Police power: The balance between public and private interests during the Covid-19 pandemic

By: Tomas Iñigo P. Socrates

THE coronavirus disease 2019 (Covid-19) pandemic has significantly affected the lives of everyone. Aside from the effect of the contagion, the natural reaction of people in trying to avoid the virus brings some abnormal changes or disruption in the usual course of their day-to-day lives.

It is undeniable that this has disrupted the economy, given that the National Capital Region — the economic, political and cultural center of the country — has been under enhanced community quarantine (ECQ) or “lockdown” for the past two months.

In these trying times, the government has the biggest responsibility toward its citizens to maintain economic stability and to act for the survival of the State, and make sure that policies are adopted to regulate the natural reaction of the public that could result in the detriment of the country.

Public interest demands that government prevent the further spread of the virus but it should also consider the interests of private enterprises that may be adversely affected by the measures it takes. To this end, the government exercises its police power. As cited in a textbook on constitutional law authored by the late justice Isagani Cruz (co-authored by his son, Carlo Cruz , p. 85, 2015 edition), “Professor Freund describes the police power as the power of promoting the public welfare by restraining and regulating the use of liberty and property.” As also explained by the author, citing a number of cases, the exercise of police power is valid if the measure is to serve the interests of the public generally, and if the means employed are reasonably necessary for the accomplishment of the purpose and not unduly oppressive upon individuals. Otherwise, if done with grave abuse of discretion amounting to lack or excess of jurisdiction, transgressing the constitutional rights of the people, it may be struck down by the Supreme Court as an unconstitutional act of government.

The Congress, on which the exercise of police power is mainly vested, has enacted Republic Act (RA) 11469 also known as the “Bayanihan to Heal as One Act.” Section 3 of the legislation states the Declaration of Policy, to wit: “The Covid-19 pandemic has greatly affected nations worldwide, including the Philippines, and has caused and is continuing to cause loss of lives and disruption to the economy. Thus, there is an urgent need to: (a) mitigate, if not contain, the transmission of Covid-19; (b) immediately mobilize assistance in the provision of basic necessities to families and individuals affected by the imposition of Community Quarantine, especially indigents and their families; (c) undertake measures that will prevent the overburdening of the healthcare system; (d) immediately and amply provide healthcare, including medical tests and treatments, to Covid-19 patients, persons under investigation or persons under monitoring; (e) undertake a program for recovery and rehabilitation, including a social amelioration program and provision of safety nets to all affected sectors; (f) ensure that there is sufficient, adequate and readily available funding to undertake the foregoing; (g) partner with the private sector and other stakeholders to deliver these measures and programs quickly and efficiently; and (h) promote and protect the collective interests of all Filipinos in these challenging times. By reason thereof, and in order to optimize the efforts of the president to carry out the tasks needed to implement the aforementioned policy, it is imperative to grant him authority subject to such limitations as hereinafter provided.”

President Rodrigo Duterte, the chief executive, has also issued proclamations and memorandums giving directives to government agencies and instrumentalities under his control and supervision for the response to the crisis. Generally, these pertain to their coordination toward the survival of the nation against the Covid-19.

Valid exercise

The government, in the exercise of its police power, has already restricted the right to travel and has limited the public’s mobility in the interest of public health. In fact, even public mass transportation has been suspended. In practical terms, it is a valid exercise because the purpose is to prevent or at least to minimize the contagion of this new virus while it is still being studied further by medical experts. As to the reasonableness of the means, it may be in the meantime the best option (considering that the lockdown at this point has been set to not more than three months) because as the people stay at home, there is less likelihood of acquiring the virus from other persons. With this, there may be a greater chance that by the end of the lockdown, many of us will not be infected; and those who were infected will have been taken care of and survived, and prevented from spreading the virus even further.

This optimistic result will be too difficult to achieve if the government will not impose a quarantine or lockdown, because close physical contact or interaction tends to transmit the virus.

Although the lockdown limits the public’s movement, it does not totally ban movement outside of our homes because obviously, people still need to buy food and other essential goods, and there are other workers whose work or services are necessary and essential even during this time of crisis (like those working in groceries, medical clinics, pharmacies, energy facilities, etc.). The memorandum from the executive secretary (Salvador Medialdea) dated March 16, 2020 about further guidelines for management of the Covid-19 situation, by order of President Duterte, is instructive.


Near perfect balance

The main predicament that arises from the disruption and reduction of economic activities is that many Filipinos are left in dire need. Most Filipinos do not have any income in the meantime since they cannot go to work. This especially affects those who are living a hand-to-mouth existence. For them, the government has formulated a system of dole-outs and social amelioration measures, the implementation of which are guided by the Joint Memorandum Circular (JMC) 1 series of 2020 by the Departments of Social Welfare and Development (DSWD); Labor and Employment (DoLE); Trade and Industry; Agriculture; Finance; Budget and Management; and Interior and Local Government. In order for the government to achieve its objective of minimizing the infection rate, people will receive money and goods in place of their usual income sources — a near perfect balance.

The abovementioned JMC 1 provides for more specific guidelines for the departments concerned such as the DSWD and DoLE to, among others, effect the grant of emergency subsidies to low-income families.

The JMC also provides for the implementation of Covid-19 Adjustment Measures Program (CAMP) by the DoLE. Its guidelines under Department Order 209 describe the CAMP as a safety net program that offers financial support to affected workers (workers in private establishments whose employment face or suffer interruption due to the Covid-19 pandemic) in private establishments that have adopted the flexible work arrangements or temporary closure during the Covid-19 pandemic.

These steps were taken by the government with the goal of cushioning some of the difficulties that will necessarily arise from policing the community quarantine.

Price freeze

Another measure that the government exercises under its police power during this pandemic is the freezing of the prices of basic and prime commodities. It is pursuant to Republic Act (RA) 7581, as amended by RA 10623. The statute provides for regulation on prices especially in times of emergency. Section 2 declares, “Xxx the State ensures the availability of basic necessities and prime commodities at reasonable prices at all times without denying legitimate business a fair return on investment. It is also a declared policy of the State to provide effective and sufficient protection to consumers against hoarding, profiteering and cartels with respect to the supply, distribution, marketing and pricing of said goods, especially during periods of calamity, emergency, widespread illegal price manipulation and other similar situations. xxx.”

The reason for such measures is to ensure that the public will not be unduly burdened by an increase in prices, bearing in mind the principle in economics that in a free market, ceteris paribus, as the demand for the good increases, the price also increases. That is why government properly stepped in and strove to strike the balance of the interests between the producers/sellers and consumers. In this time of crisis, it is reasonable to infer that demand for basic and prime goods will increase due to the consumers’ lack of necessity or inclination to spend for other things, coupled with their heightened focus on survival during the community quarantine.

Clearly, the drastic (but legitimate) measures that the government is taking at this time affect a whole array of private interests. These include the interests of the businesses that cannot operate during the lockdown period, the freedom of the retailers to decide on the prices of its goods, the freedom of the people to travel, to do their outdoor activities, and to the families who find it difficult to be self-sustaining due to the enhanced community quarantine.

While these restrictions and regulations imposed by government in its exercise of police power may seem onerous, it is also good to see the effort of the government in adopting measures that try to mitigate these burdens. To give one specific example based on the regulations mentioned above, while some of the private entities needed to temporarily stop their operations, their employees who have no work and income are given financial support by the government, albeit very little compared to their normal salary. It does indirectly help the employers because at least, their employees are given some support to survive during the enhanced community quarantine. Another measure that lessens the burden on private interests is the Revenue Memorandum Circular 39-2020, which extended the due dates of, among others, payment of certain taxes. Similar to this is the Customs Administrative Order 07-2020, which implements the provisions of the Bayanihan to Heal As One Act on tax and duty exemptions of importations of medical supplies and equipment needed to address the outbreak of Covid-19.

Political question

The government can, of course, still study the situation and give more incentives to these private entities given that these contribute a lot to the economy of the country. But while the government is exerting its effort in softening the adverse effects of the lockdown to private entities, it cannot totally anesthetize the whole country. Surely, more factors are to be considered in planning and implementing the responses of the government to the needs of the people. The State’s police power is very broad, and the government is under constant pressure to use it guided by truth and reason.

The question of balancing public and private interests during this time is a political question. Jurisprudence describes political questions as those that involve questions on the wisdom of the policies, the efficacy or necessity of a particular measure, or even the morality of an issue — as opposed to justiciable controversies. The role of government (particularly its political branches), as in normal times, is to use its machinery to find out the facts on the ground, how the people are doing, and have a good deliberation in arriving at good decisions to address the needs found therein.

Surely, there will be adverse effects on the private interests of some. But as the State exercises its police power validly, the private individual’s apparent loss due to such exercise is compensated by, as legal luminaries describe it, “the altruistic feeling of having given up something to contribute to the common good.”

In the end, the exercise of police power, as long as it is valid, will be upon the discretion of the government. The proper balance between private and public interests is best determined by the ones who have the machinery to ascertain all the relevant factors, and that is the political branches of government.