Comments on the President’s Quest for Emergency Powers Dante B. Gatmaytan
I. Introduction On December 5, 2014, the House of Representatives approved a joint resolution granting President Benigno Aquino III emergency powers to address the projected power shortage in the summer of 2015. House Joint Resolution No. 21 specifically seeks “to provide for the establishment of additional power generating capacity as mandated by Republic Act No. 9136, also known as the Electric Power Industry Reform Act (EPIRA).”1 The grant of emergency powers is not unique to the Philippines. Many constitutions in other jurisdictions provide for an array of emergency options when immediate action is required to respond to a crisis. Emergency powers are provided because, ironically, the rights protected by the constitution prevent the government from responding efficiently to enemies of states or to crises that can destroy those rights.2 As others put it: ....In cases of an urgent threat to the state or regime, constitutions sometimes permit the delegation of powers to a president, or to some other constitutional authority, to issue decrees, to censor information, and to suspend legal processes and rights. The purpose for which this special authority is granted is fundamentally conservative: it is aimed at resolving the threat to the system in such a way that the legal/constitutional system is restored to its previous state. Rights are to be restored, legal processes resumed, and ordinary life taken up again. This conservative purpose is reflected in the fact that the executive is not permitted to use emergency powers to make any permanent changes in the legal/constitutional system. Emergency powers, exercised in this conservative way, have long been thought to be a vital and, perhaps, even an essential component of a liberal constitutional that is, a rights-protecting-government. They are
1 Aries Joseph Hegina, House grants emergency powers to Aquino, Philippine Daily Inquirer, December 10, 2014 available at http://newsinfo.inquirer.net/656476/ house-grants-emergency-powers-to-aquino#ixzz3LVYqAvZy. 2 John Ferejohn and Pasquale Pasquino, The law of the exception: A typology of emergency powers, 2 Int’l J. Const. L. 210 (2004).
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the key to resolving the dilemma faced by such governments when they are under either external or internal attack.3 The idea of a President exercising emergency powers brings horrible memories in the Philippines. Emergency power is associated with the brutal martial law regime of the late dictator Ferdinand E. Marcos which lasted for more than a decade. In truth, Marcos did not have a monopoly on the exercise of emergency powers. Since the adoption of the 1935 Constitution, Presidents have been given emergency powers for a variety of reasons.4 Not too long ago, President Fidel V. Ramos was granted emergency powers to deal with the power crisis in the 1990s.5 President Estrada mobilized the Philippine Marines to deal with the rising criminal activities during his term.6 President Gloria Macapagal-Arroyo issued Proclamation No. 1959 declaring martial law in President in the Province of Maguindanao in response to the Maguindanao massacre.7 President Aquino’s request for emergency powers are just the latest in a string of measures that can be utilized whenever there are national issues that must be addressed in the most expeditious manner. These measures, however, are not all the same. The President of the Philippines exercises three types of emergency powers under the 1987 Constitution and they are applied under different circumstances. This Note explains emergency powers in the context of Philippine law. It will discuss possible legal infirmities implicated by the campaign to secure emergency powers.8 3
Id at 210-211.
4 1 (1980).
Irene R. Cortes, Executive Legislation: The Philippine Experience, 55 Phil. L.J.
5 See Republic Act No. 7648 (1993) or the “Electric Power Crisis Act of 1993.” 6 See Integrated Bar of the Phil. v. Zamora, G.R. No. 141284, August 15, 2000. 7 Fortun v. Macapagal-Arroyo, G.R. Nos. 190293, 190294, 190301, 190302, 190307, 190356, 190380, March 20, 2012. For a background on the massacre, see H. Harry L. Roque, Jr. The Call of the Times: Strategic Public Interest Lawyering during the Arroyo Regime in the Philippines (2001-2010), 31 Wis. Int’l L.J. 462, 487-491 (2013). 8 This Note will not discuss the accuracy of the claims that a power shortage is imminent. It assumes that these allegations are true, despite the fact that there
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II. The Law The Philippine Constitution has three separate provisions on emergencies. 1. The first of these is a delegation of legislative powers under Article VI, Section 23 of the Constitution which that provides: (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. Article VI covers the legislative branch of government. This Article delegates legislative powers to the President under certain circumstances. On its face, the President’s exercise of emergency powers may seem like an invalid exercise of legislative powers. Under the separation of powers doctrine, each department of the government has exclusive cognizance of matters falling within its jurisdiction, and is supreme within its own sphere. Under this doctrine, there is a corollary principle that the powers of these branches cannot be delegated to others: what has been delegated cannot be delegated. There are, however, certain recognized exceptions to this rule: 1. Delegation of tariff powers to the President under Section 28 (2)
of Article VI of the Constitution;
2. Delegation of emergency powers to the President under Sec-
tion 23(2) of Article VI of the Constitution;
3. Delegation to the people at large;
are questions raised regarding the truth of the projected crisis. For a discussion on the opposing views on the need for extra powers, see Judith Balea, Power emergency: What it means, Rappler, July 29, 2014, available at http://www.rappler.com/business/ industries/173-power-and-energy/64597-power-crisis-aquino-emergency-powers.
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4. Delegation to local governments; and 5. Delegation to administrative bodies.9
So while the President cannot legislate as a matter of rule, he or she may do so under certain situations laid down in the Constitution. According to Fr. Joaquin Bernas, the nature of the delegation under the present Constitution is not as restricted as it was under the 1935 Constitution. The older Constitution merely delegated the power “to promulgate rules and regulations to carry out a declared national policy.” He concludes that the language of the 1987 Constitutions supports the argument that the Congress may delegate legislative power, and not merely rule-making powers.10 Still, the Constitution provides two restrictions on the delegated power. The first is that the power is temporary—and the delegation automatically ends when Congress adjourns or when Congress it sooner withdrawn by Congress. The withdrawal is done through the approval of a resolution, not the passage of a law. A resolution of Congress does not require the President’s approval. This would avoid a situation where the President might resist the withdrawal of his powers. Congress may also, as a second limitation, add restrictions or parameters on the grant of powers although the Constitution has apparently left Congress with broad discretion on defining the nature or extent of these restrictions. 2. The second emergency power falls under the Article VII on the Executive Department lists the President’s powers as Commander-in Chief as follows: SECTION 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes
9
Echegaray v. Secretary of Justice, G.R. No. 132601, October 12, 1998.
10 Joaquin G. Bernas, The 1987 Constitution of the Philippines: A Commentary 773 (2009).
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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. The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with its rules without any need of a call. The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis of the proclamation of martial law or the suspension of the privilege of the writ or the extension thereof, and must promulgate its decision thereon within thirty days from its filing. A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislative assemblies, nor authorize the conferment of jurisdiction on military courts and agencies over civilians where civil courts are able to function, nor automatically suspend the privilege of the writ. The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directly connected with the invasion. During the suspension of the privilege of the writ, any person thus arrested or detained shall be judicially charged within three days, otherwise he shall be released. 5
This provision is triggered whenever there is “lawless violence, invasion or rebellion.” In such cases, the President is allowed to deploy military forces to quell these threats. Under this Section, the Constitution grants the President, as Commander-in-Chief, a “sequence” of graduated powers. These are: the calling-out power, the power to suspend the privilege of the writ of habeas corpus, and the power to declare Martial Law. These powers are purely executive powers, vested on the President as opposed to the delegated legislative powers contemplated under Section 23 (2), Article VI of the Constitution.11 The only criterion for the exercise of the calling-out power is that “whenever it becomes necessary,” the President may call the armed forces “to prevent or suppress lawless violence, invasion or rebellion.”12 The power to declare martial law is now more restricted and may be challenged in both Congress and the Supreme Court. As Justice Antonio Carpio explained in a dissenting opinion:13 The 1987 Constitution . . . not only explicitly includes the specific grounds for the activation of such emergency powers, but also imposes express limitations on the exercise of such powers. Upon the President’s declaration of martial law or suspension of the writ, the following safeguards are automatically set into motion: (1) the duration of martial law or suspension of the writ is limited to a period not exceeding sixty days; (2) the President is mandated to submit a report to Congress within forty-eight hours from the declaration or suspension; and (3) the declaration or suspension is subject to review by Congress, which may revoke such declaration
11
Sanlakas v. Reyes, G.R. No. 159085, 159103, 159185, 159196, February 03, 2004.
12 David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 03, 2006. 13 Fortun v. Macapagal-Arroyo, G.R. Nos. 190293, 190294, 190301, 190302, 190307, 190356, 190380, March 20, 2012. For a background on the massacre, see H. Harry L. Roque, Jr. The Call of the Times: Strategic Public Interest Lawyering during the Arroyo Regime in the Philippines (2001-2010), 31 Wis. Int’l L.J. 462, 487-491 (2013).
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or suspension. If Congress is not in session, it shall convene within 24 hours without need for call. In addition, the sufficiency of the factual basis of the declaration, suspension, or their extension is subject to review by the Supreme Court in an appropriate proceeding. The majority of the Supreme Court in that case, however, held that the Court’s role in reviewing the declaration of martial law is triggered only if Congress fails to act: ...Section 18, Article VII, requires the President to report his actions to Congress, in person or in writing, within 48 hours of such proclamation or suspension. In turn, the Congress is required to convene without need of a call within 24 hours following the President’s proclamation or suspension. Clearly, the Constitution calls for quick action on the part of the Congress. Whatever form that action takes, therefore, should give the Court sufficient time to fulfill its own mandate to review the factual basis of the proclamation or suspension within 30 days of its issuance. If the Congress procrastinates or altogether fails to fulfill its duty respecting the proclamation or suspension within the short time expected of it, then the Court can step in, hear the petitions challenging the President’s action, and ascertain if it has a factual basis. If the Court finds none, then it can annul the proclamation or the suspension.14 3. The third emergency power can be found under Article XII on the National Patrimony. Section 17 of the Article provides that: SECTION 17. In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest. 14 Fortun v. Macapagal-Arroyo, G.R. Nos. 190293, 190294, 190301, 190302, 190307, 190356, 190380, March 20, 2012.
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Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally within the jurisdiction of Congress. Thus, when Section 17 states that the “the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,” it refers to Congress, not to the President.15 “Emergency” as contemplated in the Constitution may include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other similar catastrophe of nationwide proportions or effect.16 While the President alone can declare a state of national emergency, he or she, without legislation, has no power to take over privately-owned public utility or business affected with public interest. The President cannot decide whether exceptional circumstances exist warranting the takeover of privately-owned public utility or business imbued with public interest. Nor can the President determine when such exceptional circumstances have ceased. Likewise, without legislation, the President has no power to point out the types of businesses affected with public interest that can be taken over.17
15 David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 03, 2006. 16 David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 03, 2006. 17 David v. Macapagal-Arroyo, G.R. No. 171396, 171409, 171485, 171483, 171400, 171489, 171424, May 03, 2006.
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III. The Previous Crisis The power crisis in the early 1993 was brought about by an increase in demand in the 1980s and the lack of generating capacity. No new generating capacity was added because the government was expecting to rely on nuclear energy in 1984.18 Republic Act No. 7648, otherwise known as the “Electric Power Crisis Act of 1993,” was enacted pursuant to this provision. That law declared the national policy as follows: SECTION 2. Declaration of Policy. — It is hereby declared the policy of the State to adopt adequate and effective measures to address the electric power crisis that has disrupted the country’s economic and social life and assumed the nature and magnitude of a public calamity. The exercise of emergency powers can only be done only in accordance with this policy. The law then proceeded to spelled-out the powers that the President may exercise in order to avert the crisis, to wit: SECTION 3. Negotiated Contracts. — Pursuant to the above declared policy and in the public interest and whenever it is advantageous to the Government, the President may enter into negotiated contracts for the construction, repair, rehabilitation, improvement or maintenance of power plants, projects and facilities, subject to the following requirements: a) In order to inform competitive contractors, the list of projects to be undertaken this Act, together with their description, the budgetary estimates involved and other salient features, shall be published in a newspaper of general circulation thirty (30) days after the effectivity of this Act;
18 Ma. Rowena M. Cham, The Philippine Power Sector: Issues and Solutions, 64 The Phil. Rev. of Econ. 33, 38 2007.
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b) Upon perfection of the contract, the terms and conditions of the same, with the name and qualifications of the contractor, shall likewise be published in a newspaper of general circulation two (2) weeks before the signing of the contract; c) The contracts shall be awarded only to contractors with: a. proven competence and experience in similar projects; b. competent key personnel and sufficient and reliable equipment; and c. sound financial capacity; and d. All the awarded projects shall be subject to existing government auditing rules and regulations governing negotiated contracts. SECTION 4. Return on Rate Base. — Further pursuant to the abovedeclared policy, the President is hereby authorized, whenever it is necessary for the national welfare and in the public interest, to fix the rate of return on rate base of the National Power Corporation (NAPOCOR) to not more than twelve per centum (12%) of the rate base as defined in Section 4 of Republic Act No. 6395, as amended. Any increase in power rates shall take effect only upon approval of the Energy Regulatory Board (ERB), after due notice and hearing; Provided, That any increase in power rates by the NAPOCOR to its customers within the year 1993 shall not exceed an average of eighteen centavos (P0.18) per kilowatt-hour: Provided, further, That any increase in power rates shall not be passed on to households consuming not more than one hundred (100) kilowatt-hours per month for five (5) years following the effectivity of this Act: Provided, furthermore, That the existing subsidy enjoyed by households consuming less than three hundred (300) kilowatt-hours per month shall continue in effect; Provided, finally, That no power rate increase whatsoever shall be imposed by the NAPOCOR in provinces
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producing geothermal power of not less than one hundred megawatts (100 MW) of actual capacity for one (1) year following the effectivity of this Act. When the petition appears to be sufficient in form and in substance, the ERB, during the pendency of the case, may issue a provisional authority to increase the power rates, in whole or in part, which increase shall last for a period of sixty (60) days, and may be extended for another sixty (60) days: Provided, That the ERB can issue such provisional authority only during the effectivity of this Act. SECTION 5. Reorganization of the National Power Corporation. — The President is hereby empowered to reorganize the NAPOCOR, to make it more effective, innovative, and responsive to the power crisis. For this purpose, the President may abolish or create offices; split, group, or merge positions; transfer functions, equipment, properties, records and personnel; institute drastic cost-cutting measures and take such other related actions necessary to carry out the purpose herein declared. Nothing in this Section shall result in the diminution of the present salaries and benefits of the personnel of the NAPOCOR: Provided, That any official or employee of the NAPOCOR who may be phased out by reason of the reorganization authorized herein shall be entitled to such benefits as may be determined by the Board of Directors of the NAPOCOR, with the approval of the President. The President may upgrade the compensation of the personnel of the NAPOCOR at rates comparable to those prevailing in privately-owned power utilities to take effect upon approval by Congress of the NAPOCOR’s budget for 1994. The “Electric Power Crisis Act of 1993” was very narrowly crafted and defined in clear terms, the extent of the President’s emergency powers.19
19 I recall that when the bill was first filed, it included a provision that would suspend all environmental laws in the Philippines. Advocates for the environment and their allies in Congress managed to remove those provisions before the bill was
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IV. The Present Campaign Last year, President Benigno Aquino III wrote to Speaker Feliciano Belmonte Jr. and Senate President Franklin Drilon requesting that he be granted emergency powers in light of projected power supply shortfall during the summer of 2015. In the letter, the President wrote that “In accordance with the… Electric Power Industry Reform Act (EPIRA), I hereby seek the immediate enactment of a joint resolution authorizing the President to establish additional generating capacity.”20 He explained that “The speedy enactment of the joint resolution will ensure the energy requirements of the country for this critical period – through a specific, focused and targeted acquisition of additional generating capacities for use during the limited periods of time of very tight energy supply.”21 President Aquino III assured the public that the emergency powers he is seeking from Congress will not be abused and that “The sole goal of this initiative is to make sure our economy does not lose its momentum
signed into law. For a short history and assessment of the “Electric Power Crisis Act of 1993,” see Dean Tony La Viña, Emergency powers are not for power crisis, Manila Standard Today, September 27, 2014, available at http://manilastandardtoday. com/2014/09/27/emergency-powers-are-not-for-power-crisis/. 20
Republic Act No. 9136 (2001) provides: SECTION 71. Electric Power Crisis Provision. — Upon the determination by the President of the Philippines of an imminent shortage of the supply of electricity, Congress may authorize, through a joint resolution, the establishment of additional generating capacity under such terms and conditions as it may approve.
21 Marc Jayson Cayabyab, Aquino asks Congress for emergency powers, Philippine Daily Inquirer, September 16, 2014, available at http://newsinfo.inquirer.net/638346/ aquino-asks-congress-for-emergency-powers#ixzz3LDnYWLEM.
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in the event of an energy shortage.”22 Aquino went so far as to certify Joint Resolution 21 as urgent.23 There is no guarantee that the measure will be passed in the Senate. Some members of the Senate are not keen on granting the President any extra powers. Senator Sergio Osmeña III said that there is no need for Congress to give the President extra powers because there are other ways to boost Luzon’s energy reserves.24 The Senate President Franklin Drilon claims the Senate needed “to be provided with the necessary, relevant and sufficient information on the actual or projected requirements needed to ensure the energy requirements of the country, in view of the identified circumstances contributing to the critical electricity situation in the summer months of 2015.”25 President Aquino’s allies in the House of Representatives were quick to respond to is request for emergency powers. It passed House Joint Resolution No. 21 without serious resistance. For easy reference the pertinent portions of the Resolution are presented here:
22 Louis Bacani, Aquino assures emergency powers won’t be abused, Philippine Star, September 30, 2014, available at http://www.philstar.com/ headlines/2014/09/30/1374875/aquino-assures-emergency-powers-wont-be-abused. 23 Jovee Marie de la Cruz, Aquino certifies bill on emergency powers as urgent, December 2, 2014, available at http://www.businessmirror.com.ph/aquino-certifiesbill-on-emergency-powers-as-urgent/. 24 Jefferson Antiporda & Llanesca T. Panti, Osmeña: Why rush extra powers for PNoy?, Manila Times, December 11, 2014, available at http://www.manilatimes.net/ osmena-rush-extra-powers-pnoy/148216/ 25 Lira Dalangin-Fernandez and Ernie Reyes, Instead of granting emergency powers, lawmakers order probe on need for additional authority, InterAksyon.com, September 26, 2014, available at http://www.interaksyon.com/article/96167/insteadof-granting-emergency-powers-house-orders-probe-on-need-for-additionalauthority.
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JOINT RESOLUTION AUTHORIZING THE PRESIDENT OF THE PHILIPPINES, HIS EXCELLENCY BENIGNO S. AQUINO III, TO PROVIDE FOR THE ESTABLISHMENT OF ADDITIONAL GENERATING CAPACITY AS MANDATED BY REPUBLIC ACT NO.9136, ALSO KNOWN AS THE “ELECTRIC POWER INDUSTRY REFORM ACT (EPIRA),” TO EFFECTIVELY ADDRESS THE PROJECTED ELECTRICITY SHORTAGE IN THE LUZON GRID ON MARCH 1, 2015 TO JULY 31, 2015 WHEREAS, it is the policy of the State to ensure the quality, reliability, security, and affordability of the supply of electricity in the country; WHEREAS, on 12 September 2014, His Excellency President Benigno S. Aquino III, requested the House of Representatives and the Senate for authority to establish additional power generating capacity to ensure the energy requirements of the country during periods of very tight energy supply as a strategic response to the need for specific, focused, and targeted acquisition of additional energy capacities to meet the imminent power shortage in the Luzon grid due to the Malampaya turnaround, increased levels of forced outages of power plants, and delays in the commissioning of committed power projects; WHEREAS, in the course of congressional hearings conducted, it was revealed that in Week 14 of 2015, a maximum projected shortfall of one thousand and four Megawatts (1,004 MW) of which six hundred Megawatts (600 MW) is needed to meet the required dispatchable reserve, and four hundred four Megawatts (404 MW) is needed to meet the required contingency reserve. Corollary, a total of four (4) weeks of yellow alert is projected for the critical period; WHEREAS, pursuant to Section 71 of Republic Act No. 9136, also known as the “Electric Power Industry Reform Act (EPIRA)”, the Congress may, upon the determination by the President of an imminent shortage of the supply of electricity, authorize the
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President, through a joint resolution, to provide for the establishment of additional generating capacity under such terms and conditions as it may approve: Now, therefore, be it RESOLVED BY THE HOUSE OF REPRESENTATIVES AND THE SENATE IN CONGRESS ASSEMBLED, To authorize the President of the Philippines, His Excellency Benigno S. Aquino III, to provide for the establishment of additional power generating capacity as mandated by Republic Act No. 9136, also known as the “Electric Power Industry Reform Act (EPIRA)� to effectively address the projected shortage of the supply of electricity in the Luzon grid from March to July 2015, under the following terms and conditions: (1) The government, through the Department of Energy (DOE), shall administer and implement the remedial measures under this Joint Resolution, as well as the subsidy for the compensation for the actual energy generated to address the power shortage; (2) Provision of additional generation capacity shall be available on or before 01 March 2015; (3) Additional generating capacity shall be sourced from the Interruptible Load Program (ILP), fast tracking of new committed projects, and plants for interconnection and rehabilitation; (4) Adoption and execution of Energy Efficiency and Conservation measures shall be pursued vigorously in both public and private sectors; RESOLVED, FURTHER, That the authority granted to the President shall be valid from effectivity of this Joint Resolution until 31 July 2015 to cover additional generating capacity required for the period of the critical power shortage unless sooner withdrawn by the President, upon the recommendation of the Joint Congressional Power Commission, without prejudice to rights
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and benefits that may have been vested, and culpabilities and liabilities that may have been incurred. RESOLVED, FURTHERMORE, That during the effectivity of this Joint Resolution, the following shall be undertaken: (1) All national government agencies and local government units are hereby authorized to suspend the operability of pertinent laws, rules, and regulations including, but not limited to mitigating measures adopted for the Wholesale Electricity Spot Market (WESM), Republic Act No. 9367, also known as the “Biofuels Act”, Republic Act No. 8749, also known as the “Clean Air Act”, The Philippine Grid Code, The Philippine Distribution Code, that may affect the operation and transmission of the contracted generation capacities under this Joint Resolution, to ensure the timely commissioning and utilization thereof; (2) All entities with self-generating facilities (SGFs) shall participate in the Interruptible Load Program (ILP) on or before 31 December 2014 to stimulate additional generation capacities: Provided, That the government shall reimburse the owners of SGFs or backup generators for fuel expenses and reasonable recovery for their use in accordance with the ERC rules: Provided, further, That the existing ERC rules governing ILP for captive customers shall be expanded to cover contestable and directly-connected customers; Provided, furthermore, That the DOE through the National Transmission Corporation (Transco) may activate additional ILP as may be necessary to meet the exigency of the power shortage, subject to compensation in accordance with existing guidelines; Provided, furthermore, That the reimbursement shall not be subject to Value-Added Tax: Provided, finally, That any entity with SGFs which is not registered under the ILP may be manually de-loaded from the grid without compensation: (3) Upon submission of the energy efficiency and conservation program, as certified by the DOE, all government offices and institutions are authorized to retrofit their offices and
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buildings with, among others, energy efficient LED bulbs, air-conditioning units with inverters, and solar energy systems, subject to emergency procurement procedures; (4) Within thirty (30) days from the approval of this Joint Resolution, the Secretary of Energy shall, in coordination with the industry stakeholders, promulgate the rules and regulations to implement this Joint Resolution which shall take effect immediately upon its complete publication in two (2) newspapers of general circulation; and (5) The President shall submit a monthly report to Congress on the efficiency and effectiveness of measures undertaken to implement this Joint Resolution. RESOLVED, FINALLY, That this Joint Resolution shall take effect immediately upon publication in two (2) newspapers of general circulation.
One clear difference between this proposed measure and the “Electric Power Crisis Act of 1993” is the fact that the latter was a statute. President Aquino’s version is a joint resolution. This is because President Aquino did not invoke the Constitution when he asked Congress for emergency powers. He invoked a provision in Republic Act No. 9136 otherwise known as the Electric Power Industry Reform Act. As stated earlier, Section 71 of Republic Act No. 9136 (2001) provides: SECTION 71. Electric Power Crisis Provision. — Upon the determination by the President of the Philippines of an imminent shortage of the supply of electricity, Congress may authorize, through a joint resolution, the establishment of additional generating capacity under such terms and conditions as it may approve. The President’s quest for emergency powers raises the issue of whether the grant of emergency powers requires the enactment of a statute. The Constitution in Article VI, Section 23 refers to a statute. The
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Supreme Court, however, has ruled that a bill and a joint resolution are the same: Under the Rules of both the Senate and the House of Representatives, a joint resolution, like a bill, is required to be enrolled, examined, undergo three readings and signed by the presiding officer of each House. A joint resolution, like a bill, is also presented to the President for approval. There is no real difference between a bill and a joint resolution. A joint resolution also satisfies the two requisites before a bill becomes law — approval by both Houses of Congress after three readings and approval by the President. Thus, a joint resolution, upon approval by the President, is law. Even the Rules of the House of Representatives acknowledge this: SEC. 58. Third Reading. — . . . No bill or joint resolution shall become law unless it passes three (3) readings on separate days and printed copies thereof in its final form are distributed to the Members three (3) days before its passage except when the President certifies to the necessity of its immediate enactment to meet a public calamity or emergency. Joint Resolution No. 4 was approved by both Houses of Congress after three readings. President Gloria Macapagal-Arroyo approved it on June 17, 2009. It was published in the Manila Times on June 20, 2009 and in Volume 105, No. 34 of the Official Gazette on August 24, 2009. It is therefore a law. As law, Joint Resolution No. 4 may therefore amend or repeal RA 7875, if the second proviso of Section 9 indeed it modifies RA 7875...26 Another thing that stands out is that fact that House Joint Resolution 21 does not specify the powers that are granted to the President the way EPIRA does.
26 18
Galicto v. Aquino III, G.R. No. 193978, February 28, 2012.
It merely authorizes the President “to provide for the establishment of additional power generating capacity as mandated by Republic Act No. 9136, also known as the “Electric Power Industry Reform Act (EPIRA)” to effectively address the projected shortage of the supply of electricity in the Luzon grid from March to July 2015.” This mandate is subject only to certain conditions, namely: •
The government, through the Department of Energy (DOE), shall administer and implement the remedial measures under this Joint Resolution, as well as the subsidy for the compensation for the actual energy generated to address the power shortage;
•
Provision of additional generation capacity shall be available on or before 01 March 2015;
•
Additional generating capacity shall be sourced from the Interruptible Load Program (ILP), fast tracking of new committed projects, and plants for interconnection and rehabilitation;
•
Adoption and execution of Energy Efficiency and Conservation measures shall be pursued vigorously in both public and private sectors;
This exercise of emergency powers under the EPIRA is subject to less restrictions as comparted to those enumerated under the Electric Power Crisis Act of 1993 The Resolution is also alarming because provides apparently authorizes government agencies and local governments to suspend the operation of laws: All national government agencies and local government units are hereby authorized to suspend the operability of pertinent laws, rules, and regulations including, but not limited to mitigating measures adopted for the Wholesale Electricity Spot Market (WESM), Republic Act No. 9367, also known as the “Biofuels Act”, Republic Act No. 8749, also known as the “Clean Air Act”, The Philippine Grid Code, The Philippine Distribution
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Code, that may affect the operation and transmission of the contracted generation capacities under this Joint Resolution, to ensure the timely commissioning and utilization thereof; This prohibition is unconstitutional. (Could we insert a Constitutional provision here Sir?) No law can allow government agencies or local governments to suspend the operation of laws. Only Congress can affect the operation of laws. The only exception is when courts strike down laws as violations of the Constitution. This provision is a congressional abdication of its duties. It allows the executive and local governments to legislate on a national scale. It will also create chaos in that there will be parts of the country where national laws will not operate based solely on the discretion of local governments. This provision is open-ended. It allows government agencies and local governments to suspend the operation of any law. The enumeration of laws in House Joint Resolution No. 21 is not an exclusive list of laws that may be suspended. What the section authorizes is the suspension of “mitigating measures” under those laws. The way the resolution is presently phrased, any law “that may affect the operation and transmission of the contracted generation capacities” to prevent delays in commissioning them. Any laws that stand in the way of the generation of electricity can, therefore, be suspended. These would include, despite the Speaker’s contrary position, all environmental laws27 and the Local Government Code.
27 Christine F. Herrera, Extra powers for Aquino set to circumvent ecology laws, Manila Standard Today, November 25, 2014, available at http://manilastandardtoday. com/mobile/2014/11/25/-extra-powers-for-aquino-set-to-circumvent-ecology-laws-. Despite the text of the Resolution, the Speaker claims that the President was not empowered to circumvent environmental laws.
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V. Conclusion President Aquino’s allies may have stepped outside the bounds of constitutional authority when they authorized national government agencies and local governments to suspend the operation of laws. More importantly, the Resolution makes bad policy. It gives both national government agencies and local governments the widest latitude in determining which laws to suspend for purposes of this “emergency.” This would, in effect, threaten laws that were designed to protect the interests of local stakeholders. All environmental laws and those requiring consultations with local communities may be brushed aside. There are no stringent conditions on the House Joint Resolution that will limit the President’s exercise of emergency powers. The final form of the Resolution, if it should come out at all, needs additional safeguards of stakeholders especially at the local level. Otherwise, this entire campaign may be nothing more than a pretext for circumventing laws designed to protect local interests from the onslaught of the national government.
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