#RESTART21

Vigilance Needed Over Duterte’s ‘Emergency Powers’

Going to the supermarket these days brings back memories of the 1970s, when the Philippines was in the iron grip of a dictator, Ferdinand Marcos. It’s because last month, President Rodrigo Duterte placed the country in a state of emergency, his main weapon in the battle against the coronavirus.

As I write this, we’re ending our third week of a Luzon-wide lockdown (Luzon is the biggest island) where public transport, malls, restaurants, and schools have been shut down. Only essential trips are allowed, meaning to buy food and medicine, and curfew begins at 8 p.m. and ends at 5 a.m. Things are uncertain as we don’t know if the lockdown, scheduled to end on Easter Sunday (April 12), will be prolonged or lifted in some parts.

I live in Metro Manila, the most densely populated cluster of cities in the country.  These days, swaths of the metropolis are eerily quiet and empty of cars. Ghost town is how others describe the city.

Each time I go to the grocery, I have to pass through a road with a checkpoint manned by two soldiers in camouflage uniforms.  One has a rifle slung on his shoulder and the other holds a pistol-shaped infrared thermometer to check my temperature.  A feeling of unease comes over me as remembrances from Marcos’s martial law flood my mind because there is a bigger context to this public health emergency. Under Duterte, an authoritarian leader, Philippine democracy has faced the most serious threats in more than three decades.

Decline of rule of law

Rule of law has severely weakened. The 2020 World Justice Project (WJP) Rule of Law Index ranked the Philippines 91 out of 128 countries, showing a consistent negative slide.  WJP said that “over the last five years, countries experiencing the largest average annual percentage drop” included the Philippines.

The crumbling of the rule of law began when Duterte unleashed a violent war against drugs where at least 5,500 have been killed, official figures show. But human rights groups estimate the number to be anywhere from 12,000 to 20,000, mostly targeting poor suspects.

Duterte doesn’t brook dissent. He has sent Senator Leila de Lima, his most vocal critic, to jail on trumped up charges. He has threatened independent media, human rights lawyers, and big business who are not seen to be friendly to him. Check and balance has eroded because of the President’s control over the courts and the legislature.

Emergency powers

Thus, when Congress recently passed a law granting Duterte emergency powers to respond to the pandemic, many were concerned that these may violate basic rights and threaten our democracy. Essentially, the law does the following:

• It gives the President wide latitude in using public funds by allowing him to “reallocate and realign” the national budget.
• It allows him to direct the operations of specific private businesses such as hospitals, medical facilities, and passenger vessels for quarantine purposes and to house health workers—or take over these businesses.
• It grants him the power to require private businesses to prioritize contracts for necessary materials and services such as personal protective equipment and other medical devices.

These emergency powers are temporary—effective for three months—unless Congress extends the law's duration.

The law is punitive as it prescribes penalties that add to those already inscribed in existing laws. Professors from the University of the Philippines (UP) College of Law pointed out in a paper that these “may be viewed as oppressive.” Moreover, the law imposes permanent or temporary disqualification of offending public officials or employees from office. With elections a few years away, in 2022, the UP professors say this is  “prone to abuse.”

False information

What is furthermore troubling is that the law includes a provision that punishes those who “spread false information regarding the COVID-19 crisis on social media and other platforms…clearly geared to promote chaos, panic, anarchy, fear or confusion…” The penalty? Imprisonment for two months and a fine ranging from P10,000 to a million pesos.

In the past, Duterte has lashed out at legitimate news organizations that were critical of some of his policies, calling them “fake news.”

Alfredo Molo, who teaches at the UP College of Law, explains: "The provision criminalizes 'fake news' in a problematic manner with large potential for abuse. First, the phraseology is overbroad. Instead of just penalizing the targeted conduct, it covers a swath of otherwise legal acts. Second, the definition is vague and thus prone to varying interpretations. This is the danger. The law will be implemented by those on the ground, not the drafters. If the wording is so fluid, then we will have inconsistent applications, which is a formula for unequal and discriminatory treatment." 

Similarly, Dante Gatmaytan, also of the UP College of Law, told Rappler in an interview: “It can be abused. We use social media to protest, we use satire, humor. We complain and we have a right to do so. Government can say we’re spreading false information—and arrest us.”

Military in charge

Another issue that is disconcerting is the fact that Duterte tasked retired military generals to implement the government program to contain the coronavirus when, clearly, they should be officials from the Department of Health. This shows the President’s limited grasp of the issues and his penchant for surrounding himself with military men, as seen in his appointments to the cabinet.