Legal musings on coronavirus

Published February 11, 2020, 12:00 AM

by manilabulletin_admin

THE LEGAL FRONT                               


J. Art D. Brion (RET.)
Justice Art D. Brion (Ret.)

A reader reacted to my previous article on police power and coronavirus with the question: Can’t the government simply proclaim martial law to address the coronavirus problem? My article indeed almost begged for that question as I had suggested a parallelism through a rough comparison of martial law and the exercise of police power.

Subtle distinctions, however, exist between these two concepts although they share commonalities.

Police power is the self-protective power of the state that aims to secure the general welfare of its citizens. It is a broad and independent power that underlies the Constitution and is made manifest through the limitations the Constitution imposes.

Martial law power, on the other hand, is an express power that the Constitution defines and limits for the specific purpose of defending the security of the state (i.e., in case of invasion or rebellion, when the public safety requires it).

A coronavirus epidemic, in a way, is an invasion, but it is not the invasion that martial law contemplates; it is a different kind – a viral invasion.

Given the express constitutional definition and limitations, the state therefore cannot invoke martial law powers in addressing a coronavirus epidemic.

The appropriate power to use is police power, although the executive should be able to use the military, as a force, in addressing a coronavirus epidemic. To do this, the exercise must rest on a very specific health justification calling for military-type intervention.

For example, the military has been very effective in addressing disasters because of its discipline and fast delivery of service in emergency situations. Resort to martial law powers in a public health emergency, of course, may conceivably be possible if an actual invasion, aimed at taking over the country, would use biological weapons; in this case, martial law powers may arguably be justified.

Other than police power, legal considerations may enter a coronavirus situation because of discrimination, the currently observed prejudicial treatment of the Chinese; some people treat them differently because of perception that they are carriers of the coronavirus which started in Wuhan, China.

From media reports, discrimination is happening even within China.  In Hong Kong (HK), it exists between the local HK Chinese and those from the mainland.  The health issue, of course, is deepened by existing political differences between the HK and the Chinese governments, which gave rise to the recent political unrest in HK. The relationship between the mainland and the HK Chinese likewise carries long festering cultural, social, and economic undertones.

Whatever the reason might be, the result is the growing discrimination even within China among the Chinese themselves, at the same time that discrimination against the Chinese is developing in other parts of the world, particularly in North America and Europe where the coronavirus has started to migrate.

In our country, there are already media reports about developing discrimination against the Chinese, no doubt strengthened by the West Philippine Sea tensions and by the increasing visibility of mainland Chinese workers in our midst, their failure to adapt to our local ways, and their feared adverse effects on local employment.

It is a blessing in our case that the existing roots of Filipino-Chinese relationships run deep and are not easily strained by transitory problems like the coronavirus. In meeting the coronavirus problem, for example, cooperation – evident from the distribution of face masks to the public by the local Filipino-Chinese community – has been very visible and much appreciated.

In the past, the Filipino-Chinese community has likewise been active in other civic projects, among them, the construction of school buildings at their own expense all over the country. These past experiences have fostered strong bonds that impede discriminatory thoughts.

I cannot help but think, too, of another positive factor — the record of the country’s business tycoons whose ancestries are Chinese but who are wholly Filipino in every sense of the word. These businessmen, in my view, are exemplars of the smooth inter-racial relationships now prevailing in our country.

Due to space limitations, I cannot cite all the business tycoons whose records have contributed to our racial harmony, but I can immediately name at least three.

The first is Don Emilio Yap whom I have known from my early practice days. Through his heirs, he has the controlling interest in this newspaper (Manila Bulletin) and in the Manila Hotel – revered and established institutions in their respective fields, which Don Emilio nursed into what they are today.

Don Emilio notably fought a court case to prevent foreign intrusion into the Filipino ownership of Manila Hotel. Manila Bulletin, on the other hand, has always been known for its fair, reliable, and positive reporting.

For delicadeza and lest I be accused of self-serving praises because I write for Manila Bulletin, I shall go no further into the achievements of Mr. Yap, and will only add that, ever since, his businesses have been Filipino in character and identification.

Another businessman whom I did not personally know (but whose son-in-law is a friend) is the late John Gokongwei, Jr., originally from Cebu. I first heard of him as the businessman who had challenged the ascendancy of the traditional Manila business elite by seeking entry into San Miguel Corporation (SMC), an old Soriano company.

From that start, Mr. Gokongwei ventured into many previously closed and dominant market areas. He was Mr. Competition way ahead of the Philippine Competition Commission.

Against Nescafe of Nestle, he launched Blend 45 and Great Taste Coffee from Universal Robina Corp.  He established  his own airline – Cebu Pacific – to contest the Philippine Airlines monopoly. Side by side with PLDT and Globe Telecomm, he ran SunCellular; and against the Shoemart malls, he put up Robinsons Mall. He owned MiniStop which competes with the 7-11 chain of small grocery stores. His C2 Tea drinks compete with Coca Cola and Pepsi Cola. He joined forces with South Star Drugs and The Generics Pharmacy (TGP) to contend with Mercury Drugs.

In terms of inter-racial relations, his heirs – all of them well-trained in his ethical but competitive ways – have been identified as Filipinos, not as hyphenated inter-racial businessmen.

The third Filipino businessman of Chinese ancestry whom I can cite is Mr. Ramon Ang of SMC who came from humble Tondo roots. He is noted for his diversification of SMC when businessman Eduardo Cojuangco entrusted the company to his care.

From a food and beverage company, he converted SMC into a leader in power generation, oil and petrochemicals, infrastructure (including expressways, ports, and airports), cement manufacturing, and banking. When Mr. Cojuangco relinquished control of SMC, he sold the bulk of his shares to Mr. Ang.

Currently, Mr. Ang is building the Manila International Airport in Bulacan with a targeted per annum capacity of 100 million passengers. He is fixated on easing Manila’s traffic problems and has been into Skyway construction, promising shorter travel time and extended reach, north and south of Manila.

Despite the heights he has achieved, Mr. Ang has been very humble and low-key, ever thinking of projects and businesses that would help the public and contribute to national growth.

From these perspectives, coronavirus may leave a mark in the Philippine legal front but the taint would not be due to racial discrimination against or within the local Filipino-Chinese community.


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