EXPLAINER: Marcos Jr.’s EO on face mask may not avert future disputes on IATF rules. Can a mayor or governor, even in the name of local autonomy, not change or modify Malacañang policy during national calamity or crisis?

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KEY ISSUES. [1] A presidential executive order (EO) may affirm Cebu City Mayor Michael Rama’s EO on face masks but what if there are still differences in scope or application, whose order will prevail in this city?

[2] Still to be resolved is the issue of national authority during emergency versus local autonomy. Laws are not clear or specific and there’s no jurisprudence that squarely applies.

[3] But without serious enforcement, such as widespread arrests by police, disputes between national officials and local chief executives on masks are merely verbal, academic exercises.

THE SITUATION. Thursday, September 8, President Marcos Jr. “verbally” approved the recommendation of IATF, the inter-agency task force on infectious diseases, to make the wearing of masks outdoors optional provided the area is not crowded and ventilation is good.

As of late Friday afternoon, September 9, the president’s EO was not yet released and it’s not yet known how much of it is similar to the

“non-obligatory” mask-wearing in Cebu City.

Already, Mayor Rama was cheering the IATF recommendation as it would seem to support the basic in his two executive orders (EO No. 5 of August 31 and EO No. 6 of September 1), which make mask-wearing “non-obligatory” in open spaces of the city, but only from September 1 to December 31, 2022.

The four-month period was an afterthought, contained in the second EO, after the Department of Health (DOH) complained that the City didn’t consult DOH. Interior and Local Government Secretary Benjamin Abalos Jr. exchanged contradictory claims on whether Rama agreed to defer his order: the DILG chief said Rama did; the mayor said he did not.

DILG, like the DOH, wants local governments to follow the standing rule of IATF: compulsory use of masks throughout the country. Even with the latest IATF recommendation, health officials say they want to do it in phases “so we can ensure that our population is protected” from Covid-19.

NO CONFRONTATION appears to be coming from the disagreement between Mayor Rama, on one hand, and Secretary Abalos, with DOH officer-in-charge Maria Rosario Vergeire, on the other.

Unlike in the dispute last June between Cebu Governor Gwen Garcia and then DILG chief Eduardo Año, when threats of sanction and lawsuit flew, neither Mayor Rama nor Secretary Abalos is combative. Rama modified his EO while Abalos talked of clearing the air through IATF, blaming miscommunication for the disagreement with Rama.

CONDITIONS FAVOR MIKE. In the Capitol-DILG fracas, Año, who was then on the way out and sensing too late it was wasteful to pursue the quarrel, capitulated days before his authority expired last June 30. This time, Rama faces a non-abrasive DILG chief who sees the folly of warring on local officials. Abalos prudently took the case to IATF, which then submitted its recommendation to the president.

Working in Rama’s favor is that many other countries in Asia -- such as Singapore, Thailand, Malaysia, Vietnam and Indonesia -- already lifted the mask mandate and no increase of Covid cases has been reported so far. That and the health condition in Cebu City, which has remained stable for a number of months already, are helping Rama’s dissent.

MARCOS NOD WON’T SOLVE IT. A presidential nod on a non-obligatory mask policy, as IATF has recommended, will avert a confrontation between Rama and DILG-DOH. But it won’t take out the root of the disputes.

Conflict on policy will erupt now and then as long as there’s no clear and specific law, making a national emergency, brought by epidemic or natural disaster, as cause for IATF headed by the president to be the sole decider on policies to prevent or respond to such an emergency.

The laws cited to support a uniform national policy don’t clearly and specifically grant that power. They are generalized, merely implied, or expired. In contrast, provisions of law on local autonomy and where authority resides during a calamity or emergency are clear and specific.

FOR EXAMPLE, the president’s EO, based on IATF’s recommendation, may allow optional mask-wearing in open spaces with the conditions that they’re not crowded and have good ventilation. But Cebu City’s EO also allows mask wearing if the owner or management of the establishment or enclosed public place so decides.

If Rama’s EO differs from the Marcos-approved IATF rule in essential aspects, such as the places covered or the periods of application, which policy should local residents and business folk follow?

DOH and DILG officials arguing for uniformity and superiority of IATF guidelines cite probable confusion if LGUs were allowed to adopt and enforce contrary or different policies.

BASIC CAUSE OF CONFLICT has to be resolved and that is, the clash between national authority and local autonomy during a calamity, epidemic or other national emergency.

When can the policy of the LGU supersede, replace or modify the IATF policy? Or must it always be the national government making the call on what’s to be enforced and how in all localities?

Put differently, are there no exceptions to the IATF arbitrary, if not strong. Can local officials like Governor Garcia and Mayor Rama adopt rules that differ with those laid down by the national task force, arguing that they’re elected, Cabinet members are not, and as locals they know the ground better?

A LAW, OR COURT RULING on existing laws and the Constitution, may resolve the conflict.

The first will depend on Congress if it sees the waste of time and resources caused by controversies over IATF policy and wants to prevent eruptions from the likes of Governor Gwen and Mayor Mike happening again. The second will need a definitive ruling from the Supreme Court on boundaries of power during national emergency.

Both may consume a lot of years. Legislative action has its own pace, depending on priorities of legislators. Litigation requires the conflict to reach the court, whose final ruling may take ages to reach.

INTERVENTION, MEDIATION. Presidential intervention or mediation behind the scene or off the public stage may be more efficient in threshing out differences on IATF policies between local officials and Cabinet secretaries.

But that won’t, as lawyers say, enrich jurisprudence or, as politicians see, score voters’ points.