Regulating Bayanihan

Kris Sarah M. Jeruta

When the President announced stricter quarantine measures in the National Capital Region and its nearby provinces last March, people were mandated to observe strict home quarantine thereby restricting movement to accessing essential goods and services1. The stricter quarantine measure also meant the limitation of work to permitted industries resulting in an unexpected halt of wages to most. The uncertainty coming from the sudden suspension of work and influx of income gave rise to the individual-led initiative – the “Maginhawa Community Pantry”, a movement encouraging people to give goods based on what their means permit and to get goods based on what their needs require. Taking inspiration from the Maginhawa Community Pantry and guided by the same principle, several other community pantries have sprouted all over the country. It was bayanihan in practice. While novel, the initiative still sparked disagreements on the necessity for its regulation. 

Laws intending to regulate activities for charitable and public welfare purposes exist in this jurisdiction considering that the act of solicitation may be abused by unscrupulous individuals. Verily, in Centeno v. Villalon-Pornillos, G.R. No. 113092, 1 September 1994, the Supreme Court viewed that “solicitation of contributions under the guise of charitable and benevolent purposes is grossly abused” is a matter of common knowledge.

Under the Solicitation Permit Law, any person, corporation, organization, or association desiring to solicit or receive contributions for charitable or public welfare purposes shall first secure a permit from the Department of Social Welfare and Development (“DSWD”)2. Pursuant thereto and to its power to regulate fund drives, public solicitations and donations for charitable or welfare purposes, the DSWD issued Memorandum Circular No. 017-14 providing the Revised Omnibus Rules and Regulations on Public Solicitation to regulate any activity intended to generate funds, or goods and assistance from the public for charitable or public welfare purposes by requiring the individual or entity to secure a permit from the DSWD upon the submission of requirements. Individuals and entities issued a solicitation permit are mandated to strictly adhere to the principles of conduct in solicitation activities by prioritizing the best interest of the beneficiaries, being accountable for the solicitation of charitable and public funds, and respecting the integrity, privacy and pride of their clients and patrons, among others. Pursuant to these principles, the individual or entity granted the solicitation permit is required to maintain an accurate and detailed book of accounts, and to submit to the DSWD a fund utilization report upon the expiration of the authority to conduct the solicitation. Notably, solicitation activities undertaken only in one city or municipality are exempted from the requirement to secure a permit.

Likewise granted the authority to regulate activities for charitable and welfare purposes are city and municipal mayors. Under the Local Government Code, city and municipal mayors shall have the power to issue permits, without need of approval from any national agency, for the holding of activities for any charitable or welfare purpose. 

Pursuant to the local chief executive’s power to regulate activities for charitable or welfare purposes, guidelines were set in place by the local government of Quezon City, the origin of the first-known community pantry in the country, thru a Memorandum dated 23 April 2021. Thus, a person or group intending to operate a community pantry is strongly encouraged to give written notice and to coordinate with the barangay where the pantry is located. While giving notice is encouraged, it is expressly stated that no barangay or city government permit or clearance shall be required for the pantry to operate provided the community pantry provides food to the public for free. Law enforcement intervention is likewise discouraged except in cases of manifest breach of health or safety protocols. Likewise emphasized is the need to strictly adhere to COVID-19 health protocols which includes wearing of face mask and face shield as well as the implementation of physical distancing among the persons in queue. 

In the same vein, in a televised broadcast, the Secretary of the Department of the Interior and Local Government, possessing the power to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and on the promotion of local autonomy, stated guidelines in organizing a community pantry which, among others, include compliance with law and ordinance and observance of minimum health protocols. Items such as alcohol, cigarettes, and illegal items are not to be included in the items to be distributed in a community pantry. Lastly, to shed light on the regulation of the community pantry, the DILG Secretary clarified that while a permit is not required, coordination with the local government unit shall be observed to ensure compliance with local ordinances. What is clear in the guidelines imposed by the national and local government is that there should be observance of minimum health protocols. 

The novelty of the community pantry therefore led to the sentiment that it should not be subject to regulation in as much as there is no law specifically regulating it. 

The power to regulate any activity rests primarily upon the Congress pursuant to the State’s police power. Police power is the authority to enact legislation that may interfere with personal liberty or property in order to promote general welfare, or in the negative, the inherent and plenary power in the State which enables it to prohibit all that is hurtful to the comfort, safety, and welfare of society. 

For there to be a valid exercise of police power, there must be a lawful subject and the power must be exercised through lawful means. Not only must it be shown that the interests of the public in general requires interference by the State but also that the means employed must be reasonably necessary for the accomplishment of the purpose and must not be unduly oppressive of private rights. Thus, in the absence of a concurrence of a lawful subject and lawful means, a measure should be considered an arbitrary intrusion on private rights violative of the constitutional right to due process which guarantees that no person shall be deprived of life, liberty, or property without the due process of law. As applied, the absence of a law governing the concept of a community pantry restricts the imposition of regulations on the activity. Should it appear that the activity requires regulation by the State, the measures employed must be commensurate with the purpose for which the activity is regulated. Besides, whether or not the community pantry is a proper subject of regulation is a matter best left to the Congress to decide. 

The concept of a community pantry is laudable in granting immediate relief to people greatly affected by the negative effects of the pandemic. While the intention to regulate the activity is being done with noble intentions, the regulation of such efforts have the ability of hindering relief to those in need of immediate assistance. In these unprecedented times, compassion must tempter the harshness of the law without however compromising public health. The country is in the middle of a pandemic after all.  

This article is for informational and educational purposes only. It is not offered and does not constitute legal advice or legal opinion.

Kris Sarah M. Jeruta is an Associate of the Litigation and Dispute Resolution Department of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW), located at Bonifacio Global City, Taguig City, Metro Manila, Philippines.

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