FLAG: Duterte special powers undue delegation of legislative power to executive branch

The Free Legal Assistance Group on Tuesday said that the Supreme Court has ruled in Abakada Guro Partylist v. Ermita that Congress is “prohibited from delegating powers that are strictly legislative,” subject to exceptions.

FLAG issued a legal opinion on the special powers to be given to President Duterte to address the COVID-19 pandemic.

According to FLAG, “legislative” was defined as the “authority to make a complete law—complete as to the time when it shall take effect and as to whom it shall be applicable—and to determine the expediency of its enactment.”

They noted in particular the following provisions are powers that are strictly, inherently and exclusively legislative and cannot be delegated:

Section 4(10) Ensuring the availability of credit to productive sectors of the economy

Section 4(11) Liberalize the grant of incentives of manufacture or importation of critical or needed equipment or supplies

Section 4(12) Require businesses to prioritize and accept contracts…for materials and services necessary to promote the declared national policy.

Also the proposal to grant an alternative working arrangement for workers in the Executive branch is “a superfluity and need not be included in a grant of emergency powers,” while the following phrase—“whenever it becomes necessary, in other independent branches of government and constitutional bodies, and the private sector”—violates the separation of powers and is thus unconstitutional.

FLAG also said that the grant of additional powers to “allocate public funds, determine the objectives for spending, characterize the nature of public funds” are purely legislative in nature.

They cited Section 4(17) which allows the discontinuance of appropriate programs of Executive department agencies and utilize the savings, Section 4(18) appropriation of unspent funds to address COVID-19 situation and Section 4(19) realignment of savings on other items in the Executive department to fund measures for severely affected areas sectors and industries are powers that are purely legislative.

President Duterte placed the entire Luzon including Metro Manila under the enhanced community quarantine to stop the spread of the feared virus COVID-19.

A memorandum from Malacañang on the enhanced quarantine guides government agencies to ensure the following:

Prohibition of mass gatherings and imposition of strict home quarantine among all households;

Work-from-home arrangement for the executive branch;

Only essential establishments are to remain open (those private establishments providing basic necessities and such activities related to food and medicine production i.e. public markets, supermarkets, groceries, convenience stores, hospitals, medical clinics, pharmacies and drug stores, food preparation and delivery services, water-refilling stations, manufacturing and processing plants of basic food products and medicines, power energy, water and telecommunications)

Suspension of mass public transport facilities;

Restricted land, air and sea travel; and

Labor, social welfare, finance, budget and trade departments to come up with programs for affected workers and businesses

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