EMERGENCY POWERS & THE BAYANIHAN ACT

1. What is the legal basis for the grant of emergency powers to the president?

Section 23(2), Article VI of the 1987 Constitution, provides, to wit:

“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 Unless sooner withdrawn by resolution of the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.”

2. What are the grounds for such grant of powers under Section 23(2), Article
VI?

There are two: (1) times of war; or (2) other national emergency.

3. How is the president granted emergency powers?

Congress passes a law. Currently, we have the Bayanihan Act, Repubic Act 11469.

4. What is the nature and extent of these emergency powers?

Section 23(2) describes these powers as “powers necessary and proper to carry out a
declared national policy” Section 3 of the The Bayanihan Act, for example, declares the
national policy of protecting public health and aiding the government in responding to
the COVID19 Pandemic.

Note, Congress specifies exactly what emergency powers are given to the President. For
example, Section 4 of the Bayanihan Act lists the powers expressly granted to the
President to battle the pandemic. Congress can make such powers as narrow or broad as
it likes.

Nevertheless, this provision is not a grant of absolute power to the President. Congress
cannot grant powers that violate the 1987 Constitution, specifically, constitutional rights,
the principle of separation of powers, and etc. This is, in fact, provided for in Section 4(ee)
of the Bayanihan Act.

5. How long shall these emergency powers last?

The key phrase is “for a limited period.” Congress alone, therefore, can provide for the
period these emergency powers last. The Bayanihan Act expressly grants the president
emergency powers for 3 months, which Congress alone can extend.

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 6. How do emergency powers expire or lapse?

Note the “limited period” phrase and the last sentence of Section 23(2), to wit:

“Unless sooner withdrawn by resolution of the Congress, such powers shall

cease upon the next adjournment thereof”

This implies the emegency powers shall lapse either:

(1) after the period provided by congress in the law; or
(2) unless sooner withdrawn by resolution; or
(3) when Congress next adjourns.

7. Why “resolution of the Congress?”

Fr. Bernas noted a resolution is distinguished from a statute or a law. This is important
since a resolution of Congress does not require the approval of the president while a
statute or law requires the President’s approval.

8. Are the emergency powers the same as martial law?

No, emergency powers (Section 23(2), Article VI) is not martial law (Section 18, Article
VII).

Paragraph 1, Section 18, Article VII of the 1987 Constitution provides, the grounds for
declaring martial law, to wit:

“SECTION 18. 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. In case of invasion or rebellion, 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.
Within forty-eight hours from the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress. The Congress, voting
jointly, by a vote of at least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension, which revocation shall
not be set aside by the President. Upon the initiative of the President, the
Congress may, in the same manner, extend such proclamation or suspension
for a period to be determined by the Congress, if the invasion or rebellion shall
persist and public safety requires it.”

Note the key phrase: “In case of invasion or rebellion, when the public safety requires it.”
Necessarily, the Section 18 provides a declaration of martial law needs either invasion or
rebellion AND when public safety requires it.

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In contrast to Section 23(2), Article VI, a grant of emergency powers requires either a
national emergency or times of war.

9. Congress, through the Bayanihan Act, granted President Duterte the power to
reallocate savings and unitilized funds from the Executive Department itemized in
the 2020 General Apropriations Act. Is this constitutional?

Yes, this grant by Congress is constitutional for it adheres to the rule on the transfer of
funds. Section 25(5), Article VI of the 1987 Constitution provides, to wit:

SECTION 25.

(5) No law shall be passed authorizing any transfer of appropriations; however,

the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item
in the general appropriations law for their respective offices from savings in
other items of their respective appropriations.

Generally, it is unconstitution to transfer appropriations. Exceptionally, persons listed in

Section 25(5), Article VI can augment their allocations using savings for their respective
offices. Note the enumeration in this provision is exclusive and that only savings can be
used to augment funds.

This means, for example, the Executive Branch can augment its budget for 2020 by
taking savings from any of the departments or agencies under the executive branch. The
Executive, therefore, cannot take savings from the legislative or the judiciary.

In this case, the Bayanihan Act gave President Duterte the power to reallocate savings
from the Executive Branch and unreleased or unallocated funds held by GOCCs and
other national government agencies for the government’s efforts to respond to the
COVID19 pandemic. Such provision is constitutional and in line with the rule on the
transfer of funds.

10. The Bayanihan Act mandated that private banks grant a mandatory 30-day grace
period to those with outstanding loans. The banks argued the mandatory grace
period is unconstitutional because it impairs existing contracts, resulting in the loss
of at least P1.2 billion. Is the mandatory grace period constitutional?

Yes, the mandatory grace period is constitutional.

First, the mandatory grace period is a valid exercise of police power by the state. Police
power, the least limitable of the inherent powers of the State, is exercised as is necessary
for the promotion of public interest and the protection of the general welfare of the public.
A mandatory grace period is a regulatory act that seeks to protect the private individuals
who have no income or work during the pandemic, thus struggle to meet their loan
obligations.
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Second, it is a constitutional grant of an emergency power to the president under Section
23(2), Article VI of the 1987 Constitution. The mandatory grace period adheres to the
national policy under Section 3(h) of the Bayanihan Act to promote and protect the
interests of all Filipinos in these challenging times.

Third, with regard to the impairment of contracts, jurisprudence has long held such
impairment is a valid exercise of police power. Generally, the impairment of contracts by
an act of Congress is constitutional, unless such impairment is unreasonable. In this
case, the mandatory grace period is not an unreasonable impairment of contracts since it
is known that the stoppage of the country’s economy and productivity during the
pandemic will affect invidivuals earning income, including businesses and their profits.
The grace period is a reasonable impairment of contracts that aims to protect the
interests of the Filipino who is not earning or whose income is severely affected during
this pandemic.

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