Legal preparedness during ‘business unusual’

As published in the Inquirer on May 13, 2020

By Patricia B. Miranda and Salma F. Angkaya-Kuhutan

The COVID-19 crisis is teaching us very hard lessons about what happens when we fail to collectively anticipate and plan for this type of worst-case scenario. Aside from our health care system, the building blocks of effective humanitarian coordination — personnel, systems, and processes —are under immense pressure. When another emergency occurs in our immediate future, the government will have to mount yet another response on top of ongoing pandemic efforts. The challenges of having to act swiftly, yet appropriately, in such a “business unusual” context underscores the necessity of preparing for complex legal issues that may arise and interfere with measures to protect lives, livelihoods, and rights.

Red tape, a common criticism during emergencies, is a symptom of gaps in legal preparedness. Decision-makers who are unable to navigate the full range of available legal options may authorize incoherent actions that create delays in purchasing goods and services, hiring or deploying trained staff, or accessing emergency funds. This may partially explain why some households have received their relief and social amelioration packages, while others have not.

Emergency legal preparedness requires an all-hazards, whole-of-government approach, which includes the legislative, executive, and judicial branches. These government branches and their attached offices must regularly plan and coordinate with each other to develop robust contingency plans that involve allocating national and local powers; synchronizing interagency responses; strengthening nongovernment, private sector, and community participation; and balancing public safety with individual rights.

The most obvious component of emergency legal preparedness is having the appropriate laws and policies in place to implement measures that prevent further deaths, quickly restore the functions of society, and ensure everyone’s rights to health, food, basic services, and representation in decision-making. Legal benchmarks ensure that interventions account for disproportionate impacts of crises on women, children, and other vulnerable groups; and that the poorest and most at-risk do not suffer from resulting trade-offs of response actions. Finally, implementation must be coordinated and aligned with the Disaster Risk Reduction and Management (DRRM) Act and other relevant laws and policies. These include, among others, the Universal Health Care Act, which aims to protect all citizens from health hazards and risks; the Children’s Emergency Relief and Protection Act, which mandates gender-sensitive programs to support the immediate recovery of crisis-affected children, and pregnant and breastfeeding mothers; and the recent administrative order from the Department of Health that mainstreams health and health-related emergencies in local DRRM plans.

We are also seeing evidence that disruptions of health and other essential services can pose threats more serious than the disease itself, when compounded with the rollout of highly securitized emergency measures without sufficient social safety nets and legal safeguards. These may include discrimination against frontliners and COVID-19 patients, disproportionate or arbitrary sanctions for so-called quarantine “violators,” and pockets of violence at checkpoints that result in injuries or deaths. For now, people are coping by turning to the Integrated Bar of the Philippines, nonprofit legal advocacy groups like FLAG and IDEALS, and spontaneous initiatives offering pro bono legal aid and support, such as the Volunteer Lawyers Against Discrimination and #UPLawHelps.

As such, the role of courts in preserving the rule of law during emergencies and other public health events must continue, even without face-to-face interactions. Courts must be available to provide timely access for people whose rights may have been affected by emergency actions, and to serve as guardians of human rights and the rule of law.

Opportunities for legal preparedness have not yet passed because the COVID-19 crisis is still expected to worsen before it improves, and new waves of infections are likely after quarantines lift. In this sense, emergency legal preparedness must be proactive and continuous. Existing and future emergency responses should never be left to chance.

* * *

Patricia Miranda is a lawyer and the policy advocacy lead of Oxfam Pilipinas. Salma Angkaya-Kuhutan is a lawyer providing legal counseling, representation, and consultancy services. They are both involved in the Water, Sanitation, and Hygiene in Emergencies Project led by the Department of Health, pursuant to its mandate to develop protocols and guidelines for health emergencies and disaster management.