Human Rights Online Philippines

I have read a draft bill asking for emergency powers for the President. My initial analysis of the draft bill is that it contains provisions patently repugnant to the Constitution (I) for delegating Congress’ power of the purse to the President and (II) for delegating to the President legislative powers to declare acts as criminal.

1) Section 14(16) of the draft bill is patently unconstitutional for violating the separation of powers as it effectively delegates Congress’ power of the purse over to the Executive.

Section 14(16) of the draft bill states “Notwithstanding any law to the contrary, reprogram, reallocate, and realign any appropriation in the FY 2020 GAA for whatever purpose the President may deem necessary and desirable to fund measures to address and respond to the COVID-19 emergency, including the recovery and rehabilitation therefrom. All amounts so reprogrammed, reallocated or realigned shall be deemed automatically appropriated for such COVID-19 measures.”

Section 14(16) gives full discretion to the President, not just to realign, but also reprogram and reallocate any appropriation in the FY 2020 GAA. Further, take note that Section 14(16) does not only refer to appropriations for the Executive Department but refers to”any appropriation in the FY 2020 GAA.” This is essentially Congress’ power of the purse which is being delegated to the President.

2) Section 14(16) of the draft bill also violates SECTION 25(5), ARTICLE VI of the CONSTITUTION which provides that “No law shall be passed authorizing any transfer of appropriations; xxx”

3) SECTION 25(5), ARTICLE VI of the CONSTITUTION merely allows a law wherein the President “be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.” But Section 14(16) of the draft bill goes beyond that.

4) Section 6 of the draft bill on penalties (2 months of fine of not less than P10,000 but not more than P1M, or both) is unconstitutional for being an undue delegation of legislative powers to the President.

Take note that the penalty is to be imposed for “Any violations of the rules, regulations, and directives of the National Government issued pursuant thereto,xxx”

However, such power to criminalize an act and to impose penalties to it is essentially a legislative power that only Congress can exercise (and to a certain extent LGUs through their respective councils). Legislative power can never be exercised by the President under the Constitutional principle of separation of powers.

5) Section 6 of the draft bill is also unconstitutional under the void for vagueness doctrine. What kind of act will the President’s “rules, regulations, and directives” be declared as a criminal? No one knows. And this is precisely the situation that the void for vagueness doctrine intends to prevent.

There are other patently questionable provisions in the draft bill. But these are the sections that stand out for being repugnant to the Constitution.

6) What the draft bill seeks can always be answered by Congress passing a supplemental budget to fight COVID-19. A supplemental budget to give the National Government additional funds to specifically fight COVID-19 is a better calibrated, laser-sharp response rather than an outright surrender of Congress’ power of the purse to the President.

7) Lastly, the repugnant provisions of the draft bill remind me of the famous warning of Angara vs. Electoral Commission through the illustrious pen of SC Justice Jose P. Laurel “In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated.”

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