THE LEGAL PERSPECTIVE ON THE UNCONSTITUTIONAL

QUESTION OF BAYANIHAN “to heal as One’’ ACT (R.A 11469)

I. INTRODUCTION

As of writing, the world is currently facing an uphill battle against the novel
coronavirus pandemic, most commonly known as COVID-19. COVID-19 is an infectious
disease caused by a new strain of coronavirus. This virus is unknown before the outbreak that
began in Wuhan, Chinain December 2019 (WHO, 2020). Since then this global pandemic is
wreaking havoc not only in countries’ health care system, but also in their own respective
economies. Although mankind has faced several pandemics over the last century, COVID-19 is
the worst since the 1918 Spanish influenza. On 31 March 2020, Morningstar (2020), an
independent research firm, predicted that global GDP would decline by as much as 1.4%,
implying a recession at par with the 2008 Global Financial Crisis. This is a big change compared
from the 3.4% global growth it initially predicted for 2020.With regard to fatality, Dr. Anthony
Fauci, director of the US National Institute of Allergy and Infectious Diseases, projects the
fatality rate in the US to be about 1%, which is still about 10 times the fatality rate of a typical
seasonal influenza of 0.1% (Terry, 2020) In our country, the University of the Philippines (UP),
predicts a total of 29,500 total cases with 9,800active cases and 2,600 deaths in case recent
trends do not improve

 (Caldwell & Andersen, 2020)

World Health Organization (WHO). (2020).

Coronavirus disease (COVID-19) in the Philippines

.https://www.who.int/philippines/emergencies/covid-19-in-the-philippines. 

  Caldwell, P. & Andersen, K. (2020, April 1).

Coronavirus Update: Long-Term Economic Impact Forecast to Be LessThan 2008 Recession

.  https://www.morningstar.com/articles/976107/coronavirus-update-long-term-economic-
impact-forecast-to-be-less-than-2008-recession. 

  Terry, M. (2020, April 2). Compare: 1918 Spanish Influenza Pandemic Versus COVID-
19.https://www.biospace.com/article/compare-1918-spanish-influenza-pandemic-versus-covid-
19/. 

  Guido, D., Rye, R.S. & Agbulos, M.P. (2020, April 13). COVID-19 Forecasts in the
Philippines: Insights for Policy-making.  https://www.up.edu.ph/covid-19-forecasts-in-the-
philippines-insights-for-policy-making/. 

GARCIA, Chariss M.ID 2019-20122

(Guido, Rye & Agbulos, 2020) The transmission of the virus in the Philippines was first
confirmed by the Department of Health (DOH) on 30 January 2020. Patient is a 30-year-old
female Chinese national who visited the country for leisure. On March 7, the first local
transmission of COVID-19 was confirmed. On March 9, President Rodrigo Duterte issued
Proclamation No. 922, declaring the country under a state of public health emergency (Parrocha,
2020). Consequently, Metro Manila has been placed under partial lockdown to prevent a
nationwide spread of the virus. The lockdown was expanded on March 16, placing the entirety of
Luzon under “enhanced community quarantine” (Lopez, 2020). Since then, the number of cases
has soared to more than 6,000 amidst lockdown and quarantine measures implemented by the
government. Challenges faced by the government include shortage of health facilities, health
workers and testing kits. (WHO, 2020)

 WHO, ibid.

Parrocha, A. (2020, March 9).

State of public health emergency declared in PH

.https://www.pna.gov.ph/articles/1095955. 

  Lopez, D. (2020, March 16).

Duterte orders Luzon-wide 'enhanced community quarantine' 

.https://www.gmanetwork.com/news/news/nation/729875/duterte-orders-lockdown-of-entire-
luzon-due-to-covid-19-threat/story/. 

GARCIA, Chariss M.ID 2019-20122

Page LEGAL TECHNIQUE & LOGIC

In response to these pressing problems faced by the country, the Senate drafted the Bayanihan to
Heal As One Act (R.A. 11469) to grant the President additional authority to combat the COVID-
19 pandemic. This law authorizes the President “to exercise powers necessary to carryout urgent
measures to meet the current national emergency related to COVID-19 only for 3months unless
extended by Congress.” Among the powers granted to the President include:

1. Adopt and implement measures to prevent further spread of the COVID-19, following the
WHO guidelines;2)

2. Expedite and streamline the accreditation of testing kits and facilitate the testing of
persons under investigation (PUIs) and persons under monitoring (PUMs) by both public
and private hospitals, including the immediate isolation and treatment of these patients;3)

3. Ensure that all local government unites (LGUs) act in accordance with the regulations
and directives issued by the national government while implementing the standards of
community quarantine to their respective locales;4)

4. The authority to give 18 million low-income families P5,000-8,000 a month in

emergency cash aid for 2 months;5)

 
 5. Give health workers a “special risk allowance” on top of their regular hazard pay granted
under the Magna Carta of Public Health Workers or Republic Act No. 7305;6)

6. Direct Philippine Health Insurance Corporation (PhilHealth) to shoulder all medical

expenses of health workers in case of exposure to COVID-19 or any work-related injury
or disease during the duration of this emergency;7)

7. Provide P100,000 compensation to health workers who may contract severe COVID-
19infection while in line of duty and an additional compensation of P1,000,000 in case
they die while fighting this pandemic;8)

8. Direct the operation of any privately-owned hospitals and medical and health facilities to
serve as quarantine areas and medical relief and aid distribution;9)

9. Discontinue the appropriations of the executive department to save money, and use such
savings to support operations and response measures in fighting COVID-1910)

10. Enforce protective measures against hoarding and profiteering of commodities, such as
food, clothing, hygiene and sanitation products, medicine and medical supplies, fuel,
fertilizers, chemicals, building materials and other essential services;11)

11. Ensure that donation, acceptance and distribution of health products are not delayed;12
12. Secure goods, such as protective laboratory and medical equipment, medical supplies,
tools, testing kits, facilities and venues, and others in an efficient manner;13)

13. Partner with Philippine Red Cross in giving aid to the people;14)
 

14. Engage temporary Human Resources for Health (HRH) to complement or supplement the
current workforce in hospitals and other needed facilities;15)

15. Ensure the availability of credit to the productive sectors of the economy by lowering the
lending interest rates and reserve requirements of lending institutions;

 The Bayanihan to Heal As One Act, Republic Act No. 11469.

(2020).https://www.officialgazette.gov.ph/downloads/2020/03mar/20200324-RA-11469-RRD.pdf 
. 

GARCIA, Chariss M.ID 2019-20122

16. Liberalize the grant of incentives for the manufacture or importation of much-needed
equipment or supplies;17)

17. Ensure the availability of essential goods through measures that will reduce interference
to the supply chain18)

18. Require businesses to prioritize and accept contracts for services and materials necessary
to promote the law;19)

19. Regulate and limit the operation of all sectors of transportation, whether private or
public;20)
 

20. Regulate traffic on all roads, streets, bridges and access thereto;21)

21. Authorize alternative working arrangements for employees and workers in the
executive branch, and if necessary, other independent branches of government and the
private sector;22)

22. Regulate the distribution and use of energy, fuel, and water, and ensure sufficient supply
of these;23)

23. Use unutilized funds to fight against COVID-19;24)

24. Authorize allocation of funds held by government owned and controlled corporations
(GOCCs) to address the COVID-19 emergency;25)

25. Move the deadline and timeline for the submission and filing of documents, taxes,
fees,and others while in community quarantine;26)

26. Direct banks and other financial institutions to implement a 30-day grace period
for payment of loans and credit card bills;27)

27. Provide a 30-day grace period on residential rents within the period of the ECQ
withoutincurring interests or penalties;28)

28. Implement an expanded Pantawid Pamilya Pilipino Program;29)

 

29. Lift the 30% cap on the amount appropriated for the quick response fund; and30)

30. Undertake other reasonable and necessary measures to carry out the law subject to
the Billof Rights and other constitutional guarantees

 At face value, the Bayanihan law seems a much-needed legislation in view of this
global pandemic. The law strives to address the challenges being faced by the government due
to rising infections of COVID-19. However, researcher posits that the Bayanihan to Heal As
One Act is UNCONSTITUTIONAL. Emergency powers do not justify violations under the
Bill of Rights and deprivation of due process. In this paper, researcher will discuss the salient
questionable provisions of the law. Researcher will also attempt to correlate the provisions
of the Bayanihan Act with existing statutes before its enactment. The aim of this research is to
show how different provisions of the Bayanihan Act may go against existing laws, codes,
and even the Constitution, thus rendering it null and void. Finally, researcher seeks to present
laws already in operation that could have served as basis for the powers sought by the President
in this Bayanihan Act. Researcher hopes that this paper will encourage further discussion and
engagement regarding the subject law

Sawadjaan, A. (2020, April 3).

Simplifying the Bayanihan to Heal as One Act 

.https://www.bworldonline.com/simplifying-the-bayanihan-to-heal-as-one-act/. 
STATEMENT OF THE PROBLEM

The purpose of the transfer is to augment an item in the general appropriations law for their
respective offices. Carpio points out only savings are allowed to augment funding, not
appropriation. Savings was defined in Araullo case as “portions or balances of any programmed
appropriation in this Act free from any obligation or encumbrance which are: (i) still available
after the completion or final discontinuance or abandonment of the work, activity or purpose for
which the appropriation is authorized; (ii) from appropriations balances arising from unpaid
compensation and related
costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriati
ons balances realized from the implementation of measures resulting in improved systems andeff
iciencies and thus enabled agencies to meet and deliver the required or planned
targets, programs and services approved in this Act at a lesser cost.

” Applying the fore going definition, there is a need for the President to provide the specifics of
the identified items considered savings before the Court can determine whether or not
these items are actual savings. The President cannot prematurely declare budgetary items
as “savings” in order to reallocate them for whatever purpose it may deem necessary.

Penal Provisions

 Section 6

a) LGU officials disobeying national government policies or directives in imposing

quarantines

As previously discussed, LGUs enjoy autonomy on how it should undertake their activitieswithin
their territorial jurisdiction, particularly on matters undefined by the national
government. National government has to be mindful that no two LGUs are alike in terms of reso
urces andcapabilities. As such, some leeway should be provided to them in implementing their
own quarantine measures. Researcher finds that criminal penalty on top of administrative
sanction is excessive if the ground is violation of quarantine protocol. A criminal offense is
unnecessary as disciplinary actions in the form of administrative sanctions are already provided
under Section 60of the Local Government Code of 1991.Among the grounds for disciplinary
action as per the Code are:
 

 Disloyalty to the Republic of the Philippines;

 Culpable violation of the Constitution’s

 Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

 Commission of any offense involving moral turpitude or an offense punishable by at

least prision mayor’s)

 Abuse of authority;

 Unauthorized absence for fifteen (15) consecutive working days, except in the case of
members of the sangguniang panlalawigan, sangguniang panlungsod, sangguniang
bayan,and sangguniang barangay;

 Application for, or acquisition of, foreign citizenship or residence or the status of an

immigrant of another country; and

 Such other grounds as may be provided in this Code and other laws

 Local Government Code of 1991. Republic Act No. 7160.

(1991).https://www.officialgazette.gov.ph/1991/10/10/republic-act-no-7160/. 

GARCIA, Chariss M.ID 2019-20122

 
Furthermore, if the concern involves corruption by local government officials, they may already
be charged in violation of Republic Act No. 3019, also known as the Anti-Graft and Corrupt
Practices Act. Hence, there is no need to insert such clause in the subject law.

b)

Individuals or groups creating, perpetrating, or spreading false information regarding theCOVID-
19 crisis on social media and other platforms, such information having no valid or beneficial
effect on the population or beneficial effect on the population, and are clearly geared to promote
chaos, panic, anarchy, fear or confusion; and those participating in cybercides 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

Among others, this provision is most controversial as it may step on our right to freedom of
speech. It is most dangerous, because it is vaguely worded. Chaos, panic, anarchy and/or
confusion is subjective, and may be used to stifle dissent. It threatens freedom of speech and of
the press. It leaves discretion to the government to be the arbiter of what is true or not, which
does not invite confidence considering that many administrative officials have been sources of
disinformation and misinformation. False information has not been defined in any law yet. Even
if the government cites the Cybercrime Prevention Act of 2012, such false information has
not passed the hurdle of void-for-vagueness doctrine. As decided in Disini v. Secretary of Justice
(2014),

 Section 4 of the Cybercrime law is unconstitutional, since its vagueness raises apprehension on
the part of internet users due to its obvious chilling effect on the freedom of expression. When a
penal statute encroaches upon the freedom of speech, a facial challenge grounded on the void-
for-vagueness doctrine is acceptable. Despite this ruling, the Bayanihan Act fails to distinguish
those who passively like, share, comment, and those who deliberately generate false information.
Freedom of expression should not be sacrificed in the guise of maintaining public order. We
must defend this freedom as staunchly as we are defending our lives in this COVID-
19 pandemic. Freedom of expression, being fundamental to the preservation of a free, open andd
emocratic society, is of transcendental importance that must be defended by every patriotic
citizen. This right is shielded under Section 4, Article III of the Constitution, which provides:

“No 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 redressof grievances.”

advocacy of imminent lawless action, and 4) danger to national security. Expression not subject
to prior restraint is protected expression or high-value expression. Any content-based prior
restraint on protected expression is unconstitutional without exception. Assuming arguendo that
the State invokes danger to national security to prosecute the accused, the State must present a
compelling state interest and pass the clear and present danger test before it can successfully
invoke this exception. Under the clear and present danger test, the evil consequence of the
comment or utterance must be "extremely serious and the degree of imminence extremely high"
before the utterance can be punished. The danger to be guarded against is the "substantive evil"
sought to be prevented.

 The libelous speech must invite imminent lawless action in order to pass this stringent
constitutional hurdle. As a final note, in view of its separability clause, provisions discussed
herein may be struck down as unconstitutional, without affecting the remainder of the Act which
may pass the test of constitutionality. Also, referring to the case of Araullo v. Aquino (2014),
the doctrine of operative fact may apply to the adoption and implementation of the law in view
of the principle of equity and fair play. This doctrine recognizes the existence of the law or
executive act prior to the determination of its unconstitutionality as an operative fact that
produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies
the void law or executive act but sustains its effects.

Anti-Graft and Corrupt Practices Act. Republic Act No. 3019.

(1960).https://www.officialgazette.gov.ph/1960/08/17/republic-act-no-3019/. 

  Cybercrime Prevention Act of 2012. Republic Act No. 10175.

(2012).https://www.officialgazette.gov.ph/2012/09/12/republic-act-no-10175/. 

  Disini v. Secretary of Justice, G.R. Nos. 203335, 203299, 203306, 203359, 203378, 203391,
203407, 203440,203453, 203454, 203469, 203501, 203509, 203515, 203518, 11 February 2014.
  Chavez v. Gonzales, G.R. No. 168338, 15 February 2008.

  Chavez v. Gonzales, ibid.

SIGNIFICANCE OF THE STUDY

Researcher hopes that this paper will encourage further discussion and engagement regarding the
subject law. The 1987 Constitution bestows sufficient authority to the President in order to
ensure that laws are enforced faithfully and effectively. It also provides leeway to expand such
power in case of dire need. With this in mind, the Congress passed the Bayanihan Act relying on
Article 6, Section 23(2) of the Constitution, which provides:

“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.”

The premise of the law is that COVID-19 pandemic is a national emergency based on
Proclamation No. 922, which President Duterte issued on 9 March 2020. To mitigate the
devastating effects of COVID-, Congress deems it appropriate to grant the President “special
emergency powers” in order to protect the interest of Filipinos in these challenging times .As
expressed in its declaration of policy, the issuance of Code Red Sublevel 2 in accordance with
the recommendation of the DOH and Inter-Agency Task Force for the Management of Emerging
Infectious Diseases, signals a serious alarm about the national security of the country as well as
the lives of the people. This is further affirmed by the declaration of WHO of COVID-19 crisis
as a global pandemic (Gumbrecht and Howard, 2020). Congress based its decision to grant the
President emergency powers from the case of David v. Arroyo (2006), which defined emergency
as “the existence of conditions suddenly intensifying the degree of existing danger to life or well-
Vibhute, K. & Aynalem, F. (2009).

Legal Research Methods

.https://chilot.files.wordpress.com/2011/06/legal-research-methods.pdf .

Bell, F. (2016). Empirical research in Law.

Griffith Law Review

, 25(2), 262-282,
DOI:10.1080/10383441.2016.1236440.https://ro.uow.edu.au/cgi/viewcontent.cgi?
referer=&httpsredir=1&article=3664&context=lhapapers.

Gumbrecht, J. & Howard, J. (2020, March 12).

WHO declares novel coronavirus outbreak a pandemic

.https://cnnphilippines.com/world/2020/3/12/WHO-COVID-19-pandemic.html?
fbclid=IwAR3TGlDwCI-GRuRfTV7WcWCa0xymJi208ZaegQey_bTeKvthls7oMla8otU.

David v. Arroyo, G.R. No. 171396, 3 May 2006.

GARCIA, Chariss M.ID 2019-20122

OBJECTIVE OF THE STUDY

Researcher will utilize doctrinal research in analyzing the Bayanihan Act. Doctrinal research
involves a systematic exposition, analysis and critical evaluation of legal rules, principles or
doctrines and their interrelationship. According to Vibhute and Aynalem (2009), doctrinal legal
research mandates the legal researcher to ‘locate’ the required pertinent statutory provisions and
judicial reflections thereon that have bearing on the legal doctrine, concept or rule under inquiry.
Relying on information authoritative legal scholars and ponente of jurisprudence, researcher
will present data in such a way as to persuade colleagues, legislators, judges and practitioners to
follow her line of thought. Researcher will then reconstruct the concepts presented in relation to
the topic at hand. In addition, qualitative empirical research will be employed to explain how law
is applied in practice. This empirical investigation will assess the impact of the law, and reveal
the gap between legal idealism and social reality (Bell, 2016)
Legal research method. .https://ro.uow.edu.au/cgi/viewcontent.cgi?
referer=&httpsredir=1&article=3664&context=lhapapers. 

  Gumbrecht, J. & Howard, J. (2020, March 12).

WHO declares novel coronavirus outbreak a pandemic

.https://cnnphilippines.com/world/2020/3/12/WHO-COVID-19-pandemic.html?
fbclid=IwAR3TGlDwCI-GRuRfTV7WcWCa0xymJi208ZaegQey_bTeKvthls7oMla8otU. 

  David v. Arroyo, G.R. No. 171396, 3 May 2006.

IV.

 SCOPE AND LIMITATION

Filipinos should be more vigilant in making sure that emergency powers do not
mask political incompetence. As discussed herein, many provisions of the Bayanihan Act aresup
erfluous, overbroad and unnecessary, since there are existing statutes already granting these
authority. Emergency powers should only be tapped as last resort, because they grant vast array
of powers to one person (particularly the President), therefore making it very prone to
abuse. This should be heavily guarded in order to ensure that the executive branch acts within its
boundary as limited by the Constitution (especially Bill of Rights), public policy and existing
statutes. History tells us that emergency powers have been frequently based on a false premise,
i.e. that the President needs them to address an emergency. However, a cursory view of existing
laws shows that powers sought by the President is already within his realm. Instead of expanding
the President’s powers, researcher thinks that we need a more focused and concrete plan in
addressing the COVID-19crisis based on existing statutes; only in the absence of a law granting
such power should the Congress legislate to respond to this particular need. Congress should be
more careful in delegating more power to a man, who believes that the problem of the country
can be simply solved through brute force, fear and martial law power. Filipinos can only
hope that these extraordinary powers are prudently exercised by the President despite the lack of
clear public healthcare plan and guidelines. A shotgun law, even if well-meaning, may not be the
most effective approach to thisCOVID-19 pandemic. Cabansag v. Fernandez, G.R. No. L-8974,
18 October 1957.