RIVERMAN’S VISTA: Bridges needed, not barriers

QUEZON CITY (MindaNews / 18 April) — In a pandemic, we do not need policies or governance decisions that block people, families, groups, and institutions from helping each other. It does not help when local governments prevent essential movement of goods and services between each other, as we see Bukidnon doing. It does not help when the national government does actions that impede collaboration and assistance among all sectors. Even when well-intentioned, such actions do not help.

One of this well-intended but not helpful actions was the issuance by  President Duterte of Administrative Order No. 27 at the end of March. It authorized the Office of Civil Defense (OCD) to manage all donated medicines, medical equipment and other health products to the government or Department of Health; all except those with nominal value. Under AO No. 27, the OCD shall consolidate, inventory, allocate, distribute and deliver all donations, local or foreign, of medicines and equipment in the fight against COVID-19. The policy covers all donations coming from foreign governments, private entities and groups, and non-government organizations.

This measure to channel all donations to one body, the OCD in this case, is objectionable from the legal, policy and moral stand point.

Firstly, under AO No. 27, the OCD is mandated to “consolidate all donations to the national government and the Department of Health.” This means that it will inventory, keep track and distribute all donations given to national government agencies. It goes without saying that this arrangement will give the OCD the expansive authority to allocate the donated equipment and medicines to whosoever it may be directed by the government. All foreign and domestic donations and assistance must pass through the OCD for tracking, distribution and eventual delivery.

The OCD, as the implementing arm of the National Disaster Risk Reduction and Management Council under the Department of National Defense, cannot pre-determine the beneficiary of any donated goods. Donation is an act of liberality and its disposition must be strictly based on the desires of the donor. The administrative order gives the government, through the OCD, the authority to supplant the wishes of the donor as to where, how and to whom the donations will be given.  This is simply repugnant to the spirit behind the act of donation which cannot be sanctioned by law.

Secondly, the administrative order contravenes sound public policy. Any local or international private entity or foreign government will not be willing to give donation of medicines or medical equipment to the government when it has no control where these donations will go; when there are uncertainties as to whether the donations will benefit the intended beneficiaries and whether they will not be used to advance certain political or economic agenda of the powers-that-be. The OCD, under this set up, is but an unnecessary intermediary that unduly burdens the proper disposal of these donated medical materials.

More recently, the notice posted by the Department of Social Welfare and Development (DSWD) notice about the need for people and organizations soliciting donations to get permits  was unfortunate. It unnecessarily intimidated those helping and those who wanted to help. While such a law exists, the DSWD also did not communicate it properly.

First, there is no restriction in soliciting contributions from people you know. What this law contemplated was general call directed at the public but if your call is to your family and friends and people you know, it does not apply. This is something people might want to make sure they do when they make a call – appeal directly to people they know and avoid general appeals even if you are posting the call for help publicly which you can.

Second, I agree with Dean Mel Sta Maria’s interpretation that “contributions” first mentioned in Section 2 of in PD 1564 is limited only to money or cash donations. In fact, the proviso in Section 3 made mention of “raising funds or soliciting public subscriptions or any means for collecting funds xxx.” Moreover, Section 5 (Principles of Conduct on the Solicitation Activities) of Memorandum Circular (MC No. 17, S. 2014) made mention of managing of “funds” and engaging in “fund drive campaigns.” Therefore, this pronouncement of DSWD is not applicable to those who solicit donations in kind.

Third, as analyzed by my colleague Joy Reyes, the MC also made it clear that it is applicable only for persons, corporations, organizations, or associations desiring or intending to conduct solicitation activities for “public welfare and charitable purposes,” and it can be argued that the current pandemic is a public health or public emergency issue, which is dissimilar to an issue of public welfare. Moreover, the PD does not have a catch-all provision which would require a permit to solicit for public health or public emergency concerns.

It should be noted that many organizations  by their corporate charters are already authorized to receive donations so this rule also does not apply to them.

Attorney Reyes also emphasized that the PD was enacted in 1978, when conditions were very dissimilar to what we have now, is also suspect. If, indeed, the law was passed to further enhance or promote the people’s “bayanihan” spirit, as is mentioned in one of the Whereas clauses of the PD, then to hamper the donations by making the associations secure a permit first goes against the very objective of the law, and would potentially be more harmful than beneficial. Although the laudable objective here was to prevent fraud, this was and is about control.

Specific for in-kind medical donations, I think the governing provision is Section 4(j) of RA 11469 (Bayanihan to Heal As One Act) which provides that the President has the power to ensure that “donation, acceptance, and distribution of health products intended to address the COVID-19 public health emergency are not unnecessarily delayed.”

This is not the time to be bureaucratic or to put barriers to generosity. This is the time to build bridges as Vice-President Robredo and Pasig Mayor Vico Sotto is doing. Governor Zubiri, OCD, and DSWD might want to follow their example.

(MindaViews is the opinion section of MindaNews. Antonio “Tony” La Viña of Cagayan de Oro City is former Dean of the Ateneo School of Government. He teaches Constitutional law in several schools in Manila and Mindanao)