There are a number of important issues raised in connection with the government actions to contain the outbreak of Coronavirus Disease 2019 (Covid-19). The recent discussion centers on the issuance of the “Home Quarantine Pass” (designating a single person in each residence allowed to go out and buy basic necessities) and the curfew ordinances issued by a number of cities and municipalities. Let’s start with concepts that we can all agree on.
Let’s start with concepts that we can all agree on.
First, the Covid-19 is a public health emergency. The applicable law in this crisis, Republic Act No 11332, defines a Public Health Emergency as an occurrence or imminent threat of an illness or health condition that:
- a. Is caused by any of the following: (i) Bioterrorism; (ii) Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin; (iii) A natural disaster; (iv) A chemical attach or accidental release; (v) A nuclear attach or accident; or (vi) An attack or accidental release of radioactive materials; and,
- b. Poses a high probability of any of the following: (i) A large number of deaths in the affected population; (ii) A large number of serious injuries or long-term disabilities in the affected population; (iii) WIdespread exposure to an infectious or toxic agent that poses a significant risk of substantial harm to a large number of people in the affected population; (iv) International exposure to an infectious or toxic agent that poses a significant risk to the health of citizens of other countries; or, (v) Trade and travel restrictions.
Second, R.A. 11332 authorizes the President to declare a State of Public Health Emergency and mobilize governmental and non-governmental agencies to respond to the threat. On 8 March 2020, the President issued Proclamation No. 922, declaring a state of Pubic Health Emergency throughout the Philippines by reason of the Coronavirus Disease (Covid-19).
Third, a public health emergency requires the swift action on the part of government. This is the reason why the law, R.A. 11332, grants statutory and regulatory authority to implement rapid containment and implementation of measures for disease prevention and control, including quarantine and isolation procedures.
Given the highly contagious nature of Covid-19, the Execute Secretary, acting for the President, issued a Memorandum on 14 March 2020, placing the entire National Capital Region (NCR) on a General Community Quarantine, which was subsequently expanded to cover the entire Luzon under an Enhanced Community Quarantine, through a Memorandum issued on 16 March 2020.
The need for a rapid response is recognized under the law and required by the highly contagious nature of Covid-19. Every public health emergency is unique, requiring calibrated response designed to effectively contain it. To be sure, it is crucial to immediately issue the general guidelines and work out more operational details in the course of implementation. It is impossible, and dangerous, to expect that the initial response will contain all details necessary to address the threat.
There is no doubt that a public health emergency may require extreme measures to address the threat. The existing response to the Covid-19 is an enhanced community quarantine, also called as total lockdown by certain sectors.
An Enhanced Community Quarantine involves the following: (1) A strict home quarantine shall be observed in all households; (2) Movement shall be limited to accessing basic necessities; (3) Provision for food and essential health services shall be regulated; and (4) There will be heightened presence of uniformed personnel to enforce quarantine procedures. [Refer to the Primer on Enhanced Community Quarantine and Social Distancing in the Age of Coronavirus Disease 2019 (Covid-19)]
The response calls for a “whole-of-government” action. This is evident in the separate issuances, meant to address the Covid-19 crisis, issued by various government agencies, including the Department of Trade and Industry (DTI), Department of Agriculture (DA), Department of Labor and Employment (DOLE), and the Department of Interior and Local Government (DILG). However, the recent problem raised by meat processors (their delivery trucks are barred from entering various local government jurisdictions) highlight the need to centralize operational control (there’s the Inter-Agency Task Force, to begin with) to avoid confusion. Ad hoc pronouncements and “clarifications” issued by spokespersons in press conferences are subject to misinterpretation. This requires a single written document to be released and cascaded by the Task Force, adopting and echoing whatever policy issued by the members of the Task Force.
Going back to the Enhanced Community Quarantine, it includes “strict home quarantine,” which is not defined in the Memoranda. The informal “bulletin” issued by the Task Force provides that “only one person per household would be allowed to buy/access basic necessities” and “barangay captains to check compliance.”
We all can agree that swift action is required and a “strict home quarantine” is necessary at this point. We can also agree that the issuance of the “Home Quarantine Pass” is simply a means to implement that requirement of a “strict home quarantine.” It is equally clear, however, that no less than R.A. 11332 reinforces the need to “respect to the fullest extent possible, the rights of people to liberty, bodily integrity, and privacy wile maintaining and preserving public health and security.” The home quarantine constitutes a severe restriction of the people’s right to travel and, while necessary, requires more than an informal “bulletin.”
The Local Government Units (LGUs), on their own or through the DILG, issued “Home Quarantine Passes,” identifying a single person per household who is allowed to go out to buy basic necessities. It must be emphasized, however, that a Home Quarantine Pass is not necessary, as the policy on strict home quarantine is already provided in the national guidelines. A number of Home Quarantine Passes limit the time when identified persons are allowed outside (e.g., 8 a.m. to 10 a.m.), a limitation which runs counter to the national guidelines.
Certain LGUs also passed ordinances, imposing curfews. This is a sticky issue. LGUs have autonomy within their respective jurisdictions. R.A. 11332 does not strip away the powers of LGUs, but provides certain limitations. For instance, as contained in its implementing rules and regulations, the national government, through the Secretary of Health, has the power to reverse any declaration of epidemic by LGUs, and may temporarily assume direct supervision and control over health operations of the LGU for the duration of the emergency.
R.A. 11332 also empowers the President to “declare a State of Public Health Emergency and mobilize governmental and nongovernmental agencies to respond to the threat.” Acting on this authority, the President issued Proclamation No. 922, declaring a state of Pubic Health Emergency throughout the Philippines by reason of the Coronavirus Disease (Covid-19). It provides, in part:
Section 2. All government agencies and LGUs are hereby enjoined to render full assistance and cooperation and mobilize the necessary resources to undertake critical, urgent, and appropriate response and measures in a timely manner to curtail and eliminate the Covid-19 threat.
In other words, while LGUs have autonomy, they must take the lead from the national government in addressing the Public Health Emergency. LGUs cannot issue directives which contravene the guidelines issued by the national government.
The issuance of ordinances, providing for a curfew, is unnecessary and problematic. It is unnecessary because, as one local government executive noted, the President already imposed a “strict home quarantine” over the entire Luzon. The operational guidelines of the “strict home quarantine” are provided by the national government.
The issuance of the “curfew” ordinances is likewise problematic. Setting aside Constitutional considerations, the Local Government Code requires that ordinances with penal sanctions must be posted for minimum period of three (3) consecutive weeks and also published. These requirements, which are legally required, defeats the swift action required to address a public health emergency.