Is this lockdown even legal?

Nineteen months into the world’s longest continuous lockdown and we’ve run the gamut of letters from GCQ, MECQ, to ECQ such that the government felt the need to shift to numerals (as of this writing), something about Alert Levels 1 to 4. The question that remains, however, is still: what legal authority or basis actually allows all this?

To reiterate, lockdowns conceivably, maybe, can be issued under the police power of the State. But that comes with a huge caveat: it must comply with the Constitution and legislation but also must have a lawful subject and lawful means.

The Inter-Agency Task Force on Emerging Infectious Diseases, more popularly (or perhaps infamously) known as the IATF, was created through President Noynoy Aquino’s Executive Order No. 168 (S. 2014). It listed the IATF’s functions as: a.) establish a system to identify and assist Filipinos infected with emerging infectious diseases (EID); b.) prevent the entry of EID patients into the country, including by a quarantine system in all ports of entry; c.) prevent the spread of EID in the country by screening possible EID patients, contact tracing, identification of the mode of exposure to the virus, and implementation of effective quarantine and proper isolation procedures; d.) prevent mortality through effective clinical management; e.) educate the public on EID; f.) adopt measures to strengthen the Department of Health (DoH) Emerging and Re-Emerging Infectious Diseases Program; g.) notify the World Health Organization (WHO); h.) submit regular reports to the President; i.) develop and implement the EID Preparedness Manual; and, j.) perform such other functions as may be necessary to carry out the provisions of the Executive Order (EO).

Notably, the word “lockdown” or its equivalent does not appear in EO 168. If at all, what was mentioned was “quarantine.” But “quarantine” is defined as “the period of time during which a person or animal that has a disease or that might have a disease is kept away from others to prevent the disease from spreading” (Webster Dictionary). In other words, it refers to sick or infected individuals. It does not cover the wholesale locking down of otherwise healthy people.

The Constitution does allow the Executive Branch the authority necessary to confront emergencies but, unless specifically mentioned by the Constitution (e.g., Article VII.18), legislation is needed (EO 168, for instance, emanates from the 1987 Administrative Code, as well as the Constitution). And in the case of lockdowns, legislation is necessary.

We know this because Article III.6 expressly points out: “the right to travel [shall not] be impaired except in the interest of national security, public safety, or public health, as may be provided by law.” This provision precludes the argument that the president can simply impose lockdowns, restrict travel, impose curfews, etc., on the basis of his “residual powers.” A law is needed to serve as exception to that express constitutional right.

The Bayanihan Act (RA 11469), interestingly, makes reference to Presidential Proclamation No. 929, S. 2020, “declaring a State of Calamity throughout the Philippines and imposed an Enhanced Community Quarantine throughout Luzon.” But presidential proclamations need constitutional and legislative backing, hence, why PP 929 in turn refers to RA 10121 (or the Philippine Disaster Risk Reduction and Management Act of 2010). Section 16 authorizes the National Disaster Risk Reduction and Management Council (NDRRMC) to recommend to the president declarations of “state of calamity.”

But nothing in RA 10121 authorizes lockdowns. Note that the NDRRMC’s power is with regard to “policy-making, coordination, integration, supervision, monitoring and evaluation functions.”

Reference was made to the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act of 2018 (RA 11332). One particular provision seems relevant, which is Section 6.e giving the Department of Health the authority to impose “rapid containment, quarantine and isolation, disease prevention and control measures, and product recall.” Jurisprudence states that legislation granting authority to a departmental office is also authority to the president.

But even RA 11332 provides no authority for lockdowns. The main thrust of RA 11332 is disease reportage, not on the response to it. Second, “quarantine and isolation” here clearly only cover those infected with a disease and not the locking up of healthy people. Finally, not even PP 929 makes reference to it.

RA 11469 is taken widely as the main authority for the continued lockdown in Luzon and other parts of the country. It expired on June 25, 2020 and was replaced by RA 11494 (Bayanihan to Recover as One Act), which essentially reiterates what was written in previous legislation. But both RA 11469 and RA 11494 (the latter extended by RA 11519) gave no express authority granting or even mention of the word “lockdown.” “Quarantine” was mentioned but only to reference (but not ratify) PP 929.

The reported “granular lockdowns,” which reportedly seems to mean isolating and closing off of specific and limited localities that have a high incidence of COVID-19 infections is still of questionable legality if such would involve relatively healthy individuals.

So, what is the authority for the continued lockdowns?

The closest could have been RA 11469, Section 4.a (“prevent or suppress further transmission or spread of COVID”; repeated in RA 11494). Yet such emphatically doesn’t mention lockdowns. This is important: the Constitution’s Article III.6 requires a law expressly and specifically (not merely impliedly) authorizing restrictions on travel. And finally, Section 4.a itself says that prevention or suppression of the coronavirus should be done by “effective education, detection, protection, and treatment.” In fact, RA 11469’s penal provisions don’t even punish private individual violations of 4.a. (most of the penalties mentioned therein are for violations by local officials, obstructing supplies, price gouging, etc.). RA 11494, Section 4.b merely provides for the compulsory and immediate isolation, and treatment of confirmed, suspected, and probable COVID patients but not for the locking up of healthy individuals.

The Constitution does allow the president extraordinary powers in cases of “lawless violence, invasion, or rebellion” (Article VII.18), none of which are present. Article VI.23 allows Congress to grant special powers to the president for a limited time, hence RA 11469 and RA 11494, but both don’t contain authorizations for lockdown.

So that leaves us with this question: Is there actually any legal authority or basis for this lockdown? A lockdown that closed down businesses, churches, and schools, and restricted domestic travel? All aside from devastating the economy. A lockdown, if without legal basis, has resulted in the wholesale overriding of constitutional rights, including that of due process, property, expression, religion, and travel.

Jemy Gatdula is a Senior Fellow of the Philippine Council for Foreign Relations and a Philippine Judicial Academy law lecturer for constitutional philosophy and jurisprudence.

Twitter @jemygatdula