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

By Tomas Iñigo P. Socrates, Manila Times, 18 May 2020

Second of two parts

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.