lalu, Number of hungry Filipinos almost doubles as pandemic rages — SWS,
INQUIRER.NET, May 21, 2020, available at https://newsinfo.inquirer.net/1279086/number-of-

hungry-filipinos-almost-doubles-covid-19-pandemic-rages-sws; CNN Philippines Staff, SWS
survey reveals 4.2 million families suffered involuntary hunger amid COVID-19 pandemic, CNN PHIL.,
May 22, 2020, at https://cnnphilippines.com/news/2020/5/22/sws-survey-four-million-
families-involuntary-hunger-covid-pandemic.html?fbclid=lwAR2. See also Eloisa Lopez, In
Philippine slums, heat, hunger take a toll under lockdown, REUTERS, May 25, 2020, at
https://www.reuters.com/article /us-health-coronavirus-philippines-slums/in-philippine-
slums-heat-hunger-take-a-toll-under-lockdown-idUSKBN231150
9 Pia Ranada & Sofia Tomacruz, Duterte extends Metro Manila GCQ until June 30,
RAPPLER, June 16, 2020, at https://www.rappler.com/nation/263415-duterte-gcq-extension-

metro-manila-until-june-30
10 CNN Philippines Staff, Modern jeeps, buses now in operation not enough to meet demand
— transport expert, CNN PHIL., June 22, 2020, at

https://cnnphilippines.com/news/2020/6/22/modern-jeeps-buses-in-operation-not-
enough-to-meet-demand-transport-expert-says.html; CNN Philippines Staff, Modern jeeps, buses
allowed back on the road starting June 22, CNN PHIL., June 20, 2020, at
https://www.cnnphilippines.com/news/2020/6/20/jeep-uv-express-buses-back-on-the-
road-June-22.html. “During the virtual meeting of the House Committee on Metro Manila
Development on Wednesday, lawmakers pressed the LTFRB to give an exact date when
traditional jeepneys and UV Express units may return to the streets. They are still banned from
operating in the National Capital Region. [LTFRB Chairman Martin] Delgra did not provide
an exact date when the traditional jeepneys would be allowed to return on the road.” See Erwin
Colcol, UV Express, traditional jeeps allowed on NCR roads next week, GMA NEWS ONLINE, June
24, 2020, at https://www.gmanetwork.com/news/news/metro/744029/uv-express-
traditional-jeeps-allowed-on-ncr-roads-on-next-week/story
than 100 days.11 The cases have recently broken the 30,000 case barrier,12 with
the Philippines currently standing as the 2nd in Southeast Asia as to active
COVID–19 cases, and 1st in deaths per 100,000 people at 1.14, followed by
Indonesia at 0.98.13
It is understandable to charge the whole of government as a single

entity liable for these shortcomings. After all, it is the Executive who is in
charge of the implementation of the laws of the land available at his disposal
to battle the pandemic. On the other hand, local government units (“LGUs”)
are granted enough latitude by no less than the Constitution itself14 to decide
on their affairs in a manner that would best benefit the LGU. With this, a
question presents itself: does the system of laws between LGUs and the
Executive enable this endless cycle of blame? Worse, is this same system of
laws in fact laden with conflicting or inadequate elements, such that this
pandemic has been exacerbated rather than aided? These are important
inquiries, because the brunt of the battle against COVID-19 is equally carried
by the LGUs and the Executive.
For this Essay, the premises are (1) Congress passed the Bayanihan
to Heal as One Act (“Bayanihan Act”) to strengthen the government’s
response against the pandemic and (2) the Executive delegated all but two
powers granted by the Bayanihan Act to the Inter-Agency Task Force for the
Management of Emerging Infectious Diseases (IATF-EID) and its
constituent agencies. 15 Proceeding from this, the Essay will then seek to
illustrate that the framework between the existing Local Government Code
(“LGC”) and the newly-enacted Bayanihan Act allows a cycle of blame
between LGUs and the Executive. Of course, the LGC and the Bayanihan
Act are not the only two laws enacted in our jurisdiction that contribute to
this cycle, but these are the fundamental laws in force relevant to the pandemic
11Jovic Yee & Leila Salaveria, 100 days in quarantine: Palace rules out easing of restrictions,
INQUIRER.NET, June 24, 2020, available at https://newsinfo.inquirer.net/1296434/100-days-
in-quarantine-palace-rules-out-easing-of-restrictions
12 De La Salle University (“DLSU”), COVID–19 Research Portal, DLSU COVID-19
RESEARCH PORTAL, at https://www.dlsu.edu.ph/ research/covid-19-research-portal

13 Marites Dañguilan Vitug, [ANALYSIS] Duterte fails in coronavirus crisis leadership,
RAPPLER, June 29, 2020, at https://www.rappler.com/thought-leaders/264922-analysis-

duterte-fails-coronavirus-crisis-leadership
14 See CONST. art. X.
15 Report to the Joint Congressional Oversight Committee Pursuant to Section 5 of
Republic Act No. 11469, otherwise known as the Bayanihan to Heal as One Act, Mar. 30,
2020, available at https://www.officialgazette.gov.ph/downloads/2020/04apr/20200330-
Report-to-the-Joint-Congressional-Oversight-Committee-RRD.pdf
that enable this cycle of blame.16 If such a situation continues to persist, our
government will be trapped in a cycle of shifting burdens and redirecting
blame—all to the detriment of Filipinos who need a unified and coordinated
government to beat this pandemic.
II. THE CYCLE OF BLAME: BAYANIHAN TO HEAL AS ONE ACT

AND THE LOCAL GOVERNMENT CODE
A. The Legal Framework and Gaps Thereof
The Bayanihan to Heal as One Act17 was signed into law on March
25, 2020. It is the legislated policy of Congress in addressing the COVID–19
pandemic; said policy is seen in Sections 3 and 4:
Sec. 3. Declaration of Policy. — The COVID-19 pandemic has

greatly affected nations worldwide, including the Philippines, and
has caused and is continuing to cause loss of lives and disruption
to the economy. Thus, there is an urgent need to:
a) mitigate, if not contain, the transmission of COVID-19;

b) immediately mobilize assistance in the provision of basic
necessities to families and individuals affected by the
imposition of Community Quarantine, especially indigents
and their families;
16 In fact, the Bayanihan Act grants the President multiple powers from Sections 4(a)
to Section 4(ee) that pertain to the general acts to be done by the government as a whole,
which the President is empowered to pursue. Yet, it is submitted that outside Section 4(g) of
the Bayanihan Act—a provision couched in general language—there is no other mechanism
that presents a concrete framework to ensure that LGUs are in line with these “general acts”
that our government is mandated to pursue under the Bayanihan Act. See Rep. Act No. 11469
(2020), § 4.
17 Rep. Act No. 11469 (2020). The law has already lapsed on June 5, 2020, in
accordance with Article VI, Section 23(2) of the Constitution. Article VI, Section 23(2) of the
Constitution provides the following: “In times of war or other national emergency, the
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. Unless sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.” See CONST. art. VI, § 23(2). Pursuant to this
Constitutional provision, the Bayanihan Act lapsed after the Senate adjourned on June 4 and
the House of Representatives on June 5. This provision governs the effectivity of the
Bayanihan Act because Section 4 of the said act itself provides that the authorized powers
granted to the President are “[p]ursuant to Article VI, Section 23(2) of the Constitution.” See
Rep. Act No. 11469 (2020). See also Aika Rey, Senate session adjourns without passing Bayanihan 2,
RAPPLER, June 4, 2020, at https://www.rappler.com/nation/262928-senate-session-adjourns-
without-passing-bayanihan-recover-as-one-bill-june-4-2020
c) undertake measures that will prevent the overburdening of

the healthcare system;
d) immediately and amply provide healthcare, including
medical tests and treatments, to COVID-19 patients,
persons under investigation (PUIs), or persons under
monitoring (PUMs);
e) undertake a program for recovery and rehabilitation,
including a social amelioration program and provision of
safety nets to all affected sectors;
f) ensure that there is sufficient, adequate and readily
available funding to undertake the foregoing; and
g) Partner with the private sector and other stakeholders to
deliver measures and programs quickly and efficiently; and
h) promote and protect the collective interests of all Filipinos
in these challenging times.
By reason thereof, and in order to optimize the efforts of the

President to carry out the tasks needed to implement the
aforementioned policy, it is imperative to grant him authority
subject to such limitations as hereinafter provided.18
Section 4. Authorized Powers. — 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 […]19
The last paragraph of Sections 3 and 4 evinces the policy of Congress

to grant the President temporary powers to optimize the response of the
government. These temporary powers granted in Sections 4(aa) up to 4(ee) of
the Bayanihan Act were provided in order to actualize Sections 3(a) to 3(h) in
the Declaration of Policy. With regard to LGUs, Section 4(g) provides:
Section 4(g). Ensure that all Local Government Units (LGUs) are acting
within the letter and spirit of all the 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,
18 Rep. Act No. 11469 (2020).

19 Rep. Act No. 11469 (2020).
cohesive and orderly implementation of the national policy to

address COVID-19 […]20
Section 4(g) grants the President temporary authority during the

effectivity of the Bayanihan Act to “ensure that all Local Government Units
(LGUs) are acting within the letter and spirit of all the rules, regulations and
directives issued by the National Government pursuant to this Act,” which
will therefore include all the rules and regulations issued by the IATF–EID as
approved by the President.21 Specifically, the provision allows the President
to ensure that the standards established by the national government for
community quarantine are followed, without disregarding the concept of local
autonomy. 22 The Bayanihan Act does not, therefore, bestow the power of
control to the President.23 Now, in case the LGU does not comply, Section
6(a) of the Bayanihan Act punishes the local government official who disobeys
national government policies or directives in imposing quarantine.24 A perusal
of these two provisions and their interplay begs a few questions.
First, the Bayanihan Act does not provide a procedure or a standard

that determines if the LGU has been complying. A closer look at Section 4(g)
20 Rep. Act No. 11469 (2020). (Emphasis supplied.) The omitted part of the
provision is as follows: “Provided, That all LGUs shall be authorized to utilize more than 5%
of the amount allocated for their calamity fund subject to additional funding and support from
the National Government.”
21 Exec. Order No. 168 (2014). The IATF–EID was created in 2014 by virtue of
Exec. Order No. 168 issued by then President Benigno Aquino. Its chairperson would be a
representative from the DOH, and its members would be representatives from the
Department of Foreign Affairs (DFA), the Department of Interior and Local Government
(DILG), Department of Justice (DOJ), Department of Labor and Employment (DOLE),
Department of Tourism (DOT) and Department of Transportation and Communications
(DOTC). Under the fourth Whereas Clause, one of the reasons for its creation was due to
“the emergence of the Severe Acute Respiratory Syndrome (SARS), Avian Influenza, Ebola,
and the Middle East Respiratory Syndrome Coronavirus (MERS-CoV) infections have been
acknowledged by the global community to cause potential public health emergencies of
international concern.” See Exec. Order No. 168 (2014), § 1.
22 Rep. Act No. 11469 (2020), § 4(g). (Emphasis supplied.)
23 “In administrative law, supervision means overseeing or the power or authority of
an officer to see that subordinate officers perform their duties. If the latter fail or neglect to
fulfill them, the former may take such action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means the power of an officer to alter or
modify or nullify or set aside what a subordinate officer had done in the performance of his
duties and to substitute the judgment of the former for that of the latter.” See Mondano v.
Silvosa, 97 Phil. 143 (1955). This power of general supervision has been characterized by the
Supreme Court as the power to “merely [see] to it that the rules are followed, but [the
President] himself does not lay down such rules, nor does he have the discretion to modify or
replace them.” See Drilon v. Lim, G.R. No. 112497, 235 SCRA 135, Aug. 4, 1994.
24 Rep. Act No. 11469 (2020).
supports this assertion. Section 4(g) gives the impression that it is the
Executive that determines non–compliance—with the word “ensures”—
before the appropriate penalty is then levied by the Executive on the LGU
officer. It seems Congress has left the determination of non-compliance with
the Executive, aided by the Department of Interior and Local Government
(DILG).25 However, this must be read with Section 6, which provides that it
is a court that determines whether there is non-compliance, and if it merits
imprisonment or a fine.26 From this, “ensures” in Section 4(g) cannot refer to
a determination of non-compliance by the President and then the imposition
of a penalty; that function is delegated to the courts. Instead, it perhaps refers
to how the President can ensure compliance from the LGUs. The President has a
proactive—not punitive—temporary power.
Naturally then, the exercise of this proactive power should be

specified and contextualized by Implementing Rules and Regulations
(“IRRs”). However, unlike certain subsections of Section 4 that have
published IRRs, 27 there is no published IRR for Section 4(g) on how the
President ensures compliance.28 The Department of Budget and Management
(DBM) only released a Local Budget Circular that provides parameters for
funding COVID–19 related programs, projects, and activities for LGUs,29
while the various departments involved in providing Social Amelioration
Measures issued a Joint Memorandum Circular.30 In this Joint Memorandum,
LGUs were only tasked to assist the IATF–EID in implementing Social
Amelioration Measures.31 Again, none of these IRRs published in relation to
the Bayanihan Act touched on the topic of how the President undertakes to
ensure compliance from the LGUs.
25 See DILG, Powers & Functions, DILG WEBSITE, at

https://www.dilg.gov.ph/page/Powers-Functions/21
26 Rep. Act No. 11469 (2020), § 6.
27 Rep. Act No. 11469 Rules & Regs. (2020), available at
https://www.covid19.gov.ph/bayanihan-irr-and-guidelines. Only Section 4(aa) (on the 30-day
mandatory grace period for loans in general) and Section 4(k) (on the procurement of
necessary goods) have specific IRRs.
28 Id.
29 DBM Circ. No. 124 (2020), available at https://www.covid19.gov.ph/wp-
content/uploads/2020/04/DBM-LOC-BUDGET-CIRC.pdf
30 DSWD, DOLE, DTI, DA, DOF, DBM and DILG, Joint Memo Circ. No. 1
(2020), available at https://www.covid19.gov.ph/wp-content/uploads/2020/04/DSDW-

JOINT-MEMO-CIRC.pdf
31 DSWD, DOLE, DTI, DA, DOF, DBM & DILG, Joint Mem. Circ. No. 1 (2020),
§ 9.2. Section 9.2 only required LGUs to do the following: (a) Provision of the list of
beneficiaries which may fall under any of the social amelioration programs enumerated above;
(b) Account to the proper agency the disbursement of funds or goods to the proper
beneficiaries; (c) Document the community disinfection activities under TUPAD; and (d)
Provide logistical support in the distribution of assistance.
Second, in what way can the President ensure compliance under

Section 4(g) after a determination by the Court that there is a violation under
Section 6? To illustrate this possible void, assume that LGU Official B is
found in violation of “national government policies or directives in imposing
quarantines” after authorizing an ordinance applicable to LGU A. 32 LGU
Official B may now be suffering the penalty under Section 6, but at this point,
there is in LGU A an ordinance in effect contrary to the national directive of
the government. This will potentially result in a disjointed and uncoordinated
effort in handling COVID–19 for that LGU. Is the President empowered to
act under the Bayanihan Act to remedy this situation? The law is clear that
LGU Official B is liable, but what about the ordinances enacted? Are these
ordinances—conflicting with the national policy—automatically deemed
void? Assuming they are void, it will now result in a situation where LGU A
has no local ordinance enacting the national policy specifically addressing the
circumstances of the LGU. Is the local Sanggunian authorized to pass curative
legislation to correct the initial ordinances or resolutions by the LGU that are
inconsistent with the national effort? In the extreme, can the President pass
local legislation, temporary in nature, to address the void while the local
Sanggunian drafts another one anew? These questions lead to this conclusion:
the Bayanihan Act is not instructive under Section 4(g) if it grants any power
to the President to remedy the conflict resulting from the non–compliance of
LGUs.
The IATF, as the body tasked with promulgating rules and regulations
relevant to the response against the pandemic, is not granted the power to
remedy conflict as well. Under Section 1 of Executive Order No. 168 (2014),
the IATF is granted two specific powers. First, it can recommend to the
President that the Armed Forces aid the Philippine National Police “for the
purpose of enforcing the quarantine of specific areas or facilitating the
transport of EID patients” or for other purposes relevant to execute the
functions of the IATF.33 Second, the IATF can only ask for assistance from
other LGUs as “the circumstances and exigencies may require.” 34 None of the
IATF’s functions authorize it to synthesize conflicting ordinances via
resolutions, memorandums, or advisories—that power is not granted in
Section 2 of Exec. Order. No. 168.35 Since the Bayanihan Act in Section 4(g)
32 Rep. Act No. 11469 (2020), § 6.

33 Exec. Order No. 168 (2014), § 1.
34 § 1. (Emphasis supplied.)
35 § 2. Section 2 provides: “Functions. The Task Force shall have the following
functions:
a) Establish a system to identify, screen, and assist Filipinos suspected or confirmed to be
infected with EID;
allows “LGUs to continue exercising their autonomy in matters undefined by the

National Government or are within the parameters it has set,”36 Resolution No. 35
passed by the IATF only allows supervision over LGUs and the Regional
IATFs via the Cabinet Secretaries serving as Cabinet Officers for Regional
Development and Security (“CORDS”).37 LGUs still have the final say.
It is perhaps the absence of clear-cut answers to these issues that has

created conflicting situations. When the government authorized a “Hatid
Probinsya Program,” 38 seeking to help stranded Filipinos return to their
b) Prevent and/or minimize the entry of suspected or confirmed patients with EID into the
country. This should include rigid screening and identification of EID suspects, and the
institutionalization of surveillance, alert, and quarantine system in all ports of entry;
c) Prevent and/or minimize the local spread of EID in the country through the
establishment or reinforcement of a system in screening possible patients infected with
EID, contact tracing, identification of the mode of exposure to the virus, and
implementation of effective quarantine and proper isolation procedures;
d) Prevent and/or minimize mortality through effective clinical management by capacitating
healthcare facilities, government and private medical practitioners, healthcare workers,
and-public safety enforcers;
e) Educate the public on EID and its prevention, control and management to promote
positive health behaviors, and address public fear and anxiety through the conduct of a
nationwide EID awareness campaign;
f) Adopt measures to strengthen the Emerging and Re-Emerging Infectious Diseases
Program of the DOH or its equivalent in other local health units;
g) Notify the WHO of the EID cases in the country and its assessment of the EID situation;
h) Submit to the Office of the President regular status reports in the monitoring of EID;
i) Formulate, develop, implement, and oversee the EID Preparedness Manual for the
prevention and control of EID; and
j) Perform such other functions and activities as may be necessary to carry out the
provisions of this Order, or as the President may direct.”
36 Rep. Act No. 11469 (2020). (Emphasis supplied.)
37 IATF-EID Res. No. 035-20 (2020).
38 The Hatid Probinsiya program is different from the Balik Probinsiya Program.
Hatid Probinsiya is a program that aids people who are based in the provinces but were
stranded in Metro Manila due to the imposition of the lockdown, while the Balik Probinsya
program aids beneficiaries who are already residents of Metro Manila but were originally
residents of provinces, and now wish to go back. However, the Balik Probinsiya program was
suspended, due to the need to cater to the Hatid Probinsiya beneficiaries first. Allegedly, there
were COVID–19 positive individuals who were also beneficiaries of the Balik Probinsiya
program who arrived in provinces, prompting LGU chiefs to question the implementation of
the program. See Pia Ranada, Bong Go's Balik Probinsya trips suspended, RAPPLER, June 11, 2020,
at https://www.rappler.com/nation/263514-bong-go-balik-probinsya-trips-suspended.
Likewise, Dr. Rontgene Solante, an infectious disease specialist, has called for the review of
the Hatid Probinsiya program as it has allegedly caused an inadvertent spread of cases in
Eastern Visayas. See Tina Santos, Gov’t urged to review Hatid Probinsya screening, INQUIRER.NET,
June 22, 2020, available at https://newsinfo.inquirer.net/1295329/govt-urged-to-review-balik-
probinsya-screening. The Balik Probinsya program was instituted via Exec. Order No. 114
(2020).
provinces, it also authorized domestic flights, “subject to approval of the

destination local government unit (LGU).”39 However, multiple flights were
cancelled because of conflicting LGU guidelines that did not allow the entry
of airplanes in their jurisdiction, forcing airline carriers to reschedule flights.40
Unfortunately, this resulted in around 200 Filipinos being forced to sleep
under the flyover in the Ninoy Aquino International Airport without enough
money for their basic necessities.41 Now, are these inconsistent ordinances by
LGUs void? There was an unquestionable humanitarian and public health
concern with these stranded Filipinos. Can the Executive, or any other entity
for that matter, “ensure” compliance by mandating entry of these Filipinos,
even if the LGUs validly raise the defense of (1) local autonomy as guaranteed
by the Constitution, and (2) the delegated power to legislate under the General
Welfare Clause,42 i.e. Section 16 of the LGC? Again, to all these questions, the
Bayanihan Act does not seem to provide an answer. However, there is a clear
loser in this limbo—the common Filipino stuck in the middle of this cycle.
B. In Defense of Local Governments
“Wag niyo po masamain pag

humihingi kami ng coordination
sa inyo. Hindi po kami kalaban.
On both occasions ng pagdating
on mga repatriates I called our
DILG regional director to ask
kung anong nangyari at bakit
walang nakaka-alam na merong
39 Krixia Subingsubing, Stranded OFWs slept under flyover, INQUIRER.NET, June 13,
2020, available at https://newsinfo.inquirer.net/1290857/stranded-ofws-slept-under-flyover.

“Airlines contended with conflicting LGU guidelines governing incoming flights, resulting in
several booked flights canceled or rescheduled.” See Subingsubing, id. See also Krissy Aguilar,
LGUs’ worry of new COVID-19 cases hampers resumption of domestic flights, INQUIRER.NET, June 1,
2020, at https://newsinfo.inquirer.net/1284311/lgus-worry-of-new-covid-19-cases-hamper-
resumption-of-domestic-flights
40 Id.
41 Id.
42 “The general welfare clause [Section 16] has two branches. The first, known as
the general legislative power, authorizes the municipal council to enact ordinances and make
regulations not repugnant to law, as may be necessary to carry into effect and discharge the
powers and duties conferred upon the municipal council by law. The second, known as
the police power proper, authorizes the municipality to enact ordinances as may be necessary and
proper for the health and safety, prosperity, morals, peace, good order, comfort, and
convenience of the municipality and its inhabitants, and for the protection of their property.”
See Rural Bank of Makati, Inc. v. Municipality of Makati, G.R. No. 150763, 433 SCRA 362,
July 2, 2004, citing RUPERTO MARTIN, PUBLIC CORPORATIONS 165 (1971 ed.).
parating. On both occasions he

said he has no idea as well.”
— Mayor Richard Gomez
of Ormoc City, in a post on
his official Facebook page43
"Noong umpisa, umaasa ka pa

na may tulong, na may game
plan. Wala namang game plan
eh. Bahala ka sa buhay mo eh
[…]"
—an unnamed Metro
Manila Mayor44
The LGC does not mention the word “pandemic,” while the word
“epidemic” is mentioned once. 45 The LGC mentions the words “public
health” four times.46 Of the four, the pertinent one is found in Section 105,
where the Department of Health (DOH), through its Secretary, may temporarily
assume direct supervision and control over health operations over any LGU in
times of “epidemics, pestilence, and other widespread public health dangers”
for a period of six months.47 This may be extended upon the concurrence of
the LGU concerned, provided there is a directive from the President to do so,
and a consultation with the concerned LGU.48 Inversely, should the President
not direct the DOH to take control, the LGU will still be in charge. The LGC
mentions the word “disaster” twenty-four times.49 The relevant provisions
among those 24 reiterations concern the duties and powers granted to local
43 Ryan Macasero, FALSE: Richard Gomez won’t accept returnees to Ormoc City, RAPPLER,
May 29, 2020, at https://www.rappler.com/newsbreak/fact-check/262266-richard-gomez-

wont-accept-returning-residents-ormoc. In another instance, “Ormoc City Mayor Richard
Gomez rebuked the national government for its ‘carelessness’ in implementing the program,
leaving local governments to deal with the consequences.” See Pia Ranada, Bong Go's Balik
Probinsya trips suspended, RAPPLER, June 11, 2020, at https://www.rappler.com/nation/263514-
bong-go-balik-probinsya-trips-suspended
44 Pia Ranada, Rambo Talabong, & JC Gotinga, ‘Mayor of the Philippines’ leaves LGUs
blind amid COVID-19, RAPPLER, June 29, 2020, at https://www.rappler.com/newsbreak/in-

depth/265031-mayor-of-the-philippines-leaves-lgus-blind-amid-covid-19
45 LOCAL GOV’T CODE, § 105. “Public health” is also mentioned in the same section.
46 §§ 102(b)(2), 105, 478(4)(iii) & 478(4)(iv).
47 § 105.
48 § 105.
49 Annex A: “LGU Officials Mandated to Perform Certain Acts or Granted Certain
Powers in Times of Disaster.” The provision not included in Annex A is Section 276, which
involves the power of the local legislative councils to condone or reduce real property taxes in
cases of a calamity, upon the recommendation of the Local Disaster Coordinating Council
(LDCC).
chief executives, local legislative bodies, and specific local government

officials, in times of disasters.50
These public health and disaster-related provisions in the LGC do not

seem to contemplate an epidemic that is national in scope. The only provision
that grants a centralized form of coordination would be Section 105. Through
this, the DOH would be able to direct and coordinate healthcare in LGUs
across the Philippines. A pandemic such as COVID–19, however, does not
only affect the health sector. It impacts the whole fabric of society: livelihoods
are affected, the availability of necessities is stretched, and gainful employment
is hard to maintain. Thus, a coordinated, multi-sectoral, and multi-LGU
approach is necessary. With that said, LGUs would not be remiss in insisting
that it is the Executive and the IATF–EID that are tasked with coordinating
efforts necessary to effectively deal with the pandemic. Section 105 of the
LGC is not enough to address all the other facets of society negatively affected
by the pandemic, beyond the strain on the healthcare systems of LGUs. It is
also doubtful if Section 105 can be relied on today. When one Metro Manila
official was asked about current Health Secretary Duque’s leadership, he
“burst into laughter” and retorted: “What leadership? No comment. Ano ba
ang ginawa niya?”51
It may be argued that the Liga ng mga Barangay, 52 League of

Municipalities,53 League of Cities,54 or League of Provinces55 may serve as the
vehicle. However, these are not bodies equipped nor statutorily required to
deal with a pandemic that requires a national coordinated effort in addressing
multiple aspects of society negatively impacted. LGUs can point out that it is
the President who is granted with multiple temporary powers in Section 4 of
the Bayanihan Act to achieve the policies dictated by Congress in Section 3 of
the same law. It is also the President tasked with the positive duty to ensure
compliance in Section 4(g) as discussed.
LGUs can also claim that, if there is no positive act by the President
to ensure compliance despite alleged inconsistencies, then the LGU was not
acting out of line with the national policy. If there are inconveniences to
50See Annex A, id.

51Ranada, et al., supra note 44. “The officials Rappler spoke with said that they have
lost confidence in Duque, and instead have been turning to the health department's
undersecretaries and regional officers for proper information.”
52 LOCAL GOV’T CODE, §§ 491-495.
53 §§ 496-498.
54 §§ 499-501.
55 §§ 502-504.
Filipinos or absurdities in the implementation of these local ordinances, it is

because there is a lack of coordination and therefore, fault of the Executive.
C. In Defense of the Executive
“At this time, let us make

ourselves clear that we are not
separate from a republic or from
each other. There is only one
republic here, the Republic of the
Philippines, and therefore, you
should abide by the directives of
the national government when it
sets…the directives […] for the
good of the country, […] I am
ordering all LGUs that are doing
this to stand down and to abide
by the directives of the IATF, the
task force (on coronavirus) […]
and those issued by the Office of
the President.”
—President Rodrigo
Duterte56
“Sumunod ka lang, sumunod ka

lang because I do not want a
quarrel with you […] If the worst
happens, it is the government who
takes control–the national
government. Well, we will listen
to you.”
—President Duterte57
The President can always claim that his hands are tied, as he is not
authorized by law to exercise control over the decisions of local
governments.58 LGUs are granted the autonomy to pass local legislation as
they see fit, and the President cannot interfere with this. Thus, he can point
56 Sofia Tomacruz, 'Stand down': Duterte orders LGUs to follow IATF orders on Luzon
lockdown, RAPPLER, Mar. 20, 2020, at https://www.rappler.com/nation/255214-duterte-

orders-local-government-units-follow-orders-luzon-lockdown
57 Ranada, et al., supra note 44.
58 Mondano v. Silvosa, 97 Phil. 143 (1955); Drilon v. Lim, G.R. No. 112497, 235
SCRA 135, August 4, 1994.

to the same LGU Officials in Annex A as officials granted with the power to
“carry out such emergency measures as may be necessary during and in the
aftermath of man-made and natural disasters and calamities.” 59 Likewise,
various local Sanggunian Bayan/Panlungsod/Panlalawigan are authorized (1)
to adopt measures to protect the inhabitants of the
municipality/city/province from the harmful effects of man-made or natural
disasters and calamities and (2) to provide relief services and assistance for
victims during and in the aftermath of said disasters or calamities and their
return to productive livelihood following said events.60 The power to legislate
in autonomy is already granted to the officials of the LGUs; they merely need
to coordinate. In effect, LGUs may arrive at different ordinances, and yet all
be in line with the policy of the government as set by the Bayanihan Act.
Unfortunately, LGUs may arrive at ordinances that conflict with those of
other LGUs, while all still being consistent with the general policy of
government in relation to the pandemic.
These hypotheticals have already occurred on the ground. As

mentioned, LGUs prohibited the entry of domestic flights, in conflict with
other LGUs which allowed departure of domestic flights. 61 Certain LGUs
caused delays in the movement of food supplies, delaying the arrival of
supplies in LGUs experiencing shortages.62 These LGUs cannot be blamed
for utilizing strict checkpoints nor are they inconsistent with the law, and yet
they are in conflict with the needs of other LGUs. Yet, the Executive can
always claim that it devolves upon the LGUs themselves to coordinate
amongst themselves. As mentioned already, the powers of the IATF are not
of much help, as they are mainly for addressing the health concerns
surrounding the pandemic; not much is instructive with regard to LGUs. The
Executive can shift the blame on the LGUs for not maximizing the autonomy
bestowed upon them by law, and not utilizing the Ligas, among others, to
coordinate their efforts. The President will always have the right to claim that
it can only exercise general supervision, not control, in handling this
pandemic.
59 LOCAL GOV’T CODE, §§ 444(b)(1)(iv), 455(b)(1)(vii) & 465(b)(1)(vii).

60 §§ 447(a)(1)(iv), 458(a)(1)(iv) & 468(a)(1)(iv); See also Annex A, supra note 49.
61 Subingsubing, supra note 39.
62 Karl Ocampo, Supply delays push prices up as LGUs keep stopping trucks,
INQUIRER.NET, Mar. 26, 2020, available at https://newsinfo.inquirer.net/1248566/supply-

delays-push-prices-up-as-lgus-keep-stopping-trucks
IV. THE CYCLE OF BURDEN ON THE SHOULDERS OF THE FILIPINO
“The Philippines is among the

most impacted countries by
COVID-19 in ASEAN […]
The socio-economic impact, while
expected to affect most aspects of
the economy will potentially
deepen inequities for the most at-
risk groups women-headed
households, poor, informal
workers, IDPs, ethnic minorities,
and those in the post-conflict
regions of Bangsamoro and the
regions recently affected by the
overlapping natural disasters.
These will carry a
disproportionate burden […]”
—United Nations
Development Programme63
It is clear that the blame game as articulated leads to one inevitable

conclusion: the Filipinos are ultimately left shorthanded and vulnerable by this
erratic response. Filipinos will bear the brunt of this pandemic.
For example, consistent recourse to community quarantines,

specifically the 30-day enhanced version, will negatively impact the economy
and burden the populace extensively. 64 The same applies should the
government adopt a lockdown policy.65 In fact, should the entire Philippines
63 United Nations Development Program, Support to the National Response to contain the
impact of COVID-19, UNDP PHILIPPINES, at https://www.ph.undp.org/content/

philippines/en/home/covid-19-pandemic-response/support-to-national-response.html
64 Krista Danielle Yu, Kathleen Aviso & Raymond Tan, The Economic Impact of the
Metro Manila (NCR) Enhanced Community Quarantine, XII POLICY BRIEF: STUDIES ON CURRENT
ECONOMIC AND BUSINESS ISSUES (2020), available at https://www.dlsu-
aki.com/uploads/1/0/2/2/102266760/aki_policy_brief_volume_xii_no._6.pdf?fbclid=IwA
R0BgJY1IJyH8bondeYrMJlIXZhSYLWenTWSO3sPc-_Wt0UtQtDrl Ls8w4E
65 Cororaton et al., Potential Economic Effects of Lockdown in the Philippines due to
COVID–19: Lessening the Impact on Poor Households, XII POLICY BRIEF: STUDIES ON CURRENT
ECONOMIC AND BUSINESS ISSUES (2020), available at https://www.dlsu-
aki.com/uploads/1/0/2/2/102266760/aki_policy_brief_volume_xii_no._8.pdf. A three-
month lockdown in Luzon, which contributes 70% of the total GDP, can contract real GDP
by 551 billion pesos, and “[i]nstead of the 6% projected growth, the country will only grow by
be locked down for three months, the economy will contract by 817 billion
pesos, the budget deficit increases to 3.5%, prices increase by 8.8%, income
inequality worsens, and the government would need 70 billion pesos in
additional revenue to reverse the damage. 66 Nuanced, localized, and
coordinated solutions per LGU are required to address the whole impact of
the pandemic. Without considering specific circumstances, catch-all solutions
like lockdowns and enhanced community quarantines will just be detrimental
and cost the government more in the long-run.
Unfortunately, it seems that chaos, instead of harmony, best

characterizes the response of the Executive and the IATF with regard to the
pandemic. This was deftly illustrated in a report by Rappler:
[Three] local government officials, including two Metro Manila

officials, told Rappler that there have been key decisions made by
the national government without real consultation with LGUs.
What they got instead was a barrage of memorandum circulars

from departments or confusing policy pronouncements from
Duterte’s late-night rambling speeches. The Department of the
Interior and Local Government (DILG) made it clear they would
not hesitate to sue local chiefs unable to comply.
Another Metro Manila mayor told Rappler that while he

appreciated the President's leadership, the departments he
commanded largely failed them in responding to the crisis,
specifically the most critical ones: the Department of Health
(DOH) and the Department of Social Welfare and Development
(DSWD).
In the structure of the national government's virus response itself,

there is little room for LGUs to get involved. The only local
government representative in the Inter-Agency Task Force on
Emerging Infectious Diseases (IATF) itself is the Metropolitan
Manila Development Authority (MMDA). While its policy-making
body is the Metro Manila Council, composed of the region's
mayors, the MMDA is led by Duterte appointees – its chief Danilo
Lim and general manager Jojo Garcia.
Eventually, Regional Task Forces (RTFs) were created as the local

counterparts of the NTF. The MMDA and the Bangsamoro
0.4% in 2020 over 2019.” If it is reduced to a two-month lockdown, the GDP growth will be
reduced to 2.3%; if it is reduced to a one-month lockdown, the GDP growth will be reduced
to 4.2%.
66 Id.
Interim Chief Minister Murad Ebrahim lead their RTFs but

elsewhere in the country, it is led by the Office of Civil Defense
regional director who is still a part of the national government
apparatus.
To top it all off, RTFs and the regional IATFs are to be supervised
by the Cabinet member assigned to their region by Duterte, based
on IATF Resolution No 35.
These Cabinet members are called CORDs or Cabinet Officers for

Regional Development and Security. The system was devised by
National Security Adviser Hermogenes Esperon Jr.
The primary way IATF officials spoke to LGU officials was

through evening Zoom meetings that would last an hour or two
hours. Usually present were Health Secretary Francisco Duque III,
DILG Secretary Eduardo Año, and then later IATF Chief
Implementer Carlito Galvez Jr and coronavirus testing czar Vince
Dizon.
Duterte never joined these sessions.
One local official present described the meetings as ‘useless’

because there was no discussion of a national strategy on testing or lab
accreditation – the topics the leaders needed the national government
to decide on.67
On the side of LGUs, as they “vary widely in terms of population,

terrain, resources, institutional capacity and readiness, public attention,
financial resources, strategy, and leadership,” a coordinated response is
required. 68 Reyes et al. have suggested a “calibrated community mitigation
mechanism” to successfully account for the various and different
circumstances LGUs across the nation encounter, while being able to provide
enough hospital beds for COVID-19 patients. 69 Overall inter-LGU
coordination is also recommended:
67 Ranada, et al., supra note 44 (Emphasis supplied.)

68 Torneo et al., Setting Up a Community Response Strategy for Local Government Units:
Practical Advice for Reorienting Existing Systems to Deal with Covid-19, 1 POLICY BRIEF 2 (April
2020), available at https://static1.squarespace.com/static/58ff0e1fa5790aa37e3fa35a/t/
5e8acbccfcc46f5d093b6835/1586154447007/JRIG+Policy+Brief+1+Final.pdf
69 Katherine Ann Reyes et al., Rapid Policy Recommendation to the Philippine COVID19
Response Attaining Coherence in a Decentralized Low-Middle Income Country Healthcare Setting, 1

POLICY BRIEF SPECIAL SERIES: PRESCRIPTIONS (2020), available at
https://drive.google.com/file/d/111ua3a5_fvEXY-
POB0bToSaLsWI2GZbo/view?fbclid=IwAR1dkFqn95IfBXcQ5doNoGPxn3%20Q6AI3s
Establishing Functional Structures for Inter-LGU Assistance and

Cooperation. — Institutional resources and infrastructural capacity
of LGUs are uneven. In many areas, medical professionals and
health facilities are in big cities and regional centers. There must be
a coordinating mechanism that allows LGU officials in adjacent
towns/cities to offer their health facilities and assist affected
residents in small towns with less capacity to treat infected cases.
This will enable local officials to coordinate and harmonize their
activities with neighboring LGUs and national government agency
representatives. Local contingency plans for pandemics will spell
out these issues and open avenues for horizontal and vertical
coordination between and among local governments and national
agencies. Simulations and field exercises are also critical to
determine the effectiveness and interoperability of local plans.70
Inter-LGU responses and strategies must also “provide mechanisms

for ensuring coordination, communication, and cooperation with the national
government and between and across other local government units and
sectors.”71 In that sense, there must also be coordination not only with LGUs,
but with the whole-of-government approach:
With many LGU systems and processes reportedly causing

unintended disruptions in the supply chain and cutting-off some
groups and communities, LGUs should adopt as an explicit policy
that all systems, processes, and activities should not hinder,
interrupt, or delay the movement of essential personnel, goods, and
services. The ECQ Pass, checkpoints, and relief distribution
systems should be planned and monitored to ensure that these do
not become disruptive and pose risks of becoming conduits for
Covid-19 transmission.72
ZeTW8v6jZ1uod8WAmocG7xoQ4sk. “Different LGUs across the countries could be in

different stages of the pandemic. It is advisable that LGUs implement a calibrated community
mitigation mechanism that is contingent to simple decision points. Pending the development
of more sophisticated health system modeling for COVID-19, LGUs can use two indicators
at the provincial level. These are the number of available CCU beds per 100,000 population
and the progression of COVID-19 cases.”
70 Torneo et al., supra note 68.
71 Torneo et al., Setting up a COVID-19 Community Response Strategy in Local Government
Units: Immediate, Transitory, and Medium-Term Considerations for Planning, 1 POLICY BRIEF 7 (April
2020), available at https://static1.squarespace.com/static/58ff0e1fa5790aa37e3fa35a/
t/5e8d0d1d06d18f342171426e/1586302239716/JRIG+Policy+Brief+Volume+1+Issue+2.
pdf
72 Id.
Otherwise, “[u]ncoordinated LGU responses lead to greater

inefficiencies and harm the public.”73 Thus, for maximum synchronization of
national policy and localized responses to the pandemic, “LGUs must be
enabled to contextualize national and social policy,” because “[p]ublic policies
do not operate in a vacuum,” these policies being “a product of its place.”74
Yet, there have been reports to the DILG and DSWD that LGU officials have
instead focused on patronage politics by giving the dole-outs only to their
political supporters,75 or devised schemes to benefit from the said dole-outs
from government,76 among others. Many LGUs have been detrimental even
to the localized response to the pandemic, even if their cooperation is equally
indispensable.
73 Torneo et al., supra note 68.

74 Politics and Crisis: A Discussion Series by Ateneo de Manila Department of Political Science,
ATENEO DE MANILA UNIVERSITY WEBSITE, Apr. 14, 2020, at
http://www.ateneo.edu/ls/soss/political-science/news/research/politics-and-crisis-
discussion-series-ateneo-de-manila-1. “[…] LGUs must be enabled to contextualize national
social policy. Although the pandemic undoubtedly does not choose its victims, its aftermath,
and the policies intended to control it will be experienced differently across geographical lines.
Public policies do not operate in a vacuum. It is a product of its place. Part of its success or
failure will depend on how well it is able to address the specificities of its context. For instance,
the epicenter of the pandemic in the country, Metro Manila, is one of the densest urban areas
in the world. It is not only the country’s center of economic, social, and political activities, but
also a hotbed of poverty, poor living conditions, unsatisfactory water and sanitation facilities,
job insecurity, and overcrowding of public schools and health facilities. Such conditions might
not necessarily be true in other places in the country, hence blanket social policies and
programs might bring more problems than solutions.”
75 Raymund de Silva, COVID-19: Its Impact on the Philippines, EUROPE SOLIDAIRE
SANS FRONTIÈRES, May 4, 2020, at http://www.europe-solidaire.org/spip.php?article52772

76 Michelle Abad, Local gov’t officials abusing emergency subsidies to face sanctions – DSWD,
RAPPLER, Apr. 6, 2020, at https://www.rappler.com/nation/257133-local-government-

officials-abusing-emergency-subsidies-coronavirus-face-sanctions. “The DILG has also
received reports that some barangay officials are issuing quarantine passes and selling them to
their constituents. Some have also set up checkpoints in roads and highways and stopping
cargoes and food deliveries from passing through if without barangay-issued passes. Other
barangay officials have charged fees for food stubs and gate passes which will give citizens
access to go in and out of their homes and barangays to purchase basic commodities.” See
DILG to go after local execs, barangay officials charging fees for passes, food stubs during enhanced community
quarantine, DILG WEBSITE, Mar. 23, 2020, at https://dilg.gov.ph/news/DILG-to-go-after-
local-execs-barangay-officials-charging-fees-for-passes-food-stubs-during-enhanced-
community-quarantine/NC-2020-1066. The DSWD has also received reports of certain
barangay officials pocketing the SAP cash aid, splitting the cash subsidy, or not giving the
correct amount. See Christine Cudis, Public urged to report abuse, irregularities in SAP distribution,
PHIL. NEWS AGENCY, May 5, 2020, at https://www.pna.gov.ph/articles/1101966
COVID–19 is indeed an unfamiliar foe, one different from the usual

political narratives embedded in Philippine politics. 77 However, the legal
system generally established by the Constitution and the Local Government
Code, supplemented and contextualized by the Bayanihan to Heal as One Act
specifically for this pandemic, failed to halt this cycle of blame. This results in
a disjointed effort between the Executive and Local Government Units,
further exacerbated by inefficiency and bureaucratic pasa-pasahan on the
ground, which merits another discussion entirely. Regardless, there is no
winner in this cycle, with oblivious citizens dragged into this maelstrom of
blame and burden. Between the Executive and the LGUs, it is in the best
interest of all the parties to coordinate, in order to lessen the costs and to
avoid the exacerbation of systemic problems in the long run. Ultimately,
should this country’s response to the pandemic succeed, the legal framework
that enables the cycle of blame and burden must be remedied.
-o0o-
77 “The COVID-19 pandemic crisis has become an unfamiliar ‘enemy’ for him and
his populist counterparts around the world. It is difficult to sustain a ‘people’ versus ‘the elite’
narrative against a viral and existential threat. One cannot merely “discipline” the virus. And
the people are afraid, hungry, and dying. He also insists on maintaining his close ties with
China, at a time where the international community is demanding accountability and even
compensation for China’s mishandling of the virus outbreak in Wuhan.” See Julio Cabral
Teehankee, Duterte’s COVID-19 Powers and the Paradox of the Philippine Presidency, CENTER FOR
SOUTHEAST ASIAN STUDIES, KYOTO UNIVERSITY, Apr. 28, 2020, at https://covid-
19chronicles.cseas.kyoto-u.ac.jp/post-007.html/?fbclid=IwAR2-swiSiI-
aehgjzSThLj5Tng0mmwhv35T0qi6HeoEt_4zDRRXKH2cYLZ8. Professor Teehankee is a
faculty member of the De La Salle University International Studies Department.
ANNEX A:
LGU OFFICIALS MANDATED TO PERFORM CERTAIN ACTS OR GRANTED
CERTAIN POWERS IN TIMES OF DISASTER
LGU Officials Power Granted

● Municipal Mayor, Carry out such emergency measures as may be
● City Mayor, necessary during and in the aftermath of man-made
● Provincial and natural disasters and calamities78
Governor
● Municipal Mayor Submit to the provincial governor the following
reports: an annual report containing a summary of all
matters pertaining to the management, administration,
and development of the municipality and all
information and data relative to its political, social and
economic conditions; and supplemental reports when
unexpected events and situations arise at any time during the
year, particularly when man-made or natural disasters or
calamities affect the general welfare of the municipality, province,
region or country. mayors of municipalities of the
Metropolitan Manila Area and other metropolitan
political subdivisions shall submit said reports to their
respective metropolitan council chairmen and to the
Office of the President79
● City Mayor Submit to the provincial governor, in case of
component cities; to the Office of the President, in
the case of highly-urbanized cities; to their respective
metropolitan authority council chairmen and to the
Office of the President, in case of cities of the
Metropolitan Manila Area and other metropolitan
political subdivisions, the following reports: an annual
report containing a summary of all matters pertinent
to the management, administration, and development
of the city and all information and data relative to its
political, social and economic conditions; and
supplemental reports when unexpected events and situations
arise at any time during the year, particularly when man-made
or natural disasters or calamities affect the general welfare of the
city, province, region or country80
78 LOCAL GOV’T CODE, §§ 444(b)(1)(iv), 455(b)(1)(vii) & 465(b)(1)(vii).

79 § 444(b)(1)(xx).
80 § 455(b)(1)(xx).
● Provincial Submit to the Office of the President the following

Governor reports: an annual report containing a summary of all
matters pertinent to the management, administration,
and development of the province and all information
and data relative to its political, social and economic
conditions; and supplemental reports when unexpected events
and situations arise at any time during the year, particularly
when man-made or natural disasters or calamities affect the
general welfare of the province, region or country81
● Sangguniang Approve ordinances and pass resolutions necessary
Bayan, for an efficient and effective municipal government,
● Sangguniang and in this connection shall adopt measures to protect
Panlungsod the inhabitants of the municipality/city/province
● Sangguniang from the harmful effects of man-made or natural
Panlalawigan disasters and calamities and to provide relief services
and assistance for victims during and in the aftermath
of said disasters or calamities and their return to
productive livelihood following said events82
● Health Officer, Be in the frontline of health services, delivery,
● Administrator, particularly during and in the aftermath of man-made
● Legal Officer and natural disasters and calamities83
● Agriculturist
● Social Welfare and
Development
Officer
● Environment and
Natural Resources
Officer
● Architect
● Information
Officer
● Cooperatives
Officer
● Veterinarian
● General Services
Officer
81 § 465(b)(1)(xx).
82 §§ 447(a)(1)(iv), 458(a)(1)(iv) & 468(a)(1)(iv).
83 §§ 478(b)(5), 480(b)(3), 481(b)(4), 482(b)(4), 483(b)(4), 484(b)(4), 485(b)(4),
486(b)(4), 487(b)(4), 489(b)(4) & 490(b)(4).

PHILIPPINE HUMAN RIGHTS IN THE TIME OF PANDEMIC:
ANALYZING THE CHALLENGES TO THE EFFECTIVENESS OF
THE COMMISSION ON HUMAN RIGHTS AS AN NHRI
IN THE MIDST OF COVID-19*
Mario C. Cerilles, Jr.**
ABSTRACT
Created before the United Nations adopted the Paris

Principles, and after a dictatorship engulfed the Philippines,
the Commission on Human Rights (CHR) seemed poised to
lead NHRIs across the globe. The CHR, with its constitutional
mandate, was seen as the long-term solution to the country’s
human rights woes. However, the current pandemic has
revealed cracks within the CHR’s system. This study will
demonstrate that, despite its perceived strengths, the CHR
suffers from institutional weaknesses that limit its
effectiveness during the pandemic. An analysis of the
international framework on NHRIs, the legal structure of the
CHR, and the effects of the state of emergency on Philippine
bureaucracy will reveal that structural deficiencies, such as lack
of independence, an incomplete mandate, and inadequate
investigatory powers, make the Philippine NHRI vulnerable at
a time when it is needed most by Filipinos.
* Cite as Mario Cerilles, Jr., Philippine Human Rights in the Time of Pandemic: Analyzing the
Challenges to the Effectiveness of the Commission on Human Rights as an NHRI in the Midst of COVID-
19, 93 (Special Online Feature) PHIL. L.J. 47, [page cited] (2020).
** Founder, Cerilles Fernan Patent and Trademark Legal Consultancy; Co-professor,
Constitutional Law 1, University of Makati School of Law (2018); M.Sc. in Human Rights
(Merit, Chevening Scholar), London School of Economics and Political Science (2019); LL.M
with Certificates of Specialization in Public Law and Regulation and in Law and Technology
(Best Oralist, Asia Pacific Scholar), University of California, Berkeley (2017); J.D., University
of the Philippines (2014); B.A. Psychology, cum laude, University of the Philippines (2010).
47
2020] CHR IN THE MIDST OF COVID-19 48
I. SETTING THE FIELD
On March 21, 2020, thirteen days after the national government

declared a state of public health emergency due to the COVID-19 pandemic,1
Department of Interior and Local Government (DILG) Undersecretary
Martin Diño stated in a public interview that human rights will cease to exist
in a state of emergency.2 And indeed, human rights took the backseat as the
Philippine government tried to contain the spread of COVID-19. From the
illegal execution of warrantless arrests to the censorship of free speech,3 an
array of human rights violations followed.4 The ongoing health concerns also
facilitated the passage of legislations that potentially carry devastating effects
on human rights, such as the Bayanihan to Heal as One Act and the Anti-
Terrorism Act.5
The occurrence of abuses during the pandemic is not unique to the

Philippines. Around the world, human rights violations have become more
apparent.6 In fact, early on in the pandemic, the U.N. High Commissioner for
Human Rights encouraged governments to take additional actions to reduce
1 Proc. No. 922 (2020), declaring a State of Public Health Emergency throughout
the Philippines.
2 Nicole-Anne Lagrimas, CHR, NUPL contradict DILG's Diño, say human rights remain
even during emergencies, GMA NEWS ONLINE, Mar. 23, 2020, at

https://www.gmanetwork.com/news/news/nation/730889/nupl-contradict-dilg-s-dino-
say-human-rights-remain-even-during-emergencies/story
3 Carlos Conde, Philippine Activists Charged with Sedition, ‘Fake News’: Government
Misusing Covid-19 Law Against its Critics, HUMAN RIGHTS WATCH, Apr. 22, 2020, at
https://www.hrw.org/news/2020/04/22/philippine-activists-charged-sedition-fake-news;
Catalina Ricci Madarang, Is DENR’s memo vs employees’ online dissent against free speech?, INTERAKSYON,
Apr. 7, 2020, at https://www.interaksyon.com/trends-spotlights/2020/04/
07/165912/is-denrs-memo-vs-employees-online-dissent-against-free-speech
4 Gabriel Pabico Lalu, Gov’t more into rights violations than solving COVID-19 crisis, group
says, INQUIRER.NET, Apr. 22, 2020, available at https://newsinfo.inquirer.net/1263190

/govt-more-interested-in-human-rights-violations-than-solving-covid-19-problems-group-
says
5 Lian Buan, NBI summons 'more than a dozen' for coronavirus posts, RAPPLER, Apr. 3,
2020, at https://www.rappler.com/nation/256746-nbi-summons-more-than-dozen-people-
social-media-coronavirus-posts; Commission on Human Rights (CHR), Statement of CHR
spokesperson, Atty Jacqueline Ann de Guia, on the passage of the Anti-Terrorism Law, CHR WEBSITE,
July 4, 2020, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-
guia-on-the-passage-of-the-anti-terrorism-law
6 Kelly Shea Delvac, Human Rights Abuses in the Enforcement of Coronavirus Security
Measures, NATIONAL LAW REVIEW, Mar. 25, 2020, ¶¶ 8-12, at

https://www.natlawreview.com/article/human-rights-abuses-enforcement-coronavirus-
security-measures
the negative impact of health measures on people’s daily lives.7 Her sentiment
was echoed by Special Rapporteurs who warned that States should not use
their emergency powers as an excuse to suppress human rights. 8
What makes the Philippines’ situation exceptionally worrisome is that,

prior to the onset of the pandemic, the status of human rights in the country
was already on a decline. The government’s reputation for upholding human
rights has suffered from allegations of systemic killings in its so-called war
against drugs. 9 There is no greater witness to this decline than the
Commission on Human Rights (CHR), the country’s National Human Rights
Institution (“NHRI”),10 which criticisms against the government almost led
to its abolition.11
The pandemic sets the stage for a more active role by the CHR, and
it prompts an inquiry on whether the CHR is sufficiently equipped to respond
effectively to human rights violations during the state of health emergency.
This Essay elicits an answer in the negative. An analysis of the CHR’s
performance in light of prevailing international standards for NHRIs reveals
weaknesses in the CHR’s structure. As will be demonstrated in this paper,
these weaknesses could be aggravated by the restrictions brought about by the
pandemic.
7 Office of the High Commissioner for Human Rights (OHCHR), Coronavirus:

Human rights need to be front and centre in response, says Bachelet, UNITED NATIONS HUMAN RIGHTS,
Mar. 6, 2020, ¶ 1, at https://www.ohchr.org/EN/NewsEvents/Pages/
DisplayNews.aspx?NewsID=25668&LangID=E
8 Special Rapporteurs and Independent Experts, COVID-19: States should not abuse
emergency measures to suppress human rights – UN experts, UNITED NATIONS HUMAN RIGHTS, Mar.
16, 2020, ¶ 1, at https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?
NewsID=25722&LangID=E
9 Human Rights Council, Report of the United Nations High Commissioner for
Human Rights on the situation of human rights in the Philippines, at ¶¶ 81-86, U.N. Doc.
A/HRC/44/22 (2020).
10 CHR, About the Commission, CHR WEBSITE (2018), ¶ 1, at
http://chr.gov.ph/about-us
11 ABS-CBN News, Lawmaker wants CHR officers to be impeachable, ABS-CBN NEWS,
Sept. 19, 2017, at https://news.abs-cbn.com/news/09/19/17/lawmaker-wants-chr-officers-

to-be-impeachable
II. NHRI FRAMEWORK
A. History
For its own purposes, the United Nations (“U.N.”) defines an NHRI
as “a body which is established by a Government under the constitution, or
by law or decree, the functions of which are specifically defined in terms of
the promotion and protection of human rights.”12 Originally, NHRIs were
organized bodies that were formed to investigate government
maladministration.13 Over time, they earned human rights functions;14 and by
1978, the U.N. General Assembly was examining their potential in protecting
and promoting human rights. 15 In 1994, 16 the General Assembly officially
adopted the Principles Relating to National Institutions, also known as the
Paris Principles,17 a set of guidelines that describe the structure and functions
of NHRIs.18
B. The Paris Principles
The Paris Principles outlines a set of criteria that help ensure that
NHRIs would effectively carry out their duties.19 Among others, it requires
NHRIs to demonstrate a broad mandate, maintain a strong basis on universal
human rights norms and standards, ensure independence and autonomy from
government, display pluralism in membership, and exhibit adequate resources
and powers of investigation.20
12 United Nations Centre for Human Rights, National Human Rights Institutions:
A Handbook on the Establishment and Strengthening of National Institutions for the

Promotion and Protection of Human Rights, at 6, U.N. Doc. HR/P/PT/4 (1995).
13 Francisco Ramirez & Wade Cole, Conditional Decoupling: Assessing the Impact of
National Human Rights Institutions, 78(4) AM. SOCIOLOGICAL REV. 702 (2013).
14 Id.
15 United Nations General Assembly, National institutions for the promotion and
protection of human rights, U.N. Doc A/RES/33/46 (1978).

protection of human rights, U.N. Doc A/RES/48/134 (1993).

protection of human rights, Annex: Principles Relating to the Status of National Institutions,
[hereinafter “Paris Principles”], U.N. Doc A/RES/48/134 (1993).
18 Anne Gallagher, Making human rights treaty obligations a reality: working with new actors
and partners, in THE FUTURE OF UN HUMAN RIGHTS TREATY MONITORING 201, 201-228
(Philip Alston & James Crawford eds., 2000).
19 BRIAN BURDEKIN, NATIONAL HUMAN RIGHTS INSTITUTIONS IN THE ASIA-
PACIFIC REGION 7 (2007).

20 European Network of National Human Rights Institutions, NHRI Accreditation
at a Glance, at 4 (Jan. 2020), available at http://ennhri.org/wp-content/uploads/2020/02/

Accreditation-at-a-glance-Jan-2020.pdf
The Global Alliance for National Human Rights Institutions

(“GANHRI”), an international association of NHRIs, uses these standards to
measure the performance of NHRIs.21 Its Sub-Committee on Accreditation
looks into the practices of NHRIs seeking admission into the organization,
and then assigns accreditation according to the latter’s compliance with the
Paris Principles.22 An NHRI which earns an “A-status” accreditation receives
an outstanding human rights reputation within the international community
and enjoys several benefits, such as speaking privileges before the Human
Rights Council and other U.N. treaty bodies.23 The Philippine CHR holds an
“A-status” accreditation from the GANHRI.24
The Paris Principles is utilized by many States to measure the

performance of NHRIs.25 However, it is not free from criticism. It has been
accused of setting unclear criteria to assess the performance of NHRIs.26 It
has also been criticized for providing little guidance to NHRIs.27 For instance,
the Paris Principles is silent on the status of NHRIs during states of
emergency.28 Still, it remains as the normative standard for NHRIs.29
21 Global Alliance for National Human Rights Institutions (“GANHRI”), A brief
history of GANHRI, GANHRI WEBSITE, ¶ 1, at https://nhri.ohchr.org/EN/AboutUs/

Pages/History.aspx (last visited June 2020).
22 GANHRI, A Practical Guide to the Work of the Sub-committee on Accreditation
(SCA), at 30 (Nov. 2018), available at https://nhri.ohchr.org/EN/AboutUs/

GANHRIAccreditation/Documents/GANHRI%20Manual_online(1).pdf
23 European Network of National Human Rights Institutions (“ENNHRI”), UN
Paris Principles & Accreditation, ENNHRI WEBSITE, at http://ennhri.org/about-nhris/un-paris-

principles-and-accreditation
24 GANHRI Sub-Committee on Accreditation, Report and Recommendations of the
Session of the Sub-Committee on Accreditation, at 28 (Mar. 2017), available at

https://nhri.ohchr.org/EN/AboutUs/GANHRIAccreditation/Documents/SCA%20Final
%20Report%20-%20March%202017-%20English.pdf
PACIFIC REGION 6-7 (2007).

26 Sarah Spencer & Colin Harvey, Context, institution or accountability? Exploring the
factors that shape the performance of national human rights and equality bodies, 42(1) POL’Y & POL. 91,
89-107 (2014).
27 International Council on Human Rights Policy, Assessing the Effectiveness of
National Human Rights Institutions, at 11 (2005).

28 GANHRI, GENERAL OBSERVATIONS OF THE SUB-COMMITTEE ON
ACCREDITATION 41, ¶ 1 (2018), at https://nhri.ohchr.org/EN/AboutUs/
GANHRIAccreditation/General%20Observations%201/EN_GeneralObservations_Revisio
ns_adopted_21.02.2018_vf.pdf
PACIFIC REGION xi (2007).

C. NHRIs and the State of Emergency
NHRIs are expected to perform their duties in all circumstances and

without exception.30 While the Paris Principles is silent on this matter, the
GANHRI, in its General Observations, settled that an NHRI must conduct
itself with “a heightened level of vigilance and independence, and in strict
accordance with its mandate,” during a state of emergency. 31 NHRIs are
expected to take all possible steps necessary to maximize the protection of
human rights for the duration of an emergency.32
In the same manner, an NHRI must continue to perform its mandate,

even when there are threats to the State’s national security.33 The scope of this
mandate may be restricted for national security reasons, but such restriction
must be imposed in a manner respecting due process.34 These restrictions may
not be applied unreasonably or arbitrarily.35
It bears noting that States are expected to grant full respect to human
rights during the ongoing pandemic.36 While it is true that they are allowed to
undertake extraordinary measures to protect the well-being and health of their
populations, these measures must conform to the limitations set by
international human rights law.37
To illustrate, the International Covenant on Civil and Political Rights

(“ICCPR”) prohibits state derogation from certain obligations such as the
duty to protect the right to life.38 Even when derogation is allowed for other
rights, 39 strict conditions are imposed. 40 In fact, the U.N. warned that
30 Asia Pacific Forum, COVID-19 and NHRIs in the Asia Pacific, at ¶ 4, at
https://www.asiapacificforum.net/media/resource_file/COVID-19_NHRIs_Asia_Pacific.
pdf
31 GANHRI, supra note 28.
32 Id.
33 Id. at 43, ¶ 1.
34 Id.
35 Id.
36 United Nations General Assembly, Global solidarity to fight the coronavirus
disease 2019 (COVID-19), U.N. Doc A/RES/74/270 (2020).

37 Office of the High Commissioner for Human Rights, Emergency Measures and
COVID-19 Guidance, at ¶¶ 1-2 (Apr. 27, 2020), at https://www.ohchr.org/Documents/

Events/EmergencyMeasures_COVID19.pdf
38 International Covenant on Civil and Political Rights [hereinafter “ICCPR”], art. 4,
§ 2, Mar. 23, 1976, 999 U.N.T.S. 171.

39 Art. 4, § 1.
40 Office of the High Commissioner for Human Rights, CCPR General Comment
no. 29: Article 4: Derogations during a State of Emergency, U.N. Doc

CCPR/C/21/Rev.1/Add.11 (Aug. 31, 2001).
derogating measures can only deviate from their obligations to the extent
strictly required by the exigencies of the COVID-19 pandemic.41
III. PHILIPPINE CONTEXT
A. History of the CHR
The creation of the Philippine CHR was inspired by a combination

of domestic experience and international influence.42 Its history can be traced
to the aftermath of the dictatorship, 43 when newly-installed President
Corazon Aquino signed an Executive Order creating a Presidential
Committee on Human Rights to investigate the human rights abuses of the
Marcos administration.44 When the 1987 Philippine Constitution was ratified,
the CHR replaced the Committee.45
The establishment of the CHR preceded the U.N.’s adoption of the

Paris Principles,46 making it the oldest constitutionally-mandated NHRI in the
world.47 Its framework was shaped by international standards imposed in the
guidelines set by the 1977 Geneva Principles and by the U.N. General
Assembly Resolution 41/129 of 1986. The CHR was also designed to respond
to the demands of international human rights instruments, such as the
Universal Declaration of Human Rights (“UDHR”), the ICCPR, and the
Declaration of Torture of 1985.48
41 Human Rights Committee, Statement on derogations from the Covenant in
connection with the COVID-19 pandemic, U.N. Doc CCPR/C/128/2 (Apr. 24, 2020).
42 Sonia Cardenas, National Human Rights Commissions in Asia, 4(30) HUM. RTS. REV.
34-35 (2002).
43 Official Gazette, The Fall of the Dictatorship, OFFICIAL GAZETTE WEBSITE, at
https://www.officialgazette.gov.ph/featured/the-fall-of-the-dictatorship (last visited June

2020).
44 Exec. Order No. 8 (1986). This creates the Presidential Committee on Human
Rights. See also Priscilla Hayner, Fifteen Truth Commissions – 1974 To 1994: A Comparative Study,
in TRANSITIONAL JUSTICE: HOW EMERGING DEMOCRACIES RECKON WITH FORMER
REGIMES 235, 225-261 (Neil Krtiz ed., 2005).
45 CONST. art. XIII, § 17; Exec. Order No. 163 (1987). This creates the Commission
on Human Rights.
46 Katerina Linos and Tomas Pegram, What Works in Human Rights Institutions, 112(3)
AM. J. INT’L. L. 1, 37 (2017).

47 Sonia Cardenas, National Human Rights Commissions in Asia, 4(30) HUM. RTS. REV.
35 (2002).
48 III RECORD CONST. COMM’N 734 (Aug. 26, 1986).
The CHR is tasked to prevent a recurrence of the atrocities of Martial

Law and safeguard the people from abuses of government.49 Its ultimate goal
is to protect and promote the rights and dignity of every human being.50 This
is consistent with the State’s own policy of valuing the dignity of every human
person and guaranteeing full respect for human rights.51
B. State of Public Health Emergency
In the Philippines, the State has the constitutional duty to protect and
promote the right to health, and instill health consciousness among the
people.52 However, this duty is not without limits. The Court has ruled that
governmental action in times of emergency should not be so arbitrary as to
unduly restrain people’s liberty.53
It may be recalled that, in order to respond to the pandemic, Congress

passed Republic Act No. 11469. 54 This legislation declared a national
emergency, outlined a national policy, and gave the President limited
powers. 55 It was enacted pursuant to Article VI, Section 23(2) of the
Constitution, which states that “Congress may authorize the President to
exercise powers that are necessary and proper to carry out a declared national
policy in times of national emergency for a limited period, and subject to
limitations prescribed by it.”56 It must be emphasized that these powers are
counterbalanced by the limits set by the legislative act.57 In fact, Congress may
withdraw this grant sooner by resolution when it believes that doing so is
appropriate.58
Moreover, the State must continue to abide by its international

obligations as outlined in instruments such as the UDHR, the International
Covenant on Economic, Social and Cultural Rights (“ICESCR”), and the
ICCPR. 59 This commitment to uphold human rights without pause is

50 CHR, supra note 10, ¶ 4.
51 CONST. art. II, § 11.
52 Art. II, § 15.
53 David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
54 Rep. Act No. 11469 (2020).
55 Rep. Act No. 11469 (2020).
56 CONST. art. VII, § 23(2).
57 Tuluyan v. Medialdea, 690 Phil. 72 (2012).
58 Id.
59 Proc. No. 225 (1950), designating December 10, 1950 as Human Rights Day;
International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, 993 U.N.T.S.
3; UNITED NATIONS TREATY COLLECTION, 4. INTERNATIONAL COVENANT ON CIVIL AND
reflected in the country’s own human rights statutes. For instance, the law
against torture explicitly states that a public emergency can never be invoked
as a justification for torture and other cruel, inhumane, and degrading
treatment or punishment.60 Similarly, the Magna Carta of Women pronounces
that the State shall observe international standards of protection for the
civilian population in times of emergency.61
Lastly, as discussed, the CHR is bound to continue its operations as

the country’s NHRI even during a state of emergency.62 The CHR has itself
declared that human rights are not suspended during a health crisis.63
IV. CHR AND COVID-19
A. Performance
Recognizing the State’s duty to respect human rights, the DILG

directed local government units to respect human rights in their
implementation and maintenance of the enhanced community quarantine.64
Still, the government has been accused of committing human rights violations
during the pandemic;65 and as a result, CHR has maintained active operations.
Among others, the CHR has put out press statements to respond to
alleged human rights violations by the government.66 It has released a series
of policy advisories suggesting how the government could solve the country’s
pressing human rights concerns, including the right to health, children’s rights,
POLITICAL RIGHTS, available at https://treaties.un.org/doc/

Publication/MTDSG/Volume%20I/Chapter%20IV/IV-4.en.pdf (last accessed June 2020).
60 Rep. Act No. 9745 (2009), § 23.
61 Rep. Act No. 9710 (2008), § 9(b).
62 GANHRI, supra note 28.
63 CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, on the value of human
rights during the state of national emergency, CHR WEBSITE, Mar. 22, 2020, at
http://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-guia-on-the-value-
of-human-rights-during-the-state-of-national-emergency
64 DILG Mem. Circ. 2020-062 (2020), § 5.2.10(b).
65 Gabriel Pabico Lalu, Gov’t more into rights violations than solving COVID-19 crisis, group
says, INQUIRER.NET, Apr. 22, 2020, available at https://newsinfo.inquirer.net/1263190/govt-

more-interested-in-human-rights-violations-than-solving-covid-19-problems-group-
says#ixzz6O7KWvGdN
66 CHR, Statement of CHR spokesperson, Atty Jacqueline Ann de Guia, on the proposed anti-
terrorism bill, CHR WEBSITE, June 2, 2020, at https://chr.gov.ph/tl/statement-of-chr-

spokesperson-atty-jacqueline-ann-de-guia-on-the-proposed-anti-terrorism-bill; CHR, supra
note 63, ¶ 1.
and indigenous peoples’ rights.67 It has directly coordinated with government

agencies when it sent letters to the Bureau of Jail Management and Penology
to express concerns regarding COVID-19 outbreaks in detention centers.68 It
has also probed alleged human rights violations.69 On top of these, the CHR
launched an “E-Lawyering Program” to make legal assistance immediately
available to human rights victims, particularly to migrants who were left
stranded in other countries.70
B. Limitations
While its efforts are laudable, the CHR is bound to encounter

challenges due to the pandemic. The resulting constraints on finances, the
restrictions on the freedom of movement, and the limitations in the flow of
information all have the potential of exploiting the structural limitations of
the CHR.71
67 CHR, Advisory Series on Human Rights in the Time of COVID-19 in the
Philippines, CHR (V) A2020-002 (Mar. 27, 2020), available at http://chr.gov.ph/wp-

content/uploads/2020/04/CHR-Advisory_Human-Rights-in-the-Time-of-COVID-19-in-
the-Philippines-CHR-V-A2020-002.pdf; CHR, Advisory on Handling of Children in Street
Situation (CISS) in times of National Health Emergency, CHR (V) A2020-003 (Apr. 1, 2020),
available at http://chr.gov.ph/wp-content/uploads/2020/04/CHR-Advisory_Handling-of-
Children-in-Street-Situation-CISS-in-Times-of-National-Health-Emergency-CHR-V-A2020-
003.pdf; CHR, Human Rights Advisory on Indigenous Cultural Communities/Indigenous
Peoples (ICCs/IPs) amid the COVID-19 pandemic (Apr. 21, 2020), available at
http://chr.gov.ph/wp-content/uploads/2020/04/Human-Rights-Advisory-on-Indigenous
-Cultural-Communities-Indigenous-Peoples-ICCsIps-Amidst-the-COVID-19-Pandemic-
CHR-V-A2020-006.pdf
68 CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, improving the plight
of persons deprived of liberty through the Interim National Preventive Mechanism, CHR WEBSITE, May
14, 2020, ¶ 8, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-
guia-on-improving-the-plight-of-persons-deprived-of-liberty-through-the-interim-national-
preventive-mechanism
69 CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, on the incident
involving a cop shooting an alleged lockdown violator in Barangay Pasong Putik, Quezon City, CHR
WEBSITE, Apr. 23, 2020, ¶ 5, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-
jacqueline-ann-de-guia-on-the-incident-involving-a-cop-shooting-an-alleged-lockdown-
violator-in-barangay-pasong-putik-quezon-city
70 CHR, Statement of CHR Focal Commissioner on Migrant Rights, Gwendolyn L.L. Pimentel-
Gana, on the situation of migrants, Overseas Filipino Workers, and members of their families amid the
COVID-19 crisis, CHR WEBSITE, Apr. 24, 2020, ¶ 8, at http://chr.gov.ph/statement-of-chr-
focal-commissioner-on-migrant-rights-gwendolyn-l-l-pimentel-gana-on-the-situation-of-
migrants-overseas-filipino-workers-and-members-of-their-families-amid-the-covid-19-crisis
71 Asia Pacific Forum, supra note 30, ¶ 1.
1. Lack of Independence
i. Financial Autonomy
The financial setbacks suffered by governments are bound to have

negative effects on the budgets received by NHRIs all over the world.72 The
CHR is no exception. This is highly probable considering that the Philippine
economy has accumulated losses over the past few months as COVID-19
dragged down external trade, tourism, and remittances.73 As a matter of fact,
the situation could be worse for the CHR considering that its budget goes
through the Office of the President. The CHR’s vocal stance against alleged
state-sponsored extrajudicial killings has resulted in an adverse relationship
with the President.74
The CHR is entitled to an approved annual appropriation that is

automatically and regularly released.75 This was meant to give the CHR an
added layer of independence.76 As with the automatic and regular release of
funds granted to the Constitutional Commissions, this safeguard prevents the
Executive from unnecessarily withholding the CHR’s approved budget. 77
However, this grant is smaller in scope than fiscal autonomy,78 which in turn
has been interpreted to mean freedom from outside control 79 reserved
exclusively for the Constitutional Commissions, the Office of the
Ombudsman, and the Judiciary.80 Fiscal autonomy gives an agency the “full
flexibility to allocate and utilize its resources.”81 In contrast, the CHR’s budget
is included in the national budget,82 which is prepared by the Department of
72 Id. ¶ 12.
73 Ben de Vera, ADB revises forecast for PH economy: 3.8 percent drop in GDP, PHIL. DAILY
INQUIRER.NET, June 18, 2020, available at https://business.inquirer.net/300249/adb-revises-
forecast-for-ph-economy-3-8-percent-drop-in-gdp#ixzz6PufK4Rzg
74 Dharel Placido, Duterte says plan to abolish CHR 'just a joke,' ABS-CBN NEWS, Aug. 2,
2017, available at https://news.abs-cbn.com/news/08/02/17/duterte-says-plan-to-abolish-

chr-just-a-joke
75 CONST. art. XIII, § 17 (4).
76 IV RECORD CONST. COMM’N 11 (Aug. 28, 1986).
77 I RECORD CONST. COMM’N 561 (July 15, 1986).
78 Commission on Human Rights Employees’ Ass’n v. Comm’n on Human Rights,
528 Phil. 658 (2006).

79 Bengzon v. Drilon [hereinafter “Bengzon”], 284 Phil. 245 (1992).
80 Commission on Human Rights Employees’ Ass’n v. Comm’n on Human Rights,
486 Phil. 509 (2004); Bengzon, 284 Phil. 245.

81 Bengzon, 284 Phil. 245.
82 RG Cruz, How CHR practically lost its budget, ABS-CBN NEWS, Sept. 13, 2017, at
https://news.abs-cbn.com/focus/09/13/17/how-chr-practically-lost-its-budget
Budget and Management and submitted to the House of Representatives.83

In turn, the House of Representatives and the Senate conduct budget
deliberations and then submit a common version of the bill to the President
for approval.84
At the height of the CHR’s conflict with the President, the

administration’s allies in Congress threatened to shut down the institution by
lowering its budget to PHP 1,000.00.85 While this plan to defund the CHR fell
through,86 it exposed a major flaw in the CHR’s structure: its lack of fiscal
autonomy. This incident showed how easily susceptible the CHR is to external
influence and fiscal control.87
The Paris Principles states that an NHRI needs to have an

infrastructure with adequate funding in order to be free from influence and
financial control.88 Furthermore, the GANHRI emphasizes that, while the
State may regulate funding for an NHRI, this may not operate to compromise
the latter’s ability to perform its role independently.89 In the same manner,
while government representatives are welcome to advise an NHRI on matters
of policy, they should not form part of its decision-making process.90
There have been efforts to give the CHR financial independence. For
instance, the Consultative Committee, a body formed by the President to
recommend amendments to the 1987 Constitution, 91 adopted
recommendations to grant fiscal autonomy to the CHR.92 In addition, Senator
83 DBM, Primer on Government Budgeting (June 7, 2017), available at
https://www.dbm.gov.ph/wp-content/uploads/2012/03/PGB-B2.pdf
84 DB, President Duterte signs P4.1 trillion 2020 national budget, DBM WEBSITE, Jan. 6,
2020, at https://www.dbm.gov.ph/index.php/secretary-s-corner/press-releases/list-of-
press-releases/1589-president-duterte-signs-p4-1-trillion-2020-national-budget
85 Bea Cupin, CHR thanks House for ‘open minds, hearts’ after budget restored, RAPPLER,
Sept. 20, 2017, at https://www.rappler.com/nation/182837-gascon-reaction-chr-budget-

2018-restoration-house
86 Id.
87 Nir Lama, Philippines: Standing ground in the face of government attacks, in 2018 ANNI
REPORT 70, 78 (Heather Collister & Sutawan Chaprasert eds., 2018).

88 Paris Principles, Composition and Guarantees of Independence and Pluralism,
item 2.
89 GANHRI, supra note 28, at 44, § 2.7, ¶ 1.
90 Id. at 24, § 1.9, ¶ 3.
91 Exec. Order. 10 (2016), This creates a Consultative Committee to Review the 1987
Constitution.
92 CONSULTATIVE COMMITTEE TO REVIEW THE 1987 CONSTITUTION, POWER TO
THE PEOPLE BAYANIHAN FEDERALISM, POWER TO THE REGIONS (2018), available at

https://www.philstar.com/headlines/2018/07/09/1832024/full-text-consultative-
committees-draft-federal-constitution
Leila de Lima, a former Chairperson of the CHR, filed Senate Bill No. 183
(“S.B. 183”) which seeks to grant the same privilege to the CHR.93
ii. Functional Autonomy
The economic impact of the pandemic is estimated to last for years.94

It is therefore important to ensure the continuity of the CHR’s projects in the
years to come. However, ensuring continuity comes as a challenge considering
that the leaders of the CHR have been the target of threats over the past few
years.
At the height of the conflict between the CHR and the President,
CHR Chairperson Jose Luis Martin Gascon was subjected to verbal tirades by
the President. 95 This culminated in demands for Gascon’s resignation and
threats of his impeachment. 96 Although these efforts never materialized, 97
they revealed problems with the interpretation of the CHR’s functional
autonomy.98 Concerns have been raised about the lack of explicit assurances
in the law that the CHR’s officers will be shielded from legal liability for
actions that they undertake in good faith.99
The CHR is composed of a Chairperson and four members. 100

Executive Order No. 163 specifies that these officers will be appointed by the
93 S. No. 183, 18th Cong., 1st Sess., § 5 (2009). Commission on Human Rights Act of
2019.
94 Jill Ward, Economic Effects of Pandemics Last Decades, Research Shows, BLOOMBERG, Mar. 27,
2020, at https://www.bloomberg.com/news/articles/2020-03-27/economic-effects-of-
pandemics-last-decades-research-shows
95 Reuters, ‘Gay or paedophile?’ Philippines Duterte attacks rights chief over drug war criticism,
THE GUARDIAN, Sept. 17, 2017, available at https://www.theguardian.com/world/

2017/sep/17/gay-or-paedophile-philippines-duterte-attacks-rights-chief-over-drug-war-
criticism
96 Jodesz Gavilan, Want bigger budget, Alvarez says Gascon should resign, RAPPLER, Sept.
13, 2017, at https://www.rappler.com/newsbreak/inside-track/181966-chr-bigger-2018-

budget-chito-gascon-resign-pantaleon-alvarez; Interaksyon, Speaker’s Threat: ‘We will wait for
impeachment’ – CHR’s Gascon, INTERAKSYON, Aug. 19, 2017, at https://www.interaksyon.
com/breaking-news/2017/08/19/91849/speakers-threat-we-will-wait-for-impeachment-
chrs-gascon; Audrey Morallo, CHR chair, commissioners 'serve at president's pleasure', Palace claims,
PHIL. STAR, July 27, 2017, available at https://www.philstar.com/headlines/2017/07/
27/1722064/chr-chair-commissioners-serve-presidents-pleasure-palace-claims
97 Jaymee Gamil, CHR chief won’t quit, INQUIRER.NET, July 29, 2017, available at
https://newsinfo.inquirer.net/918541/chr-chief-wont-quit
99 GANHRI Sub-Committee on Accreditation, supra note 24, at 33.
100 CONST. art. XIII, § 17(2); Exec. Order No. 163 (1987), § 2. This creates the
Commission on Human Rights.

President for a term of seven years without reappointment.101 Notably, the

law is silent on the aspect of removal. However, as government officials, the
Chairperson and the Commissioners are governed by the Code of Conduct
and Ethical Standards for Public Officials and Employees.102 They may be
disciplined, suspended, or removed from office for cause by the Office of the
Ombudsman.103 Noteworthy in this respect is the case of Quisumbing v. Rosales,
which involved the issuance of a Show Cause Order by the CHR against one
of its Commissioners for the alleged violation of Civil Service Laws and of
Republic Act No. 6713.104 The CHR endorsed its Order to the Office of the
Ombudsman and to the Office of the President for further action.105 The
petitioner then protested that the CHR had no jurisdiction to make such an
endorsement.106 While the Court did not directly rule on the Ombudsman’s
jurisdiction, it considered the petition moot for having been referred to the
Office of the Ombudsman for appropriate prosecutorial action.107
The GANHRI pronounces that NHRI officers must be protected

from liability for actions that they commit in good faith.108 In addition, it
recommends an independent and objective dismissal process for members of
NHRIs. 109 The discussion above demonstrates that the CHR effectively
enjoys a semblance of functional immunity. 110 Nonetheless, removing the
silence of the law on functional autonomy may eliminate doubts about the
protection granted to the CHR’s officers. S.B. 183 reflects this proposal by
explicitly enumerating grounds for the removal of the CHR Chairperson and
Commissioners.111 The proposed legislation also explicitly defines the roles of
the Office of the Ombudsman and the Sandiganbayan in the filing of cases
against the CHR’s officers.112
101 Exec. Order No. 163 (1987), § 2.

102 GANHRI Sub-Committee on Accreditation, supra note 24, at 32.
103 CONST. art. XI, § 12; Rep. Act No. 6770 (1989), §§ 15(1) & 21; Senate of the
Philippines, De Lima to Alvarez: It's impossible to impeach CHR Chair, Senate of the Philippines 18th
Congress, SENATE OF THE PHILIPPINES WEBSITE, Aug. 10, 2017, at
https://www.senate.gov.ph/press_release/2017/0810_delima4.asp
104 Quisumbing v. Rosales, 755 Phil. 892 (2015).
105 Id.
106 Id.
107 Id.
108 Global Alliance of National Human Rights Institutions, General Observations of
the Sub-committee on Accreditation, § 2.3 at ¶ 1 Feb. 21, 2018, available at

110 Lama, supra note 87, at 76.
111 S. No. 183, § 8.
112 § 8.
Notably, even if the CHR’s officers are not abruptly removed during
the pandemic, their terms are set to expire in less than two years.113 With all
of its officers awaiting appointment by the next President, the CHR runs the
risk of having its entire direction changed and its independence
compromised.114 It bears noting that the current Chairman himself has been
criticized for being a member of the opposition prior to his appointment to
the CHR.115
The GANHRI states that NHRIs must follow a merit-based process

of selection that ensures the independence of its senior leadership.116 One way
to operationalize this is by adding layers to the appointment system, similar to
those added in the system of selection of the Ombudsman and his
Deputies. 117 The constitutional deliberations on the CHR show that the
drafters considered imposing an appointment process that goes through the
Judicial and Bar Council (JBC). 118 The JBC was designed to eliminate the
problem of influence-peddling in appointments.119 However, this proposal
did not push through. Another solution raised is the imposition of staggered
terms for the CHR Chairperson and the Commissioners.120 As in the case of
the members of the Commission on Elections, this would prevent the
President from appointing the CHR’s senior leaders all at once.121 This could
113 Joel Locsin, PNoy fills up last CHR commissioner vacancy; Palace announces more
appointments, GMA NEWS ONLINE, July 5, 2015, at https://www.gmanetwork.com/news/

news/nation/516106/pnoy-fills-up-last-chr-commissioner-vacancy-palace-announces-more
-appointments/story. See also Asia Pacific Forum of National Human Rights Institutions,
Lawyer Jose Luis Martin Gascon has been appointed as the new Chairperson of the Commission on Human
Rights, replacing Loretta Ann Rosales, ASIA PACIFIC FORUM, Aug. 5, 2015, at
https://www.asiapacificforum.net/news/philippines-new-members-appointed-commission-
human-rights
114 Lama, supra note 87, at 76-77.
115 Emma Palmer, The effectiveness of National Human Rights Institutions’ relationships with
civil society: the Commission on Human Rights in the Philippines, AUSTRL. J. HUMAN RTS. 1 (2019),
citing Karapatan, 2016 KARAPATAN YEAR-END REPORT 2 (2016), available at
https://www.karapatan.org/files/2016%20Karapatan%20YEReport.pdf
117 CONST. art. XI, § 9.
119 Chavez v. Jud. & Bar Council, 691 Phil. 173 (2012).
120 CHR, Position paper on strengthening the Commission on Human Rights as a National
Human Rights Institution under the Constitution, CHR WEBSITE, Apr. 2, 2018, ¶ 26, at
http://chr.gov.ph/strengthening-the-commission-on-human-rights-as-a-national-human-
rights-institution-under-the-constitution
121 Funa v. Comm’n on Audit, 686 Phil. 571 (2012); Republic v. Imperial, 96 Phil.
770 (1955).
help ensure continuity in the CHR’s programs.122 Both the proposed draft of
the Consultative Committee and S.B. 183 reflect this proposal.123
2. Incomplete Mandate
i. Economic, Social, and Cultural (“ESC”) Rights
The pandemic has brought uncertainty to the populace, with the SWS
reporting the worst trend of decline in the quality of life of Filipinos.124 This
perception of decline is exacerbated by delays and lapses in the
implementation of the Social Amelioration Program, a government program
that is meant to assist families during the quarantine.125 In connection with
this, the CHR has reported receiving numerous complaints on the distribution
of amelioration.126
Indeed, investigations by the CHR could help resolve allegations of

ESC rights violations by the government. Nevertheless, the CHR is not armed
with an explicit mandate to investigate violations of ESC rights. 127 The
Constitutional Commission purposely limited the CHR’s investigative power
to violations of “civil and political rights.”128 This was affirmed in Simon v.
CHR, where the Court declared that the CHR should focus on severe cases
of human rights violations. 129 In its decision, the Court prevented the
execution of a Demolition Order by the CHR, since the Order was not meant
to curb violations of civil and political rights.130
122 CHR, supra note 120, ¶ 26.

123 Consultative Committee to Review the 1987 Constitution, supra note 92; S. No.
183, § 7.
124 Cathrine Gonzales, SWS survey: 83% of Filipinos report decline in quality of life,
INQUIRER.NET, June 18, 2020, available at https://newsinfo.inquirer.net/1293557/sws-

survey83-of-filipinos-report-decline-in-quality-of-life
125 Franco Luna, House hearing on SAP lapses highlights challenges in aid distribution, PHIL.
STAR, June 22, 2020, available at https://www.philstar.com/headlines/2020/

06/22/2022729/house-hearing-sap-lapses-highlights-challenges-aid-distribution
126 Adrian Ayalin, CHR logs almost 500 complaints vs. quarantine rules, crisis response
implementation, ABS-CBN NEWS, May 21, 2020, at https://news.abs-cbn.com/

news/05/21/20/chr-logs-almost-500-complaints-vs-quarantine-rules-crisis-response-
implementation
127 GANHRI Sub-Committee on Accreditation, supra note 24, at 29; Lama, supra
note 87, at 70.

128 CONST. art. XI, § 18 (1); III RECORD CONST. COMM’N 739 (Aug. 27, 1986).
129 Id.
130 Simon v. Comm’n on Human Rights, 299 Phil. 124 (1994).
The Paris Principles requires that an NHRI be vested with

competence to protect and promote human rights.131 It further requires that
an NHRI be given a broad mandate along with a specific enumeration of
powers.132 The General Observations also explains that an NHRI’s mandate
should be interpreted broadly, liberally, and purposively in light of a State’s
commitment to domestic, regional, and international instruments.133 In line
with this, it may be recalled that the Philippines is a state party to ICESCR.134
There have been efforts to remedy the CHR’s inconsistency with the
requirements of the Paris Principles. For instance, the CHR has equipped
itself with the power to investigate violations of ESC rights in its internal
guidelines and procedures. 135 The Consultative Committee seeks a longer-
term solution by adopting a proposal to explicitly include ESC rights in the
CHR’s investigatory function.136 S.B. 183 also seeks to broaden the CHR’s
mandate by giving it the power to investigate all forms of human rights
violations without distinction.137
ii. Legislation
Aside from the lack of power to investigate violations of ESC rights,

there are other aspects of the CHR’s mandate which need improvement. For
instance, the CHR has been criticized for lacking a broad function to advise
Congress on legislation.138 The CHR’s active involvement in congressional
hearings is relevant, especially considering the passage of controversial
legislations during the pandemic.139
131 Paris Principles, Competence and Responsibilities, item 1.

132 Item 2.
134 Office of the High Commissioner for Human Rights, Ratification of 18 International
Human Rights Treaties, UNITED NATIONS HUMAN RIGHTS WEBSITE, at

https://indicators.ohchr.org (last accessed June 2020).
135 CHR, supra note 120, ¶ 21; GANHRI Sub-Committee on Accreditation, supra
note 24, at 29; Lama, supra note 87, 70; CHR, Guidelines and Procedures in the Investigation
and Monitoring of Human Rights Violations and Abuses, and the Provision of CHR
Assistance [hereinafter “CHR Guidelines”], Rule 11, § 15 (Apr. 2012).
136 CHR, supra note 120, ¶ 23. Consultative Committee to Review the 1987
Constitution, supra note 92.

137 S. No. 183, § 12(a).
138 Linos & Pegram, supra note 46, at 37.
139 CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, on the proposal to
declare a national emergency and grant special powers to the President to combat COVID-19, CHR
WEBSITE, June 4, 2020, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-
ann-de-guia-on-the-proposals-to-declare-a-national-emergency-and-grant-special-powers-to-
the-president-to-combat-covid-19; CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de
The CHR may in fact propose effective measures to Congress. 140

However, this recommendatory power is limited to measures concerning the
promotion of human rights and the compensation for human rights
victims. 141 Notably, the CHR expressed reservations against the Anti-
Terrorism Bill during the congressional deliberations, to no avail.142 Giving
the CHR an explicit mandate to recommend measures—not only promoting
human rights, but protecting it, as well as providing remedies to human rights
victims 143—could add weight to the CHR’s input during legislative
deliberations. Both the draft Constitution of the Consultative Committee and
S.B. 183 contain provisions to this effect.144
iii. Reports on Treaty Obligations
Due to the increase in the number of violations during the pandemic,

international human rights courts are expected to make governments
accountable in the aftermath of the pandemic.145 Therefore, it is important for
the CHR to not only monitor the government’s compliance with treaty
obligations, but also send corresponding reports to treaty bodies.
Indeed, the CHR has been communicating with the international

community during the pandemic.146 However, the law is silent on the CHR’s
duty to report the State’s compliance with treaty obligations. 147 The Paris
Principles requires NHRIs to contribute to state reports to U.N. bodies.148
S.B. 183 adopted a proposal to assign the CHR with the duty to prepare
periodic reports on the country’s compliance with its treaty obligations.149
Guia, on the proposed anti-terrorism bill, CHR WEBSITE, June 2, 2020, at

https://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-ann-de-guia-on-the-
proposed-anti-terrorism-bill
140 CONST. art. XIII, § 18(6); Exec. Order No. 163 (1987), § 3.
141 CONST. art. XIII, § 18(6); Exec. Order No. 163 (1987), § 3.
142 CHR, Statement of the Commission on Human Rights on the proposed Anti-Terrorism Act
of 2020, CHR WEBSITE, June 5, 2020, at http://chr.gov.ph/statement-of-the-commission-

on-human-rights-on-the-proposed-anti-terrorism-act-of-2020; CHR, supra note 5.
143 CHR, supra note 120, ¶ 35(g).
144 Consultative Committee to Review the 1987 Constitution, supra note 92; S. No.
183, § 12(f).
145 Audrey Lebret, COVID-19 pandemic and derogation to human rights, J.L. &
BIOSCIENCES (2020), at https://academic.oup.com/jlb/article/7/1/lsaa015/5828398

146 Office of the High Commissioner for Human Rights, NHRI responses to the
COVID-19 pandemic, UNITED NATIONS HUMAN RIGHTS WEBSITE, at

https://www.ohchr.org/EN/Countries/NHRI/Pages/NHRIS-and-Covid-19.aspx (last
visited June 2020).
147 CONST. art. XIII, § 18; Exec. Order No. 163 (1987), § 3.
148 Paris Principles, Competence and Responsibilities, item 3(d).
149 CHR, supra note 120, ¶ 35 (h); S. No. 183, § 12(g).
iv. Annual Reports
The law is also silent on the CHR’s duty to produce annual reports.150
Critics see this limitation as a vital constraint in the CHR’s capacity to promote
human rights.151 Although the CHR has been publishing its advisories and
statements during the pandemic,152 it was criticized in the past for failing to
make all of its annual reports available for public viewing.153 These reportorial
duties are particularly important since NHRIs have been called upon to be
more vigilant of State responses to the pandemic.154
The Paris Principles requires NHRIs to prepare reports on human

rights situations and publicize efforts to combat all forms of discrimination
with the use of all press organs. 155 The GANHRI also highlights the
importance of timely publishing annual, special, and thematic reports to raise
public awareness about human rights.156 S.B. 183 reflects these requirements
by assigning specific monitoring powers to the CHR.157
3. Inadequate Investigatory Power
At one point, the Philippines reportedly had the longest lockdown in

the world.158 This kind of restriction in the freedom of movement is bound
to have negative effects on the CHR’s investigatory functions.
150 CONST. art. XIII, § 18; Exec. Order No. 163 (1987), § 3.
151 Linos & Pegram, supra note 46, at 37.
152 See CHR, supra note 67; CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de
Guia, on the case and desist order issued by the National Telecommunications Commission to ABS-CBN,
CHR WEBSITE, May 5, 2020, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-
jacqueline-ann-de-guia-on-the-cease-and-desist-order-issued-by-the-national-
telecommunications-commission-to-abs-cbn; CHR, Statement of CHR spokesperson, Atty.
Jacqueline Ann de Guia, on the order to “shoot” alleged agitators and violators of enhanced quarantine, CHR
WEBSITE, Apr. 2, 2020, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-jacqueline-
ann-de-guia-on-the-order-to-shoot-alleged-agitators-and-violators-of-enhanced-quarantine;
CHR, Pahayag ni CHR spokesperson, Atty. Jacqueline Ann de Guia, sa mga paglabag ng curfew at
quarantine sa Pandacaqui, Mexico, Pampanga, CHR WEBSITE, Apr. 8, 2020, at
http://chr.gov.ph/pahayag-ni-chr-spokesperson-atty-jacqueline-ann-de-guia-sa-mga-
paglabag-ng-curfew-at-quarantine-sa-pandacaqui-mexico-pampanga
153 Lama, supra note 87, at 76.
154 Office of the High Commissioner for Human Rights, Aide memoire: NHRIs,
Human Rights and COVID-19, at ¶ 2, (Apr. 21, 2020), available at

https://www.ohchr.org/Documents/Press/HCCOVID19lettertoNHRIs.pdf
155 Paris Principles, Competence and Responsibilities, items 3(a)(ii), 3(d), 3(g).
157 Senate Bill 183, §§ 33 & 38 (2019).
158 Jason Castaneda, Why Duterte won’t lift world’s longest lockdown, ASIA TIMES, May 15,
2020, at https://asiatimes.com/2020/05/why-duterte-wont-lift-worlds-longest-lockdown
The CHR has the mandate to investigate civil and political rights.159
However, it has faced criticism for its alleged failure to investigate the majority
of human rights abuses.160 One factor for this could be the CHR’s inadequate
resources. The CHR has a limited number of staff members which renders it
unable to investigate all violations.161 With respect to the ongoing pandemic,
the restrictions on the freedom of movement make it difficult for NHRIs like
the CHR to conduct its investigations.162 In addition to this, the imposition
of strict quarantine measures limits NHRIs’ access to information and
resources.163
The current situation forces the CHR to rely on other agencies for its
investigations. The CHR has the license to request assistance from other
agencies in the performance of its duties.164 To illustrate, the CHR relies on
the Philippine National Police (PNP) for fact-finding and case-building in
cases of extrajudicial killings.165 Extrajudicial killings have inspired widespread
criticism since the current administration took office.166 Unfortunately, these
alleged executions continue amidst the pandemic;167 and as such, the CHR
continues to conduct investigations.168 However, the CHR is bound to face
the same issues it encountered before the health crisis. To begin with, the
159 CONST. art. XI, § 18(1); Exec. Order No. 163 (1987), § 3.
160 Human Rights Watch, Bad Blood: Militia Abuses in Mindanao, the Philippines, HUMAN
RIGHTS WATCH WEBSITE, Apr. 1, 1992, at https://www.hrw.org/report/
1992/04/01/bad-blood-militia-abuses-mindanao
161 Dona Pazzibugan, Choosing its battles, CHR is silently probing extra-judicial killings,
INQUIRER.NET, Dec. 19, 2016, available at https://newsinfo.inquirer.net/

852061/choosing-its-battles-chr-is-silently-probing-extra-judicial-killings#ixzz5wL9xlHrJ
163 Id. ¶ 11.
165 Cathrine Gonzales, PNP: We’re not obligated to share drug operations data with CHR,
INQUIRER.NET, Jan. 21, 2019, available at https://newsinfo.inquirer.net/

1075480/pnp-were-not-obligated-to-share-drug-operations-data-with-chr#ixzz5vvh61Ew1
166 Human Rights Council, Report of the United Nations High Commissioner for
Human Rights on the situation of human rights in the Philippines, at ¶ 85, U.N. Doc.
A/HRC/44/22 (June 4, 2020).
167 Rambo Talabong, QC cop faces criminal probe for killing ‘mentally challenged’ lockdown
violator, RAPPLER, Apr. 24, 2020, at https://www.rappler.com/nation/258708-quezon-city-

cop-faces-criminal-probe-killing-mentally-challenged-coronavirus-lockdown-violator; Ted
Alcuitas, Philippines: Killings Continue amid COVID-19 Pandemic, PHILIPPINE CANADIAN NEWS,
Mar. 22, 2020, at https://philippinecanadiannews.com/canada/philippines-killings-continue-
amid-covid-19-pandemic
168 CHR, Statement of CHR spokesperson, Atty. Jacqueline Ann de Guia, on the incident
involving a cop shooting an alleged lockdown violator in Barangay Pasong Putik, Quezon City, CHR
WEBSITE, Apr. 23, 2020, at ¶ 5, at http://chr.gov.ph/statement-of-chr-spokesperson-atty-
jacqueline-ann-de-guia-on-the-incident-involving-a-cop-shooting-an-alleged-lockdown-
violator-in-barangay-pasong-putik-quezon-city
PNP has been recalcitrant in releasing its records on these cases. 169 More
importantly, the President himself has discouraged the agency from
cooperating with the CHR.170
The Paris Principles states that an NHRI must have a framework that
allows it to obtain information and documents for assessing situations within
its competence.171 The GANHRI goes further by stating that NHRIs must
have the unimpeded ability to inspect and examine documents even without
prior written notice.172 A remedy that the CHR has threatened to use is its
power to issue subpoenas to obtain police records.173 Under its guidelines, the
CHR has the power to issue subpoenas to aid it in its investigations.174 Failure
to obey these subpoenas could merit indirect contempt. 175 However, this
power has not been sufficiently utilized by the CHR. For example, it took the
issuance of an Order by the Court for the PNP to release data on the cases of
extrajudicial killings.176 To remedy this problem, the CHR has asked for a
constitutional grant of contempt powers for the violation of its lawful
orders,177 as well as the power to issue directives to government agencies.178
S.B. 183 contains provisions consistent with these and seeks to grant the CHR
not only the power to cite for contempt for disobedience, but also the power
to issue subpoenas.179
Restrictive quarantine measures during the pandemic also make it

difficult for NHRIs to communicate with other government agencies.180 This
is bound to affect the CHR, since aside from relying on the PNP for
investigations, it relies on the Department of Justice (DOJ) for the filing of
cases.181 Notably, the CHR does not have the power to prosecute cases. The
169 Gonzales, supra note 165.

170 Alexis Romero, Duterte: Troops, cops need clearance to appear before CHR, PHIL. STAR,
July 25, 2017, available at https://www.philstar.com/headlines/2017/07/25/1721376/
duterte-troops-cops-need-clearance-appear-chr#ZDrdI5EbkOdCrzER.99
171 Paris Principles, Methods of Operation, item (b).
173 Philstar, CHR may subpoena police files on drug killings, PHIL. STAR, Sept. 9, 2017,
available at https://www.philstar.com/headlines/2017/09/09/1737576/chr-may-subpoena-
police-files-drugkillings#jf8hCchIpIcGX7bJ.99
174 CHR Guidelines, Rule 4, §§ 11-12.
175 Rule 7, § 9; Rule 15, § 2(d).
176 Almora v. Dela Rosa, G.R. No. 234539, Apr. 17, 2019.
177 CHR, supra note 120, items 11-12.
178 Id.
179 CHR Guidelines, §§ 12(b) & 14(c)(e)(k).
181 Virgil Lopez, Aguirre blasts CHR chair for comparing number of drug killings to Martial
Law deaths, GMA NEWS ONLINE, Dec. 6, 2016, at https://www.gmanetwork.com/news/

Court has ruled that the CHR’s power is limited to conducting

investigations.182 Unlike quasi-judicial bodies, it cannot try and resolve the
merits of a case, and at most, it can only endorse action to the appropriate
agency.183 Interestingly, the Paris Principles does not require NHRIs to have
quasi-judicial functions. 184 Even the current CHR Chairperson has not
recommended giving the CHR prosecutorial powers, stating that this would
be equivalent to giving the CHR executive functions which may affect its role
as a watchdog that should be focused on monitoring State violations.185 At
most, he has floated the possibility of assigning a special prosecutor for
human rights violations, similar to the special prosecutors assigned to the
Office of the Ombudsman.186 A more plausible solution, therefore, is for the
CHR to strengthen its cooperation with other government bodies. The Paris
Principles directs NHRIs to maintain consultation with other government
institutions for the protection and promotion of human rights.187 Intriguingly,
the DOJ is bound by a Memorandum of Agreement which it signed with the
CHR, whereby it committed itself to cooperate with the CHR in expediting
the filing of human rights cases.188 However, just like the PNP, the DOJ has
been critical of the CHR.189
Another major challenge in the CHR’s investigations is the lack of

witnesses. Witnesses have failed to show up in CHR investigations because
they lacked protection and monetary support.190 With the spread of COVID-
19 and with its financial repercussions, witnesses are bound to become even
more vulnerable. The GANHRI demands that witnesses be protected from
retaliation for providing evidence in relation to complaints.191 Consistent with
this, the CHR does have the power to provide immunity from prosecution in
aid of its investigations. 192 In fact, it has its own witness protection
news/nation/591457/aguirre-blasts-chr-chair-for-comparing-number-of-drug-killings-to-
martial-law-deaths/story
182 Id.
183 Id.
184 Paris Principles, Competence and Responsibilities.
185 ALG, Gascon: CHR to lose ability as watchdog if given power to prosecute, GMA NEWS
ONLINE, Sept. 30, 2017, https://www.gmanetwork.com/news/news/nation/627816/

gascon-chr-to-lose-ability-as-watchdog-if-given-power-to-prosecute/story
186 Id.
187 Paris Principles, Methods of Operation, items (f)-(g).
188 Mem. of Agreement between the Commission of Human Rights and the
Department of Justice, at § 9 (Apr. 16, 2012).

189 Lopez, supra note 181.
190 U.S. DEPARTMENT OF STATE, PHILIPPINES 2018 HUMAN RIGHTS REPORT 11
(2018), available at https://www.justice.gov/eoir/page/file/1145101/download

program. 193 Furthermore, its Memorandum of Agreement with the DOJ

supposedly facilitates its access to the DOJ’s witness protection program.194
Nonetheless, both systems have been criticized for the inadequate funding
that they receive from the government.195 Victim complainants may also be
protected through the CHR’s power to grant preventive measures and legal
aid services.196 However, the Court decided that the CHR has no jurisdiction
to directly issue an injunction or a restraining order.197 Instead, the CHR has
to seek judicial or extrajudicial remedies from the proper courts on behalf of
the victims.198 S.B. 183 tries to remedy this by expanding the extent of legal
and preventive measures available to the CHR.199 It also seeks the creation of
a broadly defined Auxiliary Witness Protection Service that will ensure
adequate assistance to witnesses and their families.200
V. CONCLUSION
The pandemic shines light anew on the CHR, an institution that has
been under extraordinary scrutiny since 2016. However, the challenges that
the CHR is facing do not uncover novel issues within the institution. Instead,
it exacerbates issues that have been present since the CHR’s creation. The
recurrence of these problems reveals that it is high time to rethink how the
CHR operates. For example, the pandemic presents an opportunity to lobby
more forcefully for the passage of a CHR Charter that will fix the cracks in
the CHR framework—one that will address the issues of its lack of
independence, incomplete mandate, and inadequate investigatory powers.
More importantly, the pandemic should also shed light on the root causes of
CHR’s problems.
First, the Paris Principles has to be revisited. That the CHR was given
an A-accreditation by the GANHRI is a glaring testament of how the Paris
Principles is far from perfect as a set of standards. While the CHR has done a
193 CHR Guidelines, Rule 19, § 1x.

194 Mem. of Agreement between the Commission of Human Rights and the
Department of Justice, at § 10, Apr. 16, 2012.
195 U.S. Department of State, supra note 190, at 11; U.S. Department of State,
Philippines: 2009 Country Reports on Human Rights Practices, U.S. DEPARTMENT OF STATE
WEBSITE, Mar. 11, 2010, at https://2009-2017.state.gov/j/drl/rls/hrrpt/2009/eap/
136006.htm
197 Export Processing Zone Authority v. Comm’n on Human Rights, 284 Phil. 236
(1992).
198 Id.
199 S. No. 183, § 15.
200 § 28.
tremendous job despite the challenges thrown its way, the discussions in this
paper showed that it is far from infallible. Indeed, the Paris Principles serves
as a useful blueprint for States to follow in setting-up their NHRIs. However,
in an attempt to give a one-size-fits-all standard to NHRIs all over the world,
it ends up accommodating too many characteristics to the point of failing to
provide concrete guidelines for NHRIs to follow. Another factor that hurts
the Paris Principles is the fact that there is a unique human rights terrain for
every country. This was shown in the CHR’s example where a tug-of-war with
the President made operations extremely difficult.
Second, the CHR’s woes that come because of its antagonistic

relationship with the President reflect underlying issues on how the balance
of power tilts within the Philippine government. It reveals a democratic
system that is too protective of the Executive branch. It is ironic that an NHRI
that was borne out of a country’s desire to protect itself from the whims of a
dictator is once again falling prey to a leader who exhibits the same
authoritarian tendencies and propensity to violate human rights. It is also
ironic that the Philippine CHR, once hailed for its novelty and
progressiveness, is now criticized for its impracticality and obstinateness.
Lastly, as there is no deadline for this pandemic, it is vital for the CHR
to withstand the storm that it brings. While there appears to be no sense of
urgency from Congress to enact a CHR Charter, the CHR has to take matters
into its own hands by capitalizing on the tools available to it. The most
promising of these is the cultivation of its relationship with civil society. By
maximizing online platforms, exuding transparency, and fostering
international cooperation, the CHR can boost awareness on human rights at
a time when it is needed the most. We Filipinos have demonstrated many
times before that, if we unite against oppression, our potential is limitless. This
time is no different.
- o0o -
(UN)FORTUITOUS EVENT: THE COVID-19 PANDEMIC
AS A FORTUITOUS EVENT*
Czar Matthew Gerard Dayday **

Amer Madcasim, Jr.***
I. INTRODUCTION
Ever since the country recorded its first case of COVID-19, 1 the
Philippines has imposed and implemented measures designed to prevent the
fast transmission of the disease into—and eventually, within—our national
borders. While these responses vary across regions, the various tiers of
“community quarantine” include, in one way or another, restrictions on travel
and movement, the temporary suspension of “non-essential” businesses, and
the abrupt migration of school and work to online platforms.2 Such measures
are accompanied by strict social distancing and heightened standards for
hygiene (such as frequent hand-washing and the use of face masks in public
places).3
The strictest among these measures, the Enhanced Community

Quarantine (“ECQ”), has been imposed in the country’s densest urban
centers, including Metro Manila and Metro Cebu. In fact, as of the time of
writing, the 74-day lockdown in Metro Manila has been hailed as the “world’s
longest,” surpassing that imposed in Wuhan, China;4 and has undoubtedly
frozen and delayed economic activity in these regions.
* Cite as Czar Matthew Gerard Dayday & Amer Madcasim Jr., (Un)Fortuitous Event:
The COVID-19 Pandemic as a Fortuitous Event, 93 (Special Online Feature) PHIL. L.J. 71, [page
cited] (2020).
** Editor, Student Editorial Board, PHILIPPINE LAW JOURNAL Vol. 93; J.D.,
University of the Philippines (2022, expected); B.A. Psychology, magna cum laude, University of
the Philippines (2018).
*** Editor, Student Editorial Board, PHILIPPINE LAW JOURNAL Vol. 93; J.D.,
University of the Philippines (2022, expected); M.A. Political Science, University of the
Philippines (2018). B.A. Political Science, magna cum laude, University of the Philippines (2017).
1 World Health Organization (“WHO”), Coronavirus disease (COVID-19) in the
Philippines, WHO WEBSITE, at https://www.who.int/philippines/emergencies/covid-19-in-

the-philippines (last accessed June 29, 2020).
2 See infra Table 1.
3 Id. See Dep’t of Health (DOH) Adm. Order No. 15-20 (2020).
4 Argyll Crus Geducos, Palace: No regrets on COVID-19 measures, INQUIRER.NET, June
17, 2020, available at https://news.mb.com.ph/2020/06/17/palace-no-regrets-on-covid-19-

measures; Jason Castaneda, Why Duterte won’t lift world’s longest lockdown, ASIA TIMES, May 15,
71
2020] (UN)FORTUITOUS EVENT 72
While these measures may be deemed necessary in curbing the

transmission of the virus, such have undeniably disrupted the way we navigate
our social, political, and economic life. The country’s economic agencies have
estimated over 1.9 trillion pesos in profit and wage losses, 5 a figure that
increases as the country remains in lockdown. As of the time of writing, such
losses have forced over 3,000 companies across all sectors to declare
permanent closure which, in turn, translated to a spike in laid-off workers.6
These losses are, in turn, a consequence of intrusive government measures
that suspended the operation of “non-essential” businesses and restricted the
transportation of goods and merchandise across regions.
However, in cases where losses are not as drastic, businesses are not
left without remedies. Among these is the invocation of force majeure (or
fortuitous event) clauses found in contracts underlying business transactions.
Upon the happening of an unforeseeable or inevitable event, these clauses
may relieve parties from liability brought about by their non-performance.
Even in the absence of an explicit force majeure clause, a party may still avail of
this defense through Article 1174 of the Civil Code, which states that “no
person shall be responsible for those events which could not be foreseen, or
which, though foreseen, were inevitable.”7
This Essay assesses and evaluates the coronavirus pandemic as a

fortuitous event. In particular, we briefly revisit the statutory and
jurisprudential conception of fortuitous events, apply this in the context of
the pandemic, and identify issues that may arise in invoking this defense.
II. THE CONCEPT OF FORTUITOUS EVENT
In the Philippines, the concept of fortuitous event is enshrined in

Article 1174 of the Civil Code:
Article 1174. Except in cases expressly specified by the law, or

when it is otherwise declared by stipulation, or when the nature of
the obligation requires the assumption of risk, no person shall be
2020, available at https://asiatimes.com/2020/05/why-duterte-wont-lift-worlds-longest-

lockdown
5 Ben de Vera, P2.2 trillion in losses: Cost of COVID-19 impact on PH economy,

in-losses-cost-of-covid-19-impact-on-ph-economy
6 In turn, this has resulted in the unemployment of 90,000 workers. CNN
Philippines Staff, 3,000 establishments nationwide permanently close, retrenched due to pandemic, DOLE
says, CNN PHIL., June 25, 2020, at https://www.cnn.ph/business/2020/6/25/3000-
establishments-retrench-close-due-to-pandemic.html
7 CIVIL CODE, art. 1174.
responsible for those events which could not be foreseen, or which,

though foreseen, were inevitable.
The provision itself does not use the phrase “fortuitous event.”
Instead, it contains the phrase “those events which could not be foreseen, or
which, though foreseen, were inevitable.” While various terms have been used
to describe these kinds of events,8 such as fortuitous event, force majeure, and
caso fortuito, these terms have been held to refer to the same thing.9 A fortuitous
event may be classified as an “act of God” or “act of man.”10 The former
refers to natural occurrences such as typhoons and floods, while the latter
refers to wars, strikes, or riots.11 The Court also previously explained that:
Fortuitous events by definition are extraordinary events not

foreseeable or avoidable. It is therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly
believed but it must be one impossible to foresee or to avoid. The mere
difficulty to foresee the happening is not impossibility to foresee
the same.12
This, however, does not meet that the event itself must be impossible.
It merely means that “the average person under the circumstances would not
have foreseen or could have avoided the event.”13
The elements of a fortuitous event defense are laid down in Nakpil &
Sons v. Court of Appeals.14 This case revolves around the liability of Juan F.
Nakpil & Sons, the architects who prepared the plans and specifications for a
building of the Philippine Bar Association (“PBA”). The said building
collapsed in 1968 after an earthquake hit Manila, causing damages to the
association. When PBA tried to recover from the construction company,
United Construction, Inc., the construction company, filed a third-party
complaint against the architects. The third-party complaint argued that the
8 See RUBEN BALANE, JOTTINGS AND JURISPRUDENCE ON CIVIL LAW (OBLIGATIONS
AND CONTRACTS) 101 (2018 ed.).

9 Id.; Republic v. Luzon Stevedoring Corp., G.R. No. L-21749, 21 SCRA 279, Sept.
29, 1967.
10Philippine Commc’n Satellite Corp. v. Globe Telecom, Inc. [hereinafter
“Philcomsat”], G.R. No. 147324, 429 SCRA 153, May 25, 2004.
11 Id.; Asset Privatization Trust v. T.J. Enter. [hereinafter “Asset Privatization
Trust”], G.R. No. 167195, 587 SCRA 481, May 8, 2008.

12 Sicam v. Jorge [hereinafter “Sicam”], G.R. No. 159617, 529 SCRA 443, 459, Aug.
8, 2007. (Emphasis supplied.)

13 ROMMEL CASIS, ANALYSIS OF PHILIPPINE LAW AND JURISPRUDENCE ON TORTS
AND QUASI-DELICTS 262 (2012).

14 Nakpil & Sons v. Ct. of Appeals [hereinafter “Nakpil”], G.R. No. L-47851, 144
SCRA 596, Oct. 3, 1986.

collapse of the building was due to the “defects in the […] plans and
specifications” provided by Juan F. Nakpil & Sons. 15 The primary issue
revolved around the liability of the architects; they argue that the earthquake
constituted a fortuitous event that exempted them from liability.
In disposing of the case, the Court had occasion to lay down the
elements of a fortuitous event:
(a) the cause of the breach of the obligation must be independent

of the will of the debtor; (b) the event must be either unforeseeable
or unavoidable; (c) the event must be such as to render it impossible
for the debtor to fulfill his obligation in a normal manner; and (d)
the debtor must be free from any participation in, or aggravation
of the injury to the creditor.16
Subsequent cases have adopted these elements, 17 with the second

element (event must be either unforeseeable or unavoidable) sometimes being
phrased as “the event […] must have been impossible to foresee or, if
foreseeable, impossible to avoid,”18 so as to better conform to the wording of
the Civil Code provision.
As provided in the Code, the general rule is that the presence of a

fortuitous event renders a party free from liability. 19 This is based on the
maxim lex non cogit impossibilia (the law does not require the impossible). 20
However, the law also provides for exceptions: in cases expressly specified by
law (e.g. when a debtor in delay promises a thing to two or more persons with
different interests,21 when the debt is from a criminal offense22), when the
parties stipulate otherwise, or when the nature of the obligation requires the
assumption of risk.23 In these cases, the fortuitous event defense does not
apply.
In determining whether a fortuitous event defense may be

successfully invoked, Casis provides a three-step analysis:
15Id. at 601.
16Id. at 606-607. (Citations omitted.)
17 See National Power Corp. v. Ct. of Appeals [hereinafter “NPC”], G.R. No. 103442,
222 SCRA 415, May 21, 1993; Philcomsat, 429 SCRA 153, May 25, 2004; Asset Privatization Trust,
587 SCRA 481.
18 Id.
19 CIVIL CODE, art. 1174; Sicam, 529 SCRA 443, 459-460; Philcomsat, 429 SCRA 153.
20 Balane, supra note 8, at 101.
21 CIVIL CODE, art. 1165 (3).
22 Art. 1268.
23 Art. 1174.
First, a fortuitous event must be identified. The question that must

be asked is: Was there an extraordinary event, which could not be
foreseen by the parties or though foreseen, was inevitable?
Second, it must be determined if the circumstance falls within any

of the three exceptions under Article 1174. The questions that must
be asked are: Is this a case expressly specified by the law where the
defense of fortuitous event is not available? Is there a stipulation by
the parties that the defense of fortuitous event is not available?
Does the nature of the obligation require the assumption of risk?
Third, it must be established that all the essential requisites of a

fortuitous event are present. The questions that must be asked are:
Is the cause of the unforeseen and unexpected occurrence
independent of human will? Is the event impossible to foresee or if
it can be foreseen, was it impossible to avoid? Was the occurrence
such as to render it impossible for the debtor to fulfill his obligation
in a normal manner? Was the obligor free from any participation in
the aggravation of the injury resulting to the creditor?24
It must be emphasized, however, that it is the concurrence of the

elements that allows a party to raise the defense of a fortuitous event. It would
be erroneous for one to say that the happening of a strong earthquake, while
a fortuitous event in itself, allows a party to use the fortuitous event defense.
While an earthquake may be an act of God that is unavoidable or
unforeseeable, the defense of fortuitous event requires, among others, that
the debtor is free from contributory negligence. Thus, even if a strong
earthquake happens, a debtor may still be held liable if he or she is found to
be negligent. In Nakpil, the Court explained that:
If upon the happening of a fortuitous event or an act of God, there

concurs a corresponding fraud, negligence, delay or violation or
contravention in any manner of the tenor of the obligation as
provided for in Article 1170 of the Civil Code, which results in loss
or damage, the obligor cannot escape liability.
The principle embodied in the act of God doctrine strictly requires

that the act must be one occasioned exclusively by the violence of
nature and all human agencies are to be excluded from creating or
entering into the cause of the mischief. When the effect, the cause
of which is to be considered, is found to be in part the result of the
participation of man, whether it be from active intervention or
neglect, or failure to act, the whole occurrence is thereby
24 Casis, supra note 13, at 268.

humanized, as it were, and removed from the rules applicable to

the acts of God.25
The doctrine of fortuitous event applies to obligations arising from

the different sources provided under the Civil Code. 26 However,
jurisprudence has applied the doctrine mainly to obligations arising from
contracts and quasi-delicts. In contractual obligations, the happening of a
fortuitous event frees a contracting party from liability in case he or she
commits a breach of contract. Thus, the contracting party cannot be held
liable for its failure to abide by the contract’s terms.27 On the other hand, in
obligations arising from quasi-delicts, a party may be held free from liability if
he or she is able to show that the proximate cause of the injury is a fortuitous
event. This is primarily where the concept of contributory negligence applies:
the defendant must show that the injury was caused solely by the fortuitous
event, and that he or she was not negligent in any way.28
III. COVID-19 AS A FORTUITOUS EVENT
Shortly after the World Health Organization (“WHO”) declared

COVID-19 as a pandemic, 29 legal commentators across jurisdictions have
discussed how this event may trigger existing force majeure clauses and, in the
absence thereof, statutory remedies related to fortuitous events.30 This comes
as no surprise, since the pandemic has undoubtedly halted economic activity
all over the world, preventing businesses and private individuals from the
ordinary fulfillment of their contractual obligations. Despite witnessing
similar outbreaks in the last two decades, some commentators have argued
25 Nakpil, 144 SCRA 596, 606-607.

26 CIVIL CODE, art. 1170. Obligations arise from: 1) Law; 2) Contracts; 3) Quasi-
contracts; 4) Acts or omissions punished by law; and 5) Quasi-delicts.
27 See, e.g., Philippine Realty & Holdings Corp v. Ley Construction & Development
Corp., G.R. No. 165528, June 13, 2011; Philcomsat, 429 SCRA 153.
28 See, e.g., Nakpil, 144 SCRA 596; Sicam, 529 SCRA 443; NPC, 222 SCRA 415.
29 WHO, WHO Director-General’s opening remarks at the media briefing on COVID-10,
WHO WEBSITE, Mar. 11, 2020, at https://www.who.int/dg/speeches/detail/who-director-

general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020/
30 See Christian Twigg-Flesner, A comparative perspective on commercial contracts and the
impact of COVID-19 - change of circumstances, force majeure, or what? in LAW IN THE TIME OF
COVID-19 155-165 (Katharina Pistor, ed., 2020); Matthew Jennehjohn, Julian Nyarko & Eric
Talley, COVID-19 as Force Majeure in Corporate Transactions, in LAW IN THE TIME OF COVID-
19 141-154 (Katharina Pistor, ed., 2020). In the context of the Philippines, see also Donemark
Calimon, Michael Macapagal & Dranyl Jared Amoroso, COVID-19 and Force Majeure: Managing
Contract Crisis in the Philippines, BAKER MCKENZIE WEBSITE, Mar. 20, 2020, at
https://www.bakermckenzie.com/en/insight/publications/2020/03/covid19-force-
majeure-ph
that a pandemic of this scale is undeniably unforeseeable;31 and superlative

descriptions, such as “unparalleled economic shocks”32 and “worst economic
downturn since the Great Depression,”33 merely reaffirm this.
In fact, several government agencies have issued guidelines expressly

designating the pandemic as a “fortuitous event.”34 For instance, in governing
the refund of payments made for events affected by the pandemic, the
Department of Trade and Industry (DTI) considers the following as
“fortuitous events” which would void the obligation:
The restriction or directive on social distancing is the sole and

proximate cause of the cancelled or scaled-down event or function;
a. The restriction or directive on social distancing is the
independent of the will of the obligor;
b. The restriction or directive on social distancing is either
unforeseeable or unavoidable that renders it impossible
for the obligor to fulfill his obligation in a normal manner;
c. The obligor did not have a hand in the issuance of the
directive on social distancing for the purpose of avoiding
the obligation.35
However, while parties may acknowledge these guidelines, such

interpretation is not controlling. After all, it is the courts, not executive
agencies, that shall interpret the law. It is in this context that we discuss the
several issues that may arise in invoking the defense of fortuitous event—
whether it is in relation to a force majeure clause or in the absence thereof.
A. What exactly is the fortuitous event?
Two of the four elements of the fortuitous event defense pertain to

the nature of the event itself: first, it must be unforeseeable (or if foreseeable,
inevitable); and second, it must prevent the fulfillment of the obligation in a
normal manner. Thus, it is important to identify what exactly constitutes the
31 Twigg-Flesner, supra note 30, at 161.

32 COVID-19: ‘Unparalleled economic shock’ threatens development hopes and gains, UN
NEWS WEBSITE, June 10, 2020, at https://news.un.org/en/story/2020/06/1066032/
33 Gita Gopinath, The Great Lockdown: Worst Economic Downturn Since the Great
Depression, INTERNATIONAL MONETARY FUND BLOG WEBSITE, Apr. 14, 2020, available at
https://blogs.imf.org/2020/04/14/the-great-lockdown-worst-economic-downturn-since-
the-great-depression; Coronavirus: Worst economic crisis since 1930s depression, IMF says, BBC NEWS,
Apr. 9, 2020, at https://www.bbc.com/news/business-52236936
34 Dep’t of Trade and Industry (DTI) Mem. Circ. No. 30-20 (2020). See also
PhilHealth Circ. No. 7-20 (2020).

35 DTI Mem. Circ. No. 30-20 (2020).
fortuitous event. Did the liability arise because of the pandemic itself? Or is it
brought about by the severe restrictions on travel and transportation?
These questions are critical in invoking the remedies found in the

Civil Code and in the force majeure clauses themselves. In the case of the latter,
most force majeure clauses do not expressly include the terms “pandemics” and
“epidemics,” only adopting generally-worded terms such as “calamities” and
“acts of God.” 36 As such, it is crucial to identify whether the COVID-19
pandemic may fall under these generally-worded terms.
Twigg-Flesner explained that, in itself, the occurrence of a pandemic

is “not unforeseeable,” especially in light of recent international public health
crises, such as SARS, MERS, and the H1N1 Swine Flu outbreaks.37 What is
perhaps unforeseeable is the sheer scale of the ongoing pandemic. Put
differently, he asked, “would it suffice that there was a possibility that there
must be a pandemic which could be seriously disruptive or would it be
necessary that a pandemic caused by a novel type of coronavirus spreading
rapidly around the globe was reasonably foreseeable?”38
It could also be argued that the pandemic per se does not constitute a
fortuitous event. Instead, it is the severe restrictions on movement and
transportation that prevented the businesses and individuals to fulfill their
contractual obligations. After all, the mere existence of a global pandemic
does not necessarily entail non-fulfillment, as seen in countries that are already
opening up. It is the severity of government response, which considerably
varies across and within jurisdictions, that is the proximate cause of liability.
As summarized in Table 1, the government response for COVID-19

is streamlined into four tiers of “community quarantine”—namely the
Enhanced Community Quarantine (“ECQ”), Modified Enhanced
Community Quarantine (“MECQ”), General Community Quarantine
(“GCQ”), and Modified General Community Quarantine (“MGCQ”)—
representing a sliding-scale of restrictions on several matters, such as the
movement of individuals (including workers), the operation of non-essential
36 Matthew Jennehjohn, Julian Nyarko & Eric Talley, COVID-19 as Force Majeure in
Corporate Transactions, in LAW IN THE TIME OF COVID-19 141-154 (Katharina Pistor, ed.,
2020). In fact, despite the inclusion of these specific events in more recent contracts, the study
estimates that only 12% of force majeure clauses in their data set contain the term “pandemics”
or equivalent terms. Instead, majority of these force majeure clauses only include generally-
worded terms, such as “force majeure,” “acts of God,” and “calamities.”
37 Twigg-Flesner, supra note 30, at 162.
38 Id. (Emphasis supplied.)
businesses, and the transportation of goods and merchandise.39 As previously

mentioned, the strictest among these measures, the ECQ, has been imposed
in two of the country’s most important financial centers, Metro Manila and
Metro Cebu.
In this context, it is thus undeniable that the scale of these

restrictions—and not the pandemic itself—is the fortuitous event. Had these
restrictions been more relaxed, invoking the defense of fortuitous event may
be more difficult. In more concrete terms, a party whose residence remains
under ECQ may have a better chance in invoking the defense compared to
someone who lives in a locality with lighter restrictions (such as those under
MGCQ).
B. In what circumstances does time

matter?
One other important element to a successful fortuitous event defense

is that “the event […] must have been impossible to foresee or, if foreseeable,
impossible to avoid.” 40 A litigant must successfully prove that it was
impossible for them to foresee, or avoid, the effects of COVID-19. Of course,
it goes without saying that a fortuitous event defense contemplates that there
was a breach of the obligation, which necessarily implies that there was a
binding obligation to begin with. In terms of foreseeability, however, an
important question arises: at what point in time did the COVID-19 pandemic
become foreseeable?
The Philippines reported the first case of COVID-19 in the country

on January 30, 2020.41 The first local transmission was reported three months
after on March 7.42 While the first instance of the disease was identified in
China in December 2019,43 it was only on January 30, 2020 when the outbreak
of the virus was declared as a Public Health Emergency by the WHO. 44

40 See NPC, 222 SCRA 415; Philcomsat, 429 SCRA 153; Asset Privatization Trust, 587
SCRA 481.
41 WHO, Coronavirus disease (COVID-19) in the Philippines, WHO WEBSITE, at
https://www.who.int/philippines/emergencies/covid-19-in-the-philippines (last accessed

June 29, 2020).
42 Id.
43 WHO, Novel Coronavirus – China, WHO WEBSITE, Jan. 12, 2020, at
https://www.who.int/csr/don/12-january-2020-novel-coronavirus-china/en
44 WHO, Statement on the second meeting of the International Health Regulations (2005)
Emergency Committee regarding the outbreak of novel coronavirus (2019-nCoV), WHO WEBSITE, Jan.
30, 2020, at https://www.who.int/news-room/detail/30-01-2020-statement-on-the-second-
Months later, on March 11, 2020, WHO officially classified COVID-19 as a

pandemic.45
While these dates are somewhat considered as “milestones” for the

COVID-19 pandemic, it would be remiss to conclude that, insofar as
foreseeability is concerned, these dates are controlling. With respect to
contracts entered into before December 2019, it is submitted that the
pandemic was certainly not foreseen. Given the novel nature of the virus, it
would be impossible for one to expect that the virus outbreak would have
happened. However, the complications lie in the contracts entered into after
December 2019. Was the COVID-19 pandemic foreseeable as early as
January, when the first case reached the Philippines? Or was it foreseeable
only in March, when the first instance of local transmission was announced?
The case of Philippine National Construction Corporation (“PNCC”) v.

Court of Appeals46 may be instructive. In this case, PNCC raised the principle
of rebus sic stantibus in arguing that it should be free from liability in breaching
a contract of lease entered into in November 1985. Among others, it argued
that the abrupt change in political climate was an unforeseen event. In ruling
against the petitioner, the Court held that the abrupt change in political climate
was not unforeseen.
It is a matter of record that petitioner PNCC entered into a contract

with private respondents on November 18, 1985. Prior thereto, it
is of judicial notice that after the assassination of Senator Aquino
on August 21, 1983, the country has experienced political
upheavals, turmoils [sic], almost daily mass demonstrations,
unprecedented, inflation, peace and order deterioration, the Aquino
trial and many other things that brought about the hatred of people
even against crony corporations. On November 3, 1985, Pres.
Marcos, being interviewed live on U.S. television announced that
there would be a snap election scheduled for February 7, 1986.
On November 18, 1985, notwithstanding the above, petitioner

PNCC entered into the contract of lease with private respondents
with open eyes of the deteriorating conditions of the country.47
meeting-of-the-international-health-regulations-(2005)-emergency-committee-regarding-the-
outbreak-of-novel-coronavirus-(2019-ncov)
45 WHO, supra note 29.
46 G.R. No. 116896, 272 SCRA 183, May 5, 1997.
47 Id. at 193.
Proceeding from this, the Court concluded that the happening of the
EDSA Revolution in February 1986 did not constitute an unforeseen event.48
While there are differences as to nature and application of the principle of
rebus sic stantibus and that of the fortuitous event defense, 49 the Court’s
rationale in PNCC may also be applied in determining whether an event, for
the purposes of a fortuitous event defense, is unforeseen or not. In the eyes
of the Court, the fact that the contract was entered into even during times of
political uprisings and turmoil constituted some form of knowledge or
awareness that a revolution could happen.
Similarly, it can also be argued that parties who entered into contracts
after December 2019, i.e. the date of the emergence of the coronavirus
outbreak, could have had knowledge that a pandemic was on the rise.50 As
early as January, the WHO already issued advice for internal travel and trade
due to the initial outbreak of the virus in Wuhan, China.51 The Philippine
government started to prepare its response to the virus in the same month,
establishing an nCoV Task Force, releasing health advisories, and issuing
guidelines.52 At this time, the public began to have awareness and knowledge
about the disease outbreak and its debilitating effects in Wuhan. Following
the Court’s rationale in PNCC, it may be said that parties who enter into a
contract at this time have done so “with open eyes of the deteriorating
conditions of the country[,]” 53 particularly with respect to the COVID-19
pandemic.
However, it is not enough to deal with the dates constituting the

various “milestones” of the COVID-19 pandemic. As previously discussed, it
may also be submitted that it is not the pandemic itself that is the fortuitous
event, but rather, the government restrictions on the movement of individuals
and businesses.
This assumption would entail looking at different dates and timelines,

particularly those that deal with the different guidelines issued by the
48 Id. at 192 & 196.

49 See, generally, Balane, supra note 8.
50 Twigg-Flesner, supra note 30.
51 WHO, WHO advice for international travel and trade in relation to the outbreak of pneumonia
caused by a new coronavirus in China, WHO WEBSITE, Jan. 10, 2020, at

https://www.who.int/news-room/articles-detail/who-advice-for-international-travel-and-
trade-in-relation-to-the-outbreak-of-pneumonia-caused-by-a-new-coronavirus-in-china/
52 President Communications Operations Office, Jan COVID-19 Timeline, LAGING
HANDA PH, at http://www.covid19.gov.ph/jan-covid-19-timeline/(last accessed June 29,

2020).
53 Philippine Nat’l Constr. Corp. v. Ct. of Appeals, G.R. No. 116896, 272 SCRA 183,
193, May 5, 1997.

government regarding the community quarantine measures.54 Specifically, the

first time the quarantine classifications were released was on March 12, 2020,
when President Duterte imposed community quarantine measures from
March 15, 2020 because of the growing number of COVID-19 cases.55 The
imposition of the ECQ was further extended until May 15 in Metro Manila.56
This was shifted to MECQ starting May 1657 and to GCQ starting June 1.58
D. What is contributory fault in times of

COVID-19?
As explained in the previous Part, a party’s contributory fault prevents

him from invoking the fortuitous event defense under Article 1174. Philippine
National Railways v. Brunty59 defines contributory fault as “conduct on the part
of the injured party, contributing as a legal cause to the harm he has suffered,
which falls below the standard to which he is required to conform for his own
protection.” In this case, the defendant (or the party invoking contributory
fault as a defense) must show a causal link (although not necessarily
proximate) between the plaintiff’s negligence and the subject injury.60
The rationale behind this rule is explained in Sicam v. Jorge:
It has been held that an act of God cannot be invoked to protect a person who
has failed to take steps to forestall the possible adverse consequences of such a
loss. One's negligence may have concurred with an act of God in
producing damage and injury to another; nonetheless, showing that
the immediate or proximate cause of the damage or injury was a
fortuitous event would not exempt one from liability. When the effect
is found to be partly the result of a person's participation — whether by active

55 President Communications Operations Office, March COVID-19 Timeline,
LAGING HANDA PH, at http://www.covid19.gov.ph/mar-covid-19-timeline/(last accessed
July 18, 2020).
56 Ruth Abbey Gita-Carlos, Duterte issues EO on ECQ, GCQ implementation,
PHILIPPINE NEWS AGENCY WEBSITE, May 1, 2020, at https://www.pna.gov.ph/articles/110/

1639
57 Virgil Lopez, Metro Manila, Laguna, 5 other provinces shift to modified ECQ, GMA
NEWS ONLINE, May 16, 2020, at https://www.gmanetwork.com/news/news/nation/

738392/metro-manila-laguna-cebu-city-shift-to-modified-ecq/story
58 GMA News, Duterte places Metro Manila under GCQ beginning June 1, GMA NEWS
ONLINE, May 28, 2020, available at https://www.gmanetwork.com/news/news/nation/

740232/duterte-places-metro-manila-under-gcq-despite-warnings-from-experts/story
59 Philippine Nat’l Railways v. Brunty [hereinafter “Brunty”], G.R. No. 169891, 506
SCRA 685, Nov. 2, 2006.

60 Id.
intervention, neglect or failure to act — the whole occurrence is humanized and

removed from the rules applicable to acts of God[.]61
While existing government guidelines generally regard the pandemic

as a “fortuitous event,”62 such guidelines are not absolute. The defenses found
in the Civil Code and existing jurisprudence remain available for defendants
in these cases. As such, the relevant question here is, in the context of the
pandemic, what amounts to “contributory negligence”? In other words, what
factors determine the standard of care required from the parties in times of
COVID-19?
Article 1173 of the Civil Code provides a framework for answering

this question. It states that the diligence required of a party is determined by
the nature of the obligation and the circumstances of the persons, time, and
place. 63 In the context of the coronavirus pandemic, several government
agencies (including the Inter-Agency Task Force for the Management of
Emerging Infectious Diseases or “IATF-EID”) have issued and implemented
several health- and safety-related guidelines. While some of these rules apply
throughout the pandemic, others depend on the tier of “community
quarantine.” The most relevant of these guidelines is the IATF Omnibus
Guidelines on the Implementation of Community Quarantine, 64 which is
summarized below.
61 Sicam, 529 SCRA 443. (Emphasis supplied.)

62 See DTI Mem. Circ. No. 30-20 (2020). See also PhilHealth Circ. No. 7-20 (2020).
63 CIVIL CODE, art. 1173.
64 Inter-Agency Task Force for the Management of Emerging Infectious Diseases
(IATF-EID) Omnibus Guidelines on the Implementation of Community Quarantine

[hereinafter “IATF Guidelines”] (2020).
When required Guidelines

Enhanced Community • Minimum public health
Quarantine (“ECQ”) and standards65
Modified Enhanced Community • Strict home quarantine,66
Quarantine (“MECQ”) restrictions on travel for
specified groups of people (e.g.
persons with health risks and
pregnant women)67
• Restrictions in the operations of
non-essential businesses68
• Suspension of face-to-face
classes69
• Suspension of public
transportation70
• Prohibition on mass
gatherings71
65 § 1.11. This refers to “guidelines set by the DOH under Administrative Order No.
2020-0015, as well as sector-relevant guidelines issued by national government agencies as
authorized by the IATF, to aid all sectors in all settings to implement non-pharmaceutical
interventions (NPI), which refer to public health measures that do not involve vaccines,
medications or other pharmaceutical interventions, which individuals and communities can
carry out in order to reduce transmission rates, contact rates, and the duration of infectiousness
of individuals in the population to mitigate COVID-19. For this purpose, the Department of
Tourism and Department of Public Works and Highways are recognized as the sector-relevant
agencies with respect to tourism and construction, respectively.”
66 §§ 2.2 & 3.2.
67 §§ 2.3 & 3.3.
68 §§ 2.4, 2.9, 3.4, 3.5, 3.8, 3.13 & 3.15. This operates in a sliding scale, with localities
under ECQ having the most restrictions, and those under MGCQ having the least.
69 §§ 2.11 & 3.10.
70 §§ 2.12 & 3.11.
71 §§ 2.10 & 3.9.
General Community Quarantine •

Minimum public health
(“GCQ”) and Modified General standards72
Community Quarantine • Restrictions on travel for leisure
(“MGCQ”) purposes,73 restrictions on travel
for specified groups of people
(e.g. persons with health risks
and pregnant women)74
• Restrictions in the operations of
non-essential businesses75
• Suspension of face-to-face
classes during GCQ,76 and
limited face-to-face classes
during MGCQ77
• Operation of public
transportation at a “reduced
operational and vehicle
capacity” during GCQ,78 at the
“capacity in accordance with
guidelines issued by the
[Department of
Transportation]” during
MGCQ79
• Prohibition on mass
gatherings80
TABLE 1. Summary of the IATF Omnibus Guidelines on the
Implementation of Community Quarantine.
While violating these guidelines does not give rise to an independent

cause of action, these may nevertheless be used in determining whether a party
is guilty of contributory negligence. If the defendant proves by a
preponderance of evidence that the plaintiff violated any of these guidelines,
72 §§ 4.1 & 5.1.

73 §§ 4.2 & 5.2.
74 §§ 4.3 & 5.3.
75 §§ 4.6, 4.7, 4.9, 4.10 & 5.11.
76 § 4.11.
77 § 5.6.
78 § 4.14.
79 § 5.8.
80 §§ 4.12 & 5.5.
he may mitigate his liability. 81 In fact, if the defendant shows that the
proximate cause of the plaintiff’s injury is his own negligence (in this case, his
own violation of these guidelines), then he or she shall be absolved from his
liability altogether.82
Additionally, these very guidelines may be used as grounds to file an

independent suit for torts and/or quasi-delict under Articles 20 and 2176 of
the Civil Code.
IV. CONCLUSION
It bears repeating that the existence of a fortuitous event does not

necessarily mean the successful invocation of the fortuitous event defense.
Article 1174 of the Civil Code and jurisprudence laid down the four
elements needed to apply the defense of fortuitous event. Nevertheless, the
determination of the availability of the fortuitous event defense is not as easy
as checking four boxes. This Essay raised different issues in treating the
COVID-19 pandemic as a fortuitous event. We highlight the importance of
determining the acts that constitute the fortuitous event, the foreseeability of
the pandemic, and contributory negligence in light of the pandemic.
Several commentaries have attempted to answer whether the

COVID-19 pandemic can be classified as a fortuitous event.83 However, as
raised in this Essay, treating COVID-19 as a singular event for the purposes
of the fortuitous event defense may be misleading and erroneous. To consider
COVID-19 as a singular event—regardless of other factual circumstances—
amounts to ignoring the nuances and issues involved. Other factors, such as
the government policies on community quarantine, social distancing
measures, and operation of businesses, are crucial in determining the success
in invoking this defense.
81 See CIVIL CODE, art. 2179. See also Brunty, 506 SCRA 685.
82 Art. 2179.
83 See, e.g., Baker Mckenzie, COVID-19 and Force Majeure: Managing Contract Crisis in
the Philippines, BAKER MCKENZIE WEBSITE, Mar. 20, 2020, at

https://www.bakermckenzie.com/en/insight/publications/2020/03/covid19-force-
majeure-ph; Zyra Montefolca, COVID-19 as a Fortuitous Event and Its Implications on Contractual
Obligations, ACCRALAW WEBSITE, Apr. 14, 2020, at https://accralaw.com/covid-19-as-a-
fortuitous-event-and-its-implications-on-contractual-obligations; Jeffrey Neuburger & Jordan
Horowitz, The Coronavirus and Force Majeure Clauses, THE NATIONAL LAW REVIEW WEBSITE,
Mar. 2, 2020, at https://www.natlawreview.com/article/coronavirus-and-force-majeure-
clauses
As argued, the fortuitous event should not be limited to the pandemic

itself, but rather the response of the government to this pandemic. It is
important to frame the fortuitous event properly because the determination
of the other elements, e.g. foreseeability and contributory negligence, would
depend on what the fortuitous event is. Among others, the location of the
parties would also play a vital role in determining whether the fortuitous event
defense is applicable. Different locations are under different community
quarantine guidelines; the experience of contracting parties in Metro Manila
is different from the experience of parties in Batanes.
In conclusion, invoking the defense of fortuitous event requires a

case-to-case assessment of the factual circumstances raised in this Essay.
Notwithstanding the sheer scale and impact of the COVID-19 pandemic, one
size does not fit all.
- o0o -
COMPETITION AND GOVERNMENT RESPONSE TO THE
COVID-19 PANDEMIC*
Gwen Grecia-De Vera**
Jolina Pauline Tuazon-Eraña***
Raizza Dawn Angeli C. David****
Johanne Daniel M. Negre*****
ABSTRACT
As the Philippine government continues to form the country’s

COVID-19 relief and recovery strategy, it is important to
consider the shifting commercial landscape, the accompanying
* Cite as Gwen Grecia-De Vera, Jolina Pauline Tuazon-Eraña, Raizza Dawn Angeli
C. David & Johanne Daniel M. Negre, Competition and Government Response to the COVID-19
Pandemic, 93 PHIL. L.J. (Special Online Feature) 88, [page cited] (2020).
** Program Director, University of the Philippines Law Center Competition Law and
Policy Program (“CLPP”); Senior Lecturer, University of the Philippines College of Law;
Executive Director, Philippine Competition Commission (“PCC”) (2018); LL.M.,
Northwestern University (2010); LL.B., dean’s medal, University of the Philippines Diliman
(1995); A.B., magna cum laude, University of the Philippines Diliman (1991).
Launched in December 2018, the CLPP is envisioned to support the legal and
institutional framework established under the Philippine Competition Act and ensure the
development of competition policy remains responsive to the needs of the country as a
developing jurisdiction. The CLPP is intended to serve as: (i) a platform for developing multi-
disciplinary academic and policy research in relation to competition law and economics and
(ii) a forum on competition law and economics for academics, practitioners, enforcement
officers, and members of the judiciary. It is currently one of four research and policy programs
of the University of the Philippines College of Law. We wish to thank the interns under the
Clinic on Competition Law Enforcement for Second Semester, A.Y. 2019-2020 for further
research assistance. In particular, we acknowledge the submission of Pauline Angela D. Carillo
and Roberto Rolando L. Geotina on various legislative initiatives to respond to the pandemic.
*** Resource Person, UP Law Center CLPP; Associate, Puyat Jacinto Santos Law
(2019); Attorney III, PCC Adjudication Division (2018); Chief of Staff, Office of the
Executive Director, PCC (2017); J.D., University of the Philippines Diliman (2015); B.A.
Public Administration, University of the Philippines Diliman (2006).
**** Research Assistant, UP Law Center CLPP; Research Assistant, UP Law Center
Technology, Law and Policy Program (2019); Legal Assistant, Balsam International Unlimited
Company (2016-present); J.D., University of the Philippines Diliman (2021, expected); Dip.
in Industrial Relations, University of the Philippines Diliman (2016); B.S.B.A., cum laude,
University of the Philippines Diliman (2012).
***** Research Assistant, UP Law Center CLPP; Research Assistant, UP Law Center
Technology, Law and Policy Program (2019); Legal Assistant, Balsam International Unlimited
Company (2016-present); J.D., University of the Philippines Diliman (2021, expected); B.S.
Marketing Management, De La Salle University–Manila (2011).
88
changes in business behaviors, and their impact on consumers.

In this Essay, the authors explore the government’s package
of interventions designed to mitigate the effects of the
pandemic and argue that these measures should be informed
by competition policy. Competition policy and the
enforcement of the Philippine Competition Act remain
relevant during the pandemic and, more importantly, in
shaping the course of the country’s economic recovery.
Competition policy is an integral part of the Philippine
development plan, and the continued and consistent
enforcement of competition law throughout the period of the
public health emergency and into post-COVID-19 recovery
will bring needed discipline in reconfiguring or creating
business models, transactional strategies, and industry
structures.
I. INTRODUCTION
As countries across the globe adopt policies to contain the

transmission of the Coronavirus Disease 2019 (“COVID-19”) and mitigate
its effects on businesses and the economy, competition authorities have been
quick to respond with the monitoring of and enforcement against anti-
competitive conduct, as well as the expedited review of mergers and
acquisitions. In the Philippines, despite continued competition law
enforcement by the Philippine Competition Commission (“PCC”) during the
various levels of community quarantine, legislators have proposed granting
regulatory relief to enterprises as part of recovery interventions as the country
works its way towards the new normal. 1 Just days before the sine die
adjournment of the 18th Congress’ first session, the Lower House passed on
third reading House Bill No. 6815, otherwise known as the Accelerated
Recovery and Investments Stimulus for the Economy of the Philippines
1 New normal pertains to “the emerging behaviors, situations, and minimum public
health standards that will be institutionalized in common or routine practices and remain even
after the pandemic while the disease is not totally eradicated through means such as widespread
immunization. These include actions that will become second nature to the general public as
well as policies such as bans on large gatherings that will continue to remain in force.” The
new normal is intended to prevail in areas where no community quarantine is in place. Inter-
Agency Task Force for the Management of Emerging Infection Diseases (IATF-EID)
Omnibus Guidelines on the Implementation of Community Quarantine in the Philippines
(with Amendments as of July 2, 2020) [hereinafter “IATF Omnibus Guidelines”], § 1.4 in
relation to § 6.
2020] COMPETITION AND GOVERNMENT RESPONSE 90
(“ARISE”). 2 This bill aims to set aside funds to support the country’s
emergence from an economy adversely affected by COVID-19. Among its
proposed regulatory relief measures are provisions enjoining the PCC from
imposing fines and other monetary penalties upon businesses that failed to
comply with compulsory notification and other reportorial requirements
“relating to business activities and transactions that promote continuity and
capacity-building in all sectors of the economy.”3 At the same time, the bill
proposes to prevent the PCC from requiring parties to make any submission
in proceedings before the Commission, including fact-finding or preliminary
inquiries.4
This is a significant shift away from promoting competition law and

policy as integral to aligning the country’s economic recovery and inclusive
growth. In this Essay, the authors reflect on the necessity of preserving
competition policy as part of the country’s recovery and development plan
and enforcing the Philippine Competition Act5 (“PCA”) and other
competition-related laws in ensuring that anti-competitive business conduct
is not justified as a response to the pandemic and preventing such conduct
from becoming institutionalized as models and practices in the new normal.
We will begin by examining the impact of the current health crisis on
enterprises and the expected shifts in business structures or activities. We will
then briefly survey the government responses to COVID-19, with particular
attention to ARISE, and conclude with recommendations on enhancing
competition law enforcement as an integral component of maintaining the
country’s socio-economic growth trajectory.
II. COVID-19 AND ITS IMPACT ON COMMERCIAL ACTIVITIES
On March 8, 2020, Proclamation No. 922 was promulgated, declaring

a State of Public Health Emergency throughout the country due to COVID-
19. 5 Through this proclamation, all government agencies and local
government units were called upon to mobilize the necessary resources “to
curtail and eliminate the threat of Covid-19.”6 Shortly after, on March 16,
2020, this was followed by a declaration of a State of Calamity throughout the
2 H. No. 6815, 18th Cong., 1st Sess. (2020). ARISE Bill of 2020.
3 § 12.
4 § 12.
5 Rep. Act No. 10667 (2015). Philippine Competition Act.
5 The proclamation was issued pursuant to Rep. Act No. 11332 (2018). Mandatory
Reporting of Notifiable Diseases and Health Events of Public Concern Act.

6 Proc. No. 929 (2020), declaring a State of Calamity throughout the Philippines due
to Corona Virus Disease 2019.

Philippines for a period of six months 7 and the implementation of the

enhanced community quarantine (“ECQ”) in the island of Luzon.8 At the
national and local levels, various measures were subsequently taken by the
government to control the transmission of the disease and mitigate the
pandemic’s impact on the country’s economy and the general public.
Predicated on the continued rise in the number of COVID-19 cases,

the serious threat to health and safety posed by its transmission, and its
adverse impact upon livelihood and economic activities, the Philippine
Congress passed the Bayanihan to Heal As One Act 9 (“Bayanihan Act”),
declaring a state of national emergency and establishing a whole-of-
government approach in addressing the health and economic menace brought
on by the pandemic. In passing the Bayanihan Act, Congress set out the
national policy, authorized the President to “exercise such powers that are
necessary and proper to carry out the declared national policy,”10 and granted
the President the power to adopt a set of “temporary emergency measures to
respond to the crisis brought by the pandemic,”11 all of which are in effect
only for three months from the publication of the Act. The temporary
measures applied to various activities, sectors, and industries: government
budget and procurement, health, health care workers and supplies, social
amelioration and safety nets, availability of adequate supply of goods and
services, protection and preservation of human resources and employment,
support for business and enterprises, and regulation of transport sector. 12
Among the enforcement measures under the Bayanihan Act is the
proscription against certain acts that are also considered to be prohibited anti-
competitive behavior under the Philippine Competition Act (“PCA”).13
The principle behind the imposition of a community quarantine is to

reduce the likelihood of transmission of COVID-19 among persons within
and outside the quarantine area. 14 The most extreme form of community
7 Proc. No. 929 (2020).

8 Proc. No. 929 (2020); Memorandum from the Executive Secretary: Extension of
the Enhanced Community Quarantine Over the Entire Luzon Until 30 Apr. 2020 (2020).
9 Rep. Act No. 11469 (2020). An Act Declaring the Existence of a National
Emergency Arising from the Coronavirus Disease 2019 (COVID-19) Situation and a National
Policy in Connection Therewith, and Authorizing the President of the Republic of the
Philippines for a Limited Period and Subject to Restrictions, to Exercise Powers Necessary
and Proper to Carry Out the Declared National Policy and for Other Purposes. The Bayanihan
Act expired on June 25, 2020.
10 § 4.
11 § 4.
12 § 4.
13 § 4(i).
14 IATF Omnibus Guidelines, § 1(3).
quarantine, previously in place in Luzon and now prevailing in other parts of

the country, is the enhanced community quarantine or the ECQ. An ECQ
involves the “temporary implementation of stringent limitations on
movement and transportation of people, strict regulation of operating
industries, provision of food and essential services, and heightened presence
of uniformed personnel to enforce community quarantine protocols.”15 The
COVID-19 Government Response Stringency Index,16 which is a composite
measure of nine response indicators including school closures, workplace
closures, and travel bans, was rescaled to a value from zero to 100, with 100
being the strictest response. 17 Based on this Index, the Philippines
implemented what are considered the strictest response measures, determined
by their impact on mobility.
The increasing number of COVID-19 confirmed cases necessitated

the continued implementation of various levels of community quarantine in
different parts of the country, resulting in limited mobility for businesses,
workers, and consumers. Commercial activities have taken a slower pace, as
enterprises scaled down. Even as companies and small businesses shifted to
e-commerce and continued activities online, others have had to suspend
operations altogether. While the Department of Trade and Industry (DTI) has
yet to conclude its Impact Assessment Survey of COVID-19 on the Micro,
Small, and Medium Enterprises (“MSMEs”), 18 other indicators show the
indelible impact of the public health emergency on our economy. The
Philippine Statistics Authority (PSA) noted that from June 1 to 15, 2020,
57.8% of the total employment in the country are in areas still under general
community quarantine 19 (“GCQ”), such as the National Capital Region
(“NCR”). 20 For the same period, the PSA reported that only 63.1% of
employees or workers in the country were working, although this number
15 § 1(5).
16 Asian Development Bank, Lockdown, Loosening, and Asia’s Growth Prospects, ASIAN
DEVELOPMENT OUTLOOK SUPPLEMENT, June 2020, available at https://www.adb.org/sites/
default/files/publication/612261/ado-supplement-june-2020.pdf
17 Id. at 3.
18 This includes information on the decline in average sales, percentage of
workforce affected, and assistance needed by the sector.

19 General community quarantine pertains to the “implementation of temporary
measures limiting movement and transportation, regulation of operating industries, and

presence of uniformed personnel to enforce community quarantine protocols.” In areas under
GCQ, movement remains limited to accessing goods and services and for work in offices and
industries permitted to operate. IATF Omnibus Guidelines, § 1(5).
20 Report to the Joint Congressional Oversight Committee, at 14 (June 20, 2020),
available at https://www.officialgazette.gov.ph/downloads/2020/06jun/20200622-Report-
to-the-Joint-Congressional-Oversight-Committee.pdf
presents a 10% increase from that noted from May 1 to 15, 2020.21 Towards
the expiration of the Bayanihan Act, the Small Business Corporation (“SBC”)
reported a projected release of loans in June 2020 amounting to 369.30 million
pesos and pending loan applications in the total amount of 1.612 billion
pesos.22
III. GOVERNMENT INTERVENTIONS AND THE BUSINESS

ENVIRONMENT UNDER COVID-19
It is not surprising then that, under these difficult circumstances, the

government acted to protect consumers against deleterious business practices
or strategies—whether these were intentionally adopted by entities to take
advantage of the raging pandemic or resorted to out of sheer need to see their
enterprises survive.23 The dwindling demand for products and services may
compel businesses to increase prices or explore means of coordination. Firms
poised to survive may nevertheless see the situation as an opportunity to not
only attain a position of dominance in the market, but to adopt exclusionary
or exploitative measures. As COVID-19 related goods and services occupy
the government’s priority for procurement, and exceptions to public
procurement are put into effect, 24 the scramble for business from the
government may motivate manipulation of bidding processes. These acts and
practices are considered harmful to consumer welfare and inimical to the
public interest. To be sure, Congress saw it fit to legislate further safeguards
to curb or mitigate their impact. The Bayanihan Act, for example, penalizes
the following acts:
engaging in hoarding, profiteering, injurious speculations,

manipulation of prices, product deceptions, and cartels, monopolies or
combinations in restraint of trade, or other pernicious practices
affecting the supply, distribution and movement of food, clothing,
21 Id.
22 Id. at 6.
23 See CNN Philippines Staff, Three arrested for hoarding, selling overpriced alcohol, CNN
PHIL., Mar. 20, 2020, at https://www.cnnphilippines.com/news/2020/3/20/alcohol-

hoarding-overpricing-arrested.html; Christopher Lloyd Caliwan, 17 nabbed for hoarding, sale of
overpriced medical supplies, PHIL. NEWS AGENCY, Mar. 25, 2020, at
https://www.pna.gov.ph/articles/1097760; Darryl John Esguerra, 594 arrested for hoarding,
profiteering amid COVID-19 crisis, INQUIRER.NET, Apr. 7, 2020, available at https://newsinfo.
inquirer.net/1255032/594-arrested-for-hoarding-profiteering-amid-covid-19-crisis
24 Rep. Act No. 11469 (2020), § 4(k); Rep. Act No. 9184 (2002). Government
Procurement Reform Act of 2002; GPPB Res. No. 03-2020, approving the Adoption of
Efficient, Effective and Expedient Procurement Procedures during a State of Public Health
Emergency.
hygiene and sanitation products, medicine and medical supplies, fuel,

fertilizers, chemicals, building materials, implements, machinery
equipment and spare parts required in agriculture, industry and other
essential services, and other articles of prime necessity, whether
imported or locally produced or manufactured.25
Many, if not all of these acts, are already prohibited or criminalized

under existing legislation.26 Nonetheless, our legislators chose to emphasize
that these activities are specifically enjoined and proscribed during the period
of crisis. But neither the prevailing state of calamity nor the declaration of
state of national emergency justifies for tolerating and condoning anti-
competitive practices by suppressing the capability of established institutions
to enforce competition laws.
Indeed, the PCC took swift steps to adapt to the community

quarantine and comply with corresponding guidelines. A day after the
effectivity of the community quarantine in the National Capital Region, the
PCC issued a resolution, stating that it shall maintain a skeleton workforce
and that the following merger review processes have been suspended: (a)
acceptance of new Notification Forms and Letters of Non-Coverage; (b)
evaluation of sufficiency of Notification Forms and Letters of Non-Coverage
already submitted to the PCC; and (c) running of the 30-day Notification
Period under Section 3.1 of the PCC Rules on Merger Procedure.27 The next
day, the PCC issued another resolution, this time on the interruption of the
reglementary periods for all filings with the PCC, stating that, for the duration
of the ECQ, the reglementary periods for the filing of pleadings, motions,
affidavits and other submissions to the Commission, as well as those for the
25 Rep. Act No. 11469 (2020), § 6(c).

26 See Rep. Act No. 10667 (2014), §§ 14-15; Rep. Act No. 7581 (1992). Price Act of
1992, amended by Rep. Act No. 10623 (2012). Price Act of 2012; Rep. Act No. 9502 (2008).
Universally Accessible Cheaper and Quality Medicines Act of 2008; OP Mem. Circ. No. 77
(2020), directing all government agencies and instrumentalities, including LGUs, to implement
and ensure compliance with issuances (of DOH and DA) on prices of essential emergency
medicines and supplies, agricultural and fishery commodities; Dep’t of Health (DOH) Pub.
Adv. No. 19 (2020), prohibiting hoarding of drugs and medicines, profiteering, illegal
combination, and all other acts committed in restraint of trade; Dep’t of Trade and Industry
(DTI) Mem. Circ. No. 20-07 (2020), on anti-hoarding and anti-panic buying. DTI refers to the
Price Act of 1992, but there is mistake in calling it the “Consumer Act of the Philippines”;
DOH Dep’t. Circ. No. 2020-0133 (2020), reiterating price freeze of essential emergency
medicines and medical devices due to COVID-19; DTI Mem. Circ. No. 20-08 (2020), on
unhampered movement of cargo and transit of personnel of exempt business establishments;
measures to prevent unreasonable increase in the prices of all basic necessities.
27 PCC Res. No. 007-2020 (2020).
payment of fines or penalties, are deemed interrupted. 28 While the PCC

offices were closed to the public during the community quarantine, the PCC
remained accessible online, with queries and requests for consultation done
by email.
As the economy gradually reopens with minimum health safety

standards in place, in a bid to mitigate the effects of the pandemic and regain
the country’s growth trajectory, government efforts have shifted to relief and
recovery. Tanja Goodwin and Georgina Pop of the World Bank Group put
the question in this way:
[r]ising mark-ups, superstar firms, ‘killer acquisitions’ and

competition among digital platforms—for the past few years,
academia and policymakers have been increasingly concerned
about lack of competition. But in the face of a major economic
recession caused by the coronavirus disease, does competition still
matter?29
IV. ARISE: A VIEW OF GOVERNMENT STRATEGIES FOR RECOVERY
It is our view that competition remains relevant during the pandemic

and, more importantly, in shaping the course of the country’s economic
recovery, for three reasons: (i) competition policy is an integral part of our
development plan, its significance in achieving inclusive growth having been
demonstrated; (ii) continued and consistent competition law enforcement
throughout the period of emergency and into post-COVID-19 and recovery
will bring needed discipline in reconfiguring, choosing, and creating business
models, transactional strategies, and industry structures; and (iii) the existence
of safeguards in the PCA and competition-related laws ensures regulatory
responsiveness and reduces the risk of agency delay and processual
inefficiency.
The value of viewing the national policy on relief and recovery with a
competition lens is evident when considered in light of the economic and
financial interventions proposed under ARISE. House Bill No. 6815 is a
28 PCC Res. No. 008-2020. Interruption of the Reglementary Periods for the Filing
of Pleadings, Motions and Submissions to the Commission and the Payment of Fines or
Penalties in View of the Enhanced Community Quarantine to Manage the COVID-19
Situation.
29 Tanja Goodwin & Georgiana Pop, Flatten the coronavirus curve, but don’t flatline
competition, WORLD BANK BLOGS, Apr. 21, 2020, at https://blogs.worldbank.org/psd/

flatten-coronavirus-curve-dont-flatline-competition
consolidation of various bills and was previously known as the Philippine

Economic Stimulus Act or PESA. Upon its passage on third reading, it came
to be referred to as ARISE. It is based on the policy of the State to protect
Filipino families, workers, and businesses facing difficulties brought about by
the COVID-19 pandemic. It further provides that it is the State’s policy to
“preserve the country’s path to economic prosperity.” 30 The proposed
measure places emphasis on mass testing for COVID-19 as a general
intervention, allocating the amount of 10 billion pesos for Fiscal Year 2020
and the same amount for Fiscal Year 2021.31 It also classifies the economic
interventions under four categories: (i) transitional, (ii) financial, (iii) sectoral,
and (iv) structural.32
Transitional interventions refer to economic reliefs that are intended

to “mitigate the permanent damage by the Covid-19 crisis to the economy
and maintain employment levels of the corresponding sector or industry,”33
and are envisioned to offer immediate relief up to a specific period. Among
the transitional interventions are: (i) wage subsidies for non-essential
businesses,34 free-lancers, the self-employed, and repatriated overseas Filipino
workers (“OFWs”),35 (ii) assistance to displaced workers by expanding the
Tulong Panghanapbuhay Program sa Ating Displaced/Disadvantaged
Workers (“TUPAD”), and technical and vocational learners,36 (iii) educational
subsidy to students, 37 (iv) economic relief to OFWs, 38 (v) extension of
principal loan payments,39 (vi) regulatory relief for business entities,40 and (vii)
regularization of MSME+.41
ARISE also proposes various financial interventions: (i) credit

mediation and restructuring service (“CMRS”) for MSME+, (ii) loans to
MSME+, (iii) interest-free loan programs to be introduced by the Land Bank
of the Philippines (“LBP”) and Development Bank of the Philippines
30 H. No. 6815, 18th Cong., 1st Sess., §§ 1 & 6 (2020).

31 § 3(f).
32 § 5.
33 § 5(b).
34 § 3(i). “Non-essential businesses” pertains to “business entities engaged in
activities which are not allowed to operate during the CQ, whether under applicable law,
presidential proclamations, or executive orders issued or promulgated for the purposes of
containing the spread of COVID-19.”
35 § 7.
36 § 8.
37 § 9.
38 § 10.
39 § 11.
40 § 12.
41 § 13.
(“DBP”), and (iv) loan guarantee by the Philippine Guarantee Corporation

(“PGC”). Financial interventions are economic relief programs “intended to
accelerate recovery and improve economic performance of business
entities[.]”42
Sectoral interventions refer to economic relief targeted at specific

sectors or industries: (i) MSME+ sector, with preference for MSME+ that
supports the Balik Probinsya, Bagong Pag-asa Program, 43 (ii) tourism
industry, (iii) transportation industry, (iv) industry and service sectors, (v) agri-
fishery sector, with preference to establishments requiring assistance to any
activity that supports the Balik Probinsya, Bagong Pag-asa Program, and (vi)
condonation of loans of agrarian reform beneficiaries for land acquisition
under the government land redistribution programs. These interventions may
or may not be limited to a specific period.44 It is significant to note that the
creation of a National Emergency Investment Vehicle (“NEIV”) is proposed
under ARISE, with a NEIV Board led by the Secretary of Finance. 45 Its
mandate is to identify critically impacted businesses46 and extend financial
accommodations, such as loans and equity investments, to such businesses.47
The NEIV may also absorb the financial obligations of critically impacted
businesses, in exchange for equity of the same value. 48 Similarly, upon
consultation with relevant regulators, the NEIV may also merge or
consolidate the identified critically-impacted businesses.49
To establish the NEIV, ARISE sets the authorized capital stock at

100 billion pesos and proposes to appropriate 25 billion pesos as equity of the
42 § 5(c).
43 Exec. Order No. 114 (2020), institutionalizing the Balik Probinsya, Bagong
Pag-asa Program as a pillar of balanced regional development, creating a council therefor, and
for other purposes.
44 H. No. 6815, 18th Cong., 1st Sess., § 5(c) (2020).
45 § 25.
46 § 3(c). “Critically impacted businesses” pertains to “non-essential businesses that
have been directly and adversely impacted by the COVID-19 outbreak such that (i) their
liabilities have become more than their assets, or (ii) they have experienced at least a fifty
percent (50%) decline in gross receipts for at least one calendar quarter, and in either instance,
are generally unable to pay or perform their obligations as they fall due in the ordinary course
of business, as a result of the COVID-19 outbreak. For purposes of ARISE, critically impacted
business shall include the transport industry, tourism industry, and globally-oriented
manufacturing and services firms that sell to the export market, local market, or both, but shall
exclude banks and other financial institutions under the supervision of the Bangko Sentral ng
Pilipinas (BSP).”
47 § 25(b)-(d).
48 § 25 (c).
49 § 25 (e).
National Government in NEIV.50 An equivalent amount is proposed to be

appropriated as additional National Government equity under the 2021
General Appropriations Act. 51 Enhancements to the programmed
infrastructure spending are also provided for under ARISE, with specific
focus on Build, Build, Build projects in universal health care, housing,
education, agri-fishery, transportation, security, and information
communication technology.52
Included as part of the proposed structural interventions is the

coordination between the BSP and the Securities and Exchange Commission
(“SEC”) for purposes of adopting measures, which includes
the relaxation of regulatory and statutory restrictions and

requirements for a period of not more than ten (10) years from their
respective dates of effectivity, to encourage the banking industry
and other financial institutions to extend loans and other forms of
financial accommodation to help businesses recover from the
economic effects of the COVID-19 crisis and to enable the banking
industry to manage appropriate risks and potential losses.53
These are considered structural interventions “designed to

accommodate, close gaps in, or improve any sector or industry through an
institutionalized program or entity.”54
ARISE supports socio-economic policies aimed at “encourag[ing]

businesses, communities, and individuals to positively respond to the
economic effects of COVID-19.”55 In relation to social amelioration affecting
trade, the ARISE provides that
i. All sector regulators with a price and fee regulation

mandate shall review existing pricing and payment
policies, including tariff rates, and issue temporary
suspensions or revisions as needed, including export
percentage requirements for purposes of aiding
regulated businesses cope with economic losses arising
from the COVID-19 pandemic.56
50 § 25.
51 § 25.
52 § 26.
53 § 27.
54 § 5(d).
55 § 28.
56 § 28(b)(i).
***
iii. All relevant departments and agencies shall make it a

policy to give preference to all local suppliers and
contractors for all Public-Private Partnership projects,
infrastructure projects, and all purchases for relevant
provisions and suppliers from their respective MOOE.
[maintenance and other operating expenses]57
V. THE ROLE OF COMPETITION POLICY IN FRAMING THE

COUNTRY’S STRATEGIES FOR RECOVERY AND GROWTH
In brief, among the significant components of the economic and

financial recovery mechanisms in ARISE are: (a) wage and other subsidies, (b)
financial relief, including loans to MSME+, (c) sectoral assistance, and (d) the
creation of the NEIV with the mandate to extend loan accommodations or
place equity investments in critically impacted businesses. In other
jurisdictions, to prevent the distortion of competition in affected markets and
the resulting anti-competitive behavior, competition policy has informed
decisions on government interventions. For example, in the matter of
subsidies, the European Commission’s guidance with regard to state aid
ensures that such subsidies flow to companies that need them, without
favoring certain firms. 58 The United Kingdom is partly considering
nationalizing its flag carrier British Airways, while in Italy, it has been decreed
that a government entity will be established to take control over Alitalia.59 For
these strategies to succeed, they must be designed from a competition policy
perspective. This ensures that rescue or bailout packages do not sustain what
are already failing companies or favor dominant enterprises. Bailout measures
that are narrowly drawn may later prove to be exclusionary, thereby inducing
dominance by incumbent players.60 At a recent International Bar Association
57 § 28(b)(iii).
58 See European Commission, Communication from the Commission: Temporary
Framework for State Aid Measures to Support the Economy in the Current Covid-19
Outbreak (Consolidated Version) (2020), available at https://ec.europa.eu/competition/
state_aid/what_is_new/TF_consolidated_version_amended_3_april_8_may_and_29_june_
2020_en.pdf. As explained in the document itself, “[t]his text is meant purely as a
documentation tool and has no legal effect.”
59 See José Varela Rodrigues, British government studies nationalization of British Airways,
JORNAL ECONOMICO, Mar. 23, 2020, available at https://jornaleconomico.sapo.pt/en/news/

british-government-studies-nationalization-of-british-airways-564228; Giuseppe Fonte,
UPDATE 1-Italy to inject 3 bln euros in new Alitalia - minister, REUTERS, May 7, 2020, at
https://www.reuters.com/article/italy-alitalia-minister/update-1-italy-to-inject-3-bln-euros-
in-new-alitalia-minister-idUSL8N2CP4B6
60 See id.
panel discussion on the proposed European Commission’s White Paper on

Leveling the Playing Field as Regards Foreign Subsidies, 61 concerns were
raised on state subsidies, particularly foreign state aid being utilized by
grantees to seek out opportunities in the grantee state’s public procurement
market.62 Dr. Graciela Murciega, Senior Economist at the World Bank Group,
offered a useful overview of pro-competitive solutions to support various
government responses to the pandemic:
Policy Response Associated Risks Pro-Competitive

Solutions
(a) Subsidies Selective and ad hoc aid Time-bound, limited
can distort the level and transparent aid
playing field schemes
(b) Bailouts and Unduly sustaining Temporary
nationalizations failing (private or measures,
public-owned) firms particularly for
failing firms
(c) Leveraging Risk of calling upon Allow smaller firms
private sector only incumbent/large to participate in
firms exclusively service/good
delivery
(d) Expedited Risk of foregoing Include measures
public procurement benefits of competitive that allow more
mechanisms; risk of players to compete
bid-rigging
(e) Price controls Risk of reducing Time-bound,
supply, discouraging monitoring and
pro-competitive transparency
behavior measures
(f) Coordination Enforcement activities Communicate plans
among competitors may be on hold in to be vigilant to
practice deter behavior,
virtual evidence
gathering
61 EUROPEAN COMMISSION, WHITE PAPER ON LEVELLING THE PLAYING FIELD AS
REGARDS FOREIGN SUBSIDIES (2020), available at https://ec.europa.eu/competition/

international/overview/foreign_subsidies_white_paper.pdf
62 See International Bar Association (IBA), The European Commission’s White Paper on
Levelling the Playing Field as Regards Foreign Subsidies, IBA WEBSITE, July 3, 2020, at
https://www.ibanet.org/European-Commission-White-Paper-Webinar.aspx
(g) Mergers Pressure to approve all

Expedite M&A/JVs
mergers quickly for medical
solutions, tailored
remedies, review
“failing firm”
defense case-by-case
TABLE 1. Overview of policy responses to Covid-19 and pro-competitive
solutions to support policy objective63
Indeed, competition policy has been firmly established as an integral

part of the country’s development plan and a critical component of achieving
more inclusive and sustainable growth and development for the Philippine
economy. A unique feature of the PCA is a provision for the articulation of
the national competition policy, which was recognized by the inclusion of a
competition chapter in the Philippine Development Plan 2017-2022.64 The
necessity of ensuring a resilient economy post-COVID-19 underscores the
pervasive role of competition policy not only in the design of recovery
responses, but in ensuring that these are monitored and evaluated from a
competition perspective in their implementation.
Despite the far-reaching effects of the proposed interventions under

ARISE, these measures suppress regulatory action, including the enforcement
of the PCA and competition-related laws. Prominent among these proposed
provisions is the regulatory relief for business entities, which states:
The [Bureau of Internal Revenue] BIR, Bureau of Customs (BOC),

Department of Transportation (DOTR), [Securities and Exchange
Commission] SEC, Philippine Competition Commission (PCC), and
other relevant regulatory agencies shall suspend deadlines for all the
filings and payments due during the Community Quarantine (CQ)
period and extend the due dates accordingly without interests, fines,
or penalties.
The BIR, PCC, SEC and other relevant regulatory agencies are
likewise directed to desist from imposing fines and other monetary
penalties for non-filing, late filing, failure to comply with compulsory
63 Arsenio Balisacan, Economic Recovery Challenges and Competition Policy

Enforcement, delivered at the webinar entitled UP School of Economics Alumni Association
Zoom Forum (July 3, 2020), citing Graciela Murciega, Competition and the Covid-19 Crisis,
delivered at the webinar entitled Capacity Improvement on Competition Advocacy for
Legislative Staff (“CICALS”) (May 28, 2020).
64 National Economic and Development Authority, Levelling the Playing Field through
a National Competition Policy, in PHILIPPINE DEVELOPMENT PLAN 2017-2022 (2017) 243.

notification and other reportorial requirements relating to business

activities and transactions that promote continuity and capacity-
building in all sectors of the economy.
For a period of six (6) months from the lifting of Community

Quarantine, the PCC, SEC and other relevant regulatory agencies
shall review all pending matters before them or those subject on any
ongoing review, fact-finding or preliminary inquiry or investigation,
in order that business activities and transactions that promote
continuity and capacity-building in all sectors of the economy shall
be promptly resolved or otherwise allowed to proceed unimpeded.
The PCC, during the same period which may be extended for an
additional period of six (6) months thereafter, shall desist from
requiring any submission by parties to any proceedings before it,
including fact-finding or preliminary inquiries, and from issuing any
show cause order, cease and desist order, subpoena, statement of
concern or similar statement and other similar issuances; Provided,
That nothing herein shall prohibit the PCC from using decisions
approving any transaction or transactions, confirmation of non-
coverage, commitment decisions and similar orders relating to
business activities and transactions that it shall have determined to
promote continuity and capacity-building as well as orders and
decisions relating to the enforcement of Chapter III of the
Philippine Competition Act (PCA): Provided, further, That all mergers
and acquisitions involving enterprises engaged in essential
businesses entered into thirty (30) days prior or during the
Community Quarantine and for a period of one year thereafter shall
be deemed to promote continuity and capacity-building, and are
hereby declared exempt from the compulsory notification and
related requirements under PCA.65
As pointed out by Dr. Murciega, there are two risks embedded in

these regulatory relief measures that heavily impact competition: (i) putting on
hold enforcement activities and (ii) pressure to approve mergers quickly (or
exempt them altogether).66 But pro-competitive solutions demonstrate that it
is unnecessary to suppress regulatory action while the crisis prevails and much
less during the period of recovery. To be sure, preserving and nurturing
competition in our markets are founded upon a two-pronged approach under
65 H. No. 6815, 18th Cong., 1st Sess., § 12 (2020). It is worth noting that, under the
counterpart Senate measure, S. No. 1564, 18th Cong., 1st Sess. (2020), or the Bayanihan to
Recover As One Act, there is no similar restriction on the enforcement activities of the PCC,
save for a general directive for all agencies to resolve pending and new applications or matters
within an inextendible period of five working days (§ 3xx).
66 Balisacan, supra note 63.
the PCA. The PCA ensures that government policy and actions are pro-
competition, adhering to the principle of competitive neutrality. It also looks
at business behavior and market structure to create an opportunity for
competition to be introduced or enhanced for the benefit of consumers and
public interest. The PCA is designed to successfully implement its underlying
policies with the adoption of competition enforcement approaches through
administrative action and criminal prosecution of anti-competitive conduct,
proscription of abuse of market dominance, prevention of anti-competitive
mergers or acquisitions under a compulsory review regime, and the execution
of timely and relevant advocacy activities.
While other countries were constrained to suspend enforcement, such

suspensions have specific durations, and they only cover goods and services
related to the health crisis. For example, collaboration agreements for the
supply and distribution of essential medicines have been allowed. 67 More
importantly, it is unnecessary to suppress the PCC’s enforcement activities
since there are adequate safeguards under the PCA and competition-related
laws to prevent agency inaction, delay, or abuse—whether it be in the conduct
of investigations68 or in the exercise of the PCC’s authority to review mergers
and acquisitions.69
With regard to investigations and enforcement activities involving

anti-competitive behavior or abuse of dominance, there is a non-extendible
90-day period within which a preliminary inquiry must be concluded, at the
end of which the PCC may decide to take no further action. 70 With the
standard of reasonable grounds 71 for the matter to become a full
administrative investigation, entities are assured that transactions will not
haphazardly or routinely come under further scrutiny. To enjoin even the
conduct of preliminary inquiry will distort the legal and institutional
framework for the suppression of activities that harm competition and
consumers. Under the PCA, criminal prosecution for egregious acts, such as
price fixing, bid manipulation, market allocation, and output restriction, may
not be commenced except through a complaint brought by the PCC following
its conduct of a preliminary inquiry.72 To be sure, withholding this authority
67 Organisation for Economic Co-operation and Development, Cooperation between
competitors in the time of COVID-19, OECD TACKLING CORONAVIRUS (COVID-19):

CONTRIBUTING TO A GLOBAL EFFORT, May 26, 2020, available at https://www.oecd.org/
competition/Co-operation-between-competitors-in-the-time-of-COVID-19.pdf
68 Rep. Act No. 10667 (2014), §§ 14-15.
69 § 16.
70 § 31.
71 See § 31. See also PCC PROC. RULE, Rule II, art. I, § 2.1.
72 Rep. Act No. 10667 (2014), § 31.
from the PCC is a significant blow to enforcement, as the PCA expressly

states that, except as provided elsewhere in the law, “no law enforcement
agency shall conduct any kind of fact-finding, inquiry or investigation into any
competition-related matters.” 73 Moreover, private litigants are effectively
deprived of a statutorily-granted remedy to sue a party for damages arising
from the latter’s violation of the PCA, because the prerogative arises only after
a preliminary inquiry by the PCC is concluded, regardless of the outcome.74
Enjoining the PCC from exercising its investigative and adjudicative
functions—even if only for a period of six months, but at a time when there
is heightened risk of businesses knowingly or inadvertently engaging in anti-
competitive behavior—will induce aberrant and abusive business behavior
and, in that condonation, likely make them permanent and irreversible.
With the expected rise in rescue acquisitions, it is not unusual to ask

government agencies to offer expedited approval processes. However, putting
the PCC’s merger review functions on hold or, worse, extending a statutory
grant of approval, increases the risk of making permanent what are, only in
the short term, tolerable anti-competitive behavioral or structural shifts.
Competition authorities have instead pledged to remain rigorous in their
review, while offering to support transacting parties or simplify review
procedures so that the review of these transactions is concluded efficiently.75
In addition, there are safety mechanisms embedded in the PCA to ensure that
the review of mergers and acquisitions is undertaken pragmatically and, as the
crisis demands, expeditiously. As noted by PCC Commissioner Johannes R.
Bernabe:
73 § 31.
74 § 47.
75 Ian Conner, Antitrust review at the FTC: staying the course during uncertain times,
FEDERAL TRADE COMMISSION, Apr. 6, 2020, at https://www.ftc.gov/news-

events/blogs/competition-matters/2020/04/antitrust-review-ftc-staying-course-during-
uncertain. The U.S. Federal Trade Commission (“FTC”) issued a statement on antitrust review
at the FTC, saying – “The manner in which we conduct our investigations has adapted to the
constraints of physical distancing, but make no mistake about it: the substance of our work
remains the same. […] The antitrust laws are flexible enough to account for changing market
conditions, even during uncertain times. As we saw during the 2008 financial downturn and
countless other difficult periods in our nation’s history, “emergency” exceptions to the
antitrust laws are not needed. Now more than ever, FTC staff must continue to analyze
carefully the potential effects of proposed transactions and business conduct. […] We will not
suspend our usual rigorous approach to ferreting out anticompetitive harm and seeking
appropriate relief, even in the face of uncertainty. It might be tempting, for example, for parties
to urge us to relax the rules in a time of crisis. But we know what the likely long-term negative
consequences of such a reactionary policy would be: fewer competitors, reduced innovation,
and higher prices. Therefore, we must stay the course. We will continue to follow the facts,
adjust to changing market conditions, and master the many details that comprise a thorough
antitrust review.”
The call for suspending PCC’s authority to review mergers and

acquisitions is made in the belief that given the difficulties businesses
have had to endure during this pandemic, many are unlikely to
continue operating unless they consolidate or are acquired by larger
companies. This is meant to complement the loans and subsidies
that these failing firms are intended to receive as ‘bailout’ from the
government. It should be noted however that the Philippine
Competition Act anticipated these kinds of difficulties that firms
may encounter and provided for a ‘failing firm defense’ when
troubled firms merge. Section 21 of the PCA states that mergers of
acquisitions which would otherwise be prohibited may be exempted
from such prohibition by the Commission when a merging or
acquired party is ‘faced with actual or imminent financial failure’ and
the transaction ‘represents the least anti-competitive arrangement
among the known alternative uses for the failing entity’s assets.’76
Apart from the availability of the failing firm defense, the PCA also
grants PCC adequate powers to promulgate rules, clarificatory notes, and
guidance. It is worth noting that since the PCC commenced exercising its
compulsory merger review function, only one transaction has been blocked,
highlighting how assiduous the PCC has been in its review.77 In addition, even
during the quarantine period, the PCC was able to release decisions approving
transactions 78 and circulars providing for exemptions from compulsory
notification of unsolicited public-private projects 79 and public-private joint
ventures.80
76 Johannes Benjamin Bernabe, Competition law in the time of Covid and beyond, BUSINESS
MIRROR, June 24, 2020, available at https://businessmirror.com.ph/

2020/06/24/competition-law-in-the-time-of-covid-and-beyond
77 In re Proposed Acquisition by Universal Robina Corp. (URC) of Assets of Central
Azucarera Don Pedro Inc. (CADPI) & Roxas Holdings Inc. (RHI), PCC Decision No. 03-M-
021/2019 (PCC Feb. 12, 2019).
78 In re the Proposed Acquisition by Synergy Grid & Development Phils., Inc of
Shares in OneTaipan Holdings Inc., & Pacifica21 Holdings, Inc., PCC Decision No. 08-M-
005/2020 (PCC Mar. 30, 2020); In re Proposed Acquisition by Lotte Chilsung Beverage Co.
Ltd. of Shares in Pepsi-Cola Products Phil. Inc., PCC Decision No. 09-M-006/2020 (PCC
Mar. 26, 2020).
79 PCC Mem. Circ. No. 20-002 (2020), Process for Exemption from Compulsory
Notification of Unsolicited Public-Private Partnership Projects.

80 PCC Mem Circ. No. 20-001 (2020), Process for Exemption from Compulsory
Notification of Joint Venture Agreements Entered into Pursuant to “Guidelines and

Procedures for Entering into JV Agreements between Government and Private Entities”
issued by NEDA.
VI. CONCLUSION
While the persistence of the public health emergency brings dire

consequences for the economy unless responsive State interventions are put
into effect, it is not a justification for casting aside competition policy and the
PCA. A recent Supreme Court decision shows how competition policy
complements other legislative policies for the purpose of protecting and
promoting not just consumer welfare, but also the public interest. Noting the
significant impact on the affordability of an essential drug product as a result
of the entry of another manufacturer, the Court determined that the public
interest in this regard would be best served by rejecting a belated attempt to
revive and prosecute the incumbent player’s patent application.81 Arguments
against the relevance of competition policy during times of emergency ignore
the value of informing legislative and administrative recovery interventions
and strengthening the institutional framework established for effective
enforcement of competition laws, whether in times of crisis or recovery. As
the country’s primary competition authority, the PCC plays a crucial in
monitoring government interventions, offering pro-competitive solutions in
the design of recovery strategies, and remaining accessible and responsive to
enterprises and consumers alike. Competition policy is an indelible part of the
Philippines’ development agenda, and the enforcement of competition law is
critical in building economic resilience and shaping the country’s post-
COVID-19 recovery.
- o0o -
81 E.I. Dupont de Nemours and Co. v. Dir. Francisco, 794 Phil. 97 (2016).
THE DEMAND AND SUPPLY OF HUMANITY: ON THE
LEGALITY AND JUSTIFICATION OF ADOPTING
COMPULSORY LICENSING MEASURES FOR
COVID-19 MEDICINES*
Julia Therese D. Pineda**
I. INTRODUCTION: THE CORONAVIRUS PANDEMIC
The unprecedented Coronavirus (“COVID-19”) pandemic caused a

global paradigm shift and ushered in the new normal. Due to the virulent spread
of COVID-19 and its threats to humanity’s survival, the Philippine
government has been taking extreme measures to mitigate the effects of the
pandemic.
The amount of COVID-19 related expenses has been sharply

increasing and will continue to do so for an uncertain period of time while
there remains no treatment to prevent or cure the disease. Should the increase
in transmission of the COVID-19 virus continue, the government’s 600
billion-peso budget1 will eventually run dry.
This Essay submits that the Philippine government should adopt

compulsory licensing measures for COVID-19 medicines.
COVID-19 is an infectious disease caused by a new form of the

coronavirus, causing those infected to experience respiratory illness or worse,
to suffer death. 2 As of the end of June 2020, the number of COVID-19
confirmed cases has exceeded 10.1 million worldwide, 3 with over half a
*
Cite as Julia Therese Pineda, The Demand and Supply of Humanity: On the Legality and
Justification of Adopting Compulsory Licensing Measures for COVID-19 Medicines, 93 (Special Online
Feature) PHIL. L.J. 107, [page cited] (2020).
**
Court Attorney, Supreme Court; Professional Lecturer I, Pamantasan ng Lungsod
ng Maynila; J.D., Salutatorian and Best Mooter, De La Salle University (2018); B.S. Business
Administration, Minor in Economics, magna cum laude, Fordham University (2013). Thank you,
COD, for the million dreams.
1 Melissa Luz Lopez, TIMELINE: The COVID-19 response money trail, CNN PHIL.,
Apr. 8, 2020, at https://www.cnnphilippines.com/news/2020/4/8/COVID-19-response-

money-trail.html
2 World Health Organization (“WHO”), Coronavirus, WHO WEBSITE, at
https://www.who.int/health-topics/coronavirus#tab=tab_1 (last visited June 29, 2020).

3 Worldometer, Coronavirus Update, WORLDOMETER WEBSITE, at
https://www.worldometers.info/coronavirus (last visited June 29, 2020).
107
2020] DEMAND AND SUPPLY FOR HUMANITY 108
million deaths.4 Cases in the Philippines alone have exceeded 35,000,5 with
over 1,000 deaths. 6 The rapid spread of the COVID-19 virus has led the
World Health Organization (“WHO”) to characterize the outbreak as a
pandemic.7
The crisis is aggravated by the lack of vaccines or curative treatments.8

Since COVID-19 is transmitted through droplets,9 its transmission is almost
invisible, especially if the source thereof is an asymptomatic person. Thus, a
vaccine has been considered as the ultimate weapon against the virus and the
best way out of the crisis.10 A fast-tracked vaccine usually takes at least 12 to
18 months to be developed due to the required research and development,
testing, manufacturing, and regulatory compliance.11 As of April 2020, there
are already at least 254 therapies and 95 vaccines being considered as COVID-
19 treatment.12
In the Philippines, the government has characterized the COVID-19

pandemic as a national emergency. In Republic Act No. 11469 or the
“Bayanihan to Heal As One Act,” the Philippines declared a State of Public
Emergency due to COVID-19:
In view of the continuing rise of confirmed cases of COVID-19,

the serious threat to the health, safety, security, and lives of our
countrymen, the long-term adverse effects on their means of
livelihood, and the severe disruption of economic activities, a state
of national emergency is hereby declared over the entire country.13
4 Id.
5 Presidential Communications Group, Laging Handa PH, COVID-19 DASHBOARD
WEBSITE, at http://www.covid19.gov.ph (last visited June 29, 2020).
6 Id.
7 WHO, WHO Director-General’s opening remarks at the media briefing on COVID-19,
WHO WEBSITE, Mar. 11, 2020, at https://www.who.int/dg/speeches/detail/who-director-

general-s-opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020. “WHO has
been assessing this outbreak around the clock and we are deeply concerned both by the
alarming levels of spread and severity, and by the alarming levels of inaction. We have
therefore made the assessment that COVID-19 can be characterized as a pandemic.”
9 Id.
10 Stuart Thompson, How Long Will a Vaccine Really Take? THE NEW YORK TIMES,
Apr. 30, 2020, available at https://www.nytimes.com/interactive/2020/04/30/opinion/

coronavirus-covid-vaccine.html
11 Id.
12 Id.
13 Rep. Act No. 11469 (2020), § 2.
Indeed, the COVID-19 pandemic has had an irreversible impact on

the different sectors in the Philippines and disrupted the daily lives of every
Filipino. While the government and the private sector have been adopting
measures to mitigate the crisis, the health, economic, and social circumstances
of the people continue to worsen while there is no vaccine or curative
treatment.
The COVID-19 pandemic has united all people of the world, as we

commonly face the threat to survival and individually carry the burden of
performing our moral obligations (e.g., wearing a face mask, practicing social
distancing) to alleviate the universal plight. Given all humans are born equal
with the universal right to health, it is the demand of humanity to ensure
everyone is saved from the suffering caused by the pandemic through secured
access to a cure. Thus, pharmaceutical companies and governments must heed
the call to altruism, to supply humanity even at the expense of lost profits or
innovation opportunities.
This Essay is a preparatory study for the government’s possible

response of making COVID-19 medicines accessible to the entire Philippine
population. It will justify the adoption of compulsory licensing on the basis
of the national emergency affecting public health, and demonstrate how to
implement the same while considering the legally protected intellectual
property rights of pharmaceutical companies.
II. THE LEGAL PROTECTION OF INTELLECTUAL PROPERTY
Intellectual property (“IP”) rights are the rights conferred to persons

over creations of their minds, usually endowing the creator exclusive right
over the creation for a certain period of time. 14 The World Trade
Organization (“WTO”), of which the Philippines is a member State, 15
provides reasons for the protection of IP rights:
1. Encourage and reward creative work

2. Technological innovation
3. Fair competition
4. Consumer protection
14 World Trade Organization (“WTO”), Trade-Related Aspects of Intellectual
Property Rights, at 24.3 (2008), available at https://www.wto.org/english/tratop_e/

trips_e/ta_docs_e/8_bgd_trips_89_e.pdf
15 WTO, Philippines and the WTO, WTO WEBSITE, at https://www.wto.org/
english/thewto_e/countries_e/philippines_e.htm (last visited June 29, 2020).

5. Transfer of technology
6. Balance of rights and obligations16
The protection of IP rights provides incentives for innovation

activities, for the benefit and development of society as a whole.
Society most especially benefits from patented inventions as these are

“[a]ny technical solution of a problem in any field of human activity which is
new, involves an inventive step and is industrially applicable[.]”17 The goal of
the patent system is to bring new ideas into the public domain through
disclosure, while striking a balance between the interest of the inventor to
enjoy his invention and the people who would benefit from its use. Thus, the
Supreme Court has recognized the three-fold purpose of the patent system:
[F]irst, patent law seeks to foster and reward invention; second, it

promotes disclosures of inventions to stimulate further innovation
and to permit the public to practice the invention once the patent
expires; third, the stringent requirements for patent protection seek
to ensure that ideas in the public domain remain there for the free
use of the public.18
IP is protected in the Philippines under Republic Act No. 8293 or the

Intellectual Property Code of the Philippines (“IP Code”), and the Trade-
Related Aspects of Intellectual Property Rights Agreement (“TRIPS”).
TRIPS is an agreement that embodies the commitment of WTO

member States, such as the Philippines, to protect IP rights within their
territory19 and is considered part of Philippine domestic law by virtue of the
country’s ratification20 of the Marrakesh Agreement Establishing the World
Trade Organization in 1994. 21 Following the Philippines’ international
commitment, the legislative body enacted the IP Code to reflect the
requirements of TRIPS.22
16 WTO, supra note 14, at 24.3-24.4.

17 INTELL. PROP. CODE, § 21.
18 Pearl & Dean (Phil.), Inc. v. Shoemart, Inc., G.R. No. 148222, 409 SCRA 231,
Aug. 15, 2003, citing Aronson v. Quick Point Pencil Co., 440 U.S. 257, 262 (1979).
19 Agreement on Trade-Related Aspects of Intellectual Property Rights [hereinafter
“TRIPS Agreement”], art. 1, Apr. 15, 1994, available at https://www.wto.org/english/

docs_e/legal_e/27-trips.pdf
20 CONST. art. VII, § 21.
21 WTO, The Philippines: September 1999, WTO WEBSITE, at https://www.wto.org/
english/tratop_e/tpr_e/tp114_e.htm (last visited June 29, 2020).

22 Id.
Under Philippine law, should a patent application meet the requisites

of patentability—novelty, inventive step, and industrial application—it is
granted a patent by the IP Office.23 Since they are excluded from the list of
non-patentable inventions, medicines are considered patentable, provided
they meet the requisites under the IP Code.24
Under Section 71 of the IP Code, a patent over a product confers the

right “to restrain, prohibit and prevent any unauthorized person or entity
from making, using, offering for sale, selling or importing that product[.]”
Similarly, under Article 28 of TRIPS, a patent over a product confers the right
“to prevent third parties not having the owner’s consent from the acts of:
making, using, offering for sale, selling, or importing for these purposes that
product[.]”25 Thus, as recognized by the Supreme Court in Pearl & Dean, Inc.
v. Shoemart Inc., pharmaceutical companies that hold patents over their
medicines enjoy the exclusive right to make, use, and vend the patented
products and prevent others from exercising similar privileges without the
patent holder’s consent.26
To develop medicines, pharmaceutical companies incur significant

costs for research and development. On average, to introduce a new medicine
to the market, these companies invest hundreds of millions of dollars over
many years into research and development.27 Compared to other forms of
patented inventions, the costs of inventing medicine is significantly higher due
to the technical, regulatory, and dissemination barriers to entry. 28 A
pharmaceutical company undertakes research and development activities,
including discovery research, multi-stage testing, and clinical trials. Thereafter,
the company engages in regulatory, promotional, and distribution activities.29
Recognizing the costs of research and development of new medicine,

patents function as an incentive to pharmaceutical companies. More than an
incentive, the protection of IP rights is considered essential for recouping
23 Rep. Act No. 8293 (1997), § 21.

24 § 22.
25 TRIPS Agreement, art. 28. (Citations omitted.)
26 Pearl & Dean (Phil.), Inc. v. Shoemart, Inc., G.R. No. 148222, 409 SCRA 231,
Aug. 15, 2003.

27 Carmelo Giaccotto, Rexford Santerre & John Vernon, Drug Prices and Research and
Development Investment Behavior in the Pharmaceutical Industry, 48 J. L. & ECON. 195, 196 (2005).
28 Richard Epstein & F. Scott Kieff, Questioning the Frequency and Wisdom of Compulsory
Licensing for Pharmaceutical Patents, 78 U. CHI. L. REV. 71, 78 (2011).

29 Giaccotto et al., supra note 27.
investment to develop and market drugs globally. 30 Pharmaceutical

companies with patents enjoy broad discretion in determining the pricing of
their medicines, and set the price of medicines above that which would be
optimal in a competitive market.31
Without patents, imitation products can drive innovator

pharmaceutical companies out of business by forcing market prices down due
to negligible costs for research and development.32 Low standards of IP rights
protection reduce expected income streams and the incentive to invest. 33
Thus, patents are needed to allow innovator pharmaceutical companies to
price above marginal cost to recoup expenses and to preserve incentives for
future research and development.34
While the IP Code was enacted to protect the interest of innovators

over their IP, the State policy balances the private rights over IP with the
social function the use of IP bears. A portion of Section 2 of the IP Code
provides:
The State recognizes that an effective intellectual and industrial

property system is vital to the development of domestic and
creative activity, facilitates transfer of technology, attracts foreign
investments, and ensures market access for our products. It shall
protect and secure the exclusive rights of scientists, inventors, artists and
other gifted citizens to their intellectual property and creations,
particularly when beneficial to the people, for such periods as
provided in this Act.
The use of intellectual property bears a social function. To this end,

the State shall promote the diffusion of knowledge and information
for the promotion of national development and progress and the common
good.35
30 Vanessa Kerry & Kelley Lee, TRIPS, the Doha declaration and paragraph 6 decision:
what are the remaining steps for protecting access to medicines?, 3 GLOBALIZATION & HEALTH 1 (2007),
available at https://globalizationandhealth.biomedcentral.com/articles/10.1186/1744-8603-3-
3
31 CARLOS CORREA, IMPLICATIONS OF THE DOHA DECLARATION ON THE TRIPS
AGREEMENT AND PUBLIC HEALTH 7 (2002).

32 Patricia Danzon & Adrian Towse, Differential Pricing for Pharmaceuticals: Reconciling
Access, R&D and Patents, 3 INTL J. HEALTH CARE FIN. & ECON. 183, 185 (2003).
33 Fredrick Abbott, The Doha Declaration on the TRIPS Agreement and Public Health:
Lighting a Dark Corner at the WTO, 5 J. INTL ECON. L. 469, 473 (2002).
34 Danzon & Towse, supra note 32.
35 Rep. Act No. 8293 (1997), § 2. (Emphasis supplied.)
Following the declaration of State policy, the protection of IP must

align with the promotion of national development and progress and the
common good.
III. THE ADOPTION OF COMPULSORY LICENSING AS A COVID-19

RESPONSE
A. Accessibility of COVID-19 Medicines

Aligns with the Common Good
It is the common good for COVID-19 medicines to be made

accessible to all persons to prevent the further transmission of the virus and
put an end to the pandemic. The WHO echoed this sentiment: “If countries
detect, test, treat, isolate, trace, and mobilize their people in the response,
those with a handful of cases can prevent those cases becoming clusters, and
those clusters becoming community transmission. Even those countries with
community transmission or large clusters can turn the tide on this virus.”36
Considering that the COVID-19 virus is not bound by geographic borders,
ethnicity, gender, age, physique, or wealth, but in fact has been
indiscriminately infecting any person through contact transmission,
widespread efforts are required to put an end to the pandemic.
The COVID-19 pandemic has caused an economic crisis due to the

shutdown of the market, as well as the unplanned fiscal spending of
governments to address the situation. In the Philippines, COVID-19
treatment reportedly ranges from PHP 43,000.00 to about PHP 800,000.00.37
The reported ceiling cost is almost four times higher than the average family
income of PHP 267,000.00.38 COVID-19 treatment is not only expensive in
the Philippines, but in developed countries as well. In the United States, it was
reported that many COVID-19 patients have struggled with the cost of
medical treatment.39

37 Trishia Billones, Jessica Fenol & Warren de Guzman, How much does COVID-19
treatment cost, and how much will PhilHealth cover?, ABS-CBN NEWS, Apr. 15, 2020, available at
https://news.abs-cbn.com/business/04/13/20/how-much-does-covid-19-treatment-cost-
and-how-much-will-philhealth-cover
38 CEIC Data, Philippines Average Family Income: Philippines: All Income Classes, CEIC
WEBSITE, at https://www.ceicdata.com/en/philippines/family-income-and-expenditure-
survey-average-annual-income-by-family-size-and-income-group/average-family-income-
philippines-all-income-classes (last visited June 29, 2020).
39 Hilary Wong, The case for compulsory licensing during COVID-19, 10 J. GLOB. HEALTH
1 (2020), available at http://www.jogh.org/documents/issue202001/jogh-10-010358.html

To promote the common good, the government must enact measures

to ensure the affordability and accessibility of COVID-19 medicines. In an
open letter calling on all governments to unite behind a people’s vaccine
against COVID-19, more than 140 world leaders and experts made this
statement:
Governments and international partners must united around a

global guarantee which ensures that, when a safe and effective
vaccine is developed, it is produced rapidly at scale and made
available for all people, in all countries, free of charge. The same applies for
all treatments, diagnostics, and other technologies for COVID-19.
***
Our world will only be safer once everyone can benefit from the science and access
a vaccine – and that is a political challenge.40
B. Compulsory Licensing as a
Possible Solution
To achieve the common good of accessibility of COVID-19

medicines, it is submitted that the Philippine government should consider
enacting legislation for the compulsory licensing of medicines for the
prevention or cure of the virus. Compulsory licensing is an exception to the
exclusivity of the rights granted to a patent holder. The IP Code authorizes
the Director General of the Intellectual Property Office to “grant a license to
exploit a patented invention, even without the agreement of the patent owner,
in favor of any person who has shown his capability to exploit the invention”41
under the legally defined circumstances. In effect, the government may legally
grant an exception to the exclusive protection of a patent by allowing the use
of the patented invention by itself or by a third party, even without the consent
of the patent holder and despite the latter’s dissent. 42 By manufacturing
generic alternatives of the medicines, the government can ensure the
affordability thereof since only negligible costs are involved in production and
distribution.
40Oxfam International, OPEN LETTER: Uniting Behind A People’s Vaccine Against

COVID-19, MEDIUM, May 14, 2020, at https://medium.com/@Oxfam/uniting-behind-a-
peoples-vaccine-against-covid-19-87eec640976 (Emphasis supplied.)
41 Rep. Act No. 8293 (1997), § 93.
42 Jon Matthews, Renewing Healthy Competition: Compulsory Licenses and Why Abuses of the
TRIPS Article 31 Standards are Most Damaging to the United States Healthcare Industry, 4 J. BUS.
ENTREPRENEURSHIP & L. 119, 124 (2010-2011).
TRIPS allows for compulsory licensing, provided the proposed user

has made unsuccessful efforts over a reasonable period of time to obtain the
consent of the patent holder on reasonable commercial terms. 43 This
requirement may be waived in case of national emergency or other
circumstances of extreme urgency.44
Under the IP Code, among the grounds for compulsory licensing are
national emergency, 45 and where the public interest (including health, in
particular) so requires, as determined by the appropriate government agency.46
Similar to TRIPS, the IP Code requires a prior attempt at negotiation before
the grant of a compulsory license, but such requirement does not apply in
situations of national emergency or other circumstances of extreme urgency47
and in cases where the demand for patented drugs and medicines is not being
met to an adequate extent and on reasonable terms.48
Thus, the IP legal regime recognizes national emergency, such as

public health crises, to justify the issuance of a compulsory license, regardless
of prior attempts at negotiation with the patent holder, if any.
Because of the pandemic, other countries have recently adopted

compulsory licensing measures in relation to COVID-19 treatment. In Israel,
the Minister of Health, acting under authority conferred by the Israeli Patents
Law, issued a compulsory license for the importation of the Kaletra drug for
the sole purpose of medicinal treatment of COVID-19 patients.49 In France,
the emergency law to deal with the COVID-19 pandemic amended the public
health code to allow the Prime Minister, when a state of health emergency is
declared, “to take all measures to make available to patients appropriate
medicines for the eradication of the health disaster.” 50 In Germany, the
government enacted the Epidemic Protection Act, which included an
amendment to restrict German patents covering pharmaceuticals or medical
43 TRIPS Agreement, art. 31(b).

44 Art. 31(b).
45 Rep. Act No. 8293 (1997), § 93.1.
46 § 93.2.
47 § 95.2(b).
48 § 95.2(d).
49 Thiru Balasubramaniam, Israel issues compulsory license to allow the government to import
generic versions of Kaletra, KNOWLEDGE ECOLOGY INTERNATIONAL WEBSITE, Mar. 23, 2020, at
https://www.keionline.org/32503
50 Francois Pochart, Mathilde Rauline & Océane de La Verteville, Compulsory licenses
granted by public authorities: an application in the Covid-19 crisis in France? Part 1, KLUWER PATENT
BLOG, Apr. 23, 2020, at http://patentblog.kluweriplaw.com/2020/04/23/compulsory-
licenses-granted-by-public-authorities-an-application-in-the-covid-19-crisis-in-france-part-
1/?doing_wp_cron=1593338428.2446949481964111328125
devices.51 In Canada, the Emergency Response Act allowed the issuance of a

compulsory license in response to the public health emergency, among other
emergency measures.52
The Philippines should follow suit and prepare for the introduction
of COVID-19 medicines to the market in order to ensure that, upon
availability, the same remain accessible to all Filipinos for the prevention and
cure of COVID-19.
C. Legality of Adopting Compulsory

Licensing during the COVID-19 Pandemic
TRIPS embodies the international obligation of the Philippines to

protect and uphold IP rights within its jurisdiction. Should the Philippines fail
to comply with TRIPS, and upon complaint by a WTO member State, it may
be subjected to WTO’s dispute settlement mechanism.53 A violation of an
international obligation may also subject the Philippines to responsibility
under customary international law.54
The legal question must be addressed before the Philippines resorts

to compulsory licensing of COVID-19 medicines—whether compulsory
licensing measures to address the COVID-19 pandemic are legally
permissible.
It is submitted that there exists a clear and justifiable ground for the
issuance of compulsory licenses for COVID-19 medicines—a national
emergency contemplated under TRIPS. TRIPS did not provide qualifications
on what constitutes a national emergency or a circumstance of extreme
urgency, but instead gave the task to local courts or administrative authorities
to judge when the public interest requires the granting of a compulsory
license.55
51 Jill Tellioglu & Hazal Koepp, Germany, UK, USA: Are Patent Exceptions the Cure to
COVID-19? MORRISON & FOERSTER WEBSITE, Apr. 14, 2020, at https://www.mofo.com/

resources/insights/200414-patent-exceptions-cure-covid-19.html
52 Stephen Selznick & Any Obando, Canada: COVID-19 Impact: Changes To The
Canadian Compulsory Licensing Scheme, MONDAQ WEBSITE, Apr. 20, 2020, at https://www.
mondaq.com/canada/operational-impacts-and-strategy/919256/covid-19-impact-changes-
to-the-canadian-compulsory-licensing-scheme
53 WTO, supra note 14, at 24.22.
54 Rainbow Warrior Affair (New Zealand v. France), XX R.I.A.A. 215, 251 (Apr. 30,
1990).
55 CARLOS CORREA, INTELLECTUAL PROPERTY RIGHTS AND THE USE OF
COMPULSORY LICENSES: OPTIONS FOR DEVELOPING COUNTRIES 13 (1999).

To solidify the State’s right to grant compulsory licenses and exercise

its discretion to determine the existence of grounds therefor, the WTO
provided additional guidance through the Declaration on the TRIPS
Agreement and Public Health (“Doha Declaration”).56 The Doha Declaration
is to be read into the interpretation of TRIPS,57 following the rules under the
Vienna Convention on the Law of Treaties.58
In the Doha Declaration, WTO member States recognized both the

importance of IP protection for the development of new medicines, as well
as the concerns about its effects on prices.59 As discussed above, the patent
system confers patent holders discretion in setting prices to allow them to
make a profit.60 The Doha Declaration tempers this discretion by identifying
high prices of medicines caused by patent protection as among the grave
problems that afflict developing countries.61
To clarify the relation of TRIPS to public health, the Doha

Declaration states that:
We agree that the TRIPS Agreement does not and should not
prevent members from taking measures to protect public health.
Accordingly, while reiterating our commitment to the TRIPS
Agreement, we affirm that the Agreement can and should be
interpreted and implemented in a manner supportive of WTO members' right
to protect public health and, in particular, to promote access to medicines for all.
In this connection, we reaffirm the right of WTO members to use,

to the full, the provisions in the TRIPS Agreement, which provide
flexibility for this purpose.62
To further strengthen the recognition of a State’s right to grant

compulsory licenses, the Doha Declaration recognized that the TRIPS’
56 Kyung-Bok Son, Importance of the intellectual property system in attempting compulsory
licensing of pharmaceuticals: a cross-sectional analysis, 15 GLOBALIZATION & HEALTH 1, 2 (2019),

available at https://globalizationandhealth.biomedcentral.com/articles/10.1186/s12992-019-
0485-7
57 James Thuo Gathii, The Legal Status of the Doha Declaration on TRIPS and Public Health
Under the Vienna Convention on the Law of Treaties, 15 HARV. J. L. TECH. 291, 306 (2002).
58 Vienna Convention on the Law of Treaties, art. 31-32, Jan. 27, 1980, available at
https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf
59 Declaration on the TRIPS Agreement and Public Health [hereinafter “Doha
Declaration”] ¶ 3, Nov. 14, 2001, available at https://www.wto.org/english/thewto_e/

minist_e/min01_e/mindecl_trips_e.htm
60 Supra Part II.
61 Correa, supra note 31.
62 Doha Declaration, ¶ 4. (Emphasis supplied.)
flexibilities include “the right to grant compulsory licences and the freedom
to determine the grounds upon which such licences are granted.”63 Further,
public health crises, including epidemics, can represent a national emergency
or other circumstances of extreme urgency, as determined by a member
State.64
The Doha Declaration quelled any doubt as regards a State’s

sovereign discretion to determine what constitutes a national emergency that
would justify resort to compulsory licensing measures. The specific
recognition of the primacy of public health indicates that public health-related
patents may be treated differently from other patents.65
The Doha Declaration’s recognition of the primacy of public health

over proprietary interests aligns with the universal status of the right to health,
thus further supporting the characterization of the COVID-19 pandemic as a
national emergency under TRIPS.
Article 12 of the International Covenant on Economic, Social and

Cultural Rights provides that “[t]he States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health.”66 Among the essential elements of
the right to health are availability and accessibility.67 Therefore, to uphold the
right to health, the State must ensure the said conditions prevail. States have
a corollary obligation to ensure access to affordable health care.68
The right to health is also enshrined in Section 15, Article II of the

Philippine Constitution: “The State shall protect and promote the right to
health of the people and instill health consciousness among them.”69 The
elements of accessibility and affordability are adopted in Section 11, Article
XIII: “The State shall adopt an integrated and comprehensive approach to
63 ¶ 5.2.
64 ¶ 5.3.
65 Correa, supra note 31, at viii.
66 International Covenant on Economic, Social and Cultural Rights art. 12, Dec. 16,
1966, 993 U.N.T.S. 3, available at https://www.ohchr.org/EN/ProfessionalInterest/

Pages/CESCR.aspx
67 United Nations Committee on Economic, Social and Cultural Rights, General
Comment No. 14, The Right to the Highest Attainable Standard of Health (Twenty-second
session, 2000), at ¶ 12, U.N. Doc. E/C.12/2000/4 (Aug. 11, 2000).
68 WHO, Human rights and health, WHO WEBSITE, Dec. 29, 2017, at
https://www.who.int/news-room/fact-sheets/detail/human-rights-and-health
69 CONST. art. II, § 15.
health development which shall endeavor to make essential goods, health and
other social services available to all the people at affordable cost.”70
The right to health deserves such legal distinction because it is

considered essential to the enjoyment of other human rights.71 As such, the
right to health has been considered by the United Nations General Assembly
as an “investment in human capital and social and economic development,
towards the full realization of human potential, and significantly contributes
to the promotion and protection of human rights and dignity as well as the
empowerment of all people[.]”72
However, the right to health does not exist in a vacuum, but in the
same legal environment that promotes and protects IP rights. There are
apparent conflicts between the IP rights regime and human rights law, since
the former does not fully allow the universal enjoyment of the right to health
due to the barriers for the use of patented inventions.73
As to what should prevail in the international and domestic spheres,

it is submitted that the right to health trumps the right to property.
Internationally, this view is supported by TRIPS, as it includes in its principles
the adoption of measures necessary to protect public health,74 and it allows
the granting of compulsory licensing for matters such as public health.75 In
the Philippines, the Supreme Court has already recognized the secondary
nature of the right to property: “based on the hierarchy of constitutionally
protected rights, the right to life enjoys precedence over the right to property.
The reason is obvious: life is irreplaceable, property is not.”76 The right to
health—being essential to the right to life and considering the absence of good
health deteriorates or destroys life—also takes precedence over IP rights.
The COVID-19 pandemic is a national emergency in the Philippines,

thus justifying compulsory licensing measures. Aside from its positive
classification as a national emergency under the Bayanihan to Heal As One
70 Art. XIII, § 11.

71 OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS &
WORLD HEALTH ORGANIZATION, THE RIGHT TO HEALTH 6 (2008).
72 United Nations General Assembly, Resolution Adopted by the General Assembly
on 10 Oct. 2019 (Seventy-Fourth Session, 2019), at ¶ 8, U.N. Doc. A/RES/74/2 (Oct. 10,
2019).
73 Haochen Sun, Reshaping the TRIPs Agreement concerning Public Health: Two Critical
Issues, 37 J. WORLD T. 163 (2003).

74 TRIPS Agreement, art. 8.
75 Art. 31; Doha Declaration, ¶ 6.
76 Social Justice Society v. Atienza, Jr., G.R. No. 156052, 545 SCRA 92, 157, Feb.
13, 2008.
Act,77 and its qualification as a national emergency under TRIPS interpreted

alongside the Doha Declaration, the pandemic’s threat to the survival of
humanity and the universal enjoyment of the right to health are grave and
imminent to necessitate the proposed compulsory licensing measures.
D. Balancing the Consequences of

Enacting Compulsory Licensing
Measures
While compulsory licensing measures may present itself as the

obvious solution to securing access to COVID-19 medicines, it would be
hasty to conclude that it is the best option available to the government without
considering the consequences thereof.
Compulsory licensing measures are considered to have a serious

chilling effect on inventing. Inventions, especially in pharmaceutical
companies, require a huge investment that cannot be recuperated without the
enjoyment of IP rights. 78 Other consequences of compulsory licensing
measures include the potential loss of foreign direct investment and
investment opportunities and the reduction of incentives to innovate.79
The granting of compulsory licenses can be misused, thereby

threatening the security of private property and the promotion of innovation.
As such, this measure has been considered akin to the governmental taking of
property through expropriation. 80 Given the great impact of compulsory
licensing on private property rights, it must be used conscientiously, so as not
to hinder innovation and trample upon private rights.
A good warning comes from Brazil’s experience with Merck & Co.,
in which the Brazilian government issued a compulsory license, despite having
middle-class income levels, for the sole purpose of lowering the cost of
pharmaceutical products. Merck & Co. was dissuaded by Brazil’s actions,
stating that “[t]his expropriation of intellectual property sends a chilling signal
77 Rep. Act No. 11469 (2020), § 2.

78 Selin Sinem Erciyas, Compulsory Licensing and ‘Inventing’ for COVID-19,
INTERNATIONAL BAR ASSOCIATION WEBSITE, June 30, 2020, at
https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=486fe1e1-c68b-45a1-9b0c-
c4238cc2e2b3
79 Jerome Reichman, Comment: Compulsory Licensing of Patented Pharmaceutical Inventions:
Evaluating the Options, 37 J. LAW MED. ETHICS 247 (2009).

80 Matthews, supra note 42, at 124.
to research-based companies about the attractiveness of undertaking risky

research on diseases that affect the developing world[.]”81
While making medicines cheap appears to be beneficial in the short

term, it risks undermining incentives for future development or distribution
of medicines, 82 as learned in the case of Brazil. Aside from the moral
disincentive, future research and development may not be financially feasible
because compulsory licensing may deprive a pharmaceutical company of
expected income streams needed for reinvestment into research and
development. This may result in a delay of new medicines or the non-
development of medicines for common diseases in countries that enforce
compulsory licensing measures.83
There is also a moral and legal debate as to who should bear the
burden of making medicines accessible to all. This is not the obligation of
pharmaceutical companies, but an obligation of the State. Pharmaceutical
companies have highlighted how access to medicine is a “problem arising
from improper prescribing, irrational use and selection, poor distribution
chains, and unsustainable financing.” 84 Notwithstanding the fact that
pharmaceutical companies do not bear the burden, these companies are aware
that their IP rights are subject to the State’s sovereign power to issue
compulsory licenses when public health necessitates such measures. Thus,
under the law, IP rights must yield to State regulation in exceptional
circumstances.
The importance of balancing seemingly conflicting rights was

emphasized in an article:
Intellectual property protection should keep a balance between the

need to provide incentives to reward and spur innovation and the
need to ensure that society benefits from having maximum access
to new creations. Just as too little protection of intellectual property rights
can impede innovation and trade, so can too much protection undermine the
fundamental human rights.85
Applying a balanced approach to the COVID-19 pandemic in the

Philippines, it is clear that the benefits of adopting compulsory licensing
outweigh the consequences.
81 Id. at 135.
82 Danzon & Towse, supra note 32, at 201.
83 Epstein & Kieff, supra note 28, at 80.
84 Kerry & Lee, supra note 30, at 9. (Citations omitted.)
85 Sun, supra note 73. (Emphasis supplied.)
First, there is a need to ensure access to the COVID-19 medicines not

only because of the universality of the right to health, but more importantly
because of the nature of the virus, which can be transmitted instantly and
invisibly. As the WHO emphasized, a whole-of-government and whole-of-
society approach is needed to prevent infections, save lives, and minimize the
impact of the pandemic.86
Second, the COVID-19 pandemic is an unprecedented challenge that

governments were unprepared for. Developing countries often have a limited
short-term health budget, thus paying for COVID-19 medicines may entail an
opportunity cost, such as the discontinuation of other health programs.87 This
has proven to be true as to mass testing in the Philippines. There is limited
government capacity to conduct mass testing, causing such to be delegated to
the private sector.88
Third, given that the average family income in the Philippines is

reported at PHP 267,000.00, 89 the average Filipino cannot afford these
unforeseen medical expenses. It has been reported that even wealthy countries
have citizens struggling to meet medical expenses related to COVID-19.90
The availability of generic alternatives could substantially reduce the prices of
COVID-19 medicines, making the same affordable to a greater number of
people.91
Fourth, without mass access to COVID-19 medicines, there will be

gaps that allow the continued transmission of the COVID-19 virus, thereby
weakening the efforts to end the pandemic. Mass treatment is required to
prevent transmission, as emphasized by the WHO.92
Fifth, global leaders have already called for the “people’s vaccine,”
encouraging COVID-19 treatment to be “made available for all people, in all

87 Joshua Cohen, Pricing of COVID-19 Treatments and Coronavirus Vaccines, FORBES,
May 11, 2020, available at https://www.forbes.com/sites/joshuacohen/2020/05/11/pricing-
of-covid-19-treatments-and-coronavirus-vaccines/#690478b42865
88 Darryl John Esguerra, Gov’t says it’s up to private sector to conduct mass tests for COVID-
19, INQUIRER.NET, May 18, 2020, available at https://newsinfo.inquirer.net/1276892/amid-

limited-covid-19-testing-capacity-govt-to-let-private-sector-conduct-mass-testing
89 CEIC Data, supra note 38.
90 Wong, supra note 39.
91 Abbott, supra note 33, at 472.
92 Supra Part III.A.
countries, free of charge,”93 and thereby echoing the need to adopt drastic
measures to ensure accessibility of COVID-19 medicines.
Sixth, public opinion favors compulsory licensing over the protection

of IP rights, and has been effective in influencing pharmaceutical companies
to be more altruistic than profit-driven in their response to the pandemic.94
Finally, compulsory licensing is not designed to be prejudicial to the

patent holder’s interest, although it may result in a less than ideal operational
setback. TRIPS mitigates the harm to the patent holder by imposing strict
requirements for the validity of a compulsory license. Among these
requirements are the individual merits for authorization of use,95 attempt at
voluntary licensing negotiation,96 limited scope and duration of use,97 non-
exclusivity and non-assignment of use,98 and adequate remuneration in the
form of just compensation,99 among others. In the pharmaceutical industry,
royalty rates are around 10% on sales, which take into account the need to
recover the money invested in the patented invention.100 Thus, TRIPS still
seeks to protect patent holders by ensuring fair restrictions are imposed upon
the use of the compulsory license and requiring the payment of adequate
remuneration.
E. Alternative Solutions
The government can impose maximum retail prices for medicines101

under the Universally Accessible Cheaper and Quality Medicines Act of 2008
or Republic Act No. 9502. However, these ceiling prices may hinder
pharmaceutical companies from distributing COVID-19 medicines in the
Philippines if it would not be profitable. Price controls are viewed as a barrier
for pharmaceutical companies’ entry into a foreign market when such controls
are too restrictive.102 Notably, the same law recognizes compulsory licensing
93 Oxfam International, supra note 40.

94 Erciyas, supra note 78.
95 TRIPS Agreement, art. 31(a).
96 Art. 31(b).
97 Art. 31(c).
98 Art. 31(d), (e).
99 Art. 31(h).
100 Motohiro Yamasaki, Determining Pharmaceutical Royalties, LES NOUVELLES, Sept.
1996, at 113, available at http://plg-group.com/wp-content/uploads/2014/03/

Determining-Pharmaceutical-Royalites-Motohiro-Yamasaki-Les.pdf
101 Rep. Act No. 9502 (2008), § 22.
102 Eric Bond & Kamal Saggi, Compulsory licensing, price controls, and access to patented
foreign products, 109 J. DEVT. ECON. 217, 218 (2014).

as among the measures to achieve accessible, cheaper, and quality

medicines.103
The government can negotiate for discounted bulk purchase deals104

or for voluntary licensing. Historically, pharmaceutical companies have
offered poor countries discounts for medicines, such as antiretrovirals for the
treatment of HIV-AIDS. 105 However, unlike compulsory licensing, these
alternatives are dependent on the discretion of the patent holder and not
attainable by the mere exercise of sovereign power. Prior experience also
shows that pharmaceutical companies cannot match prices offered by
successful generic producers.106
Parallel importation might be an available measure, wherein COVID-

19 medicines lawfully manufactured and marketed in another country would
be imported into the Philippines without the consent of the patent holder in
the importing country. However, a compulsory license is also required for the
importation of patented medicines. Philippine law allows the government to
grant a special compulsory license for the importation of patented drugs and
medicines primarily for domestic consumption.107 Moreover, under TRIPS,
the Philippines must notify the WTO of its intent to import due to the lack
or insufficiency of local manufacturing, since such would entail a waiver of
the compulsory licensing requirement of the predominant supply of a
domestic market.108 Notably, there is potential infringement in the country of
export even if the importing country has a compulsory license if the patent
holder in the country of export did not consent to the export or is not under
compulsory licensing. 109 Thus, should the Philippines lack manufacturing
capacity for COVID-19 medicines, and there are no countries able to export
the same under a compulsory license or exception, there might be no supply
of the needed medicines.110
103 Rep. Act No. 9502 (2008), §§ 10-13.

104 Epstein & Kieff, supra note 28, at 83-84.
105 International Institute for Sustainable Development, TRIPS and Public Health,
(2003), available at https://www.iisd.org/sites/default/files/publications/investment_sdc_

dec_2003_9.pdf/
106 Id.
107 Rep. Act No. 8293 (1997), § 21; Rep. Act No. 9502 (2008), § 11.
108 Lalitha Narayanan, Doha Declaration and Public Health Issues, 13 J. INTELL. PROP.
RTS. 401, 405-406 (2008).

109 Abbott, supra note 33, at 501.
110 Id. at 499-500.
IV. CONCLUSION
This Essay presented the legal viability of adopting compulsory

licensing measures and argued for its necessity and benefit in addressing the
public health crisis.
There is a legally recognized justification to strictly uphold the patent

rights of pharmaceutical companies. There is private interest in ensuring
profitability, as well as public interest in incentivizing innovation. While
compulsory licensing will make COVID-19 medicines accessible in the short-
term during the heat of the pandemic, the hidden costs of this measure come
with long-term consequences on innovation and health treatments.
However, the universal access to COVID-19 medicines is an

irreplaceable means for survival, a demand of humanity, and a necessary
sacrifice—a supply of humanity from those in the position to give. As
demonstrated in this Essay, the COVID-19 pandemic is an unprecedented
health crisis threatening the survival of humanity and the collapse of the global
economy. Thus, notwithstanding the indirect costs of compulsory licensing,
the right to health of all people must take precedence over the IP rights of
pharmaceutical companies and must be upheld through compulsory licensing
measures that would ensure universal access to COVID-19 medicines.
The WHO has warned: “This is not just a public health crisis, it is a
crisis that will touch every sector – so every sector and every individual must
be involved in the fight.”111 With these final words, we are reminded that, at
this exceptional time of unprecedented crisis, we heal as one through our
collective action for the common good, and not by asserting private interests
over the needs of humanity.
- o0o -

A PANDEMIC OF MISINFORMATION: LEGAL ISSUES
CONCERNING INTERMEDIARY LIABILITY
IN THE COVID-19 ERA*
Shiela Marie L. Rabaya**
I. INTRODUCTION
The unprecedented COVID-19 pandemic led millions of people

toward the confines of their homes. Physical interaction ceased to be the
norm, and the world of the Internet became the primary hub for people to
interact with one another. While the physical aspects of society—restaurants,
fitness centers, offices, and schools, among others—have shut down, the
hustle and bustle of daily life continued by transitioning to online platforms.
Business and pleasure are now mixed inside the home, with the Internet as
the biggest propeller of the “new normal.”
The COVID-19 pandemic brought a host of uncertainties as to how

people can conduct their daily lives. People peruse the Internet for answers to
questions brought by the sudden and massive change in how the world works.
Physical libraries are closed, professors can only be reached virtually, and the
easiest way to quench burning curiosity is to flock toward information
available to the public. These sources are made available on several Internet
platforms, with the reach of these pieces of information highly dependent on
the popularity of the platform.
In legal terms, these Internet platforms are known as “Internet

Service Providers” (“ISP”) or intermediaries, which host third-party content
that can be accessed by the public. These platforms are known as
intermediaries precisely because they serve as the middle man between the
third party content provider and the content consumer (the public). In the
Philippines, ISPs or “service providers” are defined in the Cybercrime
Prevention Act (“CPA”) and its Implementing Rules and Regulations (“IRR”)
as “any public or private entity that provides to users of its service the ability
* Cite as Shiela Marie Rabaya, A Pandemic of Misinformation: Legal Issues Concerning
Intermediary Liability in the COVID-19 Era, 93 (Special Online Feature) PHIL. L.J. 126, [page
cited] (2020).
** J.D., University of the Philippines (2020); B.A. Psychology, magna cum laude,
University of the Philippines (2016); Member, Order of the Purple Feather; Editor, Student
Editorial Board, PHILIPPINE LAW JOURNAL Vol. 92.
126
to communicate by means of a computer system”1 and “any other entity that

processes or stores computer data on behalf of such communication service
or users of such service.”2
Social media platforms fall within the broad definition of an ISP.3

Although platforms such as Facebook, Twitter, Instagram, and Youtube were
already popular prior to 2020, the global pandemic magnified the reach and
importance of these platforms exponentially.4 With the ubiquity of ISPs, it is
imperative to examine the role that these platforms play in the current global
situation. Left unchecked, it would not only be businesses and socialization
which would transition to the Internet; crimes would also begin to proliferate
in the online world. Particularly, it is important to examine the role that ISPs
play in disseminating information to the public and in serving the public
conversation. Given the nature of the new disease, public health in the age of
COVID-19 involves a global effort.5 It is thus important for people to know
the truth about all matters—whether scientific or societal—that involve
COVID-19.
In 2020, misinformation can pose a serious threat to public health.6

A lot of things about COVID-19 remain unknown to the public, meaning that
people may not be able to discern fact from fiction among the hundreds of
pieces of information available online. The case of President Trump’s
statement regarding the ingestion of bleach is illustrative.7 This shows how
1 Rep. Act. No. 10175 (2012), § 3(n).

2 Rep. Act. No. 10175 Rules & Regs. § 3(ff).
3 Data Privacy Philippines, Internet Service Providers: Can they be held liable for cybercrimes?,
DATA PRIVACY PHILIPPINES WEBSITE, at https://privacy.com.ph/articles/

internet-service-providers-can-they-be-held-liable-for-cybercrimes (last accessed June 4,
2020).
4 Lucas Matney, The lockdown is driving people to Facebook, TECHCRUNCH WEBSITE, Apr.
30, 2020, at https://techcrunch.com/2020/04/29/the-quarantine-is-driving-record-usage-

growth-at-facebook. Facebook CEO Mark Zuckerberg disclosed that in April more than 3
billion internet users logged onto a Facebook service, including its central app, Instagram,
Messenger, or WhatsApp.
5 Charlotte West, ‘A Global Effort’: Public Health, Medicine, and International Education in
the Time of COVID-19, NAFSA: ASSOCIATION OF INTERNATIONAL EDUCATORS WEBSITE,

May 6, 2020, at https://www.nafsa.org/ie-magazine/2020/5/6/global-effort-public-health-
medicine-and-international-education-time-covid-19
6 Kimberly Rodgers, Misinformation: A Threat to the Public’s Health and the Public Health
System, 26 J. PUB. HEALTH MGMT. & PRAC. 294 (2020), available at

https://journals.lww.com/jphmp/Fulltext/2020/05000/Misinformation__A_Threat_to_the
_Public_s_Health.15.aspx
7 Kristen Brown & Justin Sink, Trump’s Comment on Disinfectant Prompts Experts to Warn
Against Inhaling Bleach to Kill Coronavirus, TIME, April 24, 2020, available at
https://time.com/5826882/coronavirus-trump-heat-bleach
2020] A PANDEMIC OF MISINFORMATION 128
not only is it difficult to control sources of information, but also that the
public is not equipped to filter what is true and what is false. The remaining
point of control is then on the ISP or the intermediary, since the Internet is
now the primary bearer of information. 8 This task necessarily imposes a
burden upon content providers and ISPs to distribute reliable information.
Further, any manner of regulation must be within the bounds of freedom of
expression. This obvious responsibility, however, is left unchecked as current
laws on intermediary liability do not address the new pivotal role of ISPs on
public health. Intermediary liability with regard to misinformation on matters
of public health must then be reassessed to address the urgent need for factual
information on COVID-19.
II. FREEDOM OF EXPRESSION AND THE RIGHT TO HEALTH
Freedom of speech and expression is enshrined in the Constitution

of the Philippines. Section 4, Article III provides that “[n]o law shall be passed
abridging the freedom of speech, of expression, or of the press, or the right
of the people peaceably to assemble and petition the government for redress
of grievances.”9 The right of people to express their thoughts through words
and action is thus heavily protected by the highest law of the land.
Several international legal instruments likewise embody freedom of

expression. For one, the Universal Declaration of Human Rights
(“UDHR”)—to which the Philippines is a signatory—contains several articles
pertaining to its protection. In particular, Article 19 of the UDHR states that
“[e]veryone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek, receive
and impart information and ideas through any media and regardless of
frontiers.”10 The inclusion of the words “through any media” makes it clearly
applicable to expression through the Internet.11
8 Ethan Shattock, Is it time for Europe to reassess internet intermediary liability in light of
coronavirus misinformation, EUROPEAN LAW BLOG WEBSITE, Apr. 20, 2020, at

https://europeanlawblog.eu/2020/04/20/is-it-time-for-europe-to-reassess-internet-
intermediary-liability-in-light-of-coronavirus-misinformation
9 CONST. art. III, § 4.
10 United Nations General Assembly, Universal Declaration of Human Rights
[hereinafter “UDHR”], art. 19, U.N. Doc. A/RES/217(III)A (Dec. 10, 1948). (Emphasis
supplied.)
11 CENTER FOR DEMOCRACY & TECHNOLOGY, “REGARDLESS OF FRONTIERS:” THE
INTERNATIONAL RIGHT TO FREEDOM OF EXPRESSION IN THE DIGITAL AGE 3 (2011), available

at https://cdt.org/wp-content/uploads/pdfs/CDT-Regardless_of_Frontiers_v0.5.
pdf
Furthermore, Article 2712 of the UDHR reinforces the right to seek,

receive, and impart information embodied in Article 19. The right to “seek”
information can be linked to browsing and searching the Internet through
search engines and portals. The right to “impart” information, on the other
hand, can be applied to blogging or posting information through social
network sites or ISPs. Lastly, the right to “receive” information relates to the
exchanging of e-mails, the reading of information through Web pages, and
the downloading of information.13
While the UDHR is not a treaty, it has become a normative

instrument that creates “some legal and moral obligations for Member States
of the UN.”14 In any case, the Philippines, as signatory, has also adopted its
declarations through its Constitution’s Bill of Rights. As previously
mentioned, Section 4 of Article III in particular protects the same freedom of
expression embodied in the UDHR in that its dual aspects are recognized,
namely freedom from censorship or prior restraint and freedom from
subsequent punishment.15
Like any other right, however, freedom of speech also admits certain
exceptions. The UDHR, for instance, provides that “everyone shall be subject
only to such limitations as are determined by law solely for the purpose of
securing due recognition and respect for the rights and freedoms of others
and of meeting the just requirements of morality, public order and the general
welfare in a democratic society.” 16 In the Philippine jurisdiction, valid
government interference to freedom of expression may be allowed if the
subject expression passes the clear and present danger rule,17 the dangerous
tendency rule, 18 or the balancing of interests rule,19 whichever is applicable.
12 UDHR, art. 27.

13 Center for Democracy & Technology, supra note 11.
14 Id.
15 JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY 248 (2003 ed.).

16 UDHR, art. 29.
17 Cabansag v. Fernandez, 102 Phil. 152 (1957). The clear and present danger rule
inquires on whether words are used in such circumstance and of such nature as to create a
clear and present danger that will bring about the substantive evil that the State has a right to
prevent.
18 Id. The dangerous tendency rule states that a person could be punished for words
uttered or for ideas expressed which create a dangerous tendency, or which will cause or bring
about a substantive evil which the State has a right to prevent.
19 CARLO CRUZ & ISAGANI CRUZ, CONSTITUTIONAL LAW 522 (2015). The balancing
of interests rule requires a Court to consider the circumstances in each particular case, and
thereafter, it shall settle the issue of which right demands greater protection.
The right to health20 is undoubtedly linked to the rights to freedom

of expression and information. 21 This is especially apparent during the
COVID-19 pandemic, where inaccurate or false information regarding the
disease may lead to the loss of lives. It may then be argued that inaccurate
statements with regard to public health may be categorized under any of the
three aforementioned exceptions to freedom of expression. The United
Nations (“UN”) Committee on Economic, Social and Cultural Rights has
emphasized that “information accessibility” is a vital component of the right
to health.22 Inaccurate information involving public health is therefore not an
ordinary kind of speech. There does remain, however, the legal question on
whether such speech is protected. The current regime of intermediary liability
in the Philippines may provide the solution in regulating such kind of speech.
Applying the same, false and misleading information may then be regulated
without necessarily suppressing freedom of speech.
III. THE ROLE OF INTERMEDIARIES IN REGULATING COVID-19 FALSE

CONTENT IN THE PHILIPPINES
A. Regulating Fake News in the Philippines
The proliferation of fake news is not a new phenomenon in the digital

age. In the Philippines, an Anti-False Content Bill23 was introduced in 2019,
recognizing the increasing need to combat the existence of fake news. As of
May 2020, the bill is currently pending in Congress. 24 Under this bill, a
government agency would be made arbiter of permissible online material.25
International group Human Rights Watch opposed the proposed law, saying

21 Article 19, Viral Lies: Misinformation and the Coronavirus, at 9 (Mar. 2020),
available at https://www.article19.org/wp-content/uploads/2020/03/Coronavirus-
briefing.pdf. See Article 19, A Healthy knowledge: Right to information and the right to health, ARTICLE
19 WEBSITE, Sept. 27, 2012, at https://www.article19.org/resources/healthy-knowledge-
right-information-right-health
22 Committee on Economic, Social and Cultural Rights, General Comment No. 14:
The Right to the Highest Attainable Standard of Health (Art. 12), ¶ 12(b), U.N. Doc.
E/C.12/2000/4 (Aug. 11, 2000).
23 S. No. 9, 18th Congress, 1st Sess. (2019).
24 See Anti-False Content Act (Leg. History), SENATE OF THE PHILIPPINES WEBSITE, at
https://senate.gov.ph/lis/bill_res.aspx?congress=18&q=SBN-9
25 S. No. 9, 18th Congress, 1st Sess., § 5 (2019).
that the Bill is “sweepingly broad and threatens to stifle discussion on websites
worldwide” and “would excessively restrict online freedom of speech.”26
This opposition forwards the argument that false content is still

protected speech. This is in line with the principle that protections under the
right to freedom of expression are not limited to truthful statements or
information.27 Indeed, untruthful statements may likewise enjoy protection
under the right to freedom of expression.28
False information about COVID-19 has been distributed more widely

than information from authoritative sources such as the World Health
Organization (“WHO”) and the Centers for Disease Control and
Prevention.29 The public health issue caused by COVID-19 thus necessarily
brings to light the importance of stopping the proliferation of false
information regarding the said disease.
The Philippine government recognized this need by including in the

Bayanihan to Heal as One Act (R.A. No. 11469)30 a provision penalizing the
act of spreading false and alarming information.31 Section 6(f) of the said law
penalizes the following acts:
(f) Individuals or groups creating, perpetrating, or spreading false

information regarding the COVID-19 crisis on social media and
other platforms, such information having no valid or beneficial
effect on the population, and are clearly geared to promote chaos,
panic, anarchy, fear, or confusion; and those participating in cyber
incidents that make use or take advantage of the current crisis
situation to prey on the public through scams, phishing fraudulent
emails, or other similar acts.32
While the Bayanihan to Heal as One Act is only valid for three
months33 or until June 24, 2020, this piece of legislation shows the stance of
26Human Rights Watch, Philippines: Reject Sweeping ‘Fake News’ Bill, HUMAN RIGHTS
WATCH WEBSITE, July 25, 2019, at https://www.hrw.org/news/2019/07/25/philippines-
reject-sweeping-fake-news-bill/
27 Erwin Chemerinsky, False Speech and the First Amendment, 71 OKLA. L. REV. 1, 5-6
(2018).
28 Article 19, supra note 21.
29 John Gregory, The coronavirus ‘infodemic’ is real. We rated the websites responsible for it,
STAT NEWS WEBSITE, Feb. 28, 2020, at https://www.statnews.com/2020/02/28/websites-

spreading-coronavirus-misinformation-infodemic
30 Rep. Act. No. 11469 (2020).
31 § 6(f).
32 § 6(f). (Emphasis supplied.)
33 § 9.
lawmakers against the proliferation of false information. It is also worthy to

note that the persons liable under this provision are those who create,
perpetrate, or spread false information. The Author proposes that these
provisions only apply to social media users and not to the ISP itself, given that
ISPs are given a safe harbor34 under the CPA.
Criticisms against the law emphasize that penalizing the acts in

Section 6(f) would violate the constitutional right to free speech.35 Moreover,
there is no law that criminalizes or defines fake news as a crime, thereby
making the provision vague and overbroad.36 The acts of “perpetrating, or
spreading false information” are also akin to the “aiding and abetting”
provision37 in the Cybercrime Prevention Act, a provision that has already
been struck down by the Supreme Court for being unconstitutional.38 It can
therefore be seen how government regulation over content related to
COVID-19 is fraught with enforcement and legal issues.
Policy-wise, ensuring that accurate and truthful information is

available to the public also means that their sources must not be stifled into
silence. It is unfortunate, however, that the supposed importance of stopping
the spread of fake news has actually been used by governments all over the
world as an excuse to craft repressive and overbroad laws to target
misinformation concerning COVID-19. 39 Even worse, some states have
begun to spread disinformation for the sake of propaganda. The increase in
the scrutiny over government actions during the COVID-19 pandemic has
34 Gemmo Fernandez & Raphael Lorenzo Pangalangan, Spaces and Responsibilities: A
Review of Foreign Laws and an Analysis of Philippine Laws on Intermediary Liability, 89 PHIL. L.J. 761,
771-772 (2015). Under the safe harbor regime, intermediaries can only be held liable for
defamatory or illegal content if they had knowledge that their platform contained illegal
content.
35 See Lian Buan, Bayanihan Act’s sanction vs ‘false’ info the ‘most dangerous,’ RAPPLER, Mar.
29, 2020, at https://www.rappler.com/nation/256256-sanctions-fake-news-bayanihan-act-

most-dangerous
36 Lian Buan, Duterte’s special powers bill punishes fake news by jail time, up to P1-M fine,
RAPPLER, Mar. 24, 2020, at https://www.rappler.com/nation/255753-duterte-special-

powers-bill-coronavirus-fines-fake-news
37 Rep. Act. No. 10175 (2012), § 5.
38 Disini v. Sec’y of Justice, G.R No. 203335, 716 SCRA 237, Feb. 11, 2014.
39 Article 19, supra note 21. See Article 19, Thailand: Computer Crime Act (Jan. 2017),
available at https://www.article19.org/data/files/medialibrary/38615/Analysis-Thailand-
Computer-Crime-Act-31-Jan-17.pdf; Article 19, Singapore: New law on “online falsehoods” a grave
threat to freedom of expression, ARTICLE 19 WEBSITE, May 9, 2019, at
https://www.article19.org/resources/singapore-new-law-on-online-falsehoods-a-grave-
threat-to-freedom-of-expression; Article 19, Malaysia: Communications and Multimedia Act must be
urgently revised, ARTICLE 19 WEBSITE, Mar. 24, 2017, at https://www.article19.org/
resources/malaysia-communications-and-multimedia-act-must-be-urgently-revised
given states the incentive to control narratives and public perception.40 It can
be argued that the Bayanihan to Heal as One Act and the Anti-Terrorism Bill41
are examples of such acts.
B. Intermediary Liability in Regulating

Fake News
It is apparent that governments themselves may be the source of false

or misleading information regarding COVID-19. For instance, the
governments of both the United States and China have been accused of
spreading misleading characterizations of COVID-19, as evidenced by their
own policy responses. 42 This kind of state-sponsored misinformation is
particularly dangerous due to the influence of governments over its people.
Further, it obliterates the trust in public authorities and instead encourages
misguided responses by the public and health officials.43 The proposed and
existing laws 44 on prohibiting the spread of false information in the
Philippines focus on having the government as arbiters of permissible
information. 45 While it is undeniable that there is a need to regulate false
information, problems will arise if the regulators themselves have a vested
interest in limiting the available accurate information. The Author proposes
that the most viable answer to these threats is hinged on utilizing the unique
legal protections given to ISPs.
1. General Immunity under Section 230 of the

Communications Decency Act
In the United States (“U.S.”), intermediaries enjoy general immunity

under Section 230 of the Communications Decency Act (“CDA”). The said
provision has been the backbone of free speech on the Internet since its
passage in 1996. 46 Section 230 was intended to protect computer “Good
Samaritans” or those ISPs who make the effort to regulate its content. Also,
40Jane Dalton, Mike Pompeo refuses to deny conspiracy theory that coronavirus is ‘hoax created
to damage Trump,’ THE INDEPENDENT, Feb. 29, 2020, at https://www.independent.co.uk/
news/world/americas/coronavirus-mike-pompeo-trump-hoax-outbreak-us-cases-ted-lieu-
a9366516.html; James Palmer, Beijing Knows Who to Blame for the Virus: America, FOREIGN
POLICY, Mar. 2, 2020, available at https://foreignpolicy.com/2020/03/02/china-blames-
united-states-coronavirus
41 As of writing, the bill has passed its third and final reading.
42 Dalton, supra note 40.
43 Article 19, supra note 21.
44 These laws are the Bayanihan to Heal as One Act and the Anti-False Content Bill.
45 S. No. 9, 18th Congress, 1st Sess., § 5 (2019).
46 Andrew Bolson, Flawed but Fixable: Section 230 of the Communications Decency Act at
20, 42 RUTGERS COMPUT. & TECH. L.J. 1, 5 (2016).

the statute was intended to allow Internet companies to grow without the fear
of crippling regulation.47 The case of Stratton Oakmont v. Prodigy Services Co.48
was the catalyst to this provision’s passage. In that case, it became apparent
that courts would punish websites that tried to screen out offensive content
far more harshly than those websites that did not filter their content at all.49
With the passage of Section 230, websites would be free from liability
regardless of whether it failed to block enough content or for blocking too
much content.50
Over the years, Section 230 faced criticism because it allegedly

fostered a “do-nothing” approach among ISPs.51 In other words, while the
disincentive seen in Stratton may be eliminated, there remains no actual
incentive to self-regulation by ISPs. Despite this, however, most ISPs have
taken steps to regulate third-party content posted using their platforms. For
instance, Facebook, 52 Google,53 and Twitter54 have their respective sets of
content moderation policies.
The efforts to moderate content have increased over the years due to
the rapid growth of social media platforms’ reach and influence.55 To grasp
the magnitude of the Internet’s effects to society, it would be useful to look
at how “Facebook was used to spread misinformation, hate speech, and
incitement to violence in the lead-up to and during the violence in
Myanmar.”56 In the Philippines, the effects of the Internet and social media
were most prevalent during the 2016 presidential elections, which was widely
considered as the first “social media election” in the Philippines.57 Based on a
47 141 Cong. Rec. H8468 (daily ed. Aug. 4, 1995) (statement of Rep. Cox).
48 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995).
49 Ryan French, Picking up the Pieces: Finding Unity after the Communications Decency Act
Section 230 Jurisprudential Clash, 72 LA. L. REV. 443, 447 (2012).

50 Id. at 450.
51 Andrew Sevanian, Section 230 of the Communications Decency Act: A “Good Samaritan”
Law Without the Requirement of Acting as a “Good Samaritan,” 21 UCLA ENT. L. REV. 121, 136
(2014).
52 Facebook, Facebook Community Standards, FACEBOOK WEBSITE, at
https://www.facebook.com/communitystandards
53 Google, Google Help Communities Content Policy, GOOGLE COMMUNITIES
HELP WEBSITE, at https://support.google.com/communities/answer/7425194?hl=en

54 Twitter, The Twitter Rules, TWITTER HELP CENTER WEBSITE, at
https://help.twitter.com/en/rules-and-policies/twitter-rules
55 Terry Lee, The global rise of “fake news” and the threat to democratic elections in the USA,
22 PUB. ADMIN. & POLICY: AN ASIA-PAC. J. 15 (2019).

56 Emma Irving, Suppressing Atrocity Speech on Social Media, 113 AJIL UNBOUND 256,
256 (2019).
57 Aim Sinpeng, Dimitar Gueorguiev & Aries Arugay, Strong Fans, Weak Campaign:
Social Media and Duterte in the 2016 Presidential Election, J. E. ASIAN STUD. 1 (2020).
quantitative and qualitative study, the winner of the 2016 elections had the
most active, engaged, and networked advocates in social media.58
In the unique context of the COVID-19 pandemic, social media

platforms have reinforced their content moderation policies, recognizing the
heightened importance of suppressing inaccurate and misleading information.
Last March 2020, Twitter revised its terms of service in order to stop the
spread of virus-related misinformation, saying that it would remove posts if
such went “against guidance from authoritative sources of global and public
health information.” 59 Facebook has also taken steps in “ensuring that
everyone has access to accurate information and removing harmful content”60
by “connecting people to credible information on Facebook, Messenger,
Instagram, and WhatsApp,” 61 by combating COVID-19 misinformation
across its apps,62 “investing $100 million in the news industry and supporting
fact-checkers,”63 and “prohibiting exploitative tactics in ads and banning ads
for medical face masks, hand sanitizer, disinfecting wipes, and COVID-19 test
kits.”64
Despite the seemingly united effort in combating the dissemination

of false and misleading information, social media companies still have varying
stances on content moderation. Such differences are most apparent in their
respective policies regarding the moderation of political speech. In May 2020,
Twitter fact-checked tweets of U.S President Donald Trump due to alleged
violations of Twitter’s Civic Integrity Policy.65 President Trump posted similar
content on Facebook, but the platform held firm in its stance that it cannot
be made “arbiters of truth” and that President Trump’s posts did not violate
its own Community Standards.66
58Id.
59Vijaya Gadde & Matt Derella, An update on our continuity strategy during COVID-19,
TWITTER BLOG WEBSITE, Mar. 16, 2020, at https://blog.twitter.com/en_us/
topics/company/2020/An-update-on-our-continuity-strategy-during-COVID-19.html
60 Kang-Xing Jin, Keeping People Safe and Informed About the Coronavirus, ABOUT
FACEBOOK WEBSITE, July 16, 2020, at https://about.fb.com/news/2020/

06/coronavirus/#misinformation-update
61 Id.
62 Id.
63 Id.
64 Id.
65 Twitter, Civic integrity policy, TWITTER HELP CENTER WEBSITE, May 2020, at
https://help.twitter.com/en/rules-and-policies/election-integrity-policy
66 Donie O’Sullivan, Facebook and Twitter clash over fact-checking as Trump threats intensify,
CNN, May 28, 2020, at https://edition.cnn.com/2020/05/28/media/jack-dorsey-

donald-trump-twitter/index.html
The similarities and differences in content moderation point to the

fact that social media companies essentially have free rein in regulating its
content due to the protection provided to them by Section 230 of the CDA.
This protection is also why President Trump’s response to Twitter’s fact-
checking was to invoke this particular section. Legally, social media platforms
are under no obligation to write policies regulating content posted on its
platform. The current global situation, however, points to the increasing need
to moderate false and misleading information.
2. Safe Harbor under the Cybercrime Prevention Act
In the Philippines, intermediary liability is regulated by the

Cybercrime Prevention Act and its IRR. Under the said law, a service provider
that “willfully abets or aids in the commission of any of the [offenses]
enumerated in this Act shall be held liable.” 67 Liability is also imposed if
service providers fail to “preserve computer data within a specified period”68
or to “disclose such traffic data and subscriber information after being
compelled to do so by authorities.”69 The provisions on the liability of service
providers seem straightforward in that the aiding and abetting must be done
willfully in order to be punishable under the law.
The IRR of the Cybercrime Prevention Act, however, expounded on

the liability of a service provider. Section 2070 in particular provides a general
immunity from liability for service providers, subject to three exceptions
enumeration in paragraph (b). In fine, Section 20 provides the following:
[N]o person or party shall be subject to any civil or criminal liability in respect
of a computer data for which the person or party acting as a service
provider merely provides access if such liability is founded on […] [t]he
making, publication, dissemination or distribution of such
computer data or any statement made in such computer data,
including possible infringement of any right subsisting in or in
relation to such computer data: Provided, That:
1. The service provider does not have actual knowledge, or is not

aware of the facts or circumstances from which it is apparent,
that the making, publication, dissemination or distribution of
such material is unlawful or infringes any rights subsisting in
or in relation to such material;
67 Rep. Act. No. 10175 (2012), § 5(a).

68 § 13(a).
69 § 14(a).
70 Rep. Act. No. 10175 (2012) Rules & Regs., § 20.
2. The service provider does not knowingly receive a financial

benefit directly attributable to the unlawful or infringing
activity; and
3. The service provider does not directly commit any

infringement or other unlawful act, does not induce or cause
another person or party to commit any infringement or other
unlawful act, and/or does not directly benefit financially from
the infringing activity or unlawful act of another person or
party[.]71
Section 20 is a substantial reproduction of Section 30 of the

Electronic Commerce Act of 2000.72 It adheres to the safe harbor regime of
intermediary liability, wherein intermediaries are only held liable for
defamatory or illegal content if they had knowledge that their platform
included content of such nature.73 Safe harbor laws often include a “notice
and takedown mechanism,” which requires intermediaries to remove or
disable access to an illegal content upon receiving knowledge of its existence
on the platform.74
In the context of the COVID-19 pandemic, the ISPs with the biggest
reach in the Philippines are also Facebook, Google, and Twitter. 75 As
discussed previously, these ISPs have already taken active steps in moderating
false and misleading information on their platforms. The proposed and
existing laws76 on regulating fake news in the Philippines penalize the source
but not the platform. Further, it is proposed by the Author that the safe
harbor regime in the CPA also offers the same protection as that of Section
230 of the CDA. The only difference is in the three enumerated exceptions.
In practice, this is already seen in how concerted efforts of ISPs in combating
false information related to COVID-19 are also applied in the Philippines
without any legal restrictions.
§ 20. (Emphasis supplied.)

71
Rep. Act. No. 8792 (2000), § 30.

72
73 Fernandez & Pangalangan, supra note 34, at 772.
74 Id. at 773.
75 Digital Marketing Philippines, Comprehensive Look on the Top 7 Social Media Platforms,
DIGITAL MARKETING PHILIPPINES WEBSITE, at https://digitalmarketingphilippines.com/

comprehensive-look-on-the-top-7-social-media-platforms (last accessed June 3, 2020).
76 These laws are the Bayanihan to Heal as One Act and the Anti-False Content Bill.
3. Utilizing the Legal Safe Harbor
The main criticism to Twitter’s fact-checking of President Trump’s

tweets centers on its possible suppression of conservative speech.77 Facebook
also emphasized its stance that social media companies cannot be made
“arbiters of the truth” and that people should be left to decide for themselves
on how they would interpret content available on the platform.78 Facebook
then made a distinction in its approach in combating false and misleading
information regarding COVID-19 from its moderation of political speech. In
the current global pandemic, however, political speech and COVID-19
information are not entirely separable. Governments control the narrative in
the efforts against COVID-19. Meanwhile, social media platforms are not
only the most accessible sources of information to the public, but are also the
only places where public conversation may occur in this era of social
distancing. Social media companies may thus be the only arbiter available,
given the unique protection provided by law.
Enforcement of an all-encompassing form of content moderation,

however, may pose serious problems. Twitter has already been accused of
being partisan because it singled out President Trump.79 It is worthy to note,
however, that the content moderation method employed by Twitter in fact-
checking the President did not actually suppress speech. Twitter did not delete
the tweets. Instead, it provided additional sources of information that may be
used by its users in discerning the truthfulness of the tweets. This method of
content moderation is akin to the “right of reply,” which is a proposed
amendment to Section 230 of the CDA.80 In utilizing the proposed right of
reply, the original statement will remain accessible to Internet users who may
then consider both the original content and the reply.81
Twitter’s fact-checking is therefore an act protected by Section 230 of

the CDA. If such content moderation was done to Filipino speech, it would
also be protected by the CPA’s safe harbor provision considering that such
form of content moderation is not within the three exceptions82 to general
immunity. Hence, it is an act within the bounds of law. The partiality or
77 Queenie Wong, Twitter faces conservative backlash for fact-checking Trump’s tweets for the
first time, CNET, May 27, 2020, at https://www.cnet.com/news/twitter-faces-conservative-

backlash-for-fact-checking-trumps-tweets-for-the-first-time
78 O’Sullivan, supra note 66.
79 Wong, supra note 77.
80 Michael Scott, Would a “Right of Reply” Fix Section 230 of the Communications Decency
Act, 4 J. INT'L MEDIA & ENT. L. 57, 67 (2011).

81 Id. at 67.
82 Rep. Act. No. 10175 (2012) Rules & Regs. § 20(b).
impartiality of such an act, however, is a pressing issue that remains

unresolved and must be addressed by the social media companies. In addition,
social media companies have the responsibility to be transparent and
accountable. This idea is in line with the Manila Principles, with the fifth
Principle stating that “[l]aws and content restriction policies and practices
must respect due process” 83 and the sixth Principle stating that
“[t]ransparency and accountability must be built into laws and content
restriction policies and practices.”84
IV. CONCLUSION
The immunity from liability of ISPs may give them armor that is
critical in finding the balance between protecting the fundamental freedom of
speech and preventing the proliferation of inaccurate or false information
detrimental to public health. Such immunity is present in Section 230 of the
U.S. Communications Decency Act and in the Cybercrime Prevention Act of
the Philippines. ISPs must take a more active role in this global pandemic by
utilizing the safe harbor provision in current intermediary liability laws. It is
important to remember, however, that content regulation must always be
within the bounds of freedom of expression. False information is not
necessarily unprotected speech.
The free rein given to ISPs may result in different techniques in

content moderation. It is also evident that ambivalence or a hands-off
approach is the easiest path for ISPs to take. The global situation now,
however, transcends the issue of liability. It is now a matter of responsibility.
- o0o -
83 Electronic Frontier Foundation, Manila Principles on Intermediary Liability (Mar.
24, 2015), at www.manilaprinciples.org/principles

84 Id.
OF BASELESS ARRESTS AND COVID-19:
A TALE OF TWO PANDEMICS*
Juli Ann Rosette M. Sibi**
When the coronavirus disease of 2019 (“COVID-19”) hit the

Philippines, everyone had a common enemy—or at least, that is what we
Filipinos thought. Little did we know, we ourselves became the enemy. As the
number of COVID-19 cases began to rise, so had the number of individuals
arrested, detained, and subsequently deprived of liberty. This is a tale of two
pandemics.
After over five months of various scales of lockdown,1 the number

of cases of COVID-19 in the Philippines continues to rise.2 While enforcing
certain lockdown measures is a common response across nations 3 as this
pandemic involves a communicable disease with a high transmission rate,4 it
is only the Philippines that has enforced quarantine measures so strict and for
such a long period.5 As a result, the Philippines has arrested more community
* Cite as Juli Ann Rosette Sibi, Of Baseless Arrests and COVID-19: A Tale of Two
Pandemics, 93 (Special Online Feature) PHIL. L.J. 140, (page cited) (2020).
** J.D., University of the Philippines (UP) College of Law (2020, expected); B.A. Mass
Communication, cum laude, valedictorian, University of the Philippines Cebu (2016); Editorial
Board, PHILIPPINE LAW JOURNAL Vol. 92; Research Assistant, University of the Philippines
Law Center, Institute of Human Rights (IHR).
1 Enhanced Community Quarantine (ECQ), Modified Enhanced Community
Quarantine (MECQ), General Community Quarantine (GCQ), Modified General Community

Quarantine (MGCQ). Omnibus Guidelines on the Implementation of Community Quarantine
in the Philippines with Amendments as of July 16, 2020, INTER-AGENCY TASK FORCE FOR
THE MANAGEMENT OF EMERGING INFECTIOUS DISEASES (IATF) [hereinafter “IATF
Omnibus Guidelines”], available at https://www.officialgazette.gov.ph/downloads/2020/
07jul/20200716-omnibus-guidelines-on-the-implementation-of-community-quarantine-in-
the-philippines.pdf
2 Number of COVID-19 cases in the Philippines as of June 29, 2020 according to the Nationwide
Cases Data Tracker, DEP’T OF HEALTH, at https://www.doh.gov.ph/covid19tracker

3 Coronavirus: Travel restrictions, border shutdowns by country, AL JAZEERA, June 3, 2020, at
https://www.aljazeera.com/news/2020/03/coronavirus-travel-restrictions-border-
shutdowns-country-200318091505922.html
4 Darryl John Esguerra, PH COVID-19 cases may hit a staggering 60,000 by end of July—
experts, INQUIRER.NET, June 29, 2020, available at https://newsinfo.inquirer.net/1299289/ph-

covid-19-cases-may-shoot-up-to-60000-by-end-of-july-experts
5 Jason Castaneda, Why Duterte won’t lift world’s longest lockdown, ASIA TIMES, May 15,
2020, at https://asiatimes.com/2020/05/why-duterte-wont-lift-worlds-longest-lockdown
140
quarantine violators—reaching 57,177 at the start of June6—which is more

than the actual number of COVID-19 cases at that time. 7 Among those
commonly violated are the government’s prohibition on “back-riders,” 8
travelling without the appropriate pass, leaving one’s residence for “non-
essential” reasons, travelling outside one’s mandated borders, violating the
prohibition on mass gatherings and curfew, among many other measures.9
The massive number of arrests was the result of the penalty

framework of the pandemic response of President Rodrigo Duterte. The
President has declared a national emergency—a “public health emergency”—
due to increased local transmission of COVID-19. Thereafter, and with
constitutional imprimatur, Congress authorized the President to have
emergency powers to employ measures in accordance with a declared national
policy. This enabled him to draw up quarantine, isolation, and other economic
and healthcare measures to address the emergency. Violations of these
measures—on the quarantine, specifically—can allegedly give rise to criminal
liability, and even be subjected to warrantless arrests. This paper attempts to
show that the penalty framework has weak foothold in law, making the arrests
under it illegal.
I. PENALTY FRAMEWORK OF THE COVID-19 RESPONSE
The Constitution and two statutes are the operative bases for the
administration’s penalty framework.
6 Lian Buan, 2,875 Filipinos still detained for violating quarantine, RAPPLER, June 1, 2020,
at https://www.rappler.com/nation/262537-pnp-report-detained-filipinos-coronavirus-
quarantine-violators-may-31-2020. This was the last reported number of community
quarantine violators from the Philippine National Police.
7 Last June 30, 2020, the total number of COVID-19 cases was only at 37, 514. DOH
COVID-10 Bulletin # 108, DEP’T OF HEALTH, available at

https://www.facebook.com/media/set/?vanity=OfficialDOHgov&set=a.157979910879936
8 Omnibus Public Transport Protocols, DEP’T OF TRANSP. WEBSITE, at
http://dotr.gov.ph/55-dotrnews/1339-read-omnibus-public-transport-protocols-guidelines-
set-by-the-department-of-transportation-dotr.html. As of July 10, 2020, the Philippine
government lifted the “no back-rider” policy, but only if the back rider is a spouse or a partner,
and the mandated protective shield or barrier between the driver and the rider is being used.
See Christopher Caliwan, NTF Covid sets more rules for motorcycle back rides, PHIL. NEWS AGENCY,
July 13, 2020, at https://www.pna.gov.ph/articles/1108755
9 Tetch Torres-Tupas, What you need to know when arrested for quarantine violation,
INQUIRER.NET, May 22, 2020, available at https://newsinfo.inquirer.net/1279565/what-

arrested-for-quarantine-violators-need-to-know
2020] A TALE OF TWO PANDEMICS 142
Republic Act No. 11332 (R.A. No. 11332), or “the Mandatory

Reporting of Notifiable Diseases and Health Events of Public Health
Concern Act,” is the primary statute when it comes to battling infectious
diseases. This was the baseline law for the issuance of Presidential
Proclamation No. 922 last March 8, 2020, which placed the country in a “state
of public health emergency,”10 as allowed under R.A. No. 11332:
Section 7. Declaration of Epidemic or Public Health Emergency.—

The Secretary of Health shall have the authority to declare
epidemics of national and/or international concerns except when
the same threatens national security.
In which case, the President of the Republic of the Philippines shall declare
a State of Public Health Emergency and mobilize governmental and
nongovernmental agencies to respond to the threat[.]11
On March 12, 2020, the number of COVID-19 cases doubled in the

National Capital Region (“NCR”) in less than a week. In efforts to prevent
continuous local transmission, the President imposed a mandatory
community quarantine over the entire NCR. 12 Arrests began after this
declaration. 13 The national government was cautioned by lawyers as these
arrests would be baseless, with Department of Justice (DOJ) Secretary
Menardo Guevarra eventually announcing that the Philippine National Police
(PNP) can only physically stop people from continuing their acts but cannot
use it as basis for arrest.14
In response, the President’s declaration of a public health emergency

was used as basis for the subsequent authorization by Congress for the
President’s exercise of emergency powers. Congress enacted Republic Act
No. 11469, or “the Bayanihan to Heal as One Act” (“BaHO Act”), which was
subsequently signed into law on March 24, 2020, and remained effective until
10 Pres. Proc. No. 922 (2020), available at https://www.officialgazette.gov.ph/

downloads/2020/03mar/20200308-PROC-922-RRD.pdf
11 Rep. Act No. 11332 (2018), § 7. Mandatory Reporting of Notifiable Diseases and
Health Events of Public Health Concern Act. (Emphasis supplied.)

12 IATF Res. No. 11 (2020), available at https://www.doh.gov.ph/sites/default/
files/health-update/IATF-RESO-11.pdf
13 Robertson Ramirez, No arrests during community quarantine—DOJ, PHIL. STAR, Mar.
15, 2020, available at https://www.philstar.com/headlines/2020/03/15/2000937/no-arrests-

during-community-quarantine-doj
14 Id.
June 5, 2020, when Congress adjourned.15 The BaHO Act operationalized the
emergency powers clause under the Constitution:
Section 23. […] (2) In times of war or other national emergency, the 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. Unless sooner withdrawn by resolution
of the Congress, such powers shall cease upon the next
adjournment thereof.16
In the Philippines, emergency powers are granted to the President by

Congress in order to remove bureaucratic borders of government.17 Congress
is the repository of emergency powers,18 and this provision allows Congress
to delegate certain powers to the President to provide “prompt and speedy
solutions” 19 in crisis situations. Such is a deviation from the enshrined
principle of separation of powers; and thus, the requisites for its exercise20
must be strictly complied with.
With the BaHO Act, the President was able to impose quarantine
measures so long as it falls within the declared policies of Congress21 and does
15 Rep. Act No. 11469 (2020). Bayanihan to Heal As One Act. Though the BaHO
Act contains a sunset clause, limiting the exercise to only three months, the BaHO Act can no
longer be the basis for the President’s subsequent quarantine declarations and enforcement of
measures after June 5 or when Congress adjourned, because the Constitution limits the
effectivity of the delegation of powers upon the next adjournment of Congress, unless sooner
withdrawn by resolution. Despite this, the IATF continues to release new resolutions under
the guise of legality.
16 Emphasis supplied.
17 Raymundo Armovit, Emergency Powers, 29 PHIL. L.J. 686 (1954).
18 David v. Macapagal-Arroyo, 522 Phil. 705 (2006).
19 Armovit, supra note 17, at 687-88.
20 To be compliant with the Constitution, the case of David v. Macapagal-Arroyo
provides that the following conditions must be met: (1) There must be a war or other
emergency; (2) The delegation must be for a limited period only; (3) The delegation must be
subject to such restrictions as the Congress may prescribe; and (4) The emergency powers
must be exercised to carry out a national policy declared by Congress. David, 522 Phil. 705.
21 Rep. Act No. 11469 (2020), § 2 provides: “Declaration of policy—[…](a) mitigate,
if not contain, the transmission of COVID-19; (b) immediately mobilize assistance in the
provision of basic necessities to families and individuals affected by the imposition of
Community Quarantine; (c) undertake measures that will prevent the overburdening of the
healthcare system; (d) immediately and amply provide healthcare, including medical tests and
treatments to COVID-19 patients, persons under investigation (PUIs), or persons under
monitoring (PUMs); (e) undertake a program for recovery and rehabilitation, including a social
amelioration program and provision of safety nets to all affected sectors; (f) ensure that there
is sufficient, adequate, and readily available funding to undertake the foregoing; (g) partner
not violate constitutional protections.22 The quarantine measures were drawn

by the Inter-Agency Task Force for the Management of Emerging Infectious
Diseases (IATF), which recommends via resolution certain actions to the
President. The President designates his approval of IATF’s resolutions. After
which, its implementation is delegated further to the relevant line agencies,
government instrumentalities, and the respective local government units
(“LGUs”).
In implementing the IATF’s recommendations, local government

units may enact an ordinance through their local legislative councils (like in
Caloocan City),23 by executive order of the chief executive of the LGU (like
in Cebu City), 24 or in some cases, by memorandum of the mayor merely
disseminating the IATF recommendations to be followed by the respective
barangays (as is done in Quezon City).25 The only thing that IATF mandates
is that curfew hours be imposed via ordinance. 26 The IATF’s
recommendations provide that the imposition of penalties is within the
discretion of the LGUs, which may be implemented via the proper ordinance
or executive order.27 The variety in which the IATF recommendations are
being enforced by the LGUs, however, makes subjecting violators to criminal
liability difficult.
Thus, DOJ Secretary Guevarra opined that violations of imposed

quarantine measures can generally subject the individual to criminal liability
under R.A. No. 11332, the same law that enables the President to declare a
state of public health emergency, on the ground of “non-cooperation.” 28
Guevarra also insists that if an individual “refuses to cooperate with the
with the private sector and other stakeholders to deliver these measures and programs quickly
and efficiently; and (h) promote and protect the collective interests of all Filipinos in these
challenging times.”
22 Rep. Act No. 11469 (2020), § 4(ee).
23 See Caloocan City Ordinance No. 0865 (2020), available at
http://caloocancity.gov.ph/images/pdfs/ordinance/2020-04-19/StrictImplementation.pdf
24 See Cebu City Executive Order No. 064 (2020), available at
https://www.cebucity.gov.ph/executive-order-no-64/; Cebu City Executive Order No. 079
(2020), available at https://www.rappler.com/nation/262468-document-cebu-city-general-
community-quarantine-guidelines
25 See Quezon City Localized Guidelines (2020), available at
https://quezoncity.gov.ph/index.php/covid-updates/item/899-qc-general-community-
quarantine-gcq-guidelines
26 IATF Omnibus Guidelines, § 8(1).
27 IATF Omnibus Guidelines, § 8(4)-(5).
28 Dona Pazzibugan, Arrests OK for expanded quarantine violators, INQUIRER.NET, Mar.
17, 2020, available at https://newsinfo.inquirer.net/1243843/arrests-ok-for-expanded-

quarantine-violators-says-doj
government drive to limit public movement,”29 the offender can be held liable
under Article 151 of the Revised Penal Code for resistance and disobedience
to a person in authority.
Based on this framework, the President is empowered to impose any

kind of guideline falling within the declared policy of Congress in the exercise
of emergency powers and then subject its violation to criminal liability and
arrest, though such is neither directly nor specifically provided under the law.
This begs the question—is this legal?
II. NATURE OF PHILIPPINE PENAL LAWS: NULLUM CRIMEN,

NULLA POENA SINE LEGE
To effectively analyze whether the penalty framework for the

COVID-19 response of the government is within the bounds of legality, an
understanding of the nature of Philippine penal laws is necessary.
Philippine penal laws are primarily classical and positivist in nature.30

What both schools of thought have in common is the fact that certain actions
become subject of criminal liability only when it is encapsulated in law, and
whatever circumstances that are to be considered in increasing and decreasing
liability must be governed by law.31
This is an application of the classical school’s principle of nulla poena

sine lege, otherwise known as the principle of legality.32 This principle was fixed
into the discourse of criminal law by Paul John Anselm Feuerbach in his
Textbook on Common Penal Law, viz.:33
[E]very infliction of a punishment presupposes a criminal statute.

Nulla poena sine lege. Because only the threat of the evil by the statute
grounds the concept and the legal possibility of a punishment. […]
The infliction of a punishment is contingent on the existence of the
29 Lian Buan, DOJ: Police can arrest violators of Luzon lockdown even if they do not resist,
RAPPLER, Mar. 17, 2020, at https://www.rappler.com/nation/254887-doj-says-police-can-

arrest-violators-luzon-lockdown-even-without-warrants
30 Christine Lao, Retribution, Rehabilitation, and the Revised Penal Code: Juridical Discourse
in the Carceral State, 73 PHIL. L.J. 258, 292 (1998).

31 Id. at 299.
32 Id.
33 Tatjana Hörnle, Paul John Anselm von Feuerbach and his Textbook of the Common Penal
Law, in FOUNDATIONAL TEXTS IN MODERN CRIMINAL LAW 132 (Markus Dubber ed., 2014).
threatened act, […] and the said act is contingent on the statutory
punishment.34
In Philippine law, a similar construction principle is also used—nullum

crimen, nulla poena sine lege.35 It means that no conduct shall be held criminal
unless it is specifically described in law.36 This principle was adopted to limit
the State’s power to punish, preventing the sovereign to punish an individual
arbitrarily. Such is a tenet of the constitutional right not to be deprived of
one’s liberty without due process of law.37 An offender is only presumed to
have known whether certain acts or omissions are actually illegal when such
prohibition undergoes the required publication under law.38 It is only with
knowledge of its illegality that the State becomes justified in meting out
punishment. 39 Without the offending act being considered as punishable
under the law and with its specific penalty provided therein, the legal fiction
of knowledge does not arise, thus becoming a derogation of the right to due
process.
A. The Four Aspects of the Legality Principle
In assessing whether a certain statute is compliant with the legality

principle, Feuerbach has determined four prongs to take into consideration:
(1) lex praevia—that there is no penalty without previous laws; (2) lex scripta—
that there is no penalty without written law; (3) lex certa—that there is to be
no penalty without well-defined law, and (4) lex stricta—that no penalty may
be imposed without exact law. 40 These prongs are applied when the
jurisdiction uses a strict legality approach with regard to criminal laws,41 and as
will be discussed in this section, such an approach is used in the Philippine
jurisdiction.
34 Id., citing PAUL JOHN ANSELM VON FEUERBACH, TEXTBOOK OF THE COMMON
PENAL LAW (1801).

35 Intod v. Ct. of Appeals, 289 Phil. 485 (1992).
36 See People v. Silvestre, 56 Phil. 353 (1931).
37 CONST. art. 3, § 1; Lao, supra note 30, at 299; See Tañada v. Tuvera, 220 Phil. 422
(1985).
38 Pesigan v. Angeles, 214 Phil. 149 (1984).
39 Lao, supra note 30, at 299.
40 Hörnle, supra note 33.
41 Jessica Corsi, An Argument for Strict Legality in International Criminal Law, 49
GEORGETOWN J. INT’L L. 1321 (2018).

1. Lex praevia
This refers to the prohibition of the enactment of ex post facto laws and
retroactive crimes, as mandated by the Philippine Constitution.42 Any law that
makes criminal an act performed before the passage of such law is ex post facto,
and is therefore violative of due process. According to Feuerbach, this is
because people cannot be deterred from performing an act that has not been
made punishable by law, thereby making it unjust to punish the same
retroactively. However, this prohibition is not absolute, and substantive laws
may be given retroactive effect—but only when they are favorable to the
accused.43 The exception is borne out of the constitutional presumption of
innocence.44
2. Lex scripta
Feuerbach also stated that crimes and sanctions must be defined by

written law or statutory law, for it is only through a defined statute that
“advance notice” could be given to individuals on whether or not the act
which they are about to commit could possibly be punished.45
In the Philippines, the requirement that crimes must be in a statute

passed by Congress is a necessary implication of the doctrine of separation of
powers.
Legislative power is vested in the Congress of the Philippines.46 Such

is a plenary power for all purposes of civil government. Except as limited by
the Constitution, either expressly or impliedly, this plenary power embraces
all subjects and extends to matters of general concern or common interest,
including the power to deem certain acts as criminal and subject them to
penalties, be it in a fine or imprisonment.47
In People v. Maceren,48 the Court laid emphasis on the exclusive power

of Congress to enact laws that subject individuals to certain penalties, holding
that an administrative issuance that penalizes an act not penalized under
statute is invalid. Citing Texas Co. v. Montgomery, 49 the Court held that “to
42 CONST. art. 3, § 21.

43 REV. PEN. CODE, art. 22; United States v. Conde, 42 Phil. 766 (1922).
44 CONST. art. 3, § 14(2).
45 Hörnle, supra note 33, at 145.
46 CONST. art. VI, § 1.
47 Ople v. Torres, 354 Phil. 948 (1998).
48 169 Phil. 437 (1977).
49 73 F. Supp. 527 (1947).
declare what shall constitute a crime and how it shall be punished is a power
vested exclusively in the legislature, and it may not be delegated to any other
body or agency.”50
It must also be pointed out that Feuerbach’s concept of “advance

notice” is related to the principle in Philippine law that laws are only
enforceable once published in accordance with law.51 Without the publication
requirement being complied with, the law cannot bind individuals without
depriving them of due process. 52 After all, there can be no basis for the
application of the legal maxim ignorantia legis non excusat (or “ignorance of the
law excuses no one”)53 for “it would be the height of injustice to punish or
otherwise burden a citizen for the transgression of a law which he had no
notice whatsoever, not even a constructive one.”54
3. Lex certa
Feuerbach’s principle of lex certa,55 or legal certainty,56 provides that

“a crime ought to be articulated with sufficiently precise wording so that the
criminalized conduct is clear.”57 The individual must be able to determine
from the wording of the relevant provision and, if need be, with the assistance
of the courts’ interpretation, what acts and omissions would make him liable.58
The case of People v. Dela Piedra59 is illustrative of how the principle of

lex certa is actually tied to the constitutional requirement of due process:
Due process requires that the terms of a penal statute must be

sufficiently explicit to inform those who are subject to it what
conduct on their part will render them liable to its penalties. A
criminal statute that […] is so indefinite that ‘it encourages arbitrary
and erratic arrests and convictions,’ is void for vagueness. The
constitutional vice in a vague or indefinite statute is the injustice to the accused
50 Id.
51 NEW CIVIL CODE, art. 2.
52 Pesigan v. Angeles, 214 Phil. 149 (1984).
53 NEW CIVIL CODE, art. 3.
54 Tañada, 220 Phil. 422.
55 Hörnle, supra note 33, at 144.
56 Corsi, supra note 41, at 1334.
57 Id., citing Michael Faure et al., The Regulator’s Dilemma: Caught between the Need for
Flexibility and the Demands of Foreseeability—Reassessing the Lex Certa Principle, 24 ALBANY L. J. SCI.
& TECH. 283 (2014).
59 403 Phil. 31 (2001).
in placing him on trial for an offense, the nature of which he is given no fair
warning.60
In People v. Nazario,61 the Court emphasized that not only does a vague
statute violate the due process clause as it “fails to accord persons, especially
the parties targeted by it, fair notice of the conduct to avoid,” but it also
“leaves enforcers unbridled discretion in carrying out its provisions and
become an arbitrary flexing of the Government muscle.”62
4. Lex stricta
The maxim of lex stricta is a rule of interpretation that requires a judge

to lean towards a strict interpretation when it comes to criminal cases.63 In the
application of the facts,64 or in the interpretation of the law,65 such must be
construed in favor of the accused—in dubio pro reo.66
The lex stricta principle also prohibits the application of criminal laws
analogously. 67 In People v. Siton, 68 the Court ruled that, when a provision
penalizes an act of a particular class without any reasonable indicators, the
court would have to use analogy in its application,69 and such would result in
“judicial crime creation.”70 Since crime creation is an exercise of legislative
power, when the judiciary overreaches on that power, it violates the doctrine
of separation of powers.71 This necessitates that the principle of lex stricta be
strictly adhered to in this jurisdiction.
60 Id. (Emphasis supplied.)

61 G.R. No. L-44143, Aug. 31, 1988.
62 Id.
64 Malillin v. Lopez, 576 Phil. 576 (2008). When the facts are in equal weight but are
conflicting, the Court follows the equipoise doctrine: “where the evidence in a criminal case is
evenly balanced, the constitutional presumption of innocence tilts the scale in favor of the
accused.” People v. Librias, G.R. No. 208067, Sept. 14, 2016.
65 “The fundamental principle in applying and interpreting criminal laws, including
the Indeterminate Sentence Law, is to resolve all doubts in favor of the accused. In dubio pro
reo. When in doubt, rule for the accused. This is in consonance with the constitutional
guarantee that the accused ought to be presumed innocent until and unless his guilt is
established beyond reasonable doubt.” People v. Temporada, 594 Phil. 680 (2008) (Corona,
J., separate opinion).
67 Id.
68 616 Phil. 449 (2009).
69 Id.
71 Biraogo v. Phil. Truth Comm’n, 651 Phil. 374 (2010).
III. SCRUTINIZING THE PENALTY FRAMEWORK
As was demonstrated, the strict legality approach is indeed followed

in the Philippine jurisdiction. When applied to the penalty framework of the
administration, it would merely float on water.
At the outset, the BaHO Act does not contain any indication that
Congress has penalized any violations of the measures to be created by the
President. It also does not delegate to him any legislative power to subject any
individual to any penalty.72 All Congress has delegated to the President is the
power to undertake the necessary measures to carry out the declared national
policy but limited to the guarantees in the Constitution:
Section 4. Authorized powers.— […] The President shall have the

power to adopt the following temporary emergency measures: […]
(ee) Undertake such other measures as may be reasonable and
necessary to enable the President to carry out the declared national
policy subject to the Bill of Rights and other constitutional guarantees.73
By subjecting the measures to be taken by the President to the Bill of

Rights and other constitutional guarantees, Congress has expressly prevented
the President from overriding the strict legality approach, as the basis of the
approach is the constitutional guarantees of due process and separation of
powers.
Assuming that there was any delegation of the power to legislate

criminal laws, there was no exercise of legislative power on the part of the
President in criminalizing violations of quarantine measures. The resolutions
of the IATF, as endorsed by the President, did not at any point contain any
specific penalty.74 Under the lens of lex scripta, the lack of sanctions in the
resolutions would invalidate its usage as the basis for any criminal offense.
The strict legality approach would also prevent the incurring of

criminal liability on the part of violators, even if the local government unit
implemented an “ordinance or executive order.”75
If the LGU opted to implement the recommendations via executive

order or memorandum, this would violate the lex scripta requirement which
mandates that crimes and their sanctions be contained in a statute. An
72 See Rep. Act No. 11469, § 4(a)-(ee).

73 Rep. Act No. 11469, § 4(ee). (Emphasis supplied.)
74 See IATF Omnibus Guidelines, supra note 1.
75 IATF Omnibus Guidelines, § 8(4)-(5).
executive order or a memorandum is not a statute. An executive order is an

act of the chief executive providing for the rules of a general or permanent
character in implementation or execution of statutory powers, while
memorandum orders and circulars are merely instructions on internal
administration.76 If the penalty was imposed through these issuances, it would
not be compliant with the lex scripta requirement in Philippine law, and
therefore cannot be the basis for any criminal offense.
On the other hand, LGUs which enacted an ordinance but merely

“adopted” the IATF recommendations without imposing any penalty, such
as Caloocan City, are no better. It would still be a violation of lex scripta, as the
ordinance fails to include the corresponding sanction, and thus, in itself,
cannot be the basis of any criminal liability. In the same vein, local enforcers
cannot arbitrarily make citizens perform laborious tasks, such as cleaning up
public places under the guise of community service when such a penalty is not
in the ordinance itself.77
To be able to effectively impose a penalty on community quarantine

violations, the LGU must enact an ordinance that sufficiently defines the acts
to be penalized in line with the lex certa principle and their specific penalties.
The ordinance must also comply with substantive requirements: “[i]t (1) must
not contravene the Constitution or any statute; (2) must not be unfair or
oppressive; (3) must not be partial or discriminatory; (4) must not prohibit,
but may regulate trade; (5) must be general and consistent with public policy;
and (6) must not be unreasonable.”78
With regard to Secretary Guevarra’s theory, this also falters against

the strict legality approach. To interpret that violations of the quarantine
measures can be considered as violations of R.A. No. 11332 on non-
cooperation is violative of the lex stricta principle.
There are two provisions that quarantine violators are generally

charged with:
Section 9. Prohibited Acts.—The following shall be prohibited

under this Act: […]
76ISAGANI CRUZ & CARLO CRUZ, PHILIPPINE POLITICAL LAW 388 (2014 ed.).
77Mary Malinao, As penalty to ECQ violators: Rama questioning community service, PHIL.
STAR, July 11, 2020, available at https://www.philstar.com/the-freeman/cebu-
news/2020/07/11/2027173/penalty-ecq-violators-rama-questioning-community-service
78 City of Cagayan de Oro v. Cagayan Electric Power & Light Co., Inc., G.R. No.
224825, Oct. 17, 2018.

(d) Non-cooperation of persons and entities that should report

and/or respond to notifiable diseases or health events of public
concern; and
(e) Non-cooperation of the person or entities identified as having

the notifiable disease, or affected by the health event of public
concern.
As can be gleaned from the two provisions, they are general in nature.
Reading the provisions alone would be inadequate to guide any law enforcer
as to what would count as “non-cooperation” in either instance. Hence, in
construing such, “courts have to take the thought conveyed by the statute as
a whole; construe the constituent parts together; ascertain the legislative intent
from the whole act; consider each and every provision thereof in the light of
the general purpose of the statute[.]”79
Section 2 of R.A. No. 11332 provides that the law “endeavors to

protect the people from public health threats through the efficient and effective
disease surveillance of notifiable diseases.”80 In the explanatory note of Senate
Bill No. 1864, of which R.A. No. 11332 is based on, proponent Senator Risa
Hontiveros emphasized that the purpose of the Bill is for the “institution of
new policies and regulations pertaining to the reporting of important public health
concerns and the strengthening of disease surveillance systems at the national and local
level.”81 It mandates the creation of a response system for health events, with
the Department of Health assigned to craft these measures and its local units
tasked with its enforcement.
Thus, Sections 9(d) and (e) must be construed in this light. Section
9(d) essentially mandates cooperation on the part of those obliged to report
on the notifiable and respond to the mandate of DOH. Similarly, Section 9(e)
mandates that individuals identified as having the disease or entities who are
affected by the public health concern must cooperate with the response
system institutionalized by the DOH vis-à-vis reporting of the disease and
disease surveillance functions. Nothing in these provisions include violations
of border protocols, back riding on motorcycles, and even the prohibition on
mass gatherings or other violations of community quarantine as approved by
the President.
79Fort Bonifacio Corp. v. Comm’r of Internal Revenue, 617 Phil. 358 (2009).
80Rep. Act No. 11332 (2018), § 2. (Emphasis supplied.)
81 S. No. 1865, 17th Cong., 3rd Sess., July 4, 2018, available at
https://www.senate.gov.ph/lisdata/2809624399!.pdf (Emphasis supplied.)
One must not stretch the law to convey a meaning different from the
one actually intended. To do otherwise would be to punish an individual by
analogy, which is proscribed by the lex stricta principle under the strict legality
approach.
Similarly, Secretary Guevarra’s insistence that an individual who

violates quarantine protocols could also be liable under Article 151 of the
Revised Penal Code for resistance and disobedience to a person in authority
is also patently incorrect.
Article 151. Resistance and disobedience to a person in authority or the agents

of such person - The penalty of arresto mayor and a fine not exceeding
One hundred thousand pesos (₱100,000) shall be imposed upon
any person who not being included in the provisions of the
preceding articles shall resist or seriously disobey any person in
authority, or the agents of such person, while engaged in the
performance of official duties.
When the disobedience to an agent of a person in authority is not

of a serious nature, the penalty of arresto menor or a fine ranging
from Two thousand pesos (₱2,000) to Twenty thousand pesos
(₱20,000) shall be imposed upon the offender.82
The act being punished under this provision is not the violation of
the community quarantine, but the act of resistance and disobedience to the
person in authority or an agent of a person in authority.83 It is not the direct
disobedience of the community quarantine measures, but the disobedience to
the person in authority or his agent when they directly order an individual to
comply with a measure set by the government.84 Hence, if the individual were
to be arrested due to his violation of a community quarantine measure, and
he resists the arrest, the charge under this provision would be unfounded. It
bears emphasis that one of the requisites for this charge is that there be a
“lawful order.”85 Considering that the violation of community quarantine is
not a crime, the arrest cannot be considered a lawful order.
From this analysis, it is clear that the penalty framework of the

government is hinged not on emergency powers or the BaHO Act, or any
other national law or issuance for that matter, but on the enactment of a
procedurally and substantively compliant ordinance by the LGU. Without
82 REV. PEN. CODE, art. 151, as amended by Rep. Act No. 10951 (2017).
83 Vytiaco v. Ct. of Appeals, 126 Phil. 48 (1967).
84 Id.
85 Sydeco v. People, G.R. No. 202692, Nov. 12, 2014.
this, the framework falls apart. Thus, it is unprecedented to arrest, criminally

charge, and penalize as many as 57,177 individuals nationwide when the basis
is not as clear cut as it is being made out to be.
The community quarantine—which is essentially a lockdown86—has

left 4.2 million families hungry87 and 7.3 million Filipinos jobless.88 Gearing
the government response towards the mass arrest of violators not only
exacerbates the suffering of Filipinos, but also makes those who are detained
in the already-cramped jail facilities more vulnerable to COVID-19.89 Despite
that, the government is still intent on ensuring that community quarantine
violators are arrested, regardless of such arrest’s lack of basis.90
More than a tale of two pandemics, this is a tale of two tragedies—

one caused by COVID-19, and the other being the government’s own
creation, with only the Filipino people as its victims.
- o0o -
86 Sofia Tomacruz, What is ‘enhanced community quarantine’ and will it work?, RAPPLER,
March 14, 2020, at https://www.rappler.com/newsbreak/iq/254521-things-to-know-

community-quarantine
87 CNN Philippines Staff, SWS survey reveals 4.2 million families suffered involuntary hunger
amid COVID-19 pandemic, CNN PHIL., May 22, 2020, at https://cnnphilippines.com/news/

2020/5/22/sws-survey-four-million-families-involuntary-hunger-covid-pandemic.html
88 Melissa Luz Lopez, 7.3 million Filipinos jobless in April amid COVID-19 pandemic –
PSA, CNN PHIL., June 5, 2020, at https://www.cnnphilippines.com/business/

2020/6/5/unemployment-April-2020-COVID-19.html
89 See Nina Sun & Livio Zilli, COVID-19 Symposium: The Use of Criminal Sanctions in
COVID-19 Responses – Exposure and Transmission, Part I, OPINIO JURIS, April 3, 2020, at
http://opiniojuris.org/2020/04/03/covid-19-symposium-the-use-of-criminal-sanctions-in-
covid-19-responses-exposure-and-transmission-part-i
90 See Aaron Recuenco, Arrest quarantine violators in Cebu City, MANILA BULLETIN, June
29, 2020, available at https://news.mb.com.ph/2020/06/29/arrest-quarantine-violators-in-

cebu-city-gamboa/; Conseulo Marquez, Sinas to police chiefs; Find bigger detention areas for large
arrests of GCQ violators, INQUIRER.NET, June 30, 2020, available at
https://newsinfo.inquirer.net/1299558/sinas-to-police-chiefs-find-bigger-detention-areas-
for-large-arrests-of-gcq-violators
PROTECTING RIGHTS WHILE PROTECTING LIVES:
PERMISSIBLE DEROGATIONS OF HUMAN RIGHTS
IN THE COVID-19 PANDEMIC PHILIPPINE
STATE OF EMERGENCY*
Anton Miguel A. Sison**
ABSTRACT
Human rights are universal and non-temporal, yet Philippine

public officials have sweepingly claimed that these must yield
in a state of emergency. This paper explores the legality of
that claim. It examines the derogation clause enshrined in
Article 4 of the International Covenant on Civil and Political
Rights, which permits states parties such as the Philippines to
derogate temporarily from its treaty obligations, albeit subject
to certain safeguards. It contrasts the legal regimes of state of
emergency and public emergency powers in Philippine
Constitutional Law vis-à-vis derogations and limitations in
international human rights law. This paper argues that the
mere declaration of a state of emergency does not suspend all
human rights.
*
Cite as Anton Miguel Sison, Protecting Rights While Protecting Lives: Permissible
Derogations of Human Rights in the COVID-19 Pandemic Philippine State of Emergency, 93 (Special
Online Feature) PHIL. L.J. 155, [page cited] (2020).
**
J.D., University of the Philippines College of Law (2020); Research Assistant,
University of the Philippines Law Center Institute of Human Rights (IHR); Editor, Student
Editorial Board, PHILIPPINE LAW JOURNAL Volume 92; National Champion, Philip C. Jessup
International Law Moot Court Competition (2020); Champion, Asia Cup International Law
Moot Court Competition (2019); World Quarterfinalist and Best Victims Counsel Team,
International Criminal Court Moot Court Competition (2018). The author would like to
dedicate this paper in memory of his grandfather, Atty. Teodoro Montemayor Sison (May 15,
1932 - June 27, 2020). He would like to thank IHR Director Prof. Elizabeth Aguiling-
Pangalangan for sparking his interest in international human rights law. He would also like to
thank Raphael Pangalangan, Gemmo Fernandez, Hilton Lazo, and Ross Tugade for their
valuable comments and insights.
155
2020] PROTECTING RIGHTS WHILE PROTECTING LIVES 156
“Your concern is human rights,

mine is human lives.”
—President Rodrigo Duterte1
“Shoot them dead.”

—Also President Duterte2
I. INTRODUCTION
Are all human rights suspended as a consequence of the state’s mere

declaration of a state of emergency? This must be answered in the negative.
Some rights can be derogated from, limited or restricted. However, it is
subject to certain safeguards in both international and domestic law.
The world is just several months in, in a crisis that could stretch to a
year or more. It is but logical to posit that the longer the crisis lasts, the more
human rights violations may be committed in the guise of “necessary
measures.” Indeed, all citizens have the duty to comply with emergency health
measures such as abiding by reasonable lockdown and quarantine restrictions.
But while it is true that everyone should place health and safety first, it need
not unnecessarily come at the expense of human rights. Unlike the practice of
medicine or law, advocating for human rights needs no license. Thus, citizens
are called to be vigilant in protecting their rights. After all, being cooperative
citizens and being vigilant are not mutually exclusive.
The international community has consistently called out the

incumbent Philippine leadership on the latter’s human rights violations. Now,
the horn blows louder as United Nations (“UN”) Special Rapporteurs renew
calls “to establish an on-the-ground independent, impartial investigation into
human rights violations in the Philippines[;]”3 citing the UN Office of the
High Commissioner for Human Rights report confirming widespread and
1 Felipe Villamor, ‘Your Concern Is Human Rights, Mine is Human Lives,’ Duterte Says in
Fiery Speech, THE NEW YORK TIMES, July 23, 2018, available at https://www.nytimes.com/
2018/07/23/world/asia/philippines-duterte-speech-muslims.html
2 Sofia Tomacruz, ‘Shoot them dead’: Duterte orders troops to kill quarantine violators,
RAPPLER, Apr. 1, 2020, at https://rappler.com/nation/duterte-orders-troops-shoot-kill-

coronavirus-quarantine-violators
3 Agnès Callamard et al. [United Nations (“UN”) Special Rapporteurs], Philippines:
UN human rights experts renew call for an on-the-ground independent, impartial

investigation, UNITED NATIONS HUMAN RIGHTS, June 25, 2020, at
https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25999&Lan
gID=E
systematic human rights abuses in the form of killings, and the silencing of
independent media, critics and the opposition.4
The renewed call highlights that “COVID-19 has further accelerated

the downward spiral of the human rights situation in the Philippines. Police
and the military have used violence and lethal force to enforce a quarantine
imposed without due consideration for the situation of the poorest and most
vulnerable communities.”5 All happening amidst the Philippines’ failing battle
against the COVID-19 pandemic are the ABS-CBN shut-down, 6 Maria
Ressa’s conviction of cyber libel,7 and the controversial Anti-Terrorism Law
that may “further dilute human rights safeguards, by justifying the arrests of
human rights defenders and government’s critics[.]”8
During the first month of the lockdown in the Philippines, human

rights organizations and citizens took to both traditional and online media
their concerns against some government measures, such as arrests made
without a warrant for failure to abide by the community quarantine curfew
and the corresponding punishment employed by authorities. Over 75,000
Filipinos were apprehended as of April 3, 2020,9 followed by 400 to 1,000
arrests daily between April to May 10.10 Some of those arrested were subjected
to cruel, inhuman, and degrading punishment. Two children were placed in a
coffin, five caged like animals, seven had their hair forcibly cut while the one
4 United Nations High Commissioner for Human Rights, Report of the United
Nations High Commissioner for Human Rights on the situation of human rights in the
Philippines, U.N. Doc. A/HRC/44/22 (June 4, 2020), available at https://www.ohchr.org/
Documents/Countries/PH/Philippines-HRC44AEV.pdf
5 Callamard et al., supra note 3.
6 See id. “On 5 May 2020, President Duterte’s government ordered the shut-down of
ABS-CBN, the country’s largest TV and radio network, after years of explicit threats from the
President in part because of its critical reporting on the ‘war on drugs.’”
7 Id. “The Securities and Exchanges Commission in 2018 revoked the license of a
prominent news website Rappler and its CEO, Maria Ressa, has been arrested multiple times
on various charges and found guilty of cyber libel.”
8 Id.
9 Danielle Nakpil, More than 75,000 individuals arrested for curfew violations - officials, CNN
PHIL., Apr. 7, 2020, at https://cnnphilippines.com/news/2020/4/7/More-than-75,000-

individuals-arrested-for-curfew-violations-.html
10 Lian Buan, Pandemic in Charts: Hundreds arrested daily, filing delays leave thousands in jail,
RAPPLER, June 22, 2020, at https://www.rappler.com/newsbreak/iq/264432-coronavirus-

pandemic-charts-daily-arrests-filing-delays-leave-filipinos-in-jails
who resisted was stripped and ordered to walk home naked.11 Others were
even forced to sit under the afternoon heat for hours.12
What is also alarming is the fact that an undersecretary of the

Department of Interior and Local Government—the department charged
with the control and supervision of the Philippine National Police—believes
that all human rights are suspended when under a state of emergency. On the
heels of public clamor against human rights abuses in the first two weeks of
the lockdown, Undersecretary Martin Diño made a sweeping claim in a radio
interview that human rights are suspended during a state of emergency. 13
Diño stated “Wala na hong karapatan. Tandaan niyo, state of emergency ngayon. Ang
karapatang pantao ay nawawala pagdating ng state of emergency.” (“There are no more
rights. Remember, we are in a state of emergency. Human rights disappear in
a state of emergency.”). He even added that “Pagka ho meron tayong state of
emergency, ‘yung writ of habeas corpus ay nawawala na po yan.” (“When under a
state of emergency, the privilege of the writ of habeas corpus disappears.”)
On top of this, the Malacañang seems to be setting the stage for a

dangerous narrative that human rights can be disregarded for the sake of
survival. Manila Bulletin reported, albeit only through their social media
platform, that the Office of the Presidential Spokesperson cited a study that
claims more than 80% of Filipinos are “willing to sacrifice some of their
human rights if it helps prevent the spread of the virus.”14 Unfortunately, this
study, nor its details, is yet to be released for verification.
This false dichotomy of “rights or lives” is nothing new. President

Rodrigo Duterte himself employed similar semantics (“your concern is human
rights, mine is human lives” 15 ) to defend his deadly war on drugs and
downplay human rights violations. This paper explores whether law
11 Human Rights Watch, Philippine Children Face Abuse for Violating COVID-19 Curfew,
HUMAN RIGHTS WATCH WEBSITE, Apr. 3, 2020, at https://www.hrw.org/news/2020/

04/03/philippine-children-face-abuse-violating-covid-19-curfew
12 Id.
13 Nicole-Anne Lagrimas, CHR, NUPL contradict DILG's Diño, say human rights remain
even during emergencies, GMA NEWS ONLINE, Mar. 23, 2020, at

https://www.gmanetwork.com/news/news/nation/730889/nupl-contradict-dilg-s-dino-
say-human-rights-remain-even-during-emergencies/story
14 Mads Miraflor, 80% of Filipinos are Willing to Sacrifice Some of Their Human Rights,
MANILA BULLETIN, Apr. 23, 2020, at https://www.facebook.com/manilabulletin/

photos/a.147434127984/10158994420887985
15 Felipe Villamor, ‘Your Concern is Human Rights, Mine is Human Lives,’ Duterte Says in
Fiery Speech, THE NEW YORK TIMES, July 23, 2018, available at https://www.nytimes.com/
2018/07/23/world/asia/philippines-duterte-speech-muslims.html
supports—and whether there is a necessity of—choosing one to the exclusion

of the other.
This paper was written in a desperate search for the legal basis (or lack
thereof) for the sweeping statement that human rights disappear in a state of
emergency. In Part II, the author will lay the predicate by briefly discussing
the history of the legal regime of “state of emergency” and the difference
between derogations and limitations in international human rights law. In Part
III, he will discuss the requirements for permissible derogations in times of
public emergencies in the International Covenant on Civil and Political Rights
(“ICCPR”). He will then review some related public emergency powers in
Philippine Constitutional Law in Part IV, and will end with a brief conclusion
in Part V.
Most of the discussion will focus on the derogation clause found in Article 4
of the ICCPR 16 —an international instrument obligating states to respect,
protect, and fulfill human rights. As a state party to the ICCPR, the Philippines
is bound by it.
II. LAYING THE PREDICATE
A. Brief History of State of Emergency
The legal regime of a “state of emergency” involves “governmental

action taken during an extraordinary national crisis that usually entails broad
restrictions on human rights in order to resolve the crisis.”17 The concept can
be traced as far back as the Roman “practice of nominating a ‘dictator’ in
exceptional circumstances of external attack or internal rebellion.” 18
However, the legal regime itself is “a relatively modern development with
origins in the French Revolution,”19 and after a couple of centuries, has since
“gained a place in most national legal systems by the mid-twentieth century.”20
16 International Covenant on Civil and Political Rights [hereinafter “ICCPR”], Dec.
19, 1966, 999 U.N.T.S. 171.

17 Claudio Grossman, A Framework for the Examination of States of Emergency Under the
American Convention on Human Rights, 1 AM. U. J. INT’L L. & POL’Y 35, 36 (1986).
18 Scott Sheeran, Reconceptualizing States of Emergency under International Human Rights
Law: Theory, Legal Doctrine, and Politics, 34 MICH. J. INT'L L. 491, 496 (2013), citing JAIME ORAA,
HUMAN RIGHTS IN STATES OF EMERGENCY IN INTERNATIONAL LAW 7 (1992); Nigel Rodley,
Book Review, 42 INT’L & COMP. L.Q. 732, 732-733 (1993).
19 Sheeran, supra note 18; See also Stephen Humphreys, Legalizing Lawlessness: On
Giorgio Agamben’s State of Exception, 17 EUR. J. INT'L L. 677, 677-678 (2006).

20 Sheeran, supra note 18; See GIORGIO AGAMBEN, THE STATE OF EXCEPTION 11-
22 (Kevin Attell trans., Univ. of Chi. Press 2005) (2003); See also Humphreys, supra note 19.
European countries such as France and Germany “tentatively began

to elaborate [on] the idea of a constitutional state of emergency” in the
eighteenth and nineteenth centuries. 21 A 1789 decree of the French
Constituent Assembly featured a distinguished legal regime of “state of peace”
and a “state of siege.”22 Under the state of siege, “all the functions entrusted
to the civilian authority for maintaining order and internal policing pass to the
military commander, who exercises them under his exclusive responsibility.”23
This was further developed after the French Revolution of 1848 when “the
Constitution of the Second French Republic included a new article that
prescribed that the occasions, forms, and effects of the ‘state of siege’ were to
be elaborated in law.” 24 In post-World War One Germany, the Weimar
Constitution “provided the President extraordinary powers to cope with
exceptional threats to the system,”25 with “measures necessary to re-establish
law and order, if necessary using armed force and including the suspension of
a particular and limited set of rights.”26
Meanwhile, across the Atlantic, President Lincoln did the

unprecedented at the start of the American Civil War in 1861. 27 He
“suspended [the privilege of] the writ of habeas corpus” and “authorized the
arrest and detention of those suspected of ‘disloyal and treasonable practices’”
citing “popular demand and public necessity” to justify the measure.28 This was
unprecedented since the power to suspend the privilege of the writ lies with
the American Congress.29 This unprecedented act by Lincoln is now mirrored
in the Philippine Constitution which, unlike its American counterpart, confers
upon the President the power to suspend the privilege of the writ subject to
strict conditions and mechanisms for review by the Congress and the
Philippine Supreme Court.30
21 Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the
Temptations of 9/11, 6 U. PA. J. CONST. L. 1001, 1006-1007 (2004).

22 Sheeran, supra note 18, at 497, citing Agamben, supra note 20, at 5; See also THEODOR
REINACH, DE L'PTAT DE SIEGE: ETUDE HISTORIQUE ET JURIDIQUE 109 (1885).

23 Id.
24 Id.
25 Id.
26 Scheppele, supra note 21, at 1007.
27 Sheeran, supra note 18, at 497, citing Agamben, supra note 20, at 20.
28 Id.
29 Id. See Ex parte Merryman, 17 F. Cas. 144 (C.C.D. Md. 1861) (No. 9487) which ruled
that Article I, section 9 of the United States Constitution reserves to Congress the power to
suspend habeas corpus and thus that the President's suspension was invalid.
30 JOAQUIN BERNAS, THE 1987 CONSTITUTION OF THE PHILIPPINES: A
COMMENTARY 898 (2003 ed.); CONST. art. VII, § 18(1).

Although the legal regime of state of emergency has demonstrably

developed over time, calling for different rules in different jurisdictions, its
conceptual rationale remains “rooted in the nature of the exceptional.”31 It has
been dubbed as the international law counterpart of the concept of self-
defense in criminal law32 since both are born out of the need for survival—
both lend legality to an otherwise unlawful act. The ultimate challenge,
however, is balancing between “the collective’s interests (for example, the life
of the nation) and the interests of the individual, in particular, in human rights
and civil liberties.”33
B. Derogation vs. Limitation
As the UN Human Rights Committee (“UN HRC”) states:

“Derogation from some [ICCPR] obligations in emergency situations is
clearly distinct from restrictions or limitations allowed even in normal times
under several provisions of the [ICCPR].”34
Derogations are temporary deviations which detract from the rights

guaranteed by human rights instruments to respond to exceptional
circumstances (in the ICCPR, a derogation clause is found in article 4, “in
time[s] of public emergenc[ies]”). 35 In contrast, limitations are permitted
restrictions on the exercise of certain rights even in ordinary circumstances. 36
31 Sheeran, supra note 18, at 499.

32 INT’L COMM’N OF JURISTS, STATES OF EMERGENCY: THEIR IMPACT ON HUMAN
RIGHTS, at iii, 413 (1983); See also MANFRED NOWAK, U.N. COVENANT ON CIVIL AND
POLITICAL RIGHTS: CCPR COMMENTARY 84 (2nd rev. ed. 2005).
33 Sheeran, supra note 18, at 499.
34 Human Rights Committee, General Comment No. 29: Derogations during State
of Emergency Article 4 [hereinafter “General Comment 29”], ¶ 4, U.N. Doc.

CCPR/C/21/Rev.1/Add.11 (Aug. 21, 2001).
35 Gemmo Bautista Fernandez, Within the Margin of Error: Derogations, Limitations, and
the Advancement of Human Rights, 92 PHIL. L.J. 1, 4 (2019), citing Melkamu Tolera, Absence of a
Derogation Clause under the African Charter and the Position of the African Commission, 4 BAHIR DAR
U.J.L. 229, 231 (2014); ICCPR, art. 4. See discussion infra.
36 Id. at 9, citing Daniel O’Donnell, Commentary by the Rapporteur on Derogation, 7 HUM.
RTS. Q. 23 (1985). See also ANNA-LENA SVENSSON-MCCARTHY, INTERNATIONAL LAW OF

HUMAN RIGHTS AND STATES OF EXCEPTION - WITH SPECIAL REFERENCE TO THE TRAVAUX
PRÉPARATOIRES AND CASE-LAW OF THE INTERNATIONAL MONITORING ORGANS 721(1998).
Some examples of ICCPR rights which contain limitation clauses are

Articles 12(1) and (2),37 13,38 part of 14(1), 39 18(1), 40 19(2),41 21,42 and 22,43
listing permissible limitations, such as public order, national security, and
protection of the rights of others. 44 However, while certain rights can be
restricted based on the grounds enumerated in their respective provisions,
“these limitations must be prescribed by [domestic] law.” 45 Limitations of
ICCPR guaranteed rights in domestic jurisdictions must be “clearly delineated
37 ICCPR, art. 12(1)-(2) [Freedom of Movement]. Limitation clause in art. 12(3): “3.
The above-mentioned rights shall not be subject to any restrictions except those which are provided by
law, are necessary to protect national security, public order (ordre public), public health or morals or the rights
and freedoms of others […]” (Emphasis supplied.)
38 Art. 13 [Procedural Rights Against Expulsion]. “An alien lawfully in the territory
of a State Party to the present Covenant may be expelled therefrom only in pursuance of a
decision reached in accordance with law and shall, except where compelling reasons of national security
otherwise require, be allowed to submit the reasons against his expulsion and to have his case
reviewed by, and be represented for the purpose before, the competent authority or a person
or persons especially designated by the competent authority.” (Emphasis supplied.) Art. 14(1)
[Right to a Fair Trial]. “ […] The press and the public may be excluded from all or part of a trial for
reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest
of the private lives of the parties so requires, or to the extent strictly necessary […].” (Emphasis supplied.)
39 Art. 14(1) [Right to a Fair Trial]. “ […] The press and the public may be excluded from all
or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or to the extent strictly necessary […].”
(Emphasis supplied.)
40 Art. 18(1) [Freedom of Thought, Conscience, and Religion]. Limitation clause in
art. 18(3): “[…] 3. Freedom to manifest one’s religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.” (Emphasis supplied.)
41 Art. 19(2) [Freedom of Expression]. Limitation clause in art. 19(3): “[…] 3. The
exercise of the rights provided for in paragraph 2 of this article carries with it special duties
and responsibilities. It may therefore be subject to certain restrictions, but these shall only be
such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For
the protection of national security or of public order (ordre public), or of public health or morals.” (Emphasis
supplied.)
42 Art. 21 [Freedom of Assembly]. “The right of peaceful assembly shall be
recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity
with the law and which are necessary in a democratic society in the interests of national security or public safety,
public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms
of others.” (Emphasis supplied.)
43 Art. 22 [Freedom of Association]. “1. Everyone shall have the right to freedom of
association with others, including the right to form and join trade unions for the protection of
his interests. 2. No restrictions may be placed on the exercise of this right other than those which are prescribed
by law and which are necessary in a democratic society in the interests of national security or public safety, public
order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of
others. […]” (Emphasis supplied.)
44 SARAH JOSEPH & MELISSA CASTAN, THE INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS: CASES MATERIALS AND COMMENTARY 31 (2013 ed.).

45 Id.
in an accessible law, whether that be statute law or common law,”46 and not
“vague as to permit too much discretion and unpredictability in its
implementation.”47 Limitations recognize that certain rights are not absolute
and that individuals, in exercising their rights, are also bound to respect the
rights of others48 or yield to public interests.
For example, the ICCPR provides that the right of peaceful assembly
may be restricted by domestic law for the protection of public health, among
other grounds, 49 despite the absence of a public emergency. In the
Philippines, the exercise of the right of peaceful assembly is regulated by Batas
Pambansa Bilang 880 (“B.P. No. 880”) which was held as “a recognized
exception to the exercise of the right even under the Universal Declaration of
Human Rights and the [ICCPR].”50 In Bayan v. Ermita, the Philippine Supreme
Court had the occasion to rule certain provisions of B.P. No. 880 as a valid
restriction to said right since it is “not an absolute ban of public assemblies
but a restriction” that simply provides “a ‘content-neutral’ regulation of the
time, place, and manner of holding public assemblies,”51 provided, however,
that “the permit can only be denied on the ground of clear and present danger
to public order, public safety, public convenience, public morals or public
health.”52 As applied to the COVID-19 pandemic, this law can be the basis to
deny the exercise of the right due to “clear and convincing evidence that the
public assembly will create a clear and present danger to […] public health”53
considering that public assemblies or rallies may pose a serious risk of virus
transmission. But even in a hypothetical situation where the Philippines has
46 Id. See Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary, 224. See
also Sunday Times v. UK (1979-80) 2 EHRR 245, ¶ 49, confirming that judge-made laws may
constitute sufficiently prescribed ‘laws’ for the purposes of limitation to rights under the
European Convention.
47 Joseph & Castan, supra note 44. See Pinkney v. Canada (27/78). See also UN Human
Rights Committee, General Comment No. 27: Article 12 (Freedom of Movement), ¶ 13, U.N.
Doc. CCPR/21/Rev.1/Add.9 (Nov. 2, 1999).
48 Abdi Ali, Derogation from Constitutional Rights and its Implication under the African Charter
on Human and People’s Rights, 17 L. DEM. & DEV. 78, 90 (2013), citing ALEX CONTE & RICHARD
BURCHILL, DEFINING CIVIL AND POLITICAL RIGHTS: THE JURISPRUDENCE OF THE UNITED
NATIONS HUMAN RIGHTS COMMITTEE 43-51 (2009). See Oscar Garibaldi, General Limitations
on Human Rights: The Principle of Legality, 17 HARV. INT’L. L.J. 503, 517 (1976).
49 ICCPR, art. 21.
50 Bayan v. Ermita, 522 Phil. 201 (2006).
51 Id., citing Osmeña v. Comm’n on Elections, 351 Phil. 692 (1998).
52 Id.
53 Batas Blg. 880 (1985), § 6(a). “Sec. 6. Action to be taken on the application. -(a) It shall
be the duty of the mayor or any official acting in his behalf to issue or grant a permit unless
there is clear and convincing evidence that the public assembly will create a clear and present danger to public
order, public safety, public convenience, public morals or public health. […]” (Emphasis
supplied.)
no domestic law to restrict the exercise of the right, the Philippine

Government can make a case for a permissible derogation due to a “public
emergency” under Article 4 of the ICCPR.54
It is interesting to note that in General Comment 29, the UN HRC

stated that in their opinion “the possibility of restricting certain [ICCPR]
rights under the terms of, for instance, freedom of movement (article 12) or
freedom of assembly (article 21) is generally sufficient during such situations
and no derogation from the provisions in question would be justified by the
exigencies of the situation.”55 In the mind of the UN HRC, since Articles 12
and 21 may be restricted, no derogation of such rights may be justified.
However, recalling the requirement that limitations must be prescribed by
domestic laws, the statement presupposes that all states have domestic laws
providing for restrictions for any emergency scenario, be it foreseeable or not.
In reality, some states may not yet have domestic laws in place that are
comprehensive enough to restrict ICCPR rights for every public emergency
that it may encounter; or in particular, for its measures in this fight against the
pandemic. Notice that most of the states which were first to register
derogations related to the COVID-19 pandemic, such as Guatemala,
Armenia, Peru, Estonia, Ecuador, and Romania, imposed measures
derogating from the right to freedom of movement (Article 12) and the right
to peaceful assembly (Article 21).56
Interestingly, in its latest statement on derogations from the ICCPR

in connection with the COVID-19 pandemic, the UN HRC changed its tone
from no permissible derogation in General Comment 29 to no permissible derogation
if restrictions are possible. According to the statement,“[s]tates parties should not
derogate from [ICCPR] rights or rely on a derogation made when they are
able to attain their public health or other public policy objectives by invoking
the possibility to restrict certain rights, such as article 12 (freedom of
movement), article 19 (freedom of expression) or article 21(right to peaceful
assembly) […].”57
Indeed, the limitation of human rights has many nuances that its
discussion merits a separate paper. But for the purposes of this paper, the
author briefly discussed the difference between a limitation and a derogation
to pave the way for the discussion of the derogation clause in the ICCPR.
54 See discussion infra.

55 General Comment 29, ¶ 5.
56 See Intl. Justice Resource Center, at https://ijrcenter.org/wp-
content/uploads/2020/04/ICCPR-Derogations-28.apr_.20.pdf
57 Human Rights Committee, Statement on derogations from the Covenant in
connection with the COVID-19 pandemic, ¶ 2(c), U.N. Doc. CCPR/C/128/2 (Apr. 2, 2020).
In essence, a derogation clause allows a state to suspend certain

individual rights under exceptional circumstances.58 What constitutes these
required “exceptional circumstances” vary from instrument to instrument.59
Under the ICCPR derogation clause found in article 4, these are referred to
as “time[s] of public emergency which [threaten] the life of the nation.”60
Similarly, the European Convention on Human Rights clause uses the phrase
in “time[s] of war or other public emergency threatening the life of the
nation.”61 Meanwhile, the American Convention on Human Rights spells out
a wider variety of situations that include “[times] of war, public danger, or
other emergencies that [threaten] the independence or security of a [state].”62
III. PERMISSIBLE DEROGATION OF RIGHTS GUARANTEED BY THE

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
A. Overview: Article 4 of the ICCPR
Under the ICCPR, states may derogate from its obligation to respect,
protect, and fulfill certain rights as a proportionate response to a serious
public emergency.63 While there is a general recognition that civil liberties may
be curtailed during public emergencies to prioritize general public safety, it
can be observed that “some of the most egregious human rights abuses occur
during purported public emergencies.”64 This highlights the importance of
strictly monitoring whether derogating measures imposed by states are
permissible—so it cannot “operate as a shield for the ‘cynical and calculated
destruction of the rights’ of [political] opponents” and dissidents.65
58 OREN GROSS, LAW IN A TIME OF CRISIS: EMERGENCY POWERS IN THEORY AND
PRACTICE 257 (2006); Frederick Cowell, Sovereignty and the Question of Derogation: An Analysis of
Article 15 of the ECHR and the Absence of a Derogation Clause in the ACHPR, 1 BIRKBECK L. REV.
135, 136 (2013); DIANE DESIERTO, NECESSITY AND NATIONAL EMERGENCY CLAUSES 252
(2012).
59 Fernandez, supra note 35, at 4.
60 Id. ICCPR, art. 4.
61 Gross, supra note 58, at 257, citing European Convention for the Protection of
Human Rights and Fundamental Freedoms, as amended, art. 15, Nov. 4, 1950, 213 U.N.T.S.
221. See Fernandez, supra note 35, at 4.
62 Gross, supra note 58, at 257, citing American Convention on Human Rights, art.
27, Nov. 22, 1950, 1144 U.N.T.S. 123. See Fernandez, supra note 35, at 5.
63 Joseph & Castan, supra note 44, at 910.
64 Id. See DOMINIC MCGOLDRICK, THE HUMAN RIGHTS COMMITTEE 301
(Clarendon Press, 1994).

65 Joseph & Castan, supra note 44, at 910, citing PR Ghandhi, The Human Rights
Committee and Derogation in Public Emergencies, 32 GER. Y.B. INT’L L. 323, 323 (1989).
1. Substantive Limits of Article 4
While the first paragraph of Article 4 allows states, in times of public

emergencies, to take measures derogating from their obligations to protect and
respect some rights, this should only be to the extent required to address the
emergency:
In time of public emergency which threatens the life of the nation

and the existence of which is officially proclaimed, the States Parties
to the present Covenant may take measures derogating from their
obligations under the present Covenant to the extent strictly
required by the exigencies of the situation, provided that such
measures are not inconsistent with their other obligations under
international law and do not involve discrimination solely on the
ground of race, [color], sex, language, religion or social origin.66
Moreover, the second paragraph enumerates several rights that can

never be derogated from in any situation; these are the so-called “non-
derogable rights”.67 These rights are the:
a) Right to life;
b) Right against torture or to cruel, inhuman, or degrading
treatment or punishment;
c) Right against slavery and servitude;
d) Right against imprisonment for failure to fulfill contractual
obligations;
e) Right against ex post facto punishment;
f) Right to recognition; and
g) Right to freedom of thought, conscience, and religion.68
One misconception is that the presence of a public emergency

justifies the derogation of any right not enumerated as non-derogable in the
second paragraph of Article 4. However, the fact that certain rights are listed
as non-derogable does not mean that other ICCPR rights that are not
enumerated may be subjected to derogations at will, despite the presence of a
public emergency.69 This is because the measures imposed should still be only
“to the extent strictly required by the exigencies of the situation”—this
66 ICCPR, art. 4(1). See discussion infra.

67 General Comment 29, ¶¶ 7, 10 & 11; Joseph & Castan, supra note 44, at 916;
Human Rights Committee, Giri v. Nepal, Comm. 1671/2008, ¶ 7.9 (2011).
68 ICCPR, art. 4(2); “2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11,
15, 16 and 18 may be made under this provision.”

69 General Comment 29, ¶ 6; See discussion infra.
requirement reflects the principle of “proportionality” in international human

rights law.70
This is where the notification procedure in Article 4(3) becomes

instrumental. The notification furnishes the UN HRC with essential
information so it can discharge its duty to assess whether the measures taken
by the state satisfies the test of proportionality.71
2. Procedural Requirements in Article 4
Internally, the state must officially declare a state of emergency. 72

Externally, a state “availing itself of the right of derogation must immediately
inform the other States Parties, through the United Nations Secretary-
General, of the provisions it has derogated from and of the reasons for such
measures.”73
While the first paragraph of Article 4 requiring the official

proclamation of a state of emergency “imposes procedural ‘notice’
requirements in [domestic] law,” the third paragraph “imposes notice
requirements at the international level.” 74 Paragraph three provides for a
“regime of international notification.” 75 The third paragraph outlines the
procedure, thus:
Any State Party to the present Covenant availing itself of the right
of derogation shall immediately inform the other States Parties to
the present Covenant, through its intermediary of the Secretary-
General of the United Nations, of the provisions from which it has
derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on
the date on which it terminates such derogation.
70 ICCPR, art. 4(1); See discussion infra.

71 General Comment 29, ¶ 17
72 ICCPR, art. 4(1). “In time of public emergency which threatens the life of the
nation and the existence of which is officially proclaimed, the States Parties to the present Covenant
may take measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
(Emphasis supplied.); See also General Comment 29, ¶ 2.
The notification “should include full information about the measures

taken and a clear explanation of the reasons for them, with full documentation
attached regarding [the implementing state’s domestic] law.”76 Furthermore,
the UN HRC adds that “[a]dditional notifications are required if the State
party subsequently takes further measures under article 4” such as “extending
the duration of a state of emergency.”77 This is what Guatemala did when it
first communicated its derogations through the UN Secretary-General on
January 24, 2020, explaining that it has declared a state of emergency in several
municipalities and will be imposing measures derogating from Articles 12, 19
and 21 to fight the threat of the pandemic.78 Guatemala has subsequently sent
six more notifications thereafter when it modified, imposed more, or
extended the imposition of measures.79
Unfortunately, despite the noble objective of the notice requirement,

compliance has been problematic. If not totally disregarded, the notice lacks
sufficient information to help the UN HRC assess the validity of the
derogation.80 As of May 5, 2020, more or less three months since countries
started imposing strict measures, only 14 of 173 states (8%)
have notified derogations from the ICCPR.81 This may mean two things: (1)
that other states opted to limit or restrict rights pursuant to their domestic
laws, or (2) other states disregarded the notice requirement despite its
derogation. The Philippines did not send any notice of derogation.
One reason pointed out by scholars for poor compliance is the lack
of ability of human rights bodies (such as the UN HRC) to enforce decisions82
which means that non-compliance has less adverse consequences on non-
compliant states.83 Furthermore, a state’s substantive right to take derogating
measures does not depend on the procedural notification requirement in
76 ¶ 17.
77 ¶ 17.
78 International Justice Resource Center, supra note 56.
79 Id. As of April 28, 2020, Guatemala sent seven notifications: one dated January 24
and January 31; two on February 19; one on March 10 and another on March 31 and April 6.
80 See Fernandez, supra note 35, at 23, citing Ghandhi, supra note 65, at 357: “There
had been delays, clumsiness, and general inadequacy in the reporting procedure that result in
problems in ‘securing reliable, complete and contemporaneous information about state
compliance with the carefully delineated limits of [special measures].’”
81 See United Nations Treaty Collection, Depositary Notifications (CNs) by the Secretary-
General, UNITED NATIONS TREATY COLLECTION, at https://treaties.un.org/Pages/

CNs.aspx?cnTab=tab2&clang=_en. See also Niall Coghlan, Dissecting Covid-19 Derogations,
VERFBLOG, May 5, 2020, at https://verfassungsblog.de/dissecting-covid-19-derogations
82 See Fernandez, supra note 35, at 25, citing Ghandhi, supra note 65, at 361. “Article
5(4) of the Optional Protocol only provides that the committee ‘shall forward its views to the
State Party concerned and to the individual.’”
83 Gross, supra note 58, at 297.
Article 4(3).84 However, scholars posit that a state’s failure to provide relevant
information, such as “details of the nature and exigencies of the relevant
public emergency, means that the State will fail to discharge its burden of
proof in justifying those derogations, and will thus be denied any substantive
[A]rticle 4 defen[s]e of its actions.”85
B. The “When” and “to What Extent”

of ICCPR Human Rights Derogations
The requirements for permissible derogation in paragraph one may

be divided into four requirements: (1) that there exists a public emergency
threatening the life of the nation, (2) that the measures imposed are only to
the extent strictly required by the exigencies of the situation (3) in conformity
with international law, and (4) does not discriminate solely on the basis of
race, color, sex, language, religion, or social origin.86 Further, the provisions
of paragraph two may be added as a fifth element; that (5) the measures do
not violate the right to life, right against torture or to cruel, inhuman, or
degrading treatment or punishment, right against slavery and servitude, right
against imprisonment for failure to fulfill contractual obligations, right against
ex post facto punishment, right to recognition, and the right to freedom of
thought, conscience, and religion.87
The usual points of contention in Article 4 are the first and second
requirements. Since the other requirements are straight-forward and self-
explanatory, the author shall focus on the first two requirements.
84 See Landinelli Silva v. Uruguay, HRC Comm. 34/1978, ¶ 8.3 (1981). “Although
the substantive right to take derogatory measures may not depend on a formal notification
being made pursuant to article 4(3) of the Covenant, the State party concerned is duty-bound
to give a sufficiently detailed account of the relevant facts when it invokes article 4(1) of the
Covenant in proceedings under the Optional Protocol.” See also Joseph & Castan, supra note
44, at 921.
86 ICCPR, art. 4(1).
87 Art. 4(2); “2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16
and 18 may be made under this provision.”

1. Public Emergency Threatening the Life of the Nation
The first requirement for a permissible derogation in the ICCPR is

the existence of a “public emergency which threatens the life of the nation.”88
Without the existence of a public emergency, any measure derogating from
the state’s obligation to grant ICCPR rights would never be justified.
A “public emergency” refers to “an exceptional situation of crisis or

public danger, actual or imminent, which affects the whole population or the
whole population of the area to which the declaration applies and constitutes
a threat to the organi[z]ed life of the community.”89 Note, however, that any
form of crisis would not suffice as it should be shown that it is of exceptional
character—such that it affects a state’s “physical integrity, political
independence or territorial integrity, or the existence or function of
88 Art. 4(1). “In time of public emergency which threatens the life of the nation and the existence
of which is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with their
other obligations under international law and do not involve discrimination solely on the
ground of race, colour, sex, language, religion or social origin.” (Emphasis supplied.)
89 Gross, supra note 58, at 249 (2006); Scott Dolezal, The Systematic Failure to Interpret
Article IV of the International Covenant on Civil and Political Rights: Is there a Public Emergency in
Nigeria?, 15 AM. U. INT’L. L. REV. 1163, 1187-1188 (2000), citing Siracusa Principles on the
Limitation and Derogation Provisions in the ICCPR, 7 HUM. RTS. Q. 1, principle 41 (1985); Paris
Minimum Standards of Human Rights Norms in a State of Emergency, 79 AM. J. INT’L L. 1072,
principle 39 (1985).
indispensable institutions designed to protect human rights.” 90 Some

examples that fit this characterization are war, terrorist emergencies, or severe
natural disasters, such as major floods or earthquakes.91
The UN HRC has already acknowledged that the COVID-19

pandemic is a public emergency that can be a basis to invoke Article 4.92 In
this regard, states “confronting the threat of widespread contagion may, on a
temporary basis, resort to exceptional emergency powers and invoke their
right of derogation from the Covenant under article 4 provided that it is
required to protect the life of the nation.”93
2. Only to the Extent Strictly Required by the

Exigencies of the Situation (a.k.a “proportionality”)
90 DIANE DESIERTO, NECESSITY AND NATIONAL EMERGENCY CLAUSES 247 (2012),
citing MARC BOSSUYT, GUIDE TO THE TRAVAUX PRÉPARATOIRES OF THE INTERNATIONAL

COVENANT ON CIVIL AND POLITICAL RIGHTS 81-102 (1987); Joseph & Castan, supra note 44,
at 911, citing MANFRED NOWAK, UN COVENANT ON CIVIL AND POLITICAL RIGHTS: CCPR
COMMENTARY 91 (2005 ed.).
92 UN Human Rights Committee, Statement on Derogations from the Covenant in
Connection with the COVID-19 Pandemic (Apr. 24, 2020), ¶ 2, U.N. Doc. CCPR/C/128/2
(Apr. 2, 2020).
93 ¶ 2.
States are not given free rein just because there is a public emergency.
After confirming the presence of a public emergency, states still need to satisfy
the proportionality requirement.94
The derogating measures that states may employ are limited only “to
the extent strictly required by the exigencies of the situation.”95 This reflects
the principle of proportionality in international human rights law which is a
common standard for both derogations and limitations.96 Simply stated, these
measures should only be in proportion to the threat posed by the public
emergency and should only be enough to quell the threat. Proportionality
“relates to the duration, geographical coverage and material scope of the state
of emergency and any measures of derogation resorted to because of the
emergency.”97
i. Material Scope of the State of Emergency
The permissibility of a derogating measure would of course depend

on the kind of emergency the state is confronting.
For example, a lockdown which derogates from the rights to freedom

of movement98 (Article 12) and peaceful assembly99 (Article 21) may be seen
as permissible when fighting against a pandemic, but not when the emergency
is a severe natural disaster. The most common measures being employed by
states during this fight against the COVID-19 pandemic are quarantines,
lockdowns, and travel bans—measures that derogate from Articles 12 and 21,
among other rights. In fact, most of the states that were first to register
94 ICCPR, art. 4(1). “In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent strictly required
by the exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.” (Emphasis supplied.)
95 Art. 4(1); See General Comment 29, ¶ 4; Human Rights Committee, Gen Comm
29 at ¶¶ 4-5; Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, 7 HUM.
RTS. Q. 1, principle 54; Joseph & Castan, supra note 44, at 912, citing Joseph Sarah, Human
Rights Committee: General Comment 29, (Toonen v. Australia), HUM. RTS. L. REV. 81, 97 (2002);
Human Rights Committee, 15th Session, Comm. 488/92, U.N. Doc. CCPR/C/50/D, ¶ 8.3
(1994).
97 ¶ 4.
98 ICCPR, art. 12. This includes the freedom to travel and the right to return to one’s
country.
99 Art. 21.
derogations related to the COVID-19 pandemic imposed measures that affect

freedom of movement and the right to peaceful assembly.100
ii. Geographical Coverage and Duration
What are seen as permissible measures also depends on the

geographical coverage and duration of the emergency.101 Since derogations
are “exceptional and temporary [in] nature” which “may only last as long as
the life of the nation is threatened,” 102 it only follows that it should be
imposed on areas which are affected and while the emergency lasts. At the
end of the day, the objective behind the imposition of the measure must be
“[t]he restoration of a state of normalcy where full respect for the [ICCPR]
can again be secured.”103
Before imposing lockdowns, most states resorted first to

quarantines 104 and travel bans. 105 In the Philippines, the Civil Aeronautics
Board indefinitely suspended all flights from Wuhan as early as January 23,
followed by a travel ban on those coming from the Hubei province of China
on January 28.106 On February 2, President Duterte approved a temporary ban
of entry of persons coming from or who were in China within 14 days before
arrival;107 this was followed by a ban on disembarkation of vessel crews from
China by the Philippine Ports Authority on February 3. On February 6, the
Inter-Agency Task Force for the Management of Emerging Infectious
Diseases (IATF-EID) identified Clark City as a temporary quarantine site for
100 See International Justice Resource Center, supra note 55.

102 UN Human Rights Committee, General Comment No. 5: Article 4
(Derogations), ¶ 2, U.N. Doc. CCPR/C/21/Rev.1/Add.11 (July 31, 1981).

103 ¶ 1.
104 See Amnesty International (USA), Responses to COVID-19 and States’ Human Rights
Obligations: Preliminary Observations, AMNESTY INTERNATIONAL WEBSITE, Mar. 16, 2020, at

https://www.amnestyusa.org/press-releases/responses-to-covid-19-and-states-human-
rights-obligations-preliminary-observations. Quarantine is the process of separating
individuals who may have been exposed to or are showing symptoms of an infectious disease.
105 See id. Travel restrictions and bans affect “the right to the freedom of movement,
which includes the freedom to leave any country and the right to not be arbitrarily deprived
of the right to enter one’s own country. Several countries have closed certain borders, or
imposed bans on travel to and from areas with high numbers of COVID-19 cases, often
impacting people trying to reach their homes and families, conducting their regular business,
or accessing education at schools and universities.”
106 Department of Health (DOH), COVID-19 Timeline (January), COVID-19
DASHBOARD WEBSITE, at http://www.covid19.gov.ph/jan-covid-19-timeline

107 DOH, COVID-19 Timeline (February), COVID-19 DASHBOARD WEBSITE, at
http://www.covid19.gov.ph/feb-covid-19-timeline
repatriated Filipinos from Wuhan. 108 After three days, the Department of
Foreign Affairs reported over 30 overseas Filipino workers repatriated from
Wuhan who were to undergo the mandatory 14-day quarantine. 109 All
subsequent repatriates were also subjected to quarantine. It was not until
March 12 when President Duterte ordered a strict community quarantine (a
lockdown) in the National Capital Region (“NCR”) from March 15 up to
April 15, suspending all classes and government work in NCR; and on March
16, placed the whole of Luzon under a stricter “Enhanced Community
Quarantine” (“ECQ”).110 It was also around this time when the Bureau of
Immigration implemented additional travel restrictions for those arriving
from Iran and Italy which were becoming the epicenter of the pandemic at
that time. The whole country was eventually placed under ECQ which was
extended several times: from April 16 to April 30,111 May 1 to 15, and again
from May 16 to 31.112 As of June 1, the Philippine scaled down to a “General
Community Quarantine” (“GCQ”), easing some restrictions on movement;
but still, technically, on lockdown as of the end of June.
In assessing the proportionality of the lockdown, notice that with

regard to the geographical coverage, the Philippine Government first imposed
a lockdown in NCR since this is where most COVID-19 cases were initially
recorded. The whole of Luzon was placed on lockdown several days after
when the threat was not contained within NCR. The whole country was
eventually placed on lockdown after the rising number of confirmed cases
outside NCR and Luzon. With regard to duration, the Philippines shifted
from ECQ to the less restrictive GCQ on June 1, but is still, technically, on
lockdown for more than three months as of the end of June. Stretching this
community quarantine measure for this extended period of time may be
reasonable since the curve of confirmed cases has not yet flattened. However,
the author submits that even a perfectly reasonable measure may become
unjustified, despite the ongoing presence of a public emergency, if imposed
longer than is necessary. There may come a time that the situation calls for
the phasing out of draconian lockdown measures and phasing in of less
restrictive measures. In fact, other countries that also imposed lockdowns,
108 Id.
109 Id.
110 DOH, COVID-19 Timeline (March), COVID-19 DASHBOARD WEBSITE, at
http://www.covid19.gov.ph/mar-covid-19-timeline
111 DOH, COVID-19 Timeline (April), COVID-19 DASHBOARD WEBSITE, at
http://www.covid19.gov.ph/apr-covid-19-timeline
112 DOH, COVID-19 Timeline (May), COVID-19 DASHBOARD WEBSITE, at
http://www.covid19.gov.ph/may-covid-19-timeline
such as Italy and Spain, have lifted their respective lockdown measures and
significantly eased their restrictions after somehow flattening the curve.113
Due to the novelty of the crisis that all countries are simultaneously
fighting against, how long states will derogate from their obligations under
human rights treaties is yet to be clear.114 But states have generally indicated a
period of one to two months, with the possibility of extension.115
C. Validity or Invalidity of Measures

Employed by the Philippines in its Fight
Against the COVID-19 Pandemic
The test on the permissibility of derogating measures may be further

simplified by associating it with two simple questions: 116 when can ICCPR
113 Guy Davies, Italy and Spain begin to reopen after coronavirus lockdown, rest of Europe to
follow suit, ABC NEWS, May 19, 2020, at https://abcnews.go.com/International/italy-spain-

begin-reopen-coronavirus-lockdown-rest-europe/story?id=70742735
114 Kushtrim Istrefi & Isabel Humburg, To Notify or Not to Notify: Derogations from
Human Rights Treaties, OPINIOJURIS, Apr. 8, 2020, at http://opiniojuris.org/2020/04/18/to-

notify-or-not-to-notify-derogations-from-human-rights-treaties
115 Id.
116 See General Comment 29, ¶ 5. “The issues of when rights can be derogated from,
and to what extent, cannot be separated from the provision in article 4, paragraph 1, of the
Covenant according to which any measures derogating from a State party’s obligations under
rights be derogated from, and to what extent? To which, the answer would be:
(when?) “in time[s] of public emergencies” threatening the life of the nation,
(to what extent?) but employed measures should only be “to the extent strictly
required by the exigencies of the situation,” in conformity with international
law, do not discriminate on the basis of race, color, sex, language, religion, or
social origin,117 and do not violate the non-derogable rights.118
Contrary to Diño’s claim, a state of emergency does not suspend all

human rights. Since the COVID-19 pandemic is a public emergency which
threatens the life of the nation, the Philippines may invoke Article 4 in
imposing a lockdown, quarantine and travel restrictions that derogate from
the ICCPR guaranteed rights of freedom of movement and freedom of
assembly, among other rights, if affected rights cannot be restricted pursuant
to limitations in domestic law.119 But even if these necessary measures pass
the test of proportionality, conformity with international law, and non-
discrimination, it can never lend legality to the imposition of cruel, inhuman,
or degrading punishment proscribed by Article 4(2) for those who violate
these restrictions.120 Therefore, punishment in the form of placing children in
coffins or caging violators like animals121 is never justified even in a state of
emergency. Neither can a “shoot to kill” order122 that was probably the hand
that pulled the trigger in the killing of unarmed Winston Ragos123 be justified
since it violates the non-derogable right to life.124
the Covenant must be limited ‘to the extent strictly required by the exigencies of the situation’.
[…]”.
117 ICCPR, art. 4(1).
118 Art. 4(2).
119 See discussion supra.
120 ICCPR, art. 4(2).
121 Human Rights Watch, Philippine Children Face Abuse for Violating COVID-19
Curfew, HUMAN RIGHTS WATCH WEBSITE, Apr. 3, 2020, at https://www.hrw.org/news/2020/

04/03/philippine-children-face-abuse-violating-covid-19-curfew
122 See Amnesty International, Philippines: President Duterte gives “shoot to kill” order amid
pandemic response, AMNESTY INTERNATIONAL WEBSITE, Apr. 2, 2020, at

https://www.amnesty.org/en/latest/ news/2020/04/philippines-president-duterte-shoot-
to-kill-order-pandemic
123 Vince Ferreras & Greg Cahiles, Retired soldier shot dead by police at checkpoint in Quezon
City, CNN PHIL., Apr. 22, 2020, at https://www.cnnphilippines.com/news/2020/

4/22/Retired-soldier-shot-dead-by-police-.html
124 ICCPR, art. 4(2).
IV. STATE OF EMERGENCY AND RELATED POWERS

IN PHILIPPINE CONSTITUTIONAL LAW
All states are expected to “act within their [Constitution] and other
provisions of law that govern such proclamation and the exercise of
emergency powers” in “proclaiming a state of emergency with consequences
that could entail derogation from any provision of the [ICCPR].”125
In Philippine law, the 1987 Philippine Constitution outlines several

powers and the requirements for their valid exercise. These are the emergency
powers, 126 calling out powers, 127 the declaration of martial law and the
suspension of the privilege of the writ of habeas corpus.128 Since these are
powers with similar requirements and all originating from the rationale of
granting states leeway to address public emergencies, they are often conflated.
However, each of these powers has different requisites, with the declaration
of martial law and the suspension of the privilege of the writ of habeas corpus
having the strictest safeguards (only in invasion or rebellion, and when the
public safety requires it)129 since both curtail basic civil rights and individual
freedoms.130

126 CONST. art. VI, § 23(2). “In times of war or other national emergency, the 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. Unless sooner
withdrawn by resolution of the Congress, such powers shall cease upon the next adjournment
thereof.” (Emphasis supplied.)
127 Art. VII, § 18(1). “The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent
or suppress lawless violence, invasion or rebellion. […].” (Emphasis supplied.)
128 Art. VII, § 18(1). “[…] In case of invasion or rebellion, [and] when the public safety
requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law. […].” (Emphasis supplied.)
129 Art. VII, § 18(1).
130 Raul Pangalangan, Political Emergencies in the Philippines: changing labels and the
unchanging need for legitimacy, in EMERGENCY POWERS IN ASIA: EXPLORING THE LIMITS OF
LEGALITY 423 (Victor Ramraj & Arun Thiruvengadam eds., 2010), citing Integrated Bar of the
Phil. v. Zamora [hereinafter “IBP”], G.R. No. 141284, 338 SCRA 81, 110, Aug. 15, 2000. See
discussion infra.
Martial Law /
Suspension of the
Emergency powers Calling Out Powers
Privilege. of the Writ
of Habeas Corpus
Article VI, Section Article VII, Section Article VII, Section
23(2): 18(1): 18(1):
“In times of war or “The President shall be “The President shall be

other national emergency, the Commander-in- the Commander-in-
the Congress may, by Chief of all armed Chief of all armed
law, authorize the forces of the forces of the
President, for a limited Philippines and Philippines and
period and subject to whenever it becomes whenever it becomes
such restrictions as it necessary, he may call out necessary, he may call
may prescribe, to such armed forces to out such armed forces
exercise powers necessary prevent or suppress to prevent or suppress
and proper to carry out lawless violence, lawless violence,
a declared national invasion or rebellion. invasion or rebellion.
policy. Unless sooner In case of invasion or In case of invasion or
withdrawn by rebellion, when the rebellion, [and] when the
resolution of the public safety requires public safety requires it, he
Congress, such powers it, he may, for a period may, for a period not
shall cease upon the not exceeding sixty exceeding sixty days,
next adjournment days, suspend the suspend the privilege of the
thereof.” (Emphasis privilege of the writ of writ of habeas corpus or
supplied.) habeas corpus or place place the Philippines
the Philippines or any or any part thereof
part thereof under under martial law. […]”
martial law. […]” (Emphasis supplied.)
(Emphasis supplied.)
When Diño claimed that all human rights, including the privilege of
the writ, are suspended, he conflated these powers. It is clear that contrary to
Diño’s claim, the privilege of the writ is not suspended by mere declaration of
a state of emergency. In fact, even the declaration of martial law—a legal
regime seen in the Philippines to be more draconian than a state of
emergency—“does not suspend the operation of the Constitution, […] nor
automatically suspend the privilege of the writ.”131
The 1987 Constitution guarantees human rights under Article III (Bill
of Rights) which includes the privilege of the writ of habeas corpus, and
131 CONST. art. VII, § 18(4).

provides that the President may suspend the privilege of the writ of habeas
corpus only “in case of invasion or rebellion” and “when the public safety
requires it.” 132 Without need of exhaustive explanation, the COVID-19
pandemic is far from qualifying as an invasion or a rebellion. Equally laughable
is Chief Presidential Legal Counsel Salvador Panelo’s argument “that
President Rodrigo Duterte can declare martial law on the basis of ‘invasion’
of the novel coronavirus.”133
A. The Granting of Emergency Powers

to the President
The presence of war or other national emergencies, such as the

COVID-19 pandemic, is a ground for the Congress to grant the President
emergency powers under Section 23(2), Article VI of the 1987 Philippine
Constitution.134
In David v. Macapagal-Arroyo, the Philippine Supreme Court explained

that “emergencies” include rebellion, economic crisis, pestilence, epidemic,
typhoon, flood, or other similar catastrophe of nationwide proportions.135
While the ultimate power to declare the existence of a national emergency is
reposed in Congress, 136 the Congress may give additional powers to the
President under the following conditions: (i) in “times of war or other national
emergency”; (ii) authorized by law; (iii) “for a limited period and subject to
such restrictions as [Congress] may prescribe”; and (iv) limited to the “powers
necessary and proper to carry out a declared national policy.”137
This is the constitutional basis of Congress in granting President

Duterte emergency powers through Republic Act No. 11469 to combat the
COVID-19 pandemic in the Philippines. 138 The last time it was invoked
132 Art. III, § 15: “The privilege of the writ of habeas corpus shall not be suspended
except in cases of invasion or rebellion, when the public safety requires it.” See also art. VII, §
18(1).
133 CNN Philippines, Panelo Floats COVID-19 ‘invasion’ as Basis to Declare Martial Law,
CNN PHIL., May 4, 2020, at https://cnnphilippines.com/news/2020/5/4/Salvador-Panelo-

COVID-19-invasion-martial-law.html
134 CONST. art. VI, § 23(2).
135 David v. Macapagal-Arroyo [hereinafter “David”], G.R. No. 171396, 489 SCRA
160, 242, May 3, 2006.

136 CONST. art. VI, § 23(2).
137 Art. VI, § 23(2).
138 Rep. Act No. 11469, (2020), otherwise known as “Bayanihan to Heal as One
Act.” Bayanihan to Heal as One Act is a law enacted on March 2020 granting the President
additional authority to combat the COVID-19 pandemic in the Philippines.
before this pandemic was when emergency powers were granted to President
Corazon Aquino after the 1989 coup d’état attempt.139
B. The Graduated Powers: Calling-Out

Power, Martial Law, and the Suspension
of the Privilege of the Writ
Section 18(1), Article VII of the 1987 Constitution contains the

sequence of “graduated powers” on national security.140 These powers are
described as “graduated” since the provision features powers “[f]rom the
most to the least benign, these are: the calling-out power, the power to
suspend the privilege of the writ of habeas corpus, and the power to declare
Martial Law.”141
The calling-out power enables the President as the Commander-in-

Chief of all armed forces to call the armed forces, whenever it becomes
necessary, to prevent or suppress lawless violence, invasion, or rebellion.142
Moreover, the President may suspend the privilege of the writ of habeas
corpus or place the Philippines or any part thereof under martial law, in case
there is an invasion or rebellion, and when the public safety requires it.143
Notice that while the Constitution “mandate[s] two conditions—

actual rebellion or invasion and the requirement of public safety—before the
suspension of the privilege of the writ of habeas corpus or the declaration of
martial law could be declared,” these conditions are not required in the
President’s exercise of the calling-out power.144 The only condition is that
“whenever it becomes necessary,” the President may call the armed forces “to
suppress lawless violence, invasion or rebellion.”145
In Integrated Bar of the Philippines v. Executive Secretary Zamora, then

President Joseph Estrada deployed the marines in Metro Manila at a time
when terrorist attacks were rampant.146 The Court upheld Estrada’s actions,
“citing his ‘widest leeway and broadest discretion’ while avoiding the
constitutional constraints inherent in the suspension of the writ or the
139 Rep. Act No. 6826 (1989); See Pangalangan, supra note 130, at 422.
140 IBP, 338 SCRA 81, 109; Pangalangan, supra note 130, at 423.
141 David, 489 SCRA 160, 242.
142 CONST. art. VII, § 18(1).
143 Art. VII, § 18(1).
144 David, 489 SCRA 160 (Tinga, J., dissenting), citing IBP, 338 SCRA 81, 110.
145 CONST. art. VII, § 18(1); Id.
146 IBP, 338 SCRA 81.
declaration of martial law.”147 The President was given “full discretion […] to
determine the factual basis”148 on when it is necessary to call out the armed
forces.149
The validity of the exercise of the calling out power was held to a
lower threshold because out of the three graduated powers, it is “considered
as the lesser and more benign power” compared to the declaration of martial
law and suspension of the writ—“both of which involve the curtailment and
suppression of certain basic civil rights and individual freedoms, and thus
necessitate affirmation by Congress and, in appropriate cases, review by [the
Supreme Court].”150
V. CONCLUSION
Exceptions, in the form of derogations in human rights law, allow

states to harmonize the granting of human rights with other prevailing
interests such as self-preservation. It allows justifiable deviations from
granting rights in exigent circumstances but identifies non-derogable rights
which it finds indispensable.
The presence of this balancing mechanism in human rights law

emphasizes that a public emergency does not justify an unqualified suspension
of rights. By using this balancing mechanism, states can protect rights while
protecting lives in their respective jurisdictions.
In closing, Filipinos need not fall victim to the narrative that any and
all human rights must give way in order to survive this pandemic. In fact,
contrary to the false dichotomy of “rights or lives” and the sweeping claim
that human rights are suspended in public emergencies, when states impose
health measures to save human lives in this pandemic, they do so pursuant to
their human rights obligation to achieve the full realization of people’s right
to health.151 Therefore, when the Philippines implements health programs to
147 Pangalangan, supra note 130, at 423, citing IBP, 338 SCRA 81, 109.
148 IBP, 338 SCRA 81, 109.
149 Pangalangan, supra note 130, at 423.
150 IBP, 338 SCRA 81, 110; Pangalangan, supra note 130, at 423.
151 International Covenant on Economic, Social and Cultural Rights, art. 12, Dec.
16, 1966, 993 U.N.T.S 3. “1. The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical and mental health. 2.
The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for: […] (c) The prevention, treatment and
control of epidemic, endemic, occupational and other diseases […].” (Emphasis supplied.)
combat the threat of the COVID-19 pandemic, they are implementing human
rights. This is one concrete example that by protecting rights, states can
protect lives; by protecting lives, states uphold human rights.
- o0o -
TIPPING POINT: WILL THIS PANDEMIC MAINSTREAM
ONLINE LEARNING IN PHILIPPINE LEGAL EDUCATION?*
Justin D.J. Sucgang**
PROLOGUE
Online learning traces its roots from distance education, which

evolves based on the available technology. In 1728, assignments, called
correspondence courses, were distributed and collected via parcel post. 1
Centuries later, in 1919, distance education also took place when University
of Wisconsin professors began the first federally licensed radio station
dedicated to educational broadcasting.2 In recent history, it took the form of
television broadcasts, videocassettes, and stand-alone educational software.3
Its latest iteration is online learning.
Curiously, despite studies showing its effectiveness even when used

by itself,4 online learning has not been adopted as a mainstream pedagogical
(or to be more accurate, andragogical) tool by law schools here and abroad. In the
United States (“US”) alone, around 30 of the Top 100 law schools (102 due
to ties) have some form of online classes—not online programs. In the
* Cite as Justin Sucgang, Tipping Point: Will this Pandemic Mainstream Online Learning in
Philippine Legal Education?, 93 (Special Online Feature) PHIL. L.J. 183, [page cited] (2020).
** Assistant Professorial Lecturer, De La Salle University College of Law; LL.M. (Sen.
William Fulbright Scholar & Clyde DeWitt Fellow), University of Michigan Law School; J.D.,
salutatorian, De La Salle University College of Law (2014); A.B. Psychology, magna cum laude,
De La Salle University (2009); Hughes Scholar & CSEAS Library and Special Collections
Fellow, University of Michigan Center for Southeast Asian Studies.
1 Mary Sharp Emerson, Going the Distance: Why Online Learning Works, HARVARD
EXTENSION SCHOOL, Mar. 17, 2020, at https://www.extension.harvard.edu/inside-

extension/going-distance-why-online-learning-works
2 Id.
3 BARBARA MEANS, YUKIE TOYAMA, ROBERT MURPHY, MARIANNE BAKIA &
KARLA JONES, EVALUATION OF EVIDENCE-BASED PRACTICES IN ONLINE LEARNING: A

META-ANALYSIS AND REVIEW OF ONLINE LEARNING STUDIES 9 (2010), available at
https://www2.ed.gov/rschstat/eval/tech/evidence-based-practices/finalreport.pdf
4 Id. at xviii.
183
2020] TIPPING POINT 184
Philippines, legal education institutions (“LEI”) 5 never embraced online

learning. This is unsurprising because only a few higher education institutions
(“HEI”), to which LEIs are attached, invested therein. So, too, because the
Legal Education Board (“LEB”), as regulator of legal education, proscribes
the use of distance learning.6
However, law schools tipped towards online learning as a result of the

coronavirus disease (“COVID-19”). In the US alone, it was reported that all
of its 199 ABA-accredited law schools have moved entirely online, less than
a week after President Donald Trump declared a national emergency. 7
Similarly, in our country, the LEB was forced to momentarily lift the
abovementioned prohibition through Memorandum Circular Nos. 54 and 55.
Caught unprepared to face the challenge brought about by the pandemic,
LEIs are now expressly permitted to “formulate contingency plans in
response to COVID-19 including the conduct of alternative modes of
instruction and off-campus learning to ensure minimal disruption to studies.”8
Could COVID-19 be the tipping point towards online legal
education? Will it force even the most loyal adherents of the traditional
methods to accept online learning as part of the mainstream law school
pedagogy? If it is not, what may be its effect on Philippine legal education?
A. Precis
PART I of this essay argues that the pandemic is not and will not be
the tipping point to the system-wide acceptance of online legal education. On
5 While § 5(b) of LEB Mem. Order No. 1 (2011) used the term “law school,” the
Legal Education Board (LEB) started calling law schools as LEIs in LEB Mem. Order No. 9
(2017). This nomenclature was proposed by the author, when he was still a LEB
Commissioner/Regular Member to Rep. Rufus Rodriguez on May 23, 2014, as part of his
suggested amendments to Rep. Act. No. 7662 (1993) or the “Legal Education Reform Act of
1993,” as well as to the LEB en banc on Jan. 28, 2015, as part of his recommendation to adopt
a Legal Education Management Information System. Subsequent use by the LEB of this
nomenclature vacillates. The term “LEI” was again employed in LEB Mem. Order No. 15
(2018).
6 The limitations on the delivery of courses are provided under § 18(a) of LEB Mem.
Order No. 1 (2011), to wit: (a) all subjects in the curriculum must be taken within the entire
semester; (b) their delivery cannot be delivered in modular fashion (i.e. completing the subject
by a class held continuously for a number of days, although satisfying the required number of
hours); and (c) distance education shall not be allowed, unless otherwise provided for by the LEB.
7 Paul Caron, 100% Of Law Schools Have Moved Online Due To The Coronavirus,
TAXPROF BLOG, Mar. 18, 2020, at https://taxprof.typepad.com/taxprof_blog/2020/03/

list-of-law-schools-that-have-moved-online-due-to-the-coronvirus.html
8 LEB Mem. Circ. No. 55 (2020), item 3; LEB Mem. Circ. No. 54 (2020), item 4.
the other hand, the aspect of legal education to which online learning will
most likely have a significant effect is presented in PART II.
PART I
“The tipping point is that magic

moment when an idea, trend, or social
behavior crosses a threshold, tips, and
spreads like wildfire.”
—Malcolm Gladwell9
My earliest encounter with the Tipping Point model was in Detroit,

during the fall break of 2018. Ignorant of its contemporary history, I was
surprised to see that, unlike other big American cities, Detroit was
homogenous—homogenously black.10 It was explained to me that this was
due to the “white flight” phenomenon. One of the oft-cited explanation for
which is the Tipping Point model posited by Nobel Prize winner Thomas
Schelling.
According to Schelling, white flight may have resulted when the

tipping point is reached, that is, that moment in time when whites feel that
they are in danger of achieving minority status.11 Thus, even the most non-
racist or tolerant white, who initially did not mind the presence of colored
people or may even prefer integration,12 would leave due to a chain reaction.
In other words, it is “the critical point in a situation, process, or system beyond
which a significant and often unstoppable effect or change takes place.”13
9 MALCOLM GLADWELL, THE TIPPING POINT, back cover (2006).

10 According to the United States Census, as of July 1, 2019, Detroit has a 78.6%
black population. Compare this to Chicago (30.1%), New York City (24.3%), Los Angeles
(8.9%), and the entire state of Michigan (14.1%). See United States Census Bureau, Quick Facts:
Los Angeles city, California; Chicago city, Illinois; New York city, New York; Detroit city, Michigan,
UNITED STATES CENSUS BUREAU WEBSITE, at
https://www.census.gov/quickfacts/fact/table/losangelescitycalifornia,chicagocityillinois,ne
wyorkcitynewyork,detroitcitymichigan,MI/PST045219
11 Thomas Schelling, Dynamic Models of Segregation, 1 J. MATHEMATICAL SOCIOLOGY
143, 181 (1971).

12 Id. at 148.
13 Tipping point, MERRIAM-WEBSTER DICTIONARY, at https://www.merriam-
webster.com/dictionary/tipping%20point
After this, the tipping point model was soon applied to explain other
phenomena, such as the Arab Spring,14 climate change,15 and the #MeToo
movement.16
Before I further discuss why the pandemic is not and will not be the
tipping point to the mainstreaming of online legal education, a clarification on
the nomenclature used is in order.
When I use “distance education,” I partly adopt the definition used in

Standard 306(a) of the American Bar Association Standards and Rules of Procedure
for Approval of Law Schools 2019-2020.17 Thus, “distance education or learning”
is one in which students and the faculty member are separated from each
other. Instruction is delivered using any mode or technology that supports
regular and substantive interaction among students and between the students
and the faculty member, either synchronously or asynchronously.
On the other hand, “online education or learning” is “learning that

takes place partially or entirely over the Internet.”18 In other words, learning
should have a significant Internet-based instructional component.19 Online
learning has two purposes:
1. To serve as an alternative to the traditional onsite (or face-to-

face) learning or education, thus, it is totally conducted online.
Hence, pure online learning; or
2. To enhance the traditional onsite learning, thus, online
learning components are combined or blended. This
14 Leila Hudson & Matt Flannes, The Arab Spring: Anatomy of a tipping point, AL
JAZEERA, Sept. 1, 2011, at https://www.aljazeera.com/indepth/opinion/2011/08/

201183081433165611.html
15 Fred Pearce, As Climate Change Worsens, A Cascade of Tipping Point Looms,
YALEENVIRONMENT360, Dec. 5, 2019, at https://e360.yale.edu/features/as-climate-changes-

worsens-a-cascade-of-tipping-points-looms
16 Julia Salasky, The #MeToo campaign has reached the tipping point, and now we need to focus
on the power of the law, INDEPENDENT, Jan. 21, 2018, available at

https://www.independent.co.uk/voices/metoo-sexual-assault-harassment-gender-equality-
john-worboys-law-justice-a8170546.html
17 AMERICAN BAR ASSOCIATION SECTION OF LEGAL EDUCATION AND ADMISSIONS
TO THE BAR, STANDARDS AND RULES OF PROCEDURE FOR APPROVAL OF LAW SCHOOLS 2019-
2020 (Erin Reuhrwein ed., 2019).
18 Means et al., supra note 3, at 9.
19 Id.
technology-enabled learning is called blended or hybrid

learning.20
Simply put, distance education refers to the situs of the instruction.

Online learning refers to the platform of instruction.
One more thing: distance education may also be “synchronous,”

which “refers to the teaching and learning activity happening at the same time,
real time,”21 and is used to “approximate face-to-face teaching strategies.”22
Examples of synchronous technologies are webcasting, chat rooms, and
desktop audio/video technology. 23 It may also be “asynchronous,” where
“interaction is not live or in real time. Messages are sent at one time and
response from learner is given later.”24
When I talk about mainstreaming online legal education, I pertain to

the second-order change (i.e. transformation phase) following the SAMR
Model for Technology Integration.25 This is because, right now, a number of
law instructors have already been using online tools for learning (e.g. sending
electronic copies of syllabus via electronic mail). However, this is not
maximizing online learning, but using online tools as mere substitutes for
some tasks or aspects. Below is a summary of the SAMR Model:
Change Phase Definition Illustration

No Technology
Send reading
Technology acts
materials via
as direct tool
email; Online
Enhancement Substitution with no
quiz via Google
functional
Forms; Class via
change.
Zoom
20 Id. See also Christine Diane Lim, Exploring Educational Platforms and Community
Behavior to support DLSU Online Blended Learning Initiative, presented in DLSU Research
Congress 2016, De La Salle University, Manila (Mar. 7-9, 2016), available at
https://www.dlsu.edu.ph/wp-content/uploads/pdf/conferences/research-congress-
proceedings/2016/GRC/GRC-LLI-002.pdf (Emphasis supplied.)
21 Lim, supra note 20, at 2.
22 Means et al., supra note 3, at 1.
23 Id.
24 Lim, supra note 20, at 2.
25 Reuben Puentedeura, Building Upon SAMR, at http://hippasus.com/
rrpweblog/archives/2012/09/03/BuildingUponSAMR.pdf. See also Patrick Parsons, Talking

Tech: TPACK & SAMR: Real Frameworks for Evaluating Instructional Technology, 24 AALL
SPECTRUM 33 (2020).
Send links to
Acts as direct
files; Online
tool substitute
quiz with auto-
Augmentation
with functional
grading; Online
improvement. class with real-
time polls
Create class
webpage with
Allows files linked;
Modification significant task Online quiz with
redesign. automatic
Transformation feedback for
wrong answers
Allows creation Online class;
of new task Individualized
Redefinition
previously online quiz (with
unconceivable. mastery path)
TABLE 1. Summary of the SAMR Model.
With a common language, we proceed to the discussion of why the

pandemic is not the tipping point.
Fortunately or unfortunately, I submit that the pandemic is not and

will not be the tipping point to the mainstreaming of online legal education
because of the following reasons: (a) internet access and reliability in the
Philippines are substandard; (b) legal education is designed to approximate
only the traditional aspect of legal practice; (c) the Socratic Method is still
considered as the gold standard in law school pedagogy; (d) a great majority
of law instructors are adjunct; and (e) many LEIs do not have a learning
management system (“LMS”).
A. The reality of poor internet connectivity
The LEB reported that 56% of law instructor respondents and 35%
of law student respondents had stable internet. Meanwhile, a great portion of
both groups had intermittent quality of internet access (44% for instructors
and 64% for students).26 Furthermore, 61% of law student respondents are
26 Aaron Dimaano, Responding to a Pandemic: Refocusing on Welfare, Quality of
Learning and Reducing Inequalities in Legal Education [hereinafter “LEB Policy Paper”], at
5.3 (Apr. 17, 2020), available at http://leb.gov.ph/wp-content/uploads/2020/04/LEB-Policy-
Paper-on-the-Pandemic-Response-1.pdf?fbclid=IwAR1lbPhd3g6eXvMwJWL_dDd
PIOTiwF_3MqCl0g51DieGddmLvET6usbxePM
living in areas where only 1% to 20% of households have internet access, and
38% of them are living in areas where 20% to 30% of households have
internet access. Ironically, an overwhelming majority of law students (89%)
responded that they will be able to access it in their own residence either using
broadband or mobile data technologies.27
Indeed, even if we disregard the results of the LEB Policy Paper for
being non-representative, 28 the most recent National Telecommunications
Commission (NTC) figures29 will point to the same conclusion. In 2016, the
percentage of individuals with access to the internet stands at 63.58%, while
only 34% of households have internet connection. Also, mobile broadband
penetration is only 41.58% while fixed broadband penetration stands at 8%.
These figures indicate problems with internet access. There is also a problem
with internet speed reliability. In the Q1 2017 State of the Internet Report, the
Philippines placed 100th out of the 239 countries and regions surveyed, with
an average of 5.5 megabytes per second. 30 We also placed last among the 15
Asia Pacific countries surveyed, and last among the six South East Asian
countries surveyed. These figures alone attest to the fact that internet
connectivity is a real problem. This problem is not exclusive to provinces.
Although majority of the students (41%) and instructors (40%) are in the
National Capital Region (“NCR”), they still reported problems with internet
connectivity.31
Substandard internet access and reliability obviously do not create an
environment that is conducive to the mainstreaming of online learning. In
fact, there are anecdotal reports indicating that students, in gaming the system,
27 Id. According to the Policy Paper, this was based on the report of the Philippine
Statistics Authority.
28 A note, however, on the LEB Policy Paper. As disclosed, it employed convenience
sampling, a non-probability type of sampling, which is known for disadvantaged

generalizability. Simply put, by using an online survey, the respondents are only those who
have internet access, aware of the existence of the survey, and are interested in filling-up the
survey regardless of whatever motivations they may have. Thus, at the onset, there is bias
already – especially if we consider the pervasive negative student sentiment at the moment.
Nonetheless, the Policy Paper admits that the results are not representative of the legal
education community. Id. at 5. They do, however, provide insights.
29 National Telecommunications Commission (NTC), Department of Information
and Communications Technology (DICT) Consolidated ICT Infrastructure Data (Dec. 2019),
available at https://dict.gov.ph/ictstatistics/wp-content/uploads/2020/01/NTC-data-as-of-
December-2019.pdf
30 JON THOMPSON, JENNIFER SUN, RICHARD MÖLLER, MATHIAS SINTORN & GEOFF
HUSTON, STATE OF THE INTERNET Q1 2017 REPORT (David Belson ed., 2017), available at
https://www.akamai.com/us/en/multimedia/documents/state-of-the-internet/q1-2017-
state-of-the-internet-connectivity-report.pdf
31 LEB Policy Paper, supra note 26, at 4.1 & 4.2.
pretended that their internet connection is unstable in order to escape from

oral recitations. This leads me to my next point.
B. The untouchable fixation with the Socratic

Method
Law instructors still consider the modified Socratic-Langdellian

Method32 (“Socratic Method”) as the gold standard in law school pedagogy.
Developed by Harvard Law School Dean Christopher Columbus Langdell,
this “distinct legal pedagogy” uses an “approach to law teaching based on
doctrines gleaned from cases published in books.”33 This was based on his
belief that law is a pristine science, therefore likening a law library to a
chemistry laboratory, and court decisions to experiments.34
Notably, however, some legal educators started advocating for its

total elimination or treating it as a mere supplementary strategy. Despite being
32 I purposely termed it as modified Socratic Method because the Socratic Method,
as defined, tests commonly held principles to determine their consistency with an individual’s
beliefs, while eliminating those contradictions. Most of the time, there are no right or wrong
answers. This is different in practice, especially in the Philippines, where there are set answers.
33 Larry Ribstein, Practicing Theory: Legal Education for the Twenty-First Century, 96 IOWA
L.R. 1649, 1653 (2011).

34 Paul Carrington, Book Review: Law School: Legal Education in America from the 1850s
to the 1980s, 72 CAL. L. REV. 477, 487 (1984).

criticized as being utterly ineffective35 or grossly insufficient,36 the Socratic

Method remains untouchable because of its high correlation with achievement
in the Bar Examination.37
That is why, since the birth of American-style legal education system,

and through the establishment of the University of the Philippines (“UP”)
College of Law, pedagogy among LEIs remained the same. Justice Ruth
Flerida Romero aptly concluded that “[i]n the Philippines legal instruction in
the classroom is done mainly through the case method developed by Dean
[…] Langdell of the Harvard Law School and through lectures and
35 There is sufficient literature claiming that the Socratic Method is now an impaired
method. The philosophy behind it, borne out of the peculiar circumstances during the time of
Dean Langdell, “was [already] dated by the 1920s. It was a relic by the 1960s. Law is now
regarded as a means rather than an end, a tool for solving problems.” Editorial: Legal Education
Reform, THE NEW YORK TIMES, Nov. 25, 2011, available at
http://www.nytimes.com/2011/11/26/opinion/legal-education-reform.html. And since the
emphasis of the method is definitely the theoretical, the gap between legal education and
practice of law is regrettably widening (Ribstein, supra note 33, at 1651). Recently, numerous
empirical studies showed the ineffectiveness of this method to genuine learning due to the
erroneous assumption that “all students will learn ‘in a parallel fashion from any given
exchange between student and instructor.’” Robin Boyle & Rita Dunn, Teaching Law Students
through Individual Learning Styles, 62 ALB. L. REV. 213, 218 (1998). This bias towards group
learning forgets that each student has his or her own learning styles. Id. And even if we consider
it as an individualized (not group) method, it still does not improve learning because “...a
Socratic dialogue's series of questions has no topic sentences, no conclusions, and no
transitions to a new topic. It gives students few clues about the structure of the information
they're trying to learn. Their natural focus is on answering the question we have just asked (the
tree), not on recognizing how that question fits into a larger pattern (the forest).” Michael
Gibson, A Critique of Best Practices in Legal Education: Five Things All Law Professors Should Know,
42 U. BALT. L. REV. 1, 15 (2012). There is also a plethora of empirical evidence showing that
SM causes multiple psychological problems. Ruta Stropus, Mend It, Bend It, and Extend It: The
Fate of Traditional Law School Methodology in the 21st Century, 27 LOY. U. CHI. L.J. 449, 456-460
(1996).
36 Nonetheless, there are a number of legal academics who still believe in the
pedagogical values of the modified Socratic-Langdellian method: (a) analytical, (b) intellectual,
and (c) verbal attributes. These are all indispensable in the legal profession. See footnote 4 of
Stropus, supra note 35, where she cited several journal articles defending this method).
However, they conceded that it will not, when used alone in law school, adequately prepare
law students to the future demands of the profession.
37 This traditional teaching method is the only significant predictor in bar
examination achievement. Most of the identified predictors (e.g. student learning strategies,
curriculum, institutional responses) have weak positive correlations. See Madelene Sta. Maria,
Marshall Valencia, Christopher Cruz, Louie Montemar, Charisse Yap-Tan & Justin Sucgang,
A baseline study on Philippine legal education (2010) (unpublished manuscript, on file with
the University Research Coordination Office, De La Salle University) [hereinafter “Baseline
Study on Philippine Legal Education”].
recitations.”38 A survey conducted in the late 1970s found that more than 70%
of law professors assigned cases, and 91.3% of NCR and 69.6% of non-NCR
students answered that oral recitation was expected of them during class.39
More than 40 years thereafter, its dominance remains unrivaled. In 2010, a
system-wide empirical study commissioned by De La Salle University
(“DLSU”) College of Law found that oral recitations and discussion were
used more extensively than lectures.40 And the same results appeared three
years after in a follow-up study I conducted for my Juris Doctor thesis.41
What makes the Socratic Method effective in facilitating learning is

the immediacy of feedback—the subsequent question thrown by the
instructor, the intonation, and even other non-verbal cues and gestures.
Conducting recitations through online platforms may not approximate the
benefits when conducted onsite. Obviously, with only the professor’s face
projected, the non-verbal cues are almost gone. Feedback is not as immediate
as before. Coupled with substandard internet access and reliability, employing
this method certainly does not help the cause of online learning since
synchronous learning is bandwidth-intensive.
C. The stagnant design of Philippine legal

education
As discussed, the Socratic Method, which has for its objective

equipping law students with analytical skills, is the prevalent teaching strategy
among LEIs. It is through this method that the proverbial thinking like lawyers
is realized. The design behind it is the simulation of an adversarial court
proceeding wherein the professor takes the role of a judge, while the student
being asked (or grilled) takes the role of a counsel.42
The method and the design behind it actually reflect the prevailing
notion of legal practice, that is, litigation—both persisting notwithstanding the
38 Flerida Ruth Romero, Legal Education: Philippines, in 3 1980 ASEAN COMPARATIVE

LAW SERIES 41 (Purificacion Valera Quisumbing ed., 1982).
39 Irene Cortes, An Appraisal of the Law Curriculum and Prevailing Methods of Teaching
Law, 1 PHIL. Y.B. LEGAL EDUC. 30 (1978).

40 Baseline Study on Philippine Legal Education, supra note 37, at 32.
41 Justin Sucgang, A Problem Bigger than Law Schools: Reforming Philippine Legal
Education through an Institutional Approach (2014) (unpublished thesis for J.D., De La Salle
University, on file with the De La Salle University College of Law).
42 Lisa Penland, The Hypothetical Lawyer: Warrior, Wiseman, or Hybrid? 6 APPALACHIAN
J. L. 73 (2006).
changing dynamics in the legal profession 43 or even the promulgation of

Cayetano v. Monsod.44 Nonetheless, this obvious bias towards litigation makes
it difficult for LEIs to adopt other teaching strategies, despite requiring other
modes. To illustrate, the LEB was compelled to incorporate Alternative
Dispute Resolution as one of the core courses in the Model Law Curriculum
due to the gradual upstaging of litigation by arbitration not only in
international but also in domestic disputes, as well as the adoption of its
mechanics by government agencies. 45 However, the way its content is
delivered is via the Socratic Method. Notably, the practical skills instilled by
this method (e.g. those needed in adversarial court proceedings) are in no way
appropriate to those required by arbitration or mediation (e.g. negotiation and
writing skills). How then would the innovative methods of online learning be
adopted if the relatively newer legal fields, which call for different practical
skills, are still taught traditionally?
D. The overwhelming dependence on

adjunct instructors
In responding to the pandemic, big LEIs favored the asynchronous

mode of distance learning because it addresses “inequality gaps and bring all
students to a more or less level playing field.”46 A number of them made
official that preference, 47 and some even prohibited synchronous learning
outright.48 The reasons are obvious. Asynchronous learning enables “students
to study at their own pace,”49 allowing them to pursue other pressing matters.
43 Nowadays, “lawyers do more non-litigious work than litigious ones and are highly
involved in every aspect of business management.” Sedfrey Candelaria and Maria Christina
Mundin, A Review of Legal Education in the Philippines, 55 ATENEO L.J. 582, 589 (2010). In fact,
one could even say that a good lawyer could avoid going to courtrooms, at all. Lawyers are
engaged as administrators and policy-makers, and may be involved in advocacy and lobbying.
All of which are squarely within the definition of law practice in Cayetano, there being an
application of legal knowledge or skill.
44 G.R. No. 100113, 201 SCRA 210, Sept. 3, 1991. The expanded definition of legal
practice covers the mere giving out of legal information to laymen (Ulep v. The Legal Clinic,
Inc., B.M. No. 553, June 17, 1993), and even the teaching of law (Re: Letter of the UP Law
Faculty entitled “Restoring Integrity: A Statement by the Faculty of the University of the
Philippines College of Law on the Allegations of Plagiarism and Misrepresentation in the
Supreme Court, A.M. No. 10-10-4-SC, Mar. 8, 2011).
45 LEB Mem. Order No. 1 (2011), § 55.
46 UP College of Law Mem. No. FCT-2020-026 (Mar. 30, 2020) (unpublished
memorandum for faculty and students, on file with the UP College of Law).
47 Ateneo Law School (“ALS”), DLSU College of Law, UP College of Law, and
University of San Carlos (“USC”) School of Law and Governance.

48 ALS, UP & USC.
49 ALS Mem. No. 2020-14-G (Apr. 13, 2020), available at https://ateneo.edu/
aps/law/news/memo-als-community
The student may be sick, tending to a sick relative, or doing errands because
other housemates may have an underlying disease. It also “take[s] due
consideration of the reality of poor internet connectivity”50 in the country.
That asynchronous learning is effective has support in educational

literature, such as in teaching library and information science,51 agricultural
education, 52 and pharmacy education. 53 So, too, in legal education. 54
However, in order to make it effective, asynchronous learning frontloads time
and effort from the content delivery to the preparation phase. An instructor
must pre-record teaching modules, upload the syllabus, reading packets, and
assignments, and create discussion boards and other assessment tools, all
beforehand. Otherwise, its purpose is defeated.
This, however, poses a challenge when we consider that more than

half of the faculty members of LEIs have adjunct status (i.e. engaged part-
time). 55 More accurately, the LEB Policy Paper pegs it at 94%, with this
majority status overwhelmingly maintained across the different major regional
categories.56 Law instructors in the Philippines, especially the veteran ones, do
not extensively prepare for a course before a semester. Since majority are
practitioners, the good ones simply come to the classroom with a textbook;
the better (or cocky) ones with head knowledge. This is made more
complicated when we follow recommendations from existing literature that
online learning is made more effective when asynchronous is combined with
synchronous (functioning as introductory or integrative parts of the course)
modes.
50 USC Advisory to our Law Students (Mar. 27, 2020), available at
https://www.facebook.com/lexcircle/photos/a.214196325324284/3078787895531765
51 Susan Stansberry, Effective Assessment of Online Discourse in LIS Courses, 47 J. EDUC.
FOR LIBR. & INFO. SCI. 27, 28 (2006).

52 Sara Brierton, Elizabeth Wilson, Mark Kistler, Jim Flowers & David Jones, A
Comparison of Higher Order Thinking Skills Demonstrated in Synchronous and Asynchronous Online
College Discussion Posts, 60 NACTA J. 14, 20 (2016). Note, however, that “neither group
demonstrated anything but small forays into higher order and critical thinking skills.”
53 Carol Motycka, Erin St. Onge & Jennifer Williams, Asynchronous Versus Synchronous
Learning in Pharmacy Education, 2 J. CURRICULUM & TEACHING 63, 65 (2013).

54 Yvonne Dutton, Margaret Ryznar & Kayleigh Long, Assessing Online Learning in
Law Schools: Student Says Online Classes Deliver, 96 DENV. L. REV. 493, 521 (2019). For further
readings on the current state of online education in American legal education, see Michele
Pistone, Law Schools and Technology: Where We Are and Where We Are Heading, 64 J. LEGAL EDUC.
586 (2015).
55 Josefe Sorrera-Ty, Law School Administration Cluster: Current State, presented at
the 2019 Legal Education Summit, Manila (July 31-Aug. 1, 2019), at 21 & 23.
56 LEB Policy Paper, supra note 26, at 4.2.
E. The total absence of LMS
Lastly, the effectiveness of asynchronous learning seems to be but a

function of online tools—specifically, the use of an LMS.57 If the tools are
not integrated, then it would be very difficult for instructors to see the mastery
of students. Consider the following:
One of the things that I noticed when teaching online was that I
had much greater access to students’ work than I did in the face-
to-face course. In the online course, I was able to see every post
students made in the discussion board, and I was able to watch their
preparation for negotiation, their performance in that negotiation,
and their reflection on their performance. Since much of this
interaction was conducted in writing, I was able to judge their
attention to detail, their ability to think clearly, and the extent of
their participation. In addition to assessing their assignment, the
LMS allowed me to observe how often they accessed the material
in the course and where they went within the course. While I can
look at the classroom in a face-to-face environment and assess
from body language whether or not students comprehend the
material, I am never quite sure. The distance-learning environment
allows me to more accurately gauge how students are processing
the material.58
Imagine a professor conducting an asynchronous class, say a
discussion board through Viber, sending assignments through email, and
holding online quizzes through Survey Monkey. In this case, I would daresay
that asynchronous learning is no better than the traditional onsite class. The
diverse and unintegrated tools will render it difficult for a professor to
accurately monitor student progress and, consequently, give useful feedback
immediately. Without the necessary tools, the benefits of asynchronous
learning are near absent.
57 An LMS is, from a technical standpoint, “a server-based software program that
interfaces with a database containing information about users, courses and content.” From a
functional standpoint, it “provides a place for learning and teaching activities to occur within
a seamless environment, one that is not dependent upon time and space boundaries… These
systems allow educational institutions to manage a large number of fully online or blended
(part online and part face-to-face) courses using a common interface and set of resources.” See
Anthony Piña, An Overview of Learning Management Systems, in LEARNING MANAGEMENT
SYSTEM TECHNOLOGIES AND SOFTWARE SOLUTIONS FOR ONLINE TEACHING: TOOLS AND
APPLICATIONS 1-2 (Yefim Kats ed., 2010).
58 Sean Nolon, Using Distance Learning to Teach Environmental Problem Solving Skills and
Theory, 28 J. ENVTL L. & LITIG. 211, 225 (2013).

Sometime in January 2019, DLSU has rolled-out its LMS via Canvas
(called AnimoSpace),59 with its College of Law undergoing training as early as
November 2019. Remarkably, Canvas is used by more than 3,000 universities
around the world. Among the notable American law schools that adopted it
are Harvard Law School, Yale Law School, Stanford Law School, University
of Michigan Law School, Georgetown University Law Center, and University
of Chicago Law School. While the Far Eastern University, Ateneo de Manila
University, and UP has Canvas, Moodle, and University Virtual Learning
Environment respectively, none of their constituent LEIs bothered to adopt
an LMS. The USC recently adopted Schoology as a response to the pandemic.
PART II
Considering the foregoing reasons, the pandemic may not be the

tipping point to the system-wide acceptance of online legal education.
Although some aspects of teaching already utilize some online tools (i.e.
sending out syllabi, answering student queries via electronic mail, or forming
Facebook or Google groups to facilitate communication), and most, if not all,
LEIs have turned to online learning due to the pandemic, COVID-19 will not
usher the mainstreaming of online legal education. Once onsite classes
becomes feasible, perhaps through mass production of an effective vaccine, I
surmise that all, if not most, law instructors will conveniently reinstate the
traditional pedagogical or andragogical mode of teaching.
However, with online learning being currently forced even to the

most loyal adherents of the Socratic Method, COVID-19 may have given all
of us a foretaste of its potential. And what I project right now are the
following: (a) utilitarian (not pedagogical) adoption of online legal education;
and (b) adoption via its blended form. While not reaching the transformation
phase of the SAMR Model, these adoptions will most likely be the lasting
effects of the pandemic.
First, online legal education may be adopted not for its pedagogical value,
but for a utilitarian purpose, enabling us to complete the substitution phase. I
predict that there may be a rise in its use as an alternative to make-up classes.
In 2019, there are at least 21 suspended class days in Manila due to inclement
weather, strikes, and the hosting of Southeast Asian games, 60 on top of
59DLSU, AnimoSpace: The Lasallian Learning Management System, MEDIUM, Dec. 3,

2018, at https://medium.com/@DLSUManila/animo-space-the-lasallian-learning-
management-system-ff836eb17970
60 Manually culled from #WalangPasok in Twitter.com.
national and local holidays. LEIs or professors may choose to hold sessions
via the Internet to compensate for the suspended onsite class. Moreover,
make-up classes—be it synchronous or especially if asynchronous—may
likewise be conducted online to compensate for the instructors’ absences due
to personal or professional reasons. And this, especially if utilizing pre-
recorded videos or podcasts, may be used for all classes in all LEIs where he
may be teaching.
Second, online education may be adopted in its blended form, pushing

us further to the augmentation phase. For example, law instructors who may
have been exposed thereto may use discussion boards, pre-recorded video
lectures, or podcasts. He may also deploy electronic quizzes. These
technology-assisted learning methods may act as a supplement to the onsite
Socratic Method to further enrich classroom discussion and free him from
manually checking objective-type questions. Since results may be obtained in
real-time, he may even use electronic quizzes as a diagnostic tool deployed
before beginning a new topic to give him a sense of aspects of the assignment
that may need expounding.
EPILOGUE
Indeed, COVID-19 significantly disrupted the Philippine legal

education system, forcing even the traditionalists to consider online learning.
However, no amount of watering will make a plant grow in infertile soil. With
the kind of system currently in place, with the actors, philosophy, and focus
dominating therein, and with the hard and soft infrastructure within its reach,
online legal education will not be part of the mainstream law school
pedagogy—despite the pandemic. And it will not be a legitimate and effective
alternative to the prevailing teaching strategies among Philippine LEIs—in
spite of its potential.
-o0o-
COVID-19 EMERGENCY MEASURES*
Paolo S. Tamase**
I. INTRODUCTION
Comparisons between the COVID-19 pandemic and the Great

Depression often focus on the economic havoc wreaked by both. Early
indicators such as unemployment numbers in developed countries1 warn that
the COVID-19-induced global contraction may be the most serious in almost
a hundred years. Further, just as the Great Depression ushered in the era of
big government and active federal spending in the United States2 (and, by
extension, the Philippines, its unincorporated territory), it is unlikely that
COVID-19 will dissipate without permanently altering the global economic
architecture.
Yet the Great Depression is also known for paradigm-shifting

changes in legal systems, especially in the West. The utilization of
administrative agencies, particularly in the US,3 was a keystone of the legal
framework that enabled the New Deal.4 While that legal framework evolves
to this day, 5 a return to the strict separation of executive, legislative, and
judicial powers in the early 1900s is now all but an ultraconservative pipe
dream.
* Cite as Paolo Tamase, A Framework for Analyzing the Legality of COVID-19 Emergency
Measures, 93 (Special Online Feature) PHIL. L.J. 198, [page cited] (2020).
** Lecturer, University of the Philippines College of Law; J.D., cum laude and class
valedictorian, University of the Philippines (UP) College of Law (2016); B.S. Business
Economics, magna cum laude, UP School of Economics (2012); Chair, PHILIPPINE LAW
JOURNAL, Vol. 88.
1 See, e.g. Nicolas Petrosky-Nadeau & Robert Valleta, An Unemployment Crisis after the
Onset of COVID-19, Federal Reserve Bank of San Franciso Economic Letter 2020-12 (May 18,
2020).
2 Although the effectiveness of the New Deal as a stimulus has been questioned in
more recent studies, see Price Fishback, William Horrace & Shawn Kantor, Did New Deal Grant
Programs Stimulate Local Economies? A Study of Federal Grants and Retail Sales During the Great
Depression, 65(1) J. ECON. HIST. 36 (2005).
3 And, again by extension, the Philippines.
4 See, generally, The Rise of the Welfare State and the Recognition of Economic, Social and
Cultural Rights, in PACIFICO AGABIN, MESTIZO: THE STORY OF THE PHILIPPINE LEGAL SYSTEM
(2nd ed., 2016).
5 See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. ___ (2020) (slip op.).
198
As for the COVID-19 pandemic, a similar legal revolution appears to

be underway. The outbreak in the Philippines has resulted in a spate of
government regulations, both national and local. But while bureaucratic
complexity is the thread that runs through reams of American New Deal
legislation,6 the common features of the Philippine COVID-19 emergency
regulations (“COVID-19 Regulations”) are their rushed drafting, poor
promulgation, ad hoc non-compliance with established legislative procedures,
open-ended or discretionary effectivity clauses, ever-changing status, and
unparalleled intrusions into private rights. The legacy these COVID-19
Regulations threaten to leave is one where law, no longer a reliable manager
of expectations and collective aims, becomes useless to society.
At any other time, the COVID-19 Regulations would have spurred

legal challenges.7 The lack thereof may be due to the time-limited nature of
emergency measures: for instance, Republic Act No. 11469 or the Bayanihan
to Heal as One Act (“Bayanihan Act”) expired less than three months after it
was hastily enacted, pursuant to built-in constitutional safeguards.8 It may also
be that the courts were physically closed9 in the first months of community
transmission. Alternatively, there may be a popular recognition of the
necessity of the COVID-19 Regulations, or a more existential fear of catching
an unfamiliar deadly virus.
In any event, despite the palpable sense that the COVID-19

Regulations suffer from serious legal defects, they have not been challenged
in court. Persistent doubts on their validity, taken with their selective
6 See Richard Stewart, Evaluating the New Deal, 22 HARV. J. L. & PUB. POL’Y 239
(1998).
7 But see Constitutionality of Bayanihan law challenged before Supreme Court, PHILSTAR.COM,
July 2, 2020, available at https://www.philstar.com/headlines/2020/06/02/2018225/

constitutionality-bayanihan-law-challenged-supreme-court
This petition, Ibañez v. Cabinet Secretaries, G.R. No. 252167, appears to have been
dismissed by the Supreme Court “as it failed to show grave abuse of discretion committed by
the respondents[,]” according to a Media Briefer dated July 1, 2020 issued by the Supreme
Court’s Public Information Office.
8 The Government’s position is that the Bayanihan Act expired on June 25, 2020,
pursuant to its three-month sunset clause, see Rep. Act No. 11469 [hereinafter “Bayanihan
Act”] (2020), § 9. However, the Constitution clearly provides that for emergency powers
granted under CONST. art. VI, § 23(2), “unless sooner withdrawn by resolution of the
Congress, such powers shall cease upon the next adjournment thereof[,]” i.e. June 5, 2020.
The said Constitutional provision was specifically invoked by the Bayanihan Act, § 4, which
removes any doubt that the said law granted the President emergency powers.
9 Adm. Circ. No. 32-2020. Rising Cases of COVID-19 Infection.
2020] COVID-19 EMERGENCY MEASURES 200
enforcement, 10 mean that the public’s compliance with COVID-19

Regulations has been erratic and irregular. This confusion has morphed into
a lack of consensus on the basic question of what rules people are even
supposed to follow. All that society collectively knows is, at present, the law
is what the implementer says it is.
This is an unacceptable outcome that threatens the rule of law and

civil liberties, and strips the law of its predictive, stabilizing character. In this
context, settling questions on the validity of the COVID-19 Regulations
becomes essential to restoring and preserving the rule of law in the “new
normal.” Unfortunately, the fleeting nature of an emergency means that
Philippine courts have not adopted a robust test of validity for the grant and
exercise of emergency powers. Hence, this Essay will propose a framework
for analyzing the legality of emergency measures and their incidents.
In Part I, a brief background will be given on the concept of

emergency powers and how they have been tested so far in Philippine courts.
Guided by this context, Part II will outline a framework for testing the validity
of emergency measures using COVID-19 Regulations as an illustration,
whenever appropriate.
Because of daily developments and space constraints, it is simply not

yet possible to proceed to an exhaustive analysis of the validity of the COVID-
19 Regulations. This Essay therefore does not undertake to do that, although
there is certainly an urgent need for a deeper examination.
II. PHILIPPINE EMERGENCY POWERS:

ORIGINS AND PAST APPLICATIONS
Separation of powers and checks and balances are hallmarks of most

liberal democracies. An offshoot, mostly, of the distrust of executive power,
these principles are intended to preserve individual liberties. Still, serious
threats to public safety may require swift executive action that “cannot,
perhaps, wait for the deliberate pace of ordinary constitutional rule. […] As a
result, modern constitutions often have special provisions for dealing with
emergency situations.”11 This tension between individual freedoms and public
10 See, e.g. Melvin Gascon, Group slams ‘selective justice’ for Sinas, ‘mañanita’ cops,
INQUIRER.NET, May 23, 2020, available at https://newsinfo.inquirer.net/1279664/group-

slams-selective-justice-for-sinas-mananita-cops
11 John Ferejohn & Pasquale Pasquino, The Law of the Exception: A Typology of
Emergency Powers, 2 INT’L J. CONST. L. 210, 210 (2014).

safety is crucial in the proper study of emergency clauses in modern

constitutions.
As with its constitutional law, the Philippine law on emergency

situations is American in origin. 12 While the First Republic’s Malolos
Constitution guaranteed fundamental rights, 13 the said constitution was
virtually unimplemented, with effective control over the Philippines efficiently
transferred between Spain and the US.
Hence, it may be safe to say that the tension between personal liberty
and public efficiency in the Philippines first appeared in the Organic Act of
1902 (“Organic Act”). 14 Through the Organic Act, the US Congress first
legislated a bill of rights for the Philippines. 15 All constitutions and
constitutional equivalents thereafter would provide for the same list of
personal freedoms guaranteed by the State. At the same time, the Organic Act
and its successor, the Jones Law, 16 both included provisions for the
suspension of habeas corpus17 by the US President or the Governor-General
in the event of an invasion, insurrection, or rebellion, or an imminent danger
thereof, “when the public safety requires it.”18 The Jones Law additionally
granted the power to declare martial law.19
While the suspension of habeas corpus and the declaration of martial

law are among the typical emergency powers reserved by modern
constitutions,20 a less-defined, non-traditional class of emergency powers first
appeared in Article VI, Section 6 of the 1935 Constitution:
12 See, generally, OWEN LYNCH, COLONIAL LEGACIES IN A FRAGILE REPUBLIC:
PHILIPPINE LAND LAW AND STATE FORMATION (2011), for an erudite analysis of the
American influence on the Philippine legal system.
13 CONST. OF MALOLOS (1898), art. 6-32.
14 32 Stat. 691, Pub. Law 57-235 (1902) [hereinafter “Organic Act”]. Organic Act of
1902.
15 An alternative view is that such rights were guaranteed for the Philippines by
President McKinley’s April 7, 1900 Instructions to the Philippine Commission, at 9.

16 39 Stat. 545, Pub. Law 64-240 (1916) [hereinafter “Jones Law”]. Jones Law of
1916.
17 For brevity, references to the suspension of habeas corpus in this Essay refer to
the privilege of the writ.

18 See Organic Act, § 5; Jones Law, § 21(b).
19 Jones Law, § 21(b).
20 See Ferejohn & Pasquino, supra note 11, at 210: “In cases of an urgent threat to
the state or regime, constitutions sometimes permit the delegation of powers to a president,
or to some other constitutional authority, to issue decrees, to censor information, and to
suspend legal processes and rights.” In the case of the US, the suspension of habeas corpus is
provided in the US Constitution, U.S. CONST. art. I, § 9(2), while the Insurrection Act of 1807,
Section 16. In times of war or other national emergency, the

National Assembly may by law authorize the President, for a
limited period and subject to such restrictions as it may prescribe,
to promulgate rules and regulations to carry out a declared national
policy.21
The inclusion of this clause proved prophetic as it was soon invoked

on December 16, 1941 in Commonwealth Act No. 671 (“Emergency Powers
Act”),22 through which Congress delegated to the President power:
(a) to transfer the seat of the Government or any of its subdivisions,

branches, departments, offices, agencies or instrumentalities; (b) to
reorganize the Government of the Commonwealth including the
determination of the order of precedence of the heads of the
Executive Departments; (c) to create new subdivisions, branches,
departments, offices, agencies or instrumentalities of government
and to abolish any of those already existing; (d) to continue in force
laws and appropriations which would lapse or otherwise become
inoperative, and to modify or suspend the operation or application
of those of an administrative character; (e) to impose new taxes or
to increase, reduce, suspend, or abolish those in existence; (f) to
raise funds through the issuance of bonds or otherwise, and to
authorize the expenditure of the proceeds thereof; (g) to authorize
the National, provincial, city or municipal governments to incur in
overdrafts for purposes that he may approve; (h) to declare the
suspension of the collection of credits or the payment of debts; and
(i) to exercise such other powers as he may deem necessary to
enable the Government to fulfill its responsibilities and to maintain
and enforce its authority.
10 U.S.C. §§ 251-255, at present, authorizes the deployment of the US military for the purpose
of suppressing a domestic insurrection.
21 It is worth noting that despite the silence of the Organic Act and the Jones Law,
legislative acts promulgated under those basic frameworks did contemplate non-traditional
emergency powers. For instance, Act No. 1150 (1904), § 8 empowered the “Civil Governor
to issue an executive order declaring that the city [of Manila] is threatened with an epidemic
and vesting the Board of Health with emergency powers[.]” Such powers include the
enactment of emergency health ordinances and the appointment of emergency employees. It
appears the validity of this law was not questioned before the Supreme Court. See also Act No.
1487 (1906), § 17.
It is also unclear whether these powers were invoked during the 1918 Influenza
pandemic, since “there is a dearth of serious, in-depth study of the pandemic as it impacted
the Philippines.” Francis Gealogo, The Philippines in the World of the Influenca Pandemic of 1918-
1919, 57(2) PHIL. STUD. 261, 261 (2009).
22 An Act Declaring a State of Total Emergency as a Result of War Involving the
Philippines and Authorizing the President to Promulgate Rules and Regulations to Meet Such
Emergency.
The power delegated to the President by the Emergency Powers Act

was patently legislative but was clearly premised on the existence of World
War II.23 Perhaps owing to the uncertainties of war, it was also not explicitly
time-limited. Hence, the Court in Shigenori Kuroda v. Jalandoni24 recognized that
a presidential decree on the creation of military tribunals was valid “executive
legislation” even if it was issued on July 29, 1947, or well after the Pacific
Theater folded up. A sole dissent protested that it was never the intention of
Congress to “extend the delegation beyond the emergency created by the
war.”25
The limits of this legislative delegation were again tested in Araneta v.

Dinglasan,26 which concerned the validity of executive orders that regulated
residential rentals, controlled the export of shoes, and provided
appropriations for national elections—all issued by the President under the
Emergency Powers Act. When the petitioners questioned the continued
effectivity of the Emergency Powers Act after the war, they had to contend
with its lack of a sunset clause. Nevertheless, the Court inferred that the
legislature intended the law to be “inoperative when Congress met in regular
session on May 25, 1946.” Since the said executive orders were all issued
beyond that date, the Court found them to be promulgated without authority.
Curiously, the Court seemed to have overlooked its decision in Shigenori
Kuroda, even if the latter was decided only five months before.
Incidentally, Araneta also shows how the President appreciated the

potential of the Emergency Powers Act as an authorization for economic
executive legislation, even if Congress wrote the law in politically neutral
language and with an explicit wartime context. 27 As for the Court, it
invalidated these executive orders not because they exceeded the subject
matter of the delegated power, but only because they were issued when such
power had already expired.
In Rodriguez v. Gella,28 the Court further held that there was no need
for an express repeal of the Emergency Powers Act, since imposing the
requirement would subject that emergency measure’s continued effectivity to
the will of the President, through his veto power.
23 Com. Act No. 671 [hereinafter “Emergency Powers Act”] (1941), § 1.

24 G.R. No. L-2662, 83 Phil. 171, Mar. 26, 1949.
25 Id. (Perfecto, J., dissenting).
26 G.R. No. L-2044, 84 Phil. 368, Aug. 26, 1949.
27 Emergency Powers Act, § 1.
28 G.R. No. L-6266, 92 Phil. 603 (1953).
The 1935 Constitution was eventually supplanted by the 1973

Constitution, which provided for a substantially similar emergency powers
clause. Apparently in light of the jurisprudence produced by the Emergency
Powers Act, the 1973 Constitution also included a safeguard that “[u]nless
sooner withdrawn by resolution of the National Assembly, such powers shall
cease upon its next adjournment.” 29 Moreover, the 1973 Constitution
provided an additional power to takeover public utilities during a national
emergency:
Section 7. In times of national emergency when the public interest

so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected
with public interest.30
When the 1987 Constitution was promulgated, it included provisions

similar to the twin emergency clauses in the 1973 Constitution. Today, the
emergency powers clause31 and the takeover clause32 thus respectively state:
Section 23. […]
2. In times of war or other national emergency, the 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. Unless
sooner withdrawn by resolution of the Congress, such powers shall
cease upon the next adjournment thereof.
***
Section 17. In times of national emergency, when the public

interest so requires, the State may, during the emergency and under
reasonable terms prescribed by it, temporarily take over or direct
the operation of any privately-owned public utility or business
affected with public interest.
By explicitly providing for the takeover of privately-owned public

utilities or businesses affected with public interest, the 1973 and 1987
Constitutions confirmed the non-traditional, economic aspect of emergency
powers. This non-military potential was set in motion in 1989 through
Republic Act No. 6826 (“Aquino Emergency Act”), which granted the
29 CONST. (1973), art. VIII, § 15.

30 Art. XIV, § 7.
31 CONST. art. VI, § 23(2).
32 Art. XII, § 17.
President emergency powers to, among others, “optimize the efforts […] to
carry out the difficult task of economic reconstruction” following a series of
coups that “set back the economic program of the Government.”33 Thus, this
grant specifically empowered the President to prohibit hoarding, temporarily
take over public utilities, ensure the availability of credit, and decrease
expenditures of the executive branch, among others.34 While the delegation in
the Aquino Emergency Act was narrower than that in the Emergency Powers
Act, it also explicitly vested the President with economic powers that were
beyond traditional emergency powers.
In 1993, Congress passed Republic Act No. 7648 or the Electric

Power Crisis Act of 1993 (“Electric Power Crisis Act”). While this law is often
considered by the press to have granted “emergency powers,”35 the Electric
Power Crisis Act did not actually invoke Article VI, Section 23(2) of the
Constitution, unlike the Aquino Emergency Act and the Emergency Powers
Act.36 Further, the Electric Power Crisis Act does not actually delegate any
legislative power to the President. The power to enter into negotiated
contracts, 37 which was ostensibly delegated by the said law, is actually
executive in nature. 38 The power to set rates within a range 39 is quasi-
legislative or quasi-judicial in character, depending on the scope of its
application.40 And the power to abolish or create offices,41 while legislative in
character, is settled as delegable.42
In the meantime, the emergency clauses of the 1987 Constitution

would be tested only in the 2006 case of David v. Macapagal-Arroyo.43 In David,
the Court clarified that the takeover clause 44 is an aspect of the (main)
33 Rep. Act No. 6826 [hereinafter “Aquino Emergency Act”] (1989), § 2.

34 § 3.
35 See Ernesto Maceda, Emergency powers proposed, in Search for Truth, PHILSTAR.COM,
Jan. 14, 2014, available at https://www.philstar.com/opinion/2014/01/14/1278577/

emergency-powers-proposed
36 As to the equivalent provision, see CONST. (1935), art. VI, § 6.
37 Rep. Act No. 7648 [hereinafter “Electric Power Crisis Act”] (1993), § 3.
38 “The power to contract in behalf of the State is clearly an executive function, as
opposed to legislative or judicial.” La Bugal-B'laan Tribal Ass’n, Inc. v. Ramos, G.R. No.
127882, 445 SCRA 1, 442, Dec. 1, 2004 (Tinga, J., concurring).
39 Electric Power Crisis Act, § 4.
40 Vigan Electric Light Co., Inc. v. Public Service Comm’n, G.R. No. 19850, 10
SCRA 46, Jan. 30, 1964.

41 Electric Power Crisis Act, § 5.
42 Kapisanan ng mga Kawani ng Energy Regulatory Bd. v. Barin, G.R. No. 150974,
526 SCRA 1, June 29, 2007.

43 Hereinafter “David,” G.R. No. 171396, 489 SCRA 160, May 3, 2006.
44 CONST. art. XII, § 17.
emergency powers clause, 45 and therefore also requires a delegation from

Congress.46 David also enumerated four conditions for the grant of emergency
powers to the President, i.e. “(1) there must be a war or other emergency; (2)
the delegation must be for a limited period only; (3) the delegation must be
subject to such restrictions as the Congress may prescribe; and (4) the
emergency powers must be exercised to carry out a national policy declared
by Congress.”47 As there was no delegation from Congress, the Court clarified
that Proclamation No. 1017 (series of 2006) “does not authorize the President
to take over privately-owned public utility or business affected with public
interest without prior legislation.”48
Congress itself would not delegate emergency powers to the executive

for thirty years, or until the enactment of the Bayanihan Act on March 24,
2020. Despite the past two instances where Congress delegated emergency
powers to the President and several Supreme Court decisions on the matter,
there exists no robust test for the validity of such delegation and, more
broadly, its implementation and incidents. The next part will propose a
framework for analyzing such questions.
III. A PROPOSED LEGAL FRAMEWORK FOR ASSESSING

THE VALIDITY OF EMERGENCY MEASURES
The premise for the analysis is that while the Executive ought to be
equipped with sufficient authority to quickly act on an emergency, he should
not be allowed to address it in a manner that would result in the systematic
repression of civil liberties, the abrogation of the constitutional order, and the
irremediable deterioration of the rule of law. In line with this, doubts on the
validity of emergency powers must be resolved in favor of their reservation
with the legislature. This is not only consistent with the general rule on the
separation of powers,49 but also with the presupposition that Congress can
exercise its legislative functions alongside the delegation.50
45 Art. VI, § 23(2).

46 David, 489 SCRA 160, 250-251.
47 Id.
48 Id. at 275.
49 See Echegaray v. Sec’y of Justice [hereinafter “Echegaray”], G.R. No. 132601, 297
SCRA 754, 784, Oct. 12, 1998.

50 See II RECORD CONST. COMM’N 88 (July 22, 1986). “MR. NOLLEDO. With
respect to […] authorizing the legislature by law to grant the President powers necessary and
proper to carry out a declared national policy in times of war or other national emergency,
may I ask about the extent of these powers? Do these powers include the right to legislate?”
It is also in this context that the test in David is, by itself, regrettably
insufficient. David merely parses the text of the emergency powers clause.
Although the text of the clause is certainly a valuable, objective starting point,
the David test does not take into account other safeguards that are built into
the Constitution or have developed over time.
The proposed framework contemplates not only the validity of the

main legislative delegation (Parts A and B), e.g. the Bayanihan Act, but also
its incidents (Part C), such as the powers specifically delegated by Congress
and subordinate legislation decreed by the President. While illustrations here
will focus on the COVID-19 Regulations, the proposed framework may be
adopted in other instances when the Constitution’s emergency clauses are
invoked.
A. Formal Tests
1. Was the Emergency Powers Clause Properly Invoked?
The analysis of the validity of an emergency measure must begin with

whether the emergency power clause was invoked in the first place. The
implications of a proper invocation relate to the power that can be granted by
the measure, and the requisites for its passage. On one hand, this clause
exceptionally enables Congress to delegate its legislative power (i.e. the
authority to make, alter, or repeal laws 51 ), as opposed to quasi-legislative
power (i.e. the rule-making authority that is, at all times, subject to the law it
implements52). On the other hand, the grant of emergency powers is subject
to additional constitutional requirements that are inapplicable to regular
legislation.
At first glance, this test may appear to be dispensable. After all, the
Emergency Powers Act in 1941, the Aquino Emergency Act in 1989, and the
“MR. DAVIDE. […] In the draft Articles on the Executive, one of the effects of a
proclamation of martial law is that the legislature and any other legislative body are not
supplanted, meaning, they continue their functions and the exercise of their authority. So,
necessarily, it would follow that under Section 21, we presuppose a situation where the
National Assembly can continue to exercise its functions. Logically then, the areas over which
the National Assembly may delegate to the President certain authority must be very limited to
meet the exigency of the emergency.”
51 Review Center Ass’n of the Phil. v. Ermita, G.R. No. 180046, 586 SCRA 428, 450,
Apr. 2, 2009.
52 See Smart Communications, Inc. v. Nat’l Telecomm. Comm’n, G.R. No. 151908,
408 SCRA 678, Aug. 12, 2003.

Bayanihan Act in 2020 all categorically invoked the emergency powers

clause.53 But, a closer look shows the value of this formal test. As earlier noted,
the Electric Power Crisis Act was silent as to whether Congress was invoking
the emergency powers clause or simply legislating in the regular course. This
raises questions on the discretion that should have been given to the
Executive under the Electric Power Crisis Act: was its discretion broader and
closer to a legislative discretion, or was it bound to simply implement the law?
To be clear, there is no constitutional requirement for the invocation

to be explicit. However, considering the exceptional nature of this particular
delegation, it must at least be clear from the text of the enabling statute that
Congress was indeed invoking its authority under the emergency powers
clause. If there is doubt that Congress is surrendering the exclusivity of its
legislative powers through an emergency measure, the law in question must
be construed as regular legislation, since the grant of emergency powers
derogates from the general rule that power delegated (by the people, to
Congress) cannot be further delegated.54
2. Was the Emergency Measure Duly Enacted?
Under the Enrolled Bill Doctrine, the signing of a legislative bill by

the Speaker of the House and the President of the Senate and the certification
by the secretaries of both houses of Congress are conclusive of its due
enactment.55 While the Court has consistently taken a deferential approach on
these matters,56 it has also recognized that there are exceptional situations
where the Enrolled Bill Doctrine may not apply. 57 Most prominently, in
Astorga v. Villegas, 58 the Court looked past the enrolled bill and into the
congressional journal when the Senate President withdrew his signature,
claiming that the bill presented to the Chief Executive was different from that
approved on the legislative floor.
The Enrolled Bill Doctrine is itself worth revisiting since, under

expanded judicial power,59 “whether or not laws passed by Congress comply
with the requirements of the Constitution pose questions that [the] Court
53 Emergency Powers Act, § 2; Aquino Emergency Act, § 3; Bayanihan Act, § 4.

54 See Echegaray, 297 SCRA 754, 784.
55 Arroyo v. De Venecia, G.R. No. 127255, 277 SCRA 268, 295, Aug. 14, 1997.
56 Council of Teachers & Staff of Colleges & Universities of the Phil., v. Sec’y of
Education, G.R. No. 216930, Oct. 9, 2018.

57 See id.
58 G.R. No. 23475, 56 SCRA 714, Apr. 30, 1974.
59 CONST. art. VIII, § 1.
alone can decide.” 60 But specifically in the case of the emergency powers
clause, compliance with constitutional requirements such as quorum,61 the
rider clause,62 and three readings63 is essential and justiciable. All these seek to
ensure that a bill was intelligently considered and duly deliberated by
Congress.64 If these requirements apply to regular bills, more so should they
apply to emergency measures through which the Legislature essentially strips
the exclusivity of its lawmaking power.
As to the Bayanihan Act, there are legitimate questions as to whether

the House of Representatives, in particular, could have passed the emergency
measure, considering a physical quorum was absent from the Special Session.
Further, any assertion that there was a quorum, with 279 of the 299 members
participating via teleconference,65 rests on shaky ground as this would have
required the House to meet, again with a quorum and prior to or at the
beginning of the Special Session, for the revision of its internal rules. 66
Normally, the Enrolled Bill Doctrine would bar this analysis. Nevertheless, it
would be difficult for the courts to close their eyes to the highly irregular
passage of the Bayanihan Act because the entire session was webcasted,
televised, and broadcasted on radio.
3. Is the Delegation Limited to the President?
The emergency powers clause textually limits the delegation of

powers to the President.67 While it is conceivable that particular deputies or
subordinates of the President may be given specific authorities by the
emergency measure, such powers cannot be legislative in character.
Otherwise, the President’s alter ego and subordinate will have the power to
60 Miranda v. Aguirre, G.R. No. 133064, 314 SCRA 603, 609, Sept. 16, 1999.
61 CONST. art. VI, § 16(2).
62 Art. VI, § 26(1). Also known as the “one subject, one title” clause.
63 Art. VI, § 26(2).
64 See, e.g. Cawaling v. Comm’n on Elections, G.R. No. 146319, 368 SCRA 453, Oct.
26, 2001 (on the rationale for the one subject, one title clause).
65 Filane Mikee Cervantes, Congress tackles Covid-19 emergency measures in special session,
PHIL. NEWS AGENCY, Mar. 23, 2020, at https://www.pna.gov.ph/articles/1097456. As of this

last date, the House of Representatives has not yet made the record and journal of the Special
Session available online.
66 “Each House may determine the rules of its proceedings[.]” CONST. art. VI, §
16(3). However, this is premised on the existence of a quorum, since the immediately
preceding sub-paragraph makes it clear that a “majority of each House shall constitute a
quorum to do business[.]” See CONST. art. VI, § 16(2). It would be difficult to argue that
Congress is presumed to be acting with a continuing quorum since the Bayanihan Act was
passed not in the First Regular Session but in a Special Session. As a separate session, quorum
should have been determined anew.
67 See CONST. art. VI, § 23(2).
pass decrees which, as law, the President would be constitutionally required

to faithfully execute.68 In turn, this would be violative of the President’s power
of control over the Executive department.69
At this point, it should be emphasized that the Constitution does not

contemplate a delegation by Congress of emergency powers to local
government units (“LGUs”). In Homeowners’ Association of the Philippines, Inc. v.
The Municipal Board of the City of Manila,70 the Court dealt with a municipal
corporation that passed an ordinance (a) declaring a state of emergency in the
matter of housing accommodations for the poor and (b) regulating residential
rentals. By upholding the lower court’s nullification of the ordinance on the
ground that its period was not reasonably defined, the Court sidestepped the
issue of whether such a declaration was even within the power of the
municipal corporation. Notwithstanding this demurrer, the 1973 and 1987
Constitutions did not textualize any potential grant of such emergency powers
to local governments.
Because emergency powers cannot be delegated to LGUs, Section

4(g)71 of the Bayanihan Act cannot be read as directly allowing community
quarantines via local executive orders. The authorization for such quarantine
powers must therefore be based on the Local Government Code, which vests
it on local legislative councils (except the Sangguniang Barangay).72
B. Tests of Substantive Validity
1. Does the Emergency Measure Comply with the

David Test?
The four “conditions” for the delegation of emergency powers to the

President, enumerated in David, are substantive tests based on the text of the
emergency powers clause. Hence, for such a delegation to be valid, “(1) there
must be a war or other emergency; (2) it must be for a limited period only; (3)
it must be subject to such restrictions as the Congress may prescribe; and (4)
the emergency powers must be exercised to carry out a national policy

69 Art. VI, § 17.
70 G.R. No. L-23979, 24 SCRA 856, Aug. 30, 1968.
71 Under Section 4(g), the President is authorized to “[e]nsure that all Local
Government Units (LGUs) are acting within the letter and spirit of all the rules, regulations
and directives issued by the National Government pursuant to the [Bayanihan] Act [and] are
implementing standards of Community Quarantine consistent with what the National
Government has laid down for the subject area[.]”
72 LOC. GOV. CODE, §§ 447(a)(5)(xii), 458(a)(5)(xii) & 468(a)(4)(v).
declared by Congress.”73 While the Court takes a deferential stance towards

the political determination of an emergency, it has also reasserted the latter’s
justiciability.74 However, the Court has declared that the “standard laid down
is not correctness but arbitrariness,” that is, “totally bereft of factual basis.”75
Notwithstanding the test in David, two clarifications must be made.

First, despite the lack of qualification in David, the emergency must be national
in scope pursuant to the text of the Constitution itself. Thus, emergency
powers cannot be granted for local or regional issues. This is in contrast to
the President’s commander-in-chief powers, which may be exercised in
particular, specially affected vicinities.76 Second, the fourth condition in David
requires that Congress itself declares a national policy. This was illustrated in
David, where the Court explained that the power of the President to declare a
state of national emergency—that is, its factual existence—is separate from
and not a substitute for the power of Congress to declare a national policy
further to an emergency.77 It is for this apparent reason that the Bayanihan
Act takes pains to spell out what comprises the COVID-19 emergency, 78
albeit leaving a catch-all for an “urgent need […] to promote and protect the
collective interests of all Filipinos in these challenge times.”
2. Is the Delegation Limited to Legislative Powers?
Although the emergency powers clause is textually silent as to the

authority that Congress may specifically delegate, the grant of powers
“necessary and proper to carry out a declared national policy” must refer to
legislative powers, considering the legislative branch’s primary function as the
policy-making agent of the State.79
Obviously, an emergency measure cannot grant judicial powers to the

Executive because Congress cannot give what it does not have. However, this
restriction also means that Congress may not delegate its powers that are not
strictly legislative in nature. Consequently, even if they may improve the
efficiency of executive power during an emergency, the delegation of
emergency powers to the President may not include Congress’ prerogatives
73 David, 489 SCRA 160, 250-251.

74 See Lagman v. Medialdea [hereinafter “Lagman”], G.R. No. 231658, 829 SCRA 1,
July 4, 2017.
75 David, 489 SCRA 160, 228.
76 See Lagman, 829 SCRA 1.
77 David, 489 SCRA 160, 250-251.
78 Bayanihan Act, § 3.
79 See Villanueva v. Canlas, G.R. No. L-529, 77 Phil. 381, 384 (1946).
to approve appointments,80 declare the existence of a state of war,81 review

the exercise of the commander-in-chief powers,82 and consent to treaties,83
among others. Notably, these congressional prerogatives are not legislative in
nature—they do not involve the power to make, alter, or repeal laws—but are
weights in a delicate system of checks and balances. It is not difficult to see
how the complete abrogation of that system in the name of public exigencies
will open the floodgates to abuse.
C. As to Incidents
1. Is the Delegated Legislative Power

Exercised by the President Himself?
Because of the textual limitations of the emergency powers clause, as

discussed above, the validity of the exercise of the delegated legislative power
should be primarily tested by confirming that the executive legislation is issued
by the President himself or under his express direction. While the doctrine of
Qualified Political Agency provides that the acts of the President’s alter egos
are also his acts unless they are reprobated,84 it may be a stretch to insist that
this doctrine applies to the exceptional delegation of legislative powers during
a national emergency.
Excepting the emergency delegation from this doctrine is justified by

the latter’s rationale and application in jurisprudence, that is, the presidential
type of government and the President’s implementation of the law as the
single executive.85 In contrast, the exercise of the emergency delegation by a
secretary would not be a simple implementation of the law (i.e. an executive
function, which includes quasi-legislative functions) but the making,
amendment, or repeal of a law itself (i.e. a delegated legislative function).
It also has historical basis: as illustrated in Araneta, all of the executive

legislation questioned were executive orders, i.e. issued by the President
himself or under his express authority.
Requiring the President himself to exercise the delegated legislative

power would also be consistent with the idea that the emergency delegation
is not meant to abrogate the Constitutional order. Allowing Qualified Political

81 Art. VI, § 23(1).
82 Art. VII, § 18.
83 Art. VII, § 21.
84 See, generally, Villena v. Sec’y of the Interior, 67 Phil. 451 (1939).
85 See Tecson v. Salas, G.R. No. 27524, 34 SCRA 275, July 31, 1970.
Agency to apply in this case would result in as many congresses as there are
secretaries. With every administrative order possibly acquiring the character
of legislation, applying the doctrine would also give rise to systemic
uncertainty, if not chaos. Hence, not only must the President himself exercise
the delegated legislative power, but he must invoke it expressly whenever
issuing the executive legislation.
2. Does the Delegation Derogate from Other

Constitutional Standards Unrelated to the
Grant of Legislative Power?
That emergency situations do not suspend the operation of the

Constitution is patent from the text of the fundamental law86 and confirmed
by the deliberations of the Constitutional Commission.87 Hence, the Bill of
Rights remains intact notwithstanding the grant of emergency powers to the
President.
Yet the larger implication of this standard is that other constitutional

prerogatives are likewise left undisturbed by emergency measures. For
instance, local autonomy remains intact regardless of a public emergency.
Therefore, emergency measures cannot grant the President the power of
control over local governments. In this regard, even if the Bayanihan Act
empowers the President to “[e]nsure that all Local Government Units (LGUs)
are acting within the letter and spirit of all the rules, regulations and directives
issued by the National Government[,]” 88 he still exercises only general
supervision over local governments.89 He remains barred by the Constitution
from supplanting or invalidating90 the decisions of local officials, or directly
taking over their functions.
86 There is no provision in the Constitution allowing its suspension. See also CONST.
art. VII, § 18. Even in the case of the suspension of the privilege of the writ of habeas corpus,
the same is textually provided and conditioned.
87 See Echegaray, 297 SCRA 754.
88 Bayanihan Act, § 4(g).
89 Art. X, § 4.
90 “The power of supervision involves oversight of a subordinate to ensure that the
rules are followed. On the other hand, the power of control is broader as it involves laying
down the actual rules to be followed. If the rules are not followed, the power of control allows
the controlling officer to order that the act be done or undone, or even to supplant the
subordinate’s act with his or her own act.” Office of the Ombudsman v. Fetalvero, Jr., G.R.
No. 211450, July 23, 2018.
3. Does the Takeover of Businesses Comply with

Additional Constitutional Safeguards?
While David makes it clear that the takeover clause91 is an aspect of

the emergency powers clause, 92 its separate inclusion in the Constitution
means that the former is subject to additional safeguards. From the text of the
takeover clause, the questions that may be raised are: (1) Was the takeover
clause properly invoked, i.e. by the declaration of a national emergency? (2) Is
the takeover required by the public interest? (3) Is the takeover temporary and
limited to the emergency? (4) Is the enterprise a proper subject of the takeover
clause, i.e. a privately-owned public utility or a business affected with the
public interest? (5) Did Congress provide for reasonable terms for the
temporary takeover?
4. Does Executive Legislation Reach Beyond

the Public Emergency and its Incidents?
Considering the limited purpose for the grant of emergency powers,

an executive legislation that explicitly claims to be effective even after the
emergency has passed is of doubtful validity. But if the executive legislation is
itself silent, may it continue to be in force even when the enabling emergency
measure has expired?
This question was effectively raised in Jabalde v. Philippine National

Bank,93 which concerned the applicability of Executive Order No. 49 (series
of 1945, “EO No. 49”), issued under the Emergency Powers Act. EO No. 49
provided that “[a]ll deposits made with banking institutions during enemy
occupation, and all deposit liabilities incurred by banking the [sic] same period
are declared null and void, except as provided in this section.” In essence, EO
No. 49 was applied against the appellant when the lower court held that his
wartime deposits were not reimbursable.
Before the Supreme Court, the appellant claimed that EO No. 49

should not be applied to him because he filed the complaint (for
reimbursement) in 1956, or several years after the Emergency Powers Act had
expired in 1946. The Court ruled against him, stating that EO No. 49 was
“clearly intended for permanent application and its operation was not limited
to the period of emergency.”
91 CONST. art. XII, § 17.

92 Art. VI, § 23(2).
93 G.R. No. L-18401, 117 Phil. 792, Apr. 27, 1963.
Jabalde shows that it is possible for executive legislation to have effects

well beyond the expiration of the delegated emergency powers. This seems
contrary to the principle that legislative delegation is limited in time and does
not exist beyond the emergency. While the dictum in Jabalde is unfortunate, it
may be interpreted to mean that when EO No. 49 was issued on June 6, 1945,
it had a permanent effect on wartime deposits, which had been rendered null
and void. When EO No. 49 became functus officio upon the expiry of the
Emergency Powers Act, the deposits it nullified could no longer be restored.
This narrow reading of Jabalde is necessary to stymie any abuses

arising from the grant of emergency powers. In the particular case of the
Bayanihan Act and the COVID-19 emergency, Congress was able to meet and
legislate on plenary matters upon the resumption of the regular session—a
phenomenon that was not possible for the National Assembly during the
Japanese occupation from 1942 to 1945. Hence, the COVID-19 Regulations
under the Bayanihan Act should not survive the expiration of their enabling
law, although any permanent effects thereof are functus officio and, for reasons
of stability, should not be disturbed.
IV. CONCLUSION
A review of the origins and historical application of emergency

powers in the Philippines shows that there has not been a robust test for the
validity of emergency measures and their incidents. While the proposed
framework is detailed and extensive, its goal is not to straitjacket the Executive
and make emergency powers impossibly difficult to delegate. Instead, the
objective of the proposed framework is to balance, on one hand, the need for
swift action to end an emergency and, on the other hand, the imperative to
preserve the constitutional system and the rule of law. “Always, the guiding
principle should be: Break the crisis and save the existing constitutional order,
but, do not break the crisis and also break the constitutional order.”94
The Bayanihan Act has expired without a successful legal challenge.

Yet as courts begin to reopen, there is a pressing need to audit the many legal
issues that have arisen during the first leg of the (ongoing) public health
emergency. In particular, it is imperative to examine the COVID-19
Regulations which, notwithstanding the expiry of the Bayanihan Act, the
Executive may still feel entitled to enforce. That audit should lead to greater
vigilance from the legal community: without an end to the pandemic in sight,
particularly for the Philippines, the inevitable reinvocation of the emergency
94 Raymundo Armovit, Emergency Powers, 29 PHIL. L.J. 666, 724 (1954).

clause powers must be met with legal scrutiny. Otherwise, the disintegration
of checks and balances will be the COVID-19 pandemic’s legal legacy.
- o0o -
LIFE AND DEATH SENTENCE: A CASE FOR THE
ACCELERATED DECONGESTION OF PRISONS
AND JAILS IN THE PHILIPPINES
IN LIGHT OF COVID-19*
Nicole Beatriz Y. Veloso**
I. INTRODUCTION
Over the years, local and international news has been replete with
images of overcrowded jails in the Philippines. These photos foretold what
would be the dismal state of these facilities during a pandemic and now raise
grave concerns about the health and well-being of these inmates under the
“new normal.” How can detainees be expected to exercise social distancing,
which is key in preventing COVID-19 infection,1 while being forced to live in
such close quarters? Does the Bureau of Corrections (BuCor) and the Bureau
of Jail Management and Penology (BJMP) ensure that these inmates have
adequate access to health services for the testing and treatment of persons
with COVID-19 symptoms given the sheer number of inmates?
What is mere speculation for some is a very real issue and persistent
danger for these inmates. The Philippine government is yet to construct new
facilities to minimize the problem of overcrowding in prisons, as well as
commit “enough resources for the safe custody and rehabilitation of
inmates.”2 These prisons are also undermanned in terms of the number and
quality of their personnel, as the appropriate inmate-to-guard ratios have not
* Cite as Nicole Beatriz Veloso, Life and Death Sentence: A Case for the Accelerated
Decongestion of Prisons and Jails in the Philippines in Light of COVID-19, 93 (Special Online Feature)
PHIL. L.J. 217, [page cited] (2020).
** J.D. (2020, expected), University of the Philippines College of Law; B.S. (2016),
honorable mention, Ateneo De Manila University. The author would like to thank Ray Lemuel
Molabola and Jonas Josh Cabochan for sharing their invaluable knowledge, advice, and
feedback over the course of writing this article.
1 Centers for Disease Control and Prevention, Social Distancing, Quarantine, and
Isolation, CENTERS FOR DISEASE CONTROL AND PREVENTION WEBSITE, July 15, 2020, at
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/social-distancing.html.
Social distancing constitutes maintaining a distance of 6 feet from others whenever possible
to prevent the spread of COVID-19.
2 Raymund Narag & Clarke Jones, Understanding Prison Management in the Philippines: A
Case for Shared Governance, 97 PRISON J., 1, 3 (2016), available at https://www.researchgate.net/

publication/310467821_Understanding_Prison_Management_in_the_Philippines_A_Case_f
or_Shared_Governance
217
2020] LIFE AND DEATH SENTENCE 218
been met. 3 It is not difficult to surmise how the lack of space, facilities,
resources, and personnel contributes to the inevitable spread of the novel
coronavirus within prison walls.
This Essay argues that the accelerated decongestion of prisons is

necessary amid the COVID-19 pandemic, and the same is sufficiently
provided for in both Philippine and international law as a duty of the state. 4
Part II will illustrate the conditions within overcrowded Philippine

prisons and jails prior to, and in the course of, the ongoing pandemic. It aims
specifically to show that COVID-19 gave rise to new and grave problems as
a result of overcrowding in prisons.
Part III will examine Philippine and international law on the matter
to establish the lawfulness of accelerated decongestion and the role of the
government in ensuring the health and well-being of all inmates during this
critical time.
Part IV will conclude with recommendations on how to achieve the

accelerated decongestion of these facilities as the country enters a “new
normal.”
II. THE LIVED REALITY OF OVERCROWDED

PRISONS AND JAILS
A. Philippine Prisons and Jails

Pre-Pandemic
The Philippines currently holds one of the highest occupancy levels

in penal facilities (based on official capacity) worldwide at 463.6%, second
only to the Republic of Congo at 616.9%.5 This is attributed in no small part
3 Id.
4 Mildred Bernadette Alvor, The Philippine Corrections System: Current Situation and Issues,
in RESOURCE MATERIAL SERIES NO. 67 75 (2005), available at
https://www.unafei.or.jp/publications/pdf/RS_No67/No67_00All.pdf. This article is
concerned with both types of penal facilities in the Philippines: jails and prisons. Jails are
defined as “place[s] of confinement for inmates under investigation or undergoing trial, or
serving short-term sentences.” Prisons refer to national prisons or penitentiaries administered
by the Bureau of Corrections (“BuCor”), tasked with the rehabilitation of national prisoners,
or those sentenced to imprisonment for a term exceeding three years.
5 World Prison Brief, Highest to Lowest – Occupancy level (based on official capacity), WORLD
PRISON BRIEF WEBSITE, at https://www.prisonstudies.org/highest-to-lowest/occupancy-

level?field_region_taxonomy_tid=All
to President Rodrigo Duterte’s anti-drug campaign, which began in 2016,

resulting in the surrender of more than 727,600 drug users and 56,500 drug
pushers in the first six months alone.6 Along with mass arrests, this rapidly
aggravated the problem of overcrowding in prisons. 7 In the same year,
inmates of the Quezon City Jail were photographed sleeping side by side in a
jail basketball court for news features in both the CNN and the New York
Times.8 In March 2020, jails across the country held 134,748 detainees—a
40% increase since 2015.9
Overcrowding in prisons is a pertinent issue even before an inmate’s

final conviction. Pretrial detainees comprise 75.1% of the total prison
population in the country.10 A study of six jails across five cities noted that
“[t]he median stay for all these pretrial detainees is 268 days, suggesting that
50% (4,457) of the inmates had already stayed in jail for more than 9 months
while still undergoing trial.”11 At the time the study was conducted, 25% of
the inmates, numbering 2,229 individuals, had stayed in jail for more than two
years, including 52 extreme cases of inmates who had remained in jail for more
than 10 years, with the longest stay being 15 years and 17 days. 12 These
statistics illustrate the problem of overstaying13 in municipal, city, and district
jails; and in this particular study, it was found that 20.3% of the inmates,
6 Daniel Berehulak, ‘They are Slaughtering Us Like Animals’, THE NEW YORK TIMES,
Dec. 7, 2016, available at https://www.nytimes.com/interactive/2016/12/07/world/asia/

rodrigo-duterte-philippines-drugs-killings.html
7 Aie Balagtas See, Philippine Jails are a Covid-19 Time Bomb, PHILIPPINE CENTER FOR
INVESTIGATIVE JOURNALISM WEBSITE, Apr. 10, 2020, at https://pcij.org/article/3979/

philippine-jails-are-a-covid-19-time-bomb
8 Berehulak, supra note 6; Jessie Yeung, More than 5,000 inmates die at this prison every
year, CNN, Oct. 18, 2019, at https://edition.cnn.com/2019/10/04/asia/

philippines-inmate-deaths-intl-hnk-scli/index.html
9 Balagtas See, supra note 7.
10 World Prison Brief, Philippines, WORLD PRISON BRIEF WEBSITE, at
https://www.prisonstudies.org/country/philippines
11 Raymund Narag, Understanding Factors Related to Prolonged Trial of Detained Defendants
in the Philippines, 62 INT. J. OFFENDER THERAPY COMP. CRIMINOLOGY 1, 9 (2017).

12 Id.
13 Id. at 8. In the aforementioned study, an inmate was deemed to have “overstayed”
when their case was still undergoing trial, but they had already stayed in jail longer than the
baseline standards set for the study, which, in turn, was based on the Speedy Trial Act of 1998.
Inmates with less serious cases (with penalties of not more than six years, tried in Municipal
Trial Courts) were deemed to have overstayed if their detention had exceeded a period of six
months, while those with more serious cases (with penalties of more than six years, tried in
Regional Trial Courts) were deemed to have overstayed if their detention had exceeded a
period of three years.
numbering 1,806 individuals, can be considered as having overstayed in their

respective jails.14
In the same study, inmates who had stayed for more than three years
were purposefully interviewed to determine what factors tended to prolong
detention. A majority of them expressed the need to closely monitor one’s
case as the system was unreliable.15 If a hearing was postponed for any reason,
such as the absence of the lawyer of the accused or the witnesses, the next
hearing would be scheduled six months later. 16 Others cited the lack of
necessary resources to contact their respective lawyers who some inmates did
not even know personally, only seeing such lawyers in court.17 As a result, they
had no guarantee that their lawyers were working on their case, nor did they
have the financial or logistical means to ensure the same.18 This is especially
concerning considering that nationwide, “only around 18% of pretrial
detainees are eventually convicted and 82% the inmates are acquitted or
dismissed.”19 In spite of this, majority of them were detained for a period
already equivalent to their imposable penalties.20
Such overcrowding leaves most inmates with little to no space for

themselves. Reporter Aurora Almendral painted a dismal picture of Manila
City Jail in her 2019 article, Where 518 Inmates Sleep in A Space for 170, and Gangs
Hold it Together.21 As the title suggests, an inmate’s options were very limited
and extremely uncomfortable: he could sleep on a piece of cardboard on the
floor, or in a small bathroom with a toilet and six other men, or on a stairway
composed of narrow wooden steps. She described the inmates as “cupped
into each other, limbs draped over a neighbor’s waist or knee, feet tucked
against someone else’s head, too tightly packed to toss and turn in the
sweltering heat.”22 Another former detainee remarked how the inmates had
to take turns sleeping in crouching positions, “spilling out into hallways and
14 Id. at 10. This can further be broken down into 435 inmates tried in Municipal
Trial Courts who had stayed longer than 6 months (comprising 36.1% of such inmates), and
1136 inmates tried in the Regional Trial Courts who had stayed longer than three years
(comprising 17.6% of such inmates) at the time of the study.
15 Id. at 11.
16 Id. at 12.
17 Id.
18 Id.
19 Id. at 13.
20 Id.
21 Aurora Almendral, Where 518 Inmates Sleep in A Space for 170, and Gangs Hold it
Together, NEW YORK TIMES, Jan. 7, 2019 available at https://www.nytimes.com/2019/

01/07/world/asia/philippines-manila-jail-overcrowding.html
22 Id.
corridors” due to the lack of space.23 If the inmate had some money, he could
rent a kubol—a small, improvised cubicle he could share with two or more
other men, with only curtains and plywood separating him from the others.24
A similar scenario in the Quezon City Jail was reported in July 2016.
Inmates were said to be “crammed together into crumbling, ramshackle cells,”
with barely any place to sleep: one 200-square foot room held 85 inmates,
while another room designed for only 30 people held 131.25 However, Cebu
City Jail has the highest congestion rate in the country. In October 2019,
Mayor Edgar Labella explained that the male dormitory housed over 922
inmates, despite only having a capacity of 82.26
Prisons appear to be no different. In one report, it was estimated that

“[a]bout 5,200 inmates at the New Bilibid Prison (NBP) die annually due to
overcrowding, disease and violence.” 27 Cebu Provincial Detention and
Rehabilitation Center, which rose to global prominence for its dancing
inmates, similarly has 199 cells built for 1500 inmates only, but a headcount
of 2,525 was reported in July 2019, meaning the jail had exceeded its
maximum capacity by over 70%.28
B. COVID-19 in the Philippine Prisons

and Jails: A New Set of Problems
On March 10, 2020, seeing the evident danger that overcrowding

posed to the detainees, the BJMP initiated Oplan 2019 Novel Coronavirus,
covering 468 jails in the country.29 Similarly, on March 15, KAPATID, a non-

24 Almendral, supra note 21; Ana Santos, ‘Waiting to Die’: Coronavirus enters congested
Philippine jails, AL JAZEERA, May 4, 2020, at https://www.aljazeera.com/news/
2020/05/die-coronavirus-enters-congested-philippine-jails-200504025823176.html
25 Yeung, supra note 8.
26 Ryan Macasero, What you need to know about the Cebu City Jail, RAPPLER, Apr. 26,
2020, at https://www.rappler.com/newsbreak/iq/259050-things-to-know-cebu-city-jail
27 Yeung, supra note 8.
28 The Freeman, Governor Garcia tackles congestion at CPDRC, THE FREEMAN WEBSITE,
July 19, 2019, available at https://www.philstar.com/the-freeman/cebu-

news/2019/07/19/1936049/governor-garcia-tackles-congestion-cpdrc
29 Aie Balagtas See, How Covid-19 Cases Exploded in Prisons, PHILIPPINE CENTER FOR
INVESTIGATIVE JOURNALISM WEBSITE, June 23, 2020, at https://pcij.org/article/4198/

covid-19-in-philippine-prisons-a-timeline
government organization representing relatives of the detainees, appealed for

the mass release of low-level offenders, the sick, and the elderly.30
Shortly after President Duterte placed Luzon under Enhanced

Community Quarantine (“ECQ”) on March 16, the BJMP imposed an
“absolute lockdown,” prohibiting all outsiders from visiting inmates. 31
Interior Secretary Eduardo Año even described jails and prisons as the
safest right now.” 32 Such assertion first proved to be incorrect when, on
March 30, a female paralegal officer from Quezon City Jail male dormitory
tested positive for COVID-19.33 Later still, on April 17, the BJMP announced
nine inmates and nine jail guards were found positive for the virus, proving
COVID-19 had indeed reached the Philippine jail system.34 Immediately after,
a prisoner from the Correctional Institution for Women (“CIW”) tested
positive for COVID-19, and an inmate who tested positive for coronavirus
died on the same day.35
The Supreme Court thus urged judges to implement jail decongestion

measures,36 and the Board of Pardons and Parole (BPP) under the BuCor
“relaxed” the rules on parole and clemency.37 Despite such efforts, however,
the number of cases only continued to multiply. By May 19, BJMP announced
that there were 517 cases of COVID-19 in jails across the country, with Cebu
City Jail being the worst hit by the same.38 On June 2, 10 inmates under the
BuCor had died, while 222 were confirmed to be COVID-19 positive, 39
consisting of 140 cases in New Bilibid Prison (“NBP”) and 89 cases in CIW.40
30 Jodesz Gavilan, KAPATID appeals for release of low-level offenders, elderly, sick prisoners
amid coronavirus outbreak, RAPPLER, Mar. 14, 2020, at https://www.rappler.com/

nation/254560-open-letter-kapatid-release-prisoners-novel-coronavirus-outbreak
32 Id.
33 Catherine Gonzalez, Female legal officer of BJMP positive for COVID-19, PHIL. DAILY
INQUIRER.NET, Mar. 30, 2020, available at https://newsinfo.inquirer.net/

1251056/bjmp-legal-officer-positive-for-covid-19
35 Id.
36 This refers to Office of the Court Administrator (OCA) Circular No. 91-2020 that
directs all trial court judges to adhere to the Guidelines for Decongesting Holding Jails by
Enforcing the Rights of Accused Persons to Bail and to Speedy Trial issued in 2014. This is
discussed more thoroughly in Part III of this article.
38 Id.
39 Nicole-Ann Lagrimas, BuCor reports 222 COVID-19 cases, 10 deaths among inmates,
GMA NEWS ONLINE, June 4, 2020, at https://www.gmanetwork.com/news/

news/metro/741219/bucor-reports-222-covid-19-cases-10-deaths-among-inmates/story
48 personnel from both prisons also tested positive for COVID-19. 41 On

June 11, deaths in BuCor reached 15.42
An overcrowded prison is far from an ideal place to be in at a time of

a global pandemic due to the extreme difficulty of keeping one’s distance in
such an environment. However, the COVID-19 pandemic only gave rise to a
new set of difficulties brought about by such congestion.
1. Ineffective Implementation of Prevention Measures
A convict from NBP reports that inmates have to wear masks

wherever they go within the prison facilities, but these masks can be removed
inside their dormitories during bedtime.43 Similarly, another detainee (from an
unknown place of detention) explains that they were all given masks, but many
complained that such were “uncomfortable to wear in the sweltering summer
heat” which is only aggravated by the sheer number of people in a cramped
space.44
Another inmate, this time an old man45 from the Quezon City Jail,
narrates that a fellow detainee who came into close contact with the paralegal
officer who died from COVID-19 (the aforementioned first COVID-related
death in the correctional system) was isolated as jail administrators waited for
the test results of the paralegal officer to be released.46 However, on the eight
day of his quarantine period, he was sent back to the male dorm without
having completed the standard 14 days in isolation.47 “He ate with us, he slept
beside us. He did practically everything with us,” the old man narrated. 48
When the paralegal officer’s results were released and it was discovered she
was positive for COVID-19, the jail guards returned to the dorm for another
round of quarantine.49
41 Id.
42 Id.
43Aie Balagtas See, Hidden Victims of the Pandemic: The Old Man, the Jail Aide, and the
Convict, PHILIPPINE CENTER FOR INVESTIGATIVE JOURNALISM WEBSITE, at

https://pcij.org/article/4185/the-old-man-the-medic-and-the-convict
44 Santos, supra note 24.
45 Balagtas See, supra note 43. This article uses this term which was used to identify
this particular inmate in the original PCIJ article, which provides the accounts of three
individuals in the Philippine Correctional System.
46 Id.
47 Id.
48 Id.
49 Id.
2. Lack of Adequate Facilities and Resources
On April 19, they began separating the elderly from the general
population of Quezon City Jail.50 The old man recounts being taken to an
administrative office previously occupied by jail personnel, only to discover
that it was the same office where the paralegal officer who tested positive for
COVID-19 was assigned. 51 These efforts, however, do not seem to have
eliminated the problem of overcrowding. In one of those facilities, 11 men
were said to have “makeshift hospital beds,” which were formerly used by
recently dead inmates.52
Another apparent consequence of the overcrowding is the lack of

adequate facilities. The old man explains that one of the quarantine areas for
COVID-19 was on the same floor as the quarantine areas reserved for
tuberculosis (“TB”) patients.53 Knowledge of this causes inmates to deny any
symptoms when asked,54 out of fear they will be sent to the “TB floor” for
colds and cough, contracting TB instead of being cured.55 There is also a lack
of basic necessities such as medicine, leaving inmates with no choice but to
buy: “Every move you make requires a peso sign. You’re dead if you don’t
have money, especially if you’re facing grave charges.”56
The lack of resources is an issue not only for the inmates, but also for
the personnel as well who lack the proper personal preventive equipment
(“PPE”). A nurse in Quezon City Jail laments that he used to attend his duties
with only a glove and a face mask until he went down with a high fever and
convulsions and has been in quarantine ever since.57
50 Id.
51 Id.
52 Id. See also Santos, supra note 24.
53 Id.
54 Id. It appears that such symptoms would be easy to hide, as the old man narrates
that the extent of the officers “checking for symptoms” was to simply ask each of the inmates
if they have cold, cough, fever, flu, or diarrhea. Should the inmate answer “no” to such
questions, that would be the end of the discussion.
55 Id.
56 Id.
57 Id.
III. THE BASIS FOR ACCELERATED DECONGESTION

IN PHILIPPINE AND INTERNATIONAL LAW
A. Under Philippine Law
1. The 1987 Constitution
The Bill of Rights upholds the right of detainees as provided in the

following provision:
Section 19. (1) Excessive fines shall not be imposed, nor cruel,
degrading or inhuman punishment inflicted. Neither shall the
death penalty be imposed, unless, for compelling reasons
involving heinous crimes, the Congress hereafter provides for it.
Any death penalty already imposed shall be reduced to reclusion
perpetua.
(2) The employment of physical, psychological, or degrading

punishment against any prisoner or detainee or the use of
substandard or inadequate penal facilities under subhuman conditions shall
be dealt with by law.58
In his article, Articulating the Right to the Presumption of Innocence as a

Constitutional Imperative for Critical Carceral Reforms,59 Allan Chester Nadate raises
several excellent points in his interpretation of this particular section of the
Bill of Rights. For example, he notes that the corresponding provision in the
1973 Constitution was limited to the prohibition of excessive fines and cruel
or unusual punishment.60 The addition of the phrase “prohibiting the use of
substandard or inadequate penal facilities under subhuman conditions” was
the initiative of Commissioner Regalado Maambong who, in the course of the
deliberations, discussed how he witnessed the use of such substandard
penitentiary facilities as a lawyer and believed the same to be tantamount to
cruel and unusual punishment.61
58 CONST. art. III, § 19. (Emphasis supplied.)

59 Allan Chester Nadate, Articulating the Right to the Presumption of Innocence as a
Constitutional Imperative for Critical Carceral Reforms, 91 PHIL. L.J. 135 (2018).
60 Id. at 152, citing CONST. (1973), art. IV, § 21.
61 Id. at 153. This belief is supported by the case of Brown v. Plata, 563 U.S. 4, 12-
13 (2011), in which the Supreme Court ruled that the overcrowding of California prisons
resulted in violations of the inmates’ rights under the Eighth Amendment prohibiting cruel
and unusual punishment. Thus, a court-mandated population limit was deemed necessary to
rectify the same.
Therefore, the drafters intend to ensure that inmates would not be

subject to poor living conditions as a result of such facilities which were
already a social reality at the time the 1987 Constitution was being drafted.62
On its face, it may seem as though there is a lack of a remedy for those
imprisoned in such substandard or inadequate penal facilities. However, a
further perusal of the records of the 1986 Constitutional Commission reveals
that the right was intended to be self-executing, and such right was not
rendered inexistent by the lack of an implementing law.63 Rather, the phrase
“shall be dealt with by law” allows Congress to expand the sanctions for the
violation of this right in addition to the relief already provided by the
Constitution.64 This is made clearer in the following excerpt:
MR. FOZ: In case the law passed by the legislature would impose
sanctions, not so much in the case of the first part of the
amendment but in the case of the second part with regard to
substandard or outmoded legal penal facilities characterized by
degrading surroundings and insanitary or subhuman conditions, on
whom should such sanctions be applied?
MR. MAAMBONG: It would have to be applied on the

administrators of that penal institution. In the United States, in my
reading of the cases furnished to me by Commissioner Natividad,
there are instances where the law or the courts themselves ordered
the closure of a penal institution and, in extreme cases, in some
states, they even set the prisoners free for violations of such a
provision.
MR. FOZ: I am concerned about the features described as

substandard or outmoded penal facilities characterized by
degrading surroundings, because we know very well the conditions
in our jails, particularly in the local jails. It is not really the fault of
those in charge of the jails but these conditions are the result of
lack of funds and the support by local government, in the first
instance, and by the national government. Does the Gentleman
think we should penalize the jailers for outmoded penal facilities?
MR. MAAMBONG: No, Madam President. What we are trying to

say is that lack of funds is a very convenient alibi for the State, and
I think with these provisions, the State should do something about
it.
I RECORD CONST. COMM’N 778 (July 18, 1986) (Comm. Maambong).

62
Nadate supra note 59, at 153, citing I RECORD CONST. COMM’N 778 (July 18, 1986)
63
(Comm. Maambong).
64 Id. at 155-156.
MR. FOZ: Thank you, Madam President.
FR. BERNAS: Madam President, we are not telling the legislature

what to do: we are just telling them that they should do something
about it.65
Based on this exchange, it is clear that the violation of such a right

would expose the concerned public official to liability; he cannot invoke
immunity from suit in such a case.66 Second, and perhaps most importantly,
this establishes that the State cannot claim insufficient funds as a basis to
violate the right provided, herein as it was “precisely developed to countermand
this argument.”67 Rather, Article III, Section 19(2) created a positive mandate
on the part of the State to ensure that penal facilities were up to constitutional
standards.68
It is fair to conclude that an overcrowded facility is substandard or

inadequate within the contemplation of this section. Overcrowding would
compel a disproportionate number of detainees to share a limited amount of
space, facilities, and resources. It has also led to other problems that
compromise the inmates’ health such as poor ventilation and insufficient
sanitation.69 The State, therefore, has a positive mandate to ensure that the
decongestion of these prisons and jails is conducted as expeditiously as
possible, especially now that continued detention in these facilities constitutes
a grave threat to the health of the detainees.
Relevant also to the topic of decongestion is the constitutional right

to the speedy disposition of cases,70 as well as the right to a speedy, impartial,
and public trial71 which is included as one of the rights of the accused under
65 Id. at 156-157, citing II RECORD CONST. COMM’N 34 (July 19, 1986).

66 Id. at 157.
67 Id.
68 Id.
70 CONST. art. III, § 16. “All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative bodies.”

71 CONST. art. III, § 14(2). “In all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel, to be informed of the nature and cause of the accusation against him, to have a
speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory
process to secure the attendance of witnesses and the production of evidence in his behalf.
However, after arraignment, trial may proceed notwithstanding the absence of the accused
provided that he has been duly notified and his failure to appear is unjustifiable.” (Emphasis
supplied.)
the Rules on Criminal Procedure.72 These rights are not only to ensure the
administration of justice, but to “prevent the oppression of the citizen by
holding a criminal prosecution suspended over him for an indefinite time.”73
In the case of Perez v. People, the Court discussed how the reason for a delay
should determine how the length of such delay should be weighed against the
government.74 The Court here differentiates between valid reasons that justify
delay, such as a missing witness, and deliberate attempts to delay the trial
which should be considered heavily against the government.75 On the other
hand, negligence or overcrowded courts constitute neutral reasons which
should be taken less heavily against the government, although ultimate
responsibility still rests with them rather than with the defendant.76
2. The BJMP and BuCor Manuals
The BJMP has “administrative and operational control over all

district, city, and municipal jails,” aiming to “enhance public safety by
providing for the humane safekeeping and development of its inmates[.]”77
The BuCor, on the other hand, is tasked with the rehabilitation of national
prisoners (those who are sentenced to serve over three years in prison) that
they may “become productive and responsible members of society upon their
release.”78
In their respective manuals, both the BJMP and BuCor recognize

their role in providing facilities with adequate living space and ventilation.79
72 RULES OF COURT, Rule 115, § 1(h). “Rights of accused at the trial. — In all criminal
prosecutions, the accused shall be entitled to the following rights: […] (h) To have speedy,
impartial and public trial.”
73 TRANQUIL SALVADOR III, CRIMINAL PROCEDURE 270 (2019), citing Coscolluela v.
Sandiganbayan, G.R. No. 191411, 701 SCRA 188, 199, July 15, 2013.
74 WILLARD RIANO, CRIMINAL PROCEDURE (THE BAR LECTURE SERIES) 369-70
(2016), citing Perez v. People, G.R. No. 164763, 544 SCRA 532, 556-557, Feb. 12, 2008.
75 Id.
76 Id. See also Salvador, supra note 73, in which Prof. Salvador emphasizes that
jurisprudence dictates that the right is only deemed violated when proceedings are attended
by vexatious, capricious, or oppressive delays, when unjustified postponements of trial are
asked for or secured, or a long period of time is allowed to elapse without the party having his
case tried.
77 Bureau of Jail Management and Penology (BJMP), BJMP Comprehensive
Operations Manual (2015 ed.), Rule I, available at https://www.bjmp.gov.ph/files/BJMP-

OpnsManual2015.pdf
78 Alvor, supra note 4, at 76.
79 BJMP, supra note 77, § 63, at 99; BuCor Operating Manual, Bureau of Corrections,
pt. II, ch. 4, § 4, available at https://www.bucor.gov.ph/publication/

Bucor%20Manual/bucor_manual.html. The BJMP manual provides for the rights of inmates,
Both also provide that healthcare services shall be made available to the
inmates and that a medical officer or qualified medical doctor is to be made
available in every institution who shall see sick detainees daily as well as those
who complain of any ailments.80
The BJMP manual in particular states that prisoners suspected of

contagious diseases are to be segregated and those who require specialized
treatment are to be transferred to a civil hospital or the appropriate facility.81
It also provides for an emergency or contingency plan82 in the event that an
epidemic is declared by the Department of Health, specifying the basic
responsive actions that jail officials are to take, including isolating infected
inmates, locking down the facility if necessary, and providing any protective
clothing and equipment needed to both the inmates and the staff.83
All these establish that both administrative agencies are tasked with
ensuring the health, well-being, and humane treatment of inmates, even and
especially during an epidemic or, in this case, a pandemic. This can only be
achieved if the occupancy level of these facilities is drastically reduced through
active decongestion efforts. In fact, the BJMP recognizes decongestion as the
desired result of its functions which also include improving jail facilities and
conditions.84
3. Guidelines for Decongesting Holding Jails by Enforcing

the Rights of Accused Persons to Bail and to Speedy Trial
(Guidelines for Decongesting Holding Jails)
In 2014, the Supreme Court (“SC”), aiming to humanize the living

conditions of inmates, issued Guidelines for Decongesting Holding Jails,
including the right to adequate food, space, ventilation, rest, and recreation. The BuCor
Manual similarly provides that all accommodations for the use of inmates shall meet
requirements of sanitation and hygiene with emphasis on adequate ventilation, living space,
and lighting.
80 BJMP, supra note 77, XI.1 & XIII.1, at 77-78; § 63, at 99; BuCor, supra note 77, pt.
II, ch. 2, § 2; pt. V, ch. 2, § 7.

81 BJMP, supra note 77, at 210.
82 Id. at 48.
83 Id. at 203.
84 Id. § 5, at 2. “Section 5. FUNCTIONS - In line with its mission, the Bureau
endeavors to perform the following functions: (a) enhance and upgrade organizational
capability on a regular basis; thus, making all BJMP personnel updated on all advancements in
law enforcement eventually resulting in greater crime solution efficiency and decreased inmate
population; […] (e) to improve jail facilities and conditions.”
enjoining all those involved in the criminal prosecution process85 to abide by

a set of directives based on the right to bail and the right to a speedy trial
enshrined in the Constitution 86 and the Rules of Court. 87 Among other
matters, such guidelines provided that an accused may move to reduce bail if
he is financially incapacitated88 and that the hearing of an accused’s motion
for bail is summary in nature.89 It also provided for the observance of time
limits in the prosecution of cases against a detained accused, evidently to
expedite the process, 90 and the establishment of task forces to eliminate
unnecessary detention.91
On April 20, 2020, fearing the high risk of inmates contracting

COVID-19 caused by the continued congestion of jail facilities, the SC
Administrator issued OCA Circular No. 91-2020. 92 This reminded all trial
court judges to adhere to the Guidelines for Decongesting Holding Jails,
particularly Sections 5 and 10 thereof, which provided for the release of an
85 See BAIL & SPEEDY TRIAL GUIDELINES, specifically including trial courts, public
prosecutors, public attorneys, and private practitioners.

86 CONST. art. III, §§ 13 & 14(2).
87 RULES OF COURT, Rule 114, § 4; Rule 115, § 1(h).
88 BAIL & SPEEDY TRIAL GUIDELINES, § 3.
89 § 6; RULES OF COURT, Rule 114, §§ 7-8. The guidelines also specify that within 48
hours after the hearing, the court shall issue an order with the conclusion of whether or not
the evidence of guilt is strong, which determines if the motion for bail should be granted.
90 The guidelines reinforce time limits found in the Rules of Court for the
prosecution of cases against detained accused. They provide that a case may be dismissed on
the ground of denial of the right to speedy trial should there be a failure to observe the said
time limits. They are as follows: “(a) The case of the accused shall be raffled and referred to
the trial court to which it is assigned within three days from the filing of the information; (b)
The court shall arraign the accused within ten (10) days from the date of the raffle; (c) The
court shall hold the pre-trial conference within thirty (30) clays after arraignment or within ten
(10) clays if the accused is under preventive detention; provided, however, that where the
direct testimonies of the witnesses are to be presented through judicial affidavits, the court
shall give the prosecution not more than twenty (20) days from arraignment within which to
prepare and submit their judicial affidavits in time for the pre-trial conference; (d) After the
pre-trial conference, the court shall set the trial of the case in the pre-trial order not later than
thirty (30) days from the termination of the pre-trial conference; and (e) The court shall
terminate the regular trial within one hundred eighty (180) days, or the trial by judicial affidavits
within sixty (60) days, reckoned from the date trial begins, minus the excluded delays or
postponements specified in Rule 119 of the Rules of Court and the Speedy Trial Act of 1998.”
91 BAIL & SPEEDY TRIAL GUIDELINES, § 15(a)-(b). The Supreme Court will establish
a Task Force Katarungan at Kalayaan in each appropriate place, that will keep records of the
progress of the criminal cases of all detained persons, and ensure that they are accorded their
rights and privileges as provided by law, the rules, and the guidelines.
92 OCA Administrator Circ. No. 91-2020.
accused who has served the minimum imposable penalty, 93 and the
provisional dismissal of actions due to delays caused by the absence of an
essential witness. 94 Such judges were directed to immediately conduct an
inventory to determine if any of their pending cases would be covered by the
Guidelines and, if so, to act on them efficiently and with sound discretion.95
By urging judges to expeditiously carry out their duties in light of

COVID-19, and with the explicit aim of decongesting jails, the SC recognizes
the role of the judiciary in preventing unnecessary detention at this critical
time.
B. International Law96
1. Basic Principles for the Treatment of Prisoners
The Basic Principles for the Treatment of Prisoners were adopted and
proclaimed by the United Nations (“UN”) General Assembly (“GA”) on
93 Id. citing BAIL & SPEEDY TRIAL GUIDELINES, § 5. “Sec. 5. Release after service of
minimum imposable penalty. - The accused who has been detained for a period at least equal
to the minimum of the penalty for the offense charged against him shall be ordered released,
motu proprio or on motion and after notice and hearing, on his own recognizance without
prejudice to the continuation of the proceedings against him.”
94 Id., citing BAIL & SPEEDY TRIAL GUIDELINES, § 10. “Sec. 10. Provisional dismissal.
- (a) When the delays are due to the absence of an essential witness whose whereabouts are
unknown or cannot be determined and, therefore, are subject to exclusion in determining
compliance with the prescribed time limits which caused the trial to exceed one hundred eighty
(180) days, the court shall provisionally dismiss the action with the express consent of the
detained accused. (b) When the delays are due to the absence of an essential witness whose
presence cannot be obtained by due diligence though his whereabouts are known, the court
shall provisionally dismiss the action with the express consent of the detained accused
provided: (1) the hearing in the case has been previously twice postponed due to the non-
appearance of the essential witness and both the witness and the offended party, if they are
two different persons, have been given notice of the setting of the case for third hearing, which
notice contains a warning that the case would be dismissed if the essential witness continues
to be absent; and (2) there is proof of service of the pertinent notices of hearings or subpoenas
upon the essential witness and the offended party at their last known postal or e-mail addresses
or mobile phone numbers. (c) For the above purpose, the public or private prosecutor shall
first present during the trial the essential witness or witnesses to the case before anyone else.
An essential witness is one whose testimony dwells on the presence of some or all of the
elements of the crime and whose testimony is indispensable to the conviction of the accused.”
95 Id. at 2.
96 CONST. art. II, § 2. Section 2, Article II of the Constitution provides that the
Philippines adopts the generally accepted principles of international law as part of the law of
the land. Thus, the following Principles and Standard Minimum Rules proclaimed by the
United Nations discussed in this article may be considered as part of Philippine law by way of
this constitutional provision.
December 14, 1990. 97 The provisions pertinent to this discussion are as

follows:
4. The responsibility of prisons for the custody of prisoners and for

the protection of society against crime shall be discharged in keeping
with a State's other social objectives and its fundamental responsibilities for
promoting the well-being and development of all members of society.98
Thus, prisoners shall be included in a State’s social objectives for

promoting the well-being and development of all members of society. They
cannot be overlooked by mere reason of their detention.
5. Except for those limitations that are demonstrably necessitated

by the fact of incarceration, all prisoners shall retain the human rights and
fundamental freedoms set out in the Universal Declaration of Human Rights,
and, where the State concerned is a party, the International Covenant on
Economic, Social and Cultural Rights, and the International Covenant on
Civil and Political Rights and the Optional Protocol thereto, as well as such
other rights as are set out in other United Nations covenants.99
With obvious exceptions, detainees do not lose other human rights

and freedoms as provided by the Universal Declaration of Human Rights, as
well as other United Nations covenants, by reason of their detention.100
9. Prisoners shall have access to the health services available in the country
without discrimination on the grounds of their legal situation.101
97 UN Human Rights Office of the High Commissioner [hereinafter “UN
OHCHR”], Basic Principles for the Treatment of Prisoners, U.N. Doc. A/RES/45/111
(1990), available at https://www.ohchr.org/EN/ProfessionalInterest/Pages/
BasicPrinciplesTreatmentOfPrisoners.aspx
98 Id. ¶ 4. (Emphasis supplied.)
99 Id. ¶ 5. (Emphasis supplied.)
100 United Nations General Assembly, Universal Declaration of Human Rights, art.
26, U.N. Doc. A/RES/217(III)A (Dec. 10, 1948). The Universal Declaration of Human
Rights provides: “Everyone has the right to a standard of living adequate for the health and well-being of
himself and of his family, including food, clothing, housing and medical care and necessary social services,
and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other
lack of livelihood in circumstances beyond his control.” (Emphasis supplied.) Applying the
fifth principle of the Basic Principle for the Treatment of Prisoners, one could argue that in
spite of detainment, inmates still possess the right to adequate living conditions to ensure their
health and well-being (including food medical care), as well as the right to security in case of
unforeseen events such as sickness or unemployment, a common scenario during a global
pandemic like that of COVID-19.
101 UN OHCHR, supra note 97, at ¶ 9. (Emphasis supplied.)
The ninth principle may be considered an application of the fifth: a

prisoner’s right to health is not forfeited by mere reason of detention.102 Thus,
if remaining in detention is detrimental to the health of these inmates, the
active decongestion of such facilities should be made a State priority.
2. UN Standard Minimum Rules (“SMRs”) for the

Treatment of Prisoners
The UN SMRs for the Treatment of Prisoners was adopted by the

UN Congress on the Prevention of Crime and the Treatment of Offenders in
1955 and approved in 1977. 103 They aim to set out good and generally
accepted principles and practices in the treatment of prisoners and the
management of penal institutions. 104 The rules pertinent to overcrowded
prisons are those covering accommodation, as follows:
9. (1) Where sleeping accommodation is in individual cells or

rooms, each prisoner shall occupy by night a cell or room by himself. If for
special reasons, such as temporary overcrowding, it becomes necessary for the
central prison administration to make an exception to this rule, it is not
desirable to have two prisoners in a cell or room.105
(2) Where dormitories are used, they shall be occupied by prisoners carefully
selected as being suitable to associate with one another in those conditions.
There shall be regular supervision by night, in keeping with the
nature of the institution.106
10. All accommodation provided for the use of prisoners and in

particular all sleeping accommodation shall meet all requirements of
health, due regard being paid to climatic conditions and particularly to cubic
content of air, minimum floor space, lighting, heating and ventilation.107
These provisions are in stark contrast to the grim depictions of Manila

City Jail and Quezon City Jail earlier provided, where the best case for inmates
is to share a small, makeshift cell, and the worst case is for them to sprawled
102 BJMP, supra note 77; BuCor, supra note 79. In the case of the Philippines, this is
illustrated by the manuals of the BJMP and the BuCor, which both provide that healthcare
services shall be made available to the prisoners, and how both prisons and jails should be
assigned at least one medical officer or doctor, as discussed previously.
103 UN OHCHR, Standard Minimum Rules for the Treatment of Prisoners
[hereinafter “SMRs”] (1955), available at https://www.unodc.org/pdf/criminal_justice/

UN_Standard_Minimum_Rules_for_the_Treatment_of_Prisoners.pdf
104 Id. at 1.
105 Id. at 9(1).
106 Id. at 9(2).
107 Id. at 10.
indiscriminately on the floors and hallways and even bathrooms and

basketball courts. Such an environment is detrimental to their health and well-
being and does not consider the sweltering heat of the Philippine climate,
adequate personal space, and proper ventilation. The Philippine Correctional
System has fallen far behind what is regarded as standard minimum rules in
international law. The way to progress, therefore, is to actively decongest
prisons so that adequate space and other considerations can be afforded to
the detainees.
3. UN SMRs for Non-Custodial Measures
Also known as the Tokyo Rules, the UN SMRs for Non-Custodial

Measures was proclaimed by the UN GA on December 14, 1990. 108 It
provides that pretrial detention109 shall be used as a means of last resort in
criminal proceedings and shall last no longer than necessary to ensure the
protection of society, the prevention of crime, and the promotion of respect
for the law and the rights of victims in a humane manner, all with respect to
the inherent dignity of the detainee.110 It also provides that pretrial detention
may be appealed by the offender.111
108 United Nations Standard Minimum Rules for Non-Custodial Measures
[hereinafter “Tokyo Rules”], U.N. Doc. A/RES/45/110 (1991), available at

https://www.ohchr.org/EN/ProfessionalInterest/Pages/TokyoRules.aspx
109 International Covenant on Civil and Political Rights art. 14(2), Dec. 16, 1966, 999
U.N.T.S. 171; Cagas v. Phil., Comm. 788/1997, U.N. Doc. A/57/40 (2011). Relevant to the
topic of pre-trial detention is Article 14(2) of the International Covenant on Civil and Political
Rights (“ICCPR”), which provides that everyone charged with a criminal offense shall have
the right to be presumed innocent until proved guilty according to law. This right must be
viewed through the lens of Cagas v. Philippines, in which the Human Rights Committee held
that the state had violated the right of the authors under Article 14(2) of the ICCPR by
subjecting them to a period of detention exceeding nine years. It was provided that such a
prolonged detention would violate the fairness of the trial. Thus, the Philippines was obligated
to provide the authors with an effective remedy in the form of adequate compensation for the
time they spent unlawfully detained. Moreover, the Philippines was obligated to ensure that
the authors be tried promptly, and in compliance with all the guarantees provided in Article
14. Should this not be possible, the Committee ruled that such detainees should be released.
110 Tokyo Rules, ¶¶ 6.1-6.2. “6. Avoidance of pre-trial detention. 6.1 Pre-trial
detention shall be used as a means of last resort in criminal proceedings, with due regard for
the investigation of the alleged offence and for the protection of society and the victim. 6.2
Alternatives to pre-trial detention shall be employed at as early a stage as possible. Pre-trial
detention shall last no longer than necessary to achieve the objectives stated under rule 5.1
and shall be administered humanely and with respect for the inherent dignity of human
beings.”
111 Tokyo Rules, ¶ “6.3. The offender shall have the right to appeal to a judicial or
other competent independent authority in cases where pre-trial detention is employed.”

The UN SMRs for Non-Custodial Measures, therefore, serves as a

basis under international law for the decongestion of prisons by providing
that pretrial detention should be the last resort and should not be
unnecessarily prolonged. 112 Keeping in mind that pretrial detainees comprise
75.1% of the total prison population in the Philippines,113 the application of
such provisions in Philippine legislation would greatly reduce the total prison
population in the country and minimize overcrowding in jails.
IV. JUSTICE AND LIBERTY IN THE NEW NORMAL
In Part II, this Essay established that COVID-19 gave rise to new
problems in overcrowded prisons and jails, such as the ineffective
implementation of preventive measures against the novel coronavirus and the
scarcity of facilities and resources. In Part III, it established that the
accelerated decongestion of these prisons and jails has sufficient basis in no
less than the Constitution, specifically in the right against confinement in
substandard or inadequate penal facilities, 114 the right to the speedy
disposition of cases, and the right to a speedy trial.115 The mandates of the
administrative agencies, namely BuCor and the BJMP, also support the
solution of accelerated decongestion, especially at this critical time. Finally,
the issuances of the SC establish that the judiciary has the duty to try criminal
cases as efficiently as possible for the decongestion of jails, now more than
ever before.
In the field of international law, accelerated decongestion finds basis

in the Basic Principles for the Treatment of Prisoners, which upholds the
rights of inmates in spite of their detainment, including their right to access
health services, and the SMRs, which provides that prisoners are entitled to
proper accommodation in terms of space and privacy, in consideration of
their health, and that pretrial detention should be a last resort and not
unnecessarily prolonged.
With regard to the new problems arising from the prevalence of

COVID-19 in prisons, decongestion would not only provide the inmates who
remain within these prisons and jails with more space, resources, and facilities,
but a lower number of detainees would allow for better administration and a
more effective execution of prevention measures within these prisons and
112 Tokyo Rules, ¶ 6.1.

113 World Prison Brief, supra note 10.
114 CONST. art. III, § 19(2).
115 Art. III, § 16.
jails. It would also prevent overfatigue among medical officers and jail aides,
allowing them to better attend to their duties. Since accelerated decongestion
is in the best interest of their health and well-being, the same should be made
a primary objective of the government as we enter the new normal.
As discussed, there is a positive mandate on the part of the legislature

to ensure that penal facilities are adequate up to constitutional standards and
proper sanctions for those who fail to maintain such shall be provided for by
law.116 A bill for accelerated decongestion should therefore be immediately
drafted by Congress. As the President has declared a state of calamity due to
COVID-19, 117 such a bill may be considered a necessity. The bill should
include in its scope the Parole and Probation Administration (DOJ-PPA), as
well as the BPP under the BuCor, 118 which should seek to expedite their
operations and allow for the rapid release of eligible prisoners. The law should
also contain penal statutes for those in charge of these facilities who fail to
comply with the new standards within a certain amount of time.
In the interim, trial court judges should strive for accelerated

decongestion in their respective jails by adhering to the Guidelines for
Decongesting Holding Jails, as directed by OCA Circular No. 91-2020.
Finally, the SC should rule favorably on the petition of Kapatid to

release the elderly, the sick, and low-level offenders,119 based on the reasons
herein provided.
In emphasizing the importance of jail releases in the Philippines,

Amnesty International released a public statement deeming the matter as one
of life or death.120 While this rightly invokes the urgency of the situation, it
also suggests a grim future for the Philippine Correctional System. Instead,
the families of political prisoners offer a more hopeful outlook: standing in
front of the SC in their face masks, holding red-beaded roses crafted by
116Nadate, supra note 59, at 157.

117Proc. No. 929 (2020), declaring a State of Calamity throughout the Philippines
due to Corona Virus Disease 2019.
118 Alvor, supra note 4, at 2-3.
119 Gavilan, supra note 30.
120 Amnesty International, Philippines: Jail Releases a Matter of Life and Death, AMNESTY
INTERNATIONAL WEBSITE, Apr. 21, 2020, at https://www.amnesty.org/

en/documents/asa35/2192/2020/en
prisoners, they call for the release of those who are most vulnerable to the
novel coronavirus.121
Their message is simple: choose to vote for life.122
- o0o -
121Kyle Aristophere Atienza, 'Vote for life': Kapatid urges SC to act on petition for prisoners'
release, RAPPLER, June 17, 2020, at https://amp.rappler.com/nation/264050-
kapatid-asks-supreme-court-act-petition-prisoners-release-coronavirus-pandemic
122 Id.
FAKE NEWS IN THE TIME OF THE PANDEMIC*
Paulo Romeo J. Yusi**
ABSTRACT
Should the State punish fake news? More importantly, can it

validly do so without infringing upon the fundamental right
to freedom of speech? These are just some of the dilemmas
that have colored the past decade. Despite the numerous
heated discussions on the matter, there has yet to be a
consensus among the legal community. Unfortunately, the
tragedy that is the COVID-19 pandemic has changed the
landscape for the time being. The already concerning dangers
of fake news that existed before are now alarming against the
backdrop of a citizenry that is increasingly susceptible to
gullibility because of collective paranoia over the virus. This
paper will thus examine the constitutionality of the
government’s efforts in battling fake news by dissecting the
value (or lack thereof) of fake news in relation to existing free
speech jurisprudence. In so doing, this paper, in the long
term, hopes to contribute a more nuanced discussion to the
developing literature on fake news and, more importantly, a
guiding model for similar governmental regulations in the
future.
I. INTRODUCTION
In early June 2020, a certain Rhemuel Lunio—better known by his

stage alias “DJ Loonyo”—went viral for a video he posted online. In the said
video, he claimed that the wearing of face masks is counterproductive and
dangerous to the wearer. To quote, he said:
Pero sang ayon ako doon na the more you wear the mask, na nakagano’n
parati, kumbaga parang ini-inhale mo 'yung sarili mong utot. Kaya mo nga
* Cite as Paulo Romeo Yusi, Fake News in the Time of the Pandemic, 93 (Special Online
Feature) PHIL. L.J. 238, [page cited] (2020).

** J.D., University of the Philippines College of Law (2021, expected); A.B.
Literature, cum laude, De La Salle University-Manila (2016); Member, Price Media Law Moot
Court Competition (2019-2020); Editorial Assistant, PHILIPPINE LAW JOURNAL Vol. 93.
238
nilalabas ‘yun eh, kaya mo nga nilalabas kasi hindi kailangan ng katawan
mo ‘yun. Kailangan mo ng panibagong, kailangan mo ng oxygen. Ngayon ang
ini-inhale mo parang ano ‘yung poison ang iniinhale sa katawan mo and it
makes your immune system weak.1
Admittedly, Lunio did not claim that people should stop wearing face
masks altogether. He qualified his statement by saying that he simply intended
to advise against the constant wearing of face masks in light of their
supposedly adverse effects. The statement naturally elicited a variety of
reactions on social media, with one person specifically describing the
absurdity of his statement to be “flat earther-like.”2 There is good reason for
this uproar, of course. The wearing of facemasks—which has become the new
normal in the age of COVID-19—does not actually cause hypoxia and/or
hypercapnia.3 No less than the World Health Organization has declared that
“there is no evidence that using face masks for a prolonged period of time
causes any adverse effect on the brain or heart function.”4
It would not be unreasonable to infer that Lunio’s statements were

based on several dubious Facebook posts that heavily circulated the platform
at that time.5 The claims in these posts ranged from the reduction of oxygen
flow to the brain to the outright possibility of death. While it is relieving that
the falsity of such statements was exposed early on, one cannot help but
speculate on the disasters that would have ensued if that was not the case.
False claims are nothing new to social media. The term “fake news”
has been so widely used over the past couple of years that it has been loosely
thrown around by government officials seeking to discredit the integrity of
critics and journalists. However, it is only just now, in the whirlwind of the
pandemic, that its harms have truly dawned on the general public.
1 Triz Pereña, DJ Loonyo goes viral anew because of a video showing him airing his thoughts on
face masks, KAMI, June 4, 2020, at https://www.msn.com/en-ph/entertainment/celebrity/dj-

loonyo-goes-viral-anew-because-of-a-video-showing-him-airing-his-thoughts-on-face-
masks/ar-BB1546Mr
2 Bernie Franco, Lauren Young calls DJ Loonyo “bobo” over his analogy on wearing face mask
for too long, PEP.PH, June 5, 2020, at https://www.pep.ph/news/local/151872/lauren-young-

dj-loonyo-face-mask-a717-20200605-lfrm
3 Loreben Tuquero, FALSE: Prolonged face mask use causes hypoxia, hypercapnia,
RAPPLER, June 5, 2020, at https://www.rappler.com/newsbreak/fact-check/263009-

prolonged-use-face-mask-causes-hypoxia-hypercapnia. “Hypoxia is a condition in which the
body's tissues are starved of oxygen. Hypercapnia means having excessive carbon dioxide in
the bloodstream.”
4 Id.
5 Id.
2020] FAKE NEWS 240
For the longest time, fake news has been tolerated because it is
believed to be “the price we pay for a free society.”6 The freedom of people
to lie and mislead, coupled with the ability of the general populace to discern
between a statesman and a charlatan, is supposedly what democracy is all
about. 7 Certain government officials have even gone as far as citing the
necessity of fake news within the marketplace of ideas.8 These sentiments are
understandable. Regulating speech based on what it said, rather than how it is
said, may constitute a content-based restriction on the freedom of speech9
and may therefore be repugnant to the guarantees of the Constitution.
Currently, the country unfortunately finds itself in a public health

crisis that has claimed the lives of millions, directly and indirectly. People are
no longer going about their day with the same air of nonchalance as they did
prior. Everyone is now teetering on the edge of their seats to take note of
every policy or directive issued by the national government or local
government units (“LGUs”). Every piece of relevant information is clung
onto.
In light of these circumstances, the Bayanihan to Heal As One Act

(“Bayanihan Act”) was passed. Section 6(f) of the law penalizes those who
partake in spreading fake news during the time of the pandemic with
imprisonment of not more than two months and/or a fine of not less than
PHP 10,000.00 but not more than PHP 1,000,000.00. 10 This measure,
however, has elicited strong reactions from some sectors,11 and even high-
ranking government officials, who all insist on its impropriety. 12 This is
precisely what this paper seeks to shed light on.
Part I begins by untangling the often evasive definition of fake news

and attempting to find a definitive meaning of the term. Part II then proceeds
by examining the legal status of fake news under current jurisprudence and
6 Ari Ezra Waldman, The Marketplace of Fake News, 20 U. PA. J. CONST. L. 845, 849
(2018).
Id.
7
Genalyn Kabiling, Fake news part of ‘free marketplace of ideas’ – Roque, MANILA
8
BULLETIN, Jan. 30, 2018, available at https://news.mb.com.ph/2018/01/29/fake-news-part-

of-free-marketplace-of-ideas-roque
9 Chavez v. Gonzales, 569 Phil. 155 (2008).
10 Rep. Act No. 11469 (2020), § 6(f).
11 See Alyssa Mae Clarin, Constitutionality of ‘fake news’ provision can be challenged – lawyer,
BULATLAT, Apr. 2, 2020, at https://www.bulatlat.com/2020/04/02/constitutionality-of-fake-

news-provision-can-be-challenged-lawyer
12 See Hannah Torregaza, Repeal punitive provisions of Bayanihan 1 – De Lima, MANILA
BULLETIN, June 4, 2020, available at https://news.mb.com.ph/2020/06/04/repeal-punitive-

provisions-of-bayanihan-1-de-lima
the constitutional concerns relating to its regulation. It argues that, contrary

to popular opinion, fake news is not within the scope of the marketplace of
ideas and is thus ripe for governmental regulation. Part III then applies
existing free speech tests side by side with several thought experiments to
justify the validity of the criminalization of fake news under the Bayanihan
Act. Part IV then concludes by making recommendations as to similar future
regulations.
II. WHAT IS FAKE NEWS?
The term “fake news” is one that has consistently eluded definition.
Professor Ari Ezra Waldman defines it as “misinformation designed to
mislead readers by looking like and coming across as traditional media.”13 The
problem with this definition, though, is that it is simultaneously too narrow
and overly broad.
The definition is too narrow in the sense that it fails to fully capture
the wide array of forms that false information comes in. For example, Esther
Margaux Uson, more popularly known as “Mocha” Uson, often peddles
misinformation through non-traditional platforms such as Facebook. There
is certainly no question on whether she passes off such misinformation as if
it was done by traditional media—she does not. In fact, one of the reasons
why fake news became so prevalent is because personalities, such as Uson,
have provided alternative outlets that are drastically different from traditional
media; this is the so-called “new fake news.” It is noticeably different from
the passing-off-as-real-news model in the following ways: (a) it is often
produced by individuals, (b) distributed entirely via social networks like
Twitter and Facebook, and (c) relies, for its spread, not on any sort of physical
infrastructure, but rather on the function of those networks, specifically via
“sharing.”14
In light of this “new fake news,” to accept Waldman’s definition of

fake news would not only be restrictive, it would miss the entire societal
context behind fake news in general, i.e. the reliance on alternative sources of
information. Thankfully, the national government, through the National
Bureau of Investigation (NBI), has seemingly taken on a much liberal
interpretation. For instance, the NBI found probable cause that Uson violated
13 Waldman, supra note 6, citing Hunt Allcott & Matthew Gentzkow, Social Media and
Fake News in the 2016 Election, 31 J. ECON. PERSP. 211, 213 (2017).
14 Jessica Pepp, Eliot Michaelson & Rachel Katharine Sterken, What's New about Fake
News, 16 J. ETHICS & SOC. PHIL. 67 (2019).

2020] FAKE NEWS 242
Section 6(f) of the Bayanihan Act based on her Facebook post. The post
attributed to the administration the delivery of some 15,000 sets of personal
protective equipment (“PPE”) to health workers fighting against COVID-19,
when, in reality, the PPEs came from the SM Foundation, Inc.15
Waldman’s definition is likewise too broad because it refers to

misinformation. Misinformation, however, is defined simply as “incorrect or
misleading information.”16 Under this broad umbrella, the term encompasses
even false information that is disseminated or published accidentally or, at
worst, negligently (e.g. because of editorial oversight.) One example would be
a journalist who wrongfully and accidentally tweets about the lifting of curfew.
It would be absurd to refer to the tweet as an act of fake news because the
essence of the term connotes an element of malice. Instead, fake news is better
understood in light of disinformation.
Disinformation is defined as “false information deliberately and

often covertly spread (as by the planting of rumors) in order to influence
public opinion or obscure the truth.” 17 The reason for this viewpoint is
simple: the penalization of fake news should be directed at acts that cause
noticeable harm and disruption to the otherwise healthy functioning of
society. It should not be directed at accidental errors or products of
negligence. This certainly seems to be the position likewise taken by Congress
in the Bayanihan Act. Section 6(f) thereof defines fake news as the act of
“creating, perpetrating, or spreading false information regarding the COVID-
19 crisis on social media and other platforms, such information having no
valid or beneficial effect on the population, and are clearly geared to promote
chaos, panic, anarchy, fear, or confusion.”18
While the provision does not make any express mention of the terms
“deliberate” or “intentionally,” these elements can be implied from the use of
the words “clearly geared.” The inclusion of such words qualifies the mere
creation, perpetration, or spread of false information with an underlying intent
to promote chaos, panic, anarchy, fear, or confusion. It is also clear that the
act must not necessarily lead to the realization of those states; it is enough that
the overt act was coupled with the intent to promote the same.
15 Anjo Alimario & Vince Ferreras, NBI asks Mocha Uson to explain on fake PPE photo,
CNN PHIL., May 13, 2020, at https://www.cnnphilippines.com/news/2020/5/13/NBI-

summons-Mocha-Uson-fake-news-.html
16 Misinformation, MERRIAM-WEBSTER DICTIONARY, available at
https://www.merriam-webster.com/dictionary/misinformation
17 Disinformation, MERRIAM-WEBSTER DICTIONARY, available at
https://www.merriam-webster.com/dictionary/disinformation
18 Rep. Act No. 11469, § 6(f). (Emphasis supplied.)
Under this characterization, people like Lunio can safely claim that
they are not peddlers of fake news because they had no intent to incite chaos
or panic.19 As much as his statements were imprudent, it was simply that: a
lack of care on his part to conduct proper research before making his
statement.
Now that fake news has been defined, the next step is to understand
the reasons behind the steady resistance against its penalization.
III. UNTANGLING THE KNOTS
A. The Story So Far
Upon the passage of the Bayanihan Act, several figures in the legal
community quickly voiced their opposition to Section 6(f) for supposedly
infringing upon the right to freedom of expression. Senator Leila De Lima
argued that it was a form of suppression of freedom of speech, a “martial law
tactic” even.20 National Union of People’s Lawyers President Edre Olalia, on
the other hand, believed that criminalization should not be the answer to the
deliberate spread of false news. Rather, the better solution is “to populate the
space with truth and place safeguards as well as to expose lack of integrity,
reliability and accuracy of the source of fake news.” 21 Some digital rights
advocates had even pushed for the repeal of that specific provision as it
“curtails free expression, including constructive criticisms.”22
19 See Jan Severo, DJ Loonyo apologizes for mass testing remarks, PHIL. STAR, June 3, 2020,
available at https://www.philstar.com/entertainment/2020/06/03/2018475/dj-loonyo-
apologizes-mass-testing-remarks
20 Lian Buan, Bayanihan Act’s sanction vs ‘false’ info the ‘most dangerous,’ RAPPLER, Mar.
29, 2020, at https://www.rappler.com/nation/256256-sanctions-fake-news-bayanihan-act-

most-dangerous
21 Kristine Joy Patag, During state of emergency, ‘Bayanihan’ Act allows imprisonment for false
information, PHIL. STAR, Mar. 25, 2020, available at https://www.philstar.com/headlines/2020/

03/25/2003374/during-state-emergency-bayanihan-act-allows-imprisonment-false-
information
22 Llanesca Panti, Digital rights advocates seek repeal of Bayanihan law provision punishing
“fake news” peddler, GMA NEWS ONLINE, Apr. 1, 2020, at

https://www.gmanetwork.com/news/news/nation/732226/digital-rights-advocates-seek-
repeal-of-bayanihan-law-provision-punishing-ldquo-fake-news-rdquo-peddlers/story
2020] FAKE NEWS 244
These concerns are not unfounded. There is a plethora of free speech

literature that seemingly bestows protected status to fake news.23 The most
prominent among these is the “marketplace of ideas” metaphor, as
conceptualized by Justice Oliver Wendell Holmes, Jr. in his dissent in Abrams
v. U.S.24 Under the marketplace metaphor, bad speech—such as fake news—
shall be quelled not by state action, but rather by the proliferation of good
speech in the hopes of drowning out the former. In the decades that followed,
the Philippine Supreme Court has adopted Holmes’ dissent as one of the
many guiding principles in resolving free speech cases.25
Further support to the position of those against government

regulation is the U.S. landmark case of US v. Alvarez. 26 In that case, the
accused Xavier Alvarez claimed that he had previously served in the U.S.
Marines for 25 years and was awarded the Congressional Medal of Honor for
his efforts. None of these were true, however; and as a result, Alvarez was
convicted of violating the Stolen Valor Act of 2005, which penalized the act
of falsely claiming receipt decorations and/or medals. When the case reached
the Supreme Court, the Court ruled that the said statute was invalid for
running afoul of the constitutional guarantee of free speech. The Court
classified the provisions of the law as a content-based regulation on speech;
and as such, the law bears a heavy presumption of unconstitutionality. In the
absence of any exceptional interest in the circumstances, mere falsity alone
cannot stand as sufficient reason for taking a speech outside the protection of
the First Amendment.27
The Alvarez decision did not come in a moment’s flash. Instead, it was
a concrete affirmation of a libertarian approach to speech that has been
carefully cultivated over the years prior. In Gertz v. Robert Welch, Inc., the Court
proclaimed that “there is no such thing as a false idea.”28 Subsequently, in
Brown v. Hartlage, it was held that erroneous statements are not only tolerable,
but “inevitable in free debate, and it must be protected if the freedoms of
expression are to have the ‘breathing space’ that they need to survive.” 29
23 Alvin Goldman & Daniel Baker, Free Speech, Fake News, And Democracy, 18 FIRST
AMENDMENT L. REV. 66, 73 (2019).

24 Abrams v. United States [hereinafter “Abrams”], 250 U.S. 616 (1919) (Holmes, J.,
dissenting).
25 See Iglesia ni Cristo v. C’t. of Appeals, 328 Phil. 893 (1996); Soriano v. Laguardia,
605 Phil. 43 (2009) (Corona, J., separate); Disini v. Sec’y of Justice, 727 Phil. 28 (2014) (Sereno,
C.J., dissenting and concurring).
26 567 U.S. 709 (2012).
27 Id. at 719.
28 418 U. S. 323, 339 (1974).
29 Brown v. Hartlage, 456 U.S. 45, 60-61 (1982), citing New York Times v. Sullivan,
376 U.S. 254, 271-72 (1964).

Although the Court, in these and many other cases, spoke in excerpts, it
nevertheless laid the groundwork for its ultimate pronouncement in Alvarez
that falsehood is protected speech.
Holmes’ mantra, “that the best test of truth is the power of the
thought to get itself accepted in the competition of the market,”30 for the most
part remains the gold standard in approaching the problem of fake news.
However, practical considerations relative its real-life application have posed
several difficulties in recent years.
The difficulty with placing fake news within the marketplace

metaphor is that it severely restricts what the State can do to combat the
adverse effects of fake news on society. With the advent of social media, fake
news has proliferated at a much higher and faster rate than the normal internet
user can comprehend. This led to the current setup wherein the State
effectively delegates the regulation of these matters to the platforms
themselves.31 Similar to the marketplace metaphor, the entrustment of fake
news regulation to private third-party platforms finds basis in constitutional
law.
It must be emphasized that the current 1987 Constitution was crafted

with the state action doctrine in mind.32 This means that the guarantees of
freedom of speech under the Bill of Rights33 can only be violated by the State
or its agents. 34 On the other hand, private social media platforms are not
constitutionally bound to ensure the unobstructed flow of speech within its
forum.35 In fact, the U.S. Supreme Court echoed this sentiment in the fairly
recent case of Manhattan Access Corp. v. Halleck.36
In that case, the respondent producers were suspended by the

Manhattan Neighborhood Network (“MNN”) after they produced and aired
30 Abrams, 250 U.S. 616, 630 (Holmes, J., dissenting).

31 See Julia Wong, Will Facebook’s new oversight board be a radical shift or a reputational
shield?, THE GUARDIAN, May 7, 2020, available at https://www.theguardian.com/technology/
2020/may/07/will-facebooks-new-oversight-board-be-a-radical-shift-or-a-reputational-
shield. See also Waldman, supra note 6, at 857 where the task of identifying fake news is
entrusted to artificial intelligence.
32 I RECORD CONST. COMM’N 674 (July 17, 1986).
33 CONST. art. III, § 4. But see CIVIL CODE, art. 32 where the infringement of
constitutional rights may give rise to a cause of action for damages.

34 People v. Marti, 271 Phil. 51 (1991).
35 Hilary Hurd, Fake News and the Looming "State Action" Problem, HARV. J. L. & TECH.
DIG. 16 (2019), available at https://jolt.law.harvard.edu/digest/fake-news-and-the-looming-

state- action-problem
36 587 U.S. ____ (2019).
2020] FAKE NEWS 246
a film that was critical of MNN. The producers argued that their rights to
freedom of speech and expression were violated as a result of the content-
based restriction to their access to public access channels. The Court, in a
narrow 5-4 decision, ruled that MNN, being a private platform, does not
qualify as a state actor and thus may validly abridge its producers’ exercise of
freedom of speech.37
However, this setup, despite being a step in the right direction, creates
problems. Regulations by social media platforms lack the teeth that
government regulation would otherwise have. As testament to this, an initial
evaluation of self-imposed social media codes of conduct reveals that
Facebook removed only 28.3% of illegal content within 24 hours. Twitter, on
the other hand, removed only 19.1%.38 It also leads to inevitable conflicts of
interest, because the same false speech which must ideally be regulated also
drives tremendous revenue for the very same platforms.39 Thus, by enacting
Section 6(f) of the Bayanihan Act, the State directly steps in and seeks to plug
these holes.
B. A Different Angle
1. Facts Versus Opinions
Much of the apprehension, if not resistance, against the penalization

of fake news—even in times of national distress—stems from a
misunderstanding of the phenomenon. This misunderstanding lumps fake
news together with the articulation of unpopular opinions, as if the two were
inherently the same—they are not.
Fake news—by its very name—refers to false information, hence the

term “news.” It deals with false facts, rather than contrarian views. Consider
again this statement: “wearing a face mask greatly reduces your oxygen intake.” The
statement is obviously scientifically incorrect. Studies have concretely proven
that wearing a face mask will not have a detrimental effect on one’s health.40
37 Id. at 13-14.
38 Jomari De Leon, Keir Enriquez & Jose Angelo Tiglao, Rise of the Troll: Exploring
the Constitutional Challenges to Social Media and Fake News Regulation in the Philippines, 64 ATENEO
L.J. 150, 202 (2019).
39 See Peter Cohan, Does Facebook Generate Over Half of Its Ad Revenue From Fake News?,
FORBES, Nov. 25, 2016, available at

https://www.forbes.com/sites/petercohan/2016/11/25/does-facebook-generate-over-half-
its-revenue-from-fake-news/#4a6b17d7375f
40 See Jack Goodman & Flora Carmichael, Coronavirus: ‘Deadly masks’ claims debunked,
BBC NEWS, June 20, 2020, at https://www.bbc.com/news/53108405

That statement, if coupled with an intent to cause harm, would constitute fake
news insofar as it purports to be a factual claim on a certain point. It does not
carry any value judgment because it attempts to draw a virtual line between
what is correct (that a face mask will reduce your oxygen intake) and incorrect
(that a face mask will not reduce your oxygen intake).
Compare that now to this statement: “I will not wear a mask because I
believe it will impair my ability to properly breathe.” This second statement does not
try to proclaim the factuality of the matter. It simply articulates one’s ill-
informed belief based on his own appreciation of the circumstances and his
discretion.
When Human Rights Watch Asia Deputy Director Phil Robertson

claimed that Section 6(f) is “over-broad and can easily be misused by
Philippine authorities to crack down on online criticism of government
efforts,” 41 he was referring to the latter type of speech which deals with
thoughts and opinions. Fake news, as contextualized under Section 6(f),
however, refers strictly to cold hard facts. It does not cover criticisms of
government initiatives and responses. Thus, while deliberately posting and
spreading on social media that “provincial buses can now resume operations”42 may
possibly incur make a person liable under the Bayanihan Act, claiming that
“the national government and LGUs should start processing the resumption of provincial
bus operations”43 will not.
2. A Marketplace Irregularity
With that misunderstanding hopefully clarified, fake news can now be

seen for what it truly is: an anomaly in the marketplace of ideas, rather than a
vital component thereof.
One way around the marketplace barrier is that, like an economic

marketplace, the marketplace of ideas may be susceptible to market failure.
The reason for this is that the overcrowding of the marketplace with
intentional lies and deliberate falsehoods for the purpose of confusing and
sowing panic may plausibly lead to its outright collapse.44 In support of this
proposition, a recent study conducted by researchers at the Massachusetts
41Patag, supra note 21.

42But see Raymond Carl Dela Cruz, No city, prov’l buses in 1st phase of Metro Manila GCQ,
PHIL. NEWS AGENCY, May 29, 2020, at https://www.pna.gov.ph/articles/1104330
43 Rhaydz Barcia, After Silvertino death, resumption of provincial bus operations pushed,
RAPPLER, June 17, 2020, at https://www.rappler.com/nation/264030-after-silvertino-death-

resumption-provincial-bus-operations-pushed
44 Waldman, supra note 6, at 863.
2020] FAKE NEWS 248
Institute of Technology found that, among 126,000 true and false stories
tweeted by more or less 3 million people around 4.5 million times, false stories
diffused “farther, faster, deeper, and more broadly than the truth in all
categories of information.”45
Regardless of such compelling reasons to declare fake news as a cause

of market failure, both the Philippine and U.S. Supreme Courts already seem
decided that it is not so. A more potent argument then may be to challenge
the inclusion of fake news in the marketplace head-on.
It must be noted that Abrams, the original source of the marketplace

of ideas concept, was directly concerned with circulars intended to provoke
and encourage resistance to the war against Germany by advocating for
general worker strikes in ammunition factories.46 It is apparent, therefore, that
when Justice Holmes spoke of good speech drowning out the strength of bad
speech, he was referring to the unpopularity of the anti-war advocacies which
were manifested through the said circulars. He was not referring to
demonstrable falsehoods rising to the level of fact. His invocation of truth in
the line “that the best test of truth is the power of the thought to get itself
accepted in the competition of the market” 47 must be understood in the
context of consensus victory in the marketplace instead of factual certainty.
Take for example the teaching of astrology. Astrology is the study of

the movements and positions of the sun, moon, planets, and stars in the belief
that they affect the character and lives of people. 48 It is now universally
considered as pseudoscience because of the lack of hard evidence as to its
authenticity. 49 In any case, claiming that astrology has succeeded in the
marketplace of ideas does not make them any more true than the claims of
phrenology, which succeeded in the public and scientific marketplace of ideas
in the 19th century, even though they are now widely understood to be plainly
false.50 What would be within the scope of the marketplace is the viability of
astrology as a possible pastime, but never as an accurate science at the same
level as medicine or psychology.
45 Soroush Vosoughi, Deb Roy & Sinan Aral, The Spread of True and False News Online,
359 SCIENCE 1146, 1147 (2018).

46 Abrams, 250 U.S. 616, 616.
47 Id. at 630.
48 Astrology, CAMBRIDGE ENGLISH DICTIONARY, available at
https://dictionary.cambridge.org/us/dictionary/english/astrology
49 Paul Thargard, Why Astrology Is A Pseudoscience, 1 PSA: PROCEEDINGS OF THE
BIENNIAL MEETING OF THE PHILOSOPHY OF SCIENCE ASSOCIATION 223, 223 (1978).

50 Frederick Schauer, Facts and the First Amendment, 57 UCLA L. REV. 897, 908 (2010).
Indeed, demonstrable falsehoods were never part of the intellectual

tradition of the marketplace metaphor.51 To say otherwise would confirm the
much maligned saying that “[i]f you tell a lie big enough and keep repeating it,
people will eventually come to believe it.”52 The marketplace speaks of ideas
and advocacies couched in the tangibility of speech, hence the name
“marketplace of ideas.” To include falsehoods therein would dilute the essence
of the doctrine, precisely because falsehoods hold no essential value to any
discourse.53 The marketplace of ideas should always be restricted to speech
which holds a certain degree of value, no matter how popular or unpopular it
is. This virtual townhall was created for the purpose of engaging discussions
from different contrasting, and even clashing, ideas. It was not meant to foster
ridiculous debates about immovable facts. Unless people collectively concede
that falsehoods possess even an iota of contributable value, then the
marketplace of ideas should remain closed and uninhabitable to perpetrators
of fake news.
IV. ADDRESSING THE PROBLEM
Arguing why fake news is outside the ambit of the marketplace of

ideas is one thing, but explaining why it is just that it be penalized is another
thing altogether. After all, the constitutional framework for free speech sets
out that all types of speech are generally considered protected, unless
otherwise declared. In determining whether speech is protected or not, the
Philippine Supreme Court has adopted several jurisprudential tests from the
U.S. The “dangerous tendency” rule initially found favor in early Philippine
jurisprudence. However, more recent decisions have preferred the “clear and
present danger” rule adopted in Schenck v. U.S.54 as the primary test.55
In passing upon the constitutionality of a statute under the “clear and

present danger” test, the question that must be asked in every case is “whether
the words are used in such circumstances and are of such nature as to create
51 Waldman, supra note 6, at 866.

52 The quote has often been attributed to Nazi Minister of Propaganda Joseph
Goebbels. However, there is no actual evidence that Goebbels had made such a statement.
Nevertheless, the overall concept of the “Big Lie” as a propaganda technique was originally
coined by Adolf Hitler in his book Mein Kampf; See ADOLF HITLER, MEIN KAMPF 176 (James
Murphy trans., 1939) (1925).
53 Hustler Magazine v. Falwell, 485 U.S. 46, 52 (1988).
54 Hereinafter “Schenck.” 249 U.S. 47 (1919).
55 JOAQUIN BERNAS, S.J., THE 1987 CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES: A COMMENTARY 252 (2009). See also De Leon, Enriquez & Tiglao, supra note 38,
at 208.
2020] FAKE NEWS 250
a clear and present danger that they will bring about substantive evils that
Congress has a right to prevent.”56 If the speech presents a clear and present
danger, then the statute will be deemed constitutional. It is thus a question of
proximity and degree. 57 Applying this framework to the current COVID-19
crisis, the need for congressional intervention, through the Bayanihan Act, is
unmistakable.
First, the issue of proximity herein is palpable. The pandemic has left
Filipinos greatly immobilized and restricted in their actions due to the
imposed quarantine measures. Many businesses have suffered irreparable
losses at best and have been forced to shut down at worst. 58 As a result,
everyone is on the edge of their seats as to the next steps that the government
plans to take. Thus, each piece of information relating to the pandemic is
immediately consumed by the general populace. A prime illustration of just
how quickly this consumption of information takes place is the spread of
Facebook graphics, attributed to local Nueva Ecija station TV48, detailing the
alleged extension of the Enhanced Community Quarantine (“ECQ”), which
was slated to end on May 15, to May 25. In some iterations of the graphics,
the extension was until May 30. 59 However, when these graphics initially
spread, the Inter-Agency Task Force had not yet made any recommendations
on whether to extend the ECQ or not.60 Nonetheless, that did not stop people
on social media from sharing the said posts constantly, much to the confusion
of many others. Like yelling fire in a crowded theater,61 the spread of these
fake graphics quickly resulted in a state of panic among the general populace.
The spread of the said graphics was not an isolated incident. Back in
April, rumors of the President potentially announcing a total lockdown
circulated on Facebook timelines and chat groups of messaging applications.62
56 Gonzales v. Comm’n on Elections, 137 Phil. 471 (1969), citing Schenck, 249 U.S.
47, 52.
57 Schenck, 249 U.S. 47, 52. (Emphasis supplied.)
58 See Bernadette Nicolas & Jovee Dela Cruz, With P465-billion small business losses, relief
pushed, BUSINESS MIRROR, Apr. 27, 2020, available at
https://businessmirror.com.ph/2020/04/27/with-p465-billion-small-business-losses-relief-
pushed; Lino Guevarra, Easing the closing of business due to Covid-19, BUSINESS MIRROR, available
at https://businessmirror.com.ph/2020/07/07/easing-the-closing-of-business-due-to-covid-
19
59 Loreben Tuquero, FALSE: Enhanced community quarantine extended after May 15,
RAPPLER, May 8, 2020, at https://www.rappler.com/newsbreak/fact-check/260245-

enhanced-community-quarantine-extended-after-may-15-2020
60 Id.
61 Schenck, 249 U.S. 47, 52.
62 Pauline Macaraeg FALSE: Duterte to declare total lockdown, close all establishments,
RAPPLER, Apr. 16, 2020, at https://www.rappler.com/newsbreak/fact-check/258113-

duterte-declare-total-lockdown-close-all-establishements
The fear that such rumors instilled in people fanned so quickly that the
Philippine National Police had to debunk the claims on their own Facebook
page for the sake of public order.63
Likewise, in mid-March, several posts popped up on Facebook

claiming that the President had ordered a mandatory one month “no work
with pay” policy for businesses.64 The posts, which were accompanied by a
manipulated screenshot of the President during one of his nightly addresses,
remained in circulation on social media at least until April 7.65
Second, the proliferation of fake news in the time of the pandemic

would produce severe repercussions if left unchecked. Imagine a series of false
posts claiming that asymptomatic carriers of the virus cannot transmit the
same to healthy third persons. 66 The posts will heavily circulate on social
media and on messaging applications; and as a result, tens of thousands of
people become complacent in public interactions, from not wearing face
masks to no longer observing proper social distancing precautions. Because
of these actions, there could be a sudden spike in new COVID-19 cases,
resulting in the deaths of hundreds and the hospitalization of thousands more.
The government may then be forced to impose another month-long ECQ,
much to the disadvantage of small businesses and minimum wage workers.
While that scenario is hypothetical, the dangers that fake news poses
during the pandemic are certainly not. No less than the Supreme Court has
recognized that a rally permit can be denied on the grounds of a clear and
present danger to public safety and public health.67 If such is the case for
rallies—which are lawful exercises of the people’s right to peaceably
assemble68—what more for fake news, which is inimical to the marketplace
of ideas and of no considerable benefit to society? The pandemic and the
casualties it has left in its trail on all fronts make congressional response not
just desirable, but rather crucial.
63 Id.
64 Loreben Tuquero, FALSE: Duterte orders mandatory ‘no work, with pay’ policy for a
month, RAPPLER, April 10, 2020, at https://www.rappler.com/newsbreak/fact-check/257543-
duterte-orders-mandatory-no-work-with-pay-policy-for-month
65 Id.
66 See Agence France-Presse, WHO clarifies COVID-19 ‘very rare’ transmission remarks,
INQUIRER.NET, June 10, 2020, available at https://newsinfo.inquirer.net/1289266/who-

clarifies-covid-19-very-rare-transmission-remarks
67 Bayan v. Ermita, 522 Phil. 201 (2006).
2020] FAKE NEWS 252
However, it must be noted that, despite the need to address the plague
that is fake news, the method by which it is achieved must be narrowly tailored
to fulfill the compelling state interest.69 In this case, Section 6(f) penalizes
“[i]ndividuals or groups creating, perpetrating, or spreading” fake news. In
keeping with the Court’s ratio in Disini v. Secretary of Justice,70 such line must be
construed to attach liability only to the original authors and propagators of
the false information, but not to those who find themselves “liking,”
“sharing,” or “commenting” on the same. This is especially true with respect
to the term “spreading.” Despite the general understanding of the word, it
must not be interpreted in such a manner that would produce a chilling effect
on the exercise of online speech. Rather, the term, at most, should be
interpreted as strictly referring to people who, although not the principal
authors of the fake news, are nevertheless intentionally privy and essential to
the deliberate spread of the same—similar to the concept of principals by
indispensable cooperation.71
V. CONCLUSION
A. Understanding the Reservations
Most of the opposition to Section 6(f) appears to be fixated not at the

legal theory behind the provision itself, but rather at the possible abuses that
may occur as a result of its enforcement. These are understandable concerns,
if not fears, especially in light of the various controversies that surrounded the
passage of the Bayanihan Act72 and its inherent potential as a tool for silencing
controversial statements.73 However, those are different stories for a different
time altogether.
Outside of concerns against the implementation of Section 6(f), it

would be hard to argue against the harms that fake news has caused, not just
69Samahan ng Mga Progresibong Kabataan v. Quezon City, 815 Phil. 1067 (2017).
70727 Phil. 28 (2014).
71 REV. PEN. CODE, art. 17 (3). Principals by indispensable cooperation are “[t]hose
who cooperate in the commission of the offense by another act without which it would not
have been accomplished.”
72 See Julie McCarthy, Concerns In Philippines After Duterte Given Emergency Powers To
Fight COVID-19 Spread, NAT’L PUBLIC RADIO, Mar. 4, 2020, at

https://www.npr.org/sections/coronavirus-live-
updates/2020/03/24/820906636/concerns-in-philippines-after-duterte-given-emergency-
powers-to-fight-covid-19-s
73 Ryan Macasero, Human rights orgs urge gov’t to drop charges vs Cebu artist Bambi Beltran,
RAPPLER, Apr. 23, 2020, at https://www.rappler.com/nation/258841-human-rights-orgs-

drop-charges-cebu-artist-bambi-beltran
during the pandemic, but in the past several years. For instance, studies show
that once fake news is posted and allowed to spread, even retractions are ill-
equipped to change the minds of people as to the veracity of the false
information. 74 With the threat of the virus ever so present, this already
concerning danger is stretched to its extreme.
B. Looking Back, Moving Forward
It is important to point out that the main reason why Section 6(f)
survives constitutional muster is that it contains a sunset clause, with the
Bayanihan Act’s effectivity limited to only three months from the date of
publication.75 Without that specific caveat, Section 6(f) becomes a blanket
regulation of fake news. If that is the case, the provision then becomes
constitutionally suspect as neither the elements of proximity nor degree would
appear to be present. In short, there would be no clear and present danger
warranting congressional action, since the tensions and anxieties that have
defined the current pandemic will no longer be looming over the horizon.
The same principle goes not just for the current pandemic, but for all
future attempts at governmental regulation of fake news. It should be limited
only to exceptional circumstances, such as wars and pandemics, to name a
few. Schenck after all was born as a matter of wartime necessity.76
However, that does not and should not change the fact that fake news
offers no considerable value to the marketplace of ideas. While value
judgments can fight it out for supremacy in the marketplace, fake news and
established facts cannot. This is all the more true in times of great urgency.
To believe otherwise would be to infuse the democratic underpinnings of the
marketplace of ideas with established undemocratic practices.
-o0o-
74 See Lynn Hasher, David Goldstein & Thomas Toppino, Frequency and the Conference
of Referential Validity, 16 J. VERBAL LEARNING & VERBAL BEHAV. 107, 111-12 (1977); see also
Norbert Schwarz et al., Metacognitive Experience sand the Intricacies of Setting People Straight:
Implications for Debiasing and Public Information Campaigns, 39 ADVANCES EXPERIMENTAL SOC.
PSYCH. 127, 152 (2007).
75 Rep. Act No. 11469 (2020), § 9.
76 Schenck, 249 U.S. 47, 52. “When a nation is at war many things that might be said
in time of peace are such a hindrance to its effort that their utterance will not be endured so
long as men fight and that no Court could regard them as protected by any constitutional
right.”
COLLEGE OF LAW
UNIVERSITY OF THE PHILIPPINES
FACULTY
FIDES C. CORDERO-TAN, B.S., LL.B., Dean

JAY L. BATONGBACAL, B.A., LL.B., M.M.M., J.S.D., Associate Dean
PROFESSORS OF LAW
ELIZABETH H. AGUILING-PANGALANGAN, B.A., LL.B., LL.M.

DANTE B. GATMAYTAN, B.S., LL.B., M.S.E.L., LL.M.
RAUL C. PANGALANGAN, B.A., LL.B., LL.M., J.S.D. (Secondment)
PATRICIA ROSALIND P. SALVADOR-DAWAY, B.A., LL.B.
ASSOCIATE PROFESSORS OF LAW
VICTORIA A. AVENA, B.F.A., LL.B., LL.M.

EVELYN (LEO) D. BATTAD, B.S., B.A., LL.B., LL.M.
ROWENA E.V. DAROY-MORALES, B.A., LL.B.
JOSE JESUS M. DISINI, JR., B.S., LL.B., LL.M.
MA. GISELLA N. DIZON-REYES, B.A., LL.B., M.P.A.
VIRGILIO S. JACINTO, B.A., LL.B., LL.M.
HECTOR DANNY D. UY, B.A., LL.B., M.A.
ASSISTANT PROFESSORS OF LAW
EMERSON S. BAÑEZ, B.A., LL.B., LL.M.

ROMMEL J. CASIS, B.A., LL.B., LL.M.
SOLOMON F. LUMBA, B.S., LL.B.
RYAN P. OLIVA, B.A., J.D.
NICHOLAS FELIX L. TY, B.S., LL.B., LL.M.
EDGARDO CARLO L. VISTAN II, B.S., LL.B., LL.M.
LECTURERS & PROFESSORIAL LECTURERS
EDUARDO JUAN F. ABELLA, B.S., LL.B. JACQUELINE JOYCE F. ESPENILLA, B.A., J.D., LL.M. SANDRA MARIE G. OLASO-CORONEL, B.A., LL.B.
EDWIN R. ABELLA, B.S., LL.B., LL.M. ERIC ROSAURO G. ESPIRITU, B.A., LL.B. FROILYN D. PAGAYATAN, B.A., LL.B.
ZARDI MELITO D. ABELLERA, B.A., LL.B. ALEX FERDINAND S. FIDER, B.A., LL.B., LL.M. ANDRE C. PALACIOS, B.S., LL.B., LL.M.
PACIFICO A. AGABIN, B.S.J., LL.B., LL.M., J.S.D. LUIS JOSE P. FERRER, B.S., LL.B. RENATO M. PAMBID, B.A., LL.B.
OSWALDO D. AGCAOILI, B.S., LL.B. ROBERTO L. FIGUEROA, B.A., LL.B., LL.M. DIVINA GRACIA E. PEDRON, B.A., LL.B.
LEANDRO ANGELO Y. AGUIRRE, B.S., J.D., LL.M. EMMA C. FRANCISCO, B.A., LL.B. ANTONIO C. PIDO, B.S., LL.B.
RAMON QUINTIN CLAUDIO C. ALLADO, B.S., LL.B. DONNA Z. GASGONIA, B.A., LL.B., LL.M. MARIA CELIA H. POBLADOR, B.A., J.D., LL.M.
JOSEPH EMMANUEL L. ANGELES, B.S., LL.B., LL.M., Ph.D. MIA G. GENTUGAYA, B.A., LL.B. RONALD D. POLICARIO, B.S., LL.B.
EMERSON B. AQUENDE, B.S., LL.B. RENO R. GONZALES, JR., B.A., LL.B. PATRICIA ANN T. PRODIGALIDAD, B.S., LL.B., LL.M.
AUGUSTO JOSE Y. ARREZA, B.A., LL.B. RENE B. GOROSPE, B.A., LL.B. ELIZABETH R. PULUMBARIT, B.S., LL.B.
ARTHUR P. AUTEA, B.A., LL.B. JAMES DENNIS C. GUMPAL, B.S., LL.B., M.D., LL.M. ROGELIO V. QUEVEDO, B.A., LL.B., LL.M., J.S.D.
RAYMOND MARVIC C. BAGUILAT, B.A., J.D., LL.M. TERESITA J. HERBOSA, B.A., LL.B., M.C.L. GRACE P. QUEVEDO-PANAGSAGAN, B.A., LL.B.
HERMINIO C. BAGRO III, B.A., J.D., M.P.A. CONCEPCION L. JARDELEZA, B.A., LL.B. MARIE CECILE R. QUINTOS, B.A., LL.B.
RUBEN F. BALANE, B.A., LL.B. ILDEFONSO R. JIMENEZ, B.S., LL.B. JHOEL P. RAQUEDAN, B.S., LL.B.
LORYBETH BALDRIAS-SERRANO, B.S., LL.B. MARK DENNIS Y.C. JOVEN, B.S., LL.B., LL.M. SALMA PIR T. RASUL, B.S., LL.B.
CARLOS G. BANIQUED, B.A., LL.B., LL.M. ARMINA DIELLE R. KAPUNAN, B.A., J.D. JANNET C. REGALADO, B.A., LL.B.
LAI-LYNN ANGELICA B. BARCENAS, B.S., LL.B., M.A. ROSE MARIE M. KING-DOMINGUEZ, B.A., LL.B. GILBERT RAYMUND T. REYES, B.S., LL.B.
PETER DONNELY A. BAROT, B.A., LL.B., LL.M. KESTERSON T. KUA, B.S., J.D. ROCKY D.L. REYES, B.A., LL.B., LL.M.
CHRYSILLA CARISSA P. BAUTISTA, B.A., LL.B., LL.M. ANTONIO G.M. LA VIÑA, B.A., LL.B., L.L., J.S.D RAFAEL DANILO RANIL M. REYNANTE, A.B., LL.B.
ROSA MARIA J. BAUTISTA, A.A., LL.B., LL.M. EDUARDO A. LABITAG, B.A., LL.B., LL.M. CHARLTON JULES P. ROMERO, B.A., LL.B., M.B.A.
MARIA EMILYNDA JEDDAHLYN PIA V. BENOSA, B.A., J.D. CARINA C. LAFORTEZA, B.S., LL.B. JOSEPHINE P. RIMA-SANTIAGO, B.S., LL.B., LL.M.
DARLENE MARIE B. BERBERABE, B.A., LL.B. CHRISTOPHER JOHN P. LAO, B.A., J.D. DENNIS S. SABADO, B.A., LL.B.
MARK R. BOCOBO, B.S., LL.B. ARLENE G. LAPUZ-URETA, B.A., LL.B. RODERICK R.C. SALAZAR III, B.A., LL.B.
ROENTGEN F. BRONCE, B.A., J.D. MA. TANYA KARINA A. LAT, B.S., LL.B., LL.M. SERAFIN U. SALVADOR, JR., B.A., LL.B., M.B.A.
PURISIMO S. BUYCO, B.A., LL.B. JOSE C. LAURETA, B.A., LL.B., LL.M. TRANQUIL S. SALVADOR III, B.A., J.D.
ALFREDO R. CABEZA, LL.B. JOSE M. LAYUG, JR., B.S., LL.B., LL.M. JOSE S. SAMSON III, B.A., LL.B.
MARISSA O. CABREROS, B.S., J.D., M.P.M. MA. CAROLINA T. LEGARDA, B.A., LL.B. MICHELLE B. SAN BUENAVENTURA-DY, B.A., LL.B.
BERNARDO D. CALDERON, A.B., LL.B. LUISITO V. LIBAN, B.S., LL.B. DIONNE MARIE M. SANCHEZ, B.S., LL.B.
DAN P. CALICA, B.A., LL.B. MA. THERESA G. LIBUNAO, B.A., LL.B. ARNO V. SANIDAD, B.A., LL.B.
OTHELO C. CARAG, B.A., B.S.B.A.A., LL.B., LL.M. ANNA THERESA L. LICAROS-LIM, B.A., J.D. TEODULO G. SAN JUAN, JR., B.A., LL.B.
JAIME FORTUNATO A. CARINGAL, B.A., LL.B., LL.M. DANIEL D. LISING, B.S., M.S., M.D., J.D., LL.M. BERTRAND THEODOR L. SANTOS, B.A., LL.B.
SALVADOR T. CARLOTA, B.S., LL.B., LL.M. GLENDA T. LITONG, B.A., LL.B., LL.M. NEIL SIMON S. SILVA, B.A., LL.B.
ARNEL PACIANO D. CASANOVA, B.A., LL.B., M.A. MARWIL N. LLASOS, B.A., M.A., LL.B., LL.M. SIMONETTE E. SIBAL-PULIDO, B.A., LL.B.
CELESTE RUTH L. CEMBRANO-MALLARI, B.A., LL.B., LL.M. VICTORIA V. LOANZON, B.A., M.A., LL.B. FRANCIS V. SOBREVIÑAS, B.S., LL.B., LL.M.
GERARD L. CHAN, B.S., LL.B., LL.M., M.B.A. JOSE MARTIN A. LOON, B.A., J.D., LL.M. RONALD O. SOLIS, B.S., LL.B.
MA. GABRIELA R. CONCEPCION, B.A., LL.B. JHOSEP Y. LOPEZ, B.A., LL.B. PAOLO EMMANUEL S. TAMASE, B.S., J.D.
ROMMEL V. CUISON, B.A., LL.B. JOHANNA ALERIA P. LORENZO, B.S., J.D., LL.M., J.S.D MARY ROSE S. TAN, B.A., LL.B., LL.M.
DEMETRIO C. CUSTODIO, JR., B.A., LL.B., M.B.A. DINA D. LUCENARIO, B.A., LL.B. FINA BERNADETTE D. TANTUICO, B.A., LL.B.
RHEY DAVID S. DAWAY, B.S., M.S., LL.B. MERLIN M. MAGALLONA, A.A., LL.B. THEODORE O. TE, B.A., LL.B., LL.M.
HECTOR M. DE LEON, JR., B.A., LL.B., LL.M. CATHERINE T. MANAHAN, B.A., LL.B. MICHAEL T. TIU, JR., B.A., J.D., LL.M.
SENEN AGUSTIN S. DE SANTOS, B.A., LL.B. DONNA PATRICIA C. MANLANGIT, B.A., M.A., J.D. CRISOSTOMO A. URIBE, B.A., LL.B.
GABRIEL A. DEE, B.A., LL.B. MONICA JOY M. MARCELO, B.A, J.D. FLORDELIZA C. VARGAS-TRINIDAD, B.A., LL.B.
ARNOLD F. DE VERA, B.S., LL.B., LL.M. MA. SOLEDAD D. MAWIS, B.A., LL.B. RAUL T. VASQUEZ, B.A., LL.B.
GWEN B. GRECIA-DE VERA, B.A., LL.B., LL.M. CRESENCIO T. MENESES I, B.S., LL.B., LL.M. SUSAN D. VILLANUEVA, B.A., LL.B., LL.M.
NILO T. DIVINA, B.A., LL.B. MA. GOLDA GIGI G. MIÑOZA, B.A., J.D. ERNESTINE CARMEN JO D. VILLAREAL-
ANZEN P. DY, B.A., LL.B. MARTIN D. MIJARES, B.A., B.S., LL.B. FERNANDO, B.A., LL.B.
VICTOR Y. ELEAZAR, B.A., LL.B., LL.M., M.P.A. ALFREDO B. MOLO III, B.A., LL.B., LL.M. DENNIS M. VILLA-IGNACIO, LL.B.
EDUARDO C. ESCAÑO, B.A., LL.B. RAFAEL A. MORALES, B.A., LL.B., LL.M. VIRGINIA B. VIRAY, B.S., LL.B., M.P.A.
ELVIRA V. ESCUETA-DUAVIT, B.S., LL.B. SALVADOR II N. MOYA, B.S., LL.B., LL.M. RODOLFO R. WAGA, JR., B.A., LL.B.
AISSA V. ENCARNACION, B.S., LL.B. ALBERTO T. MUYOT, B.A., LL.B., LL.M. ANTHONY CHARLEMAGNE C. YU, B.A., LL.B., LL.M
RAMON S. ESGUERRA, B.A., LL.B. CHRISTOPHER LOUIE D. OCAMPO, B.A., J.D., LL.M.

PLJ Special Online Feature On COVID-19 and The Law

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

PLJ Special Online Feature On COVID-19 and The Law

Uploaded by

Copyright:

Available Formats

FOREWORD

THE POST-COVID WORLD WHERE

FAKE NEWS IN THE TIME OF THE PANDEMIC

VOLUME 93 AUGUST 2020 SPECIAL ONLINE FEATURE

VOLUME 93 AUGUST 2020 SPECIAL ONLINE FEATURE

DEANNA CLARISSE M. HECETA

Communications of either an editorial or business nature should be addressed to the PHILIPPINE

VOLUME 93 EDITORIAL ASSISTANTS

Stephanie Kate A. Agor Carriz Andrea F. Nana

VOLUME 93 AUGUST 2020 SPECIAL ONLINE FEATURE

FOREWORD: THE POST-COVID WORLD

LABOR ISSUES IN THE TIME OF COVID-19: FROM ECQ,

THE EXECUTIVE & LOCAL GOVERNMENTS VERSUS

PHILIPPINE HUMAN RIGHTS IN THE TIME OF PANDEMIC: ANALYZING

(UN)FORTUITOUS EVENT: THE COVID-19 PANDEMIC

COMPETITION AND GOVERNMENT RESPONSE

THE DEMAND AND SUPPLY OF HUMANITY: ON THE LEGALITY

A PANDEMIC OF MISINFORMATION: LEGAL ISSUES CONCERNING

OF BASELESS ARRESTS AND COVID-19:

VOLUME 93 AUGUST 2020 SPECIAL ONLINE FEATURE

PROTECTING RIGHTS WHILE PROTECTING LIVES: PERMISSIBLE

TIPPING POINT: WILL THE PANDEMIC MAINSTREAM ONLINE

A FRAMEWORK FOR ANALYZING THE LEGALITY OF

LIFE AND DEATH SENTENCE: A CASE FOR THE ACCELERATED

FAKE NEWS IN THE TIME OF THE PANDEMIC 238

Local Subscription Rate: Foreign Subscription Rate:

Economic theory suggests that if markets are “perfect”—buyers and

It is this last assumption that fails miserably in the post-COVID

The end of the pandemic remains unknown. While we certainly

(2019-2022); Commissioner, Philippine Competition Commission (2016-2019); Professor,

Uncertainty is the biggest enemy in the post-COVID world. With

Thus, the required response is Keynesian: the government must

Stimulus for the Economy of the Philippines.

With increased government spending, the hope is to reduce

The other noteworthy economic concern in the time of COVID-19

Again, the solution requires regulation. As a first step, the lockdown

Nonetheless, the classic solution to any free-rider problem is

From the lens of an economist and lawmaker, this Special Online

Amidst the pandemic, law and economics continue to intersect in

CLPP reminds us of the relevance of competition law in promoting consumer

In her essay A Pandemic of Misinformation: Legal Issues Concerning

Businesses, which thrive on predictability and thus prefer to avoid

The education sector is one of those most critically impacted by

While the classic economic response to uncertainty by the State is

The advent of a COVID-19 vaccine hinges heavily on research and

Perhaps the most powerful approach to curbing the free-riding

Similarly, in Of Baseless Arrests and COVID-19: A Tale of Two Pandemics,

Finally, with the ongoing lockdown, millions of Filipinos have lost

With the recent controversy on the increasing number of deaths

Is the Commission on Human Rights (CHR) fully equipped to protect

Dear reader, these are 13 excellent essays, well-written and highly

Anna Maria D. Abad**

After various medical associations called for the imposition of stricter

As of August 4, 2020, the Department of Health (DOH) reported

Naturally, the priority of the Philippine government has been in

INQUIRER.NET, Aug. 1, 2020, available at https://newsinfo.inquirer.net/1315204/medical-

stricter MECQ for two weeks, PCOO WEBSITE, Aug. 3, 2020, at

Management of Emerging Infectious Diseases (IATF) in preparing a “multi-

While the COVID-19 pandemic is primarily a public health issue, the

The National Capital Region (“Metro Manila”) is considered to be the

Public transportation was halted during ECQ and MECQ. 9 Mass

supported the Philippine Response, WHO WESTERN PACIFIC, May 9, 2020, at