Posts Tagged ‘Supreme Court’


With this piece, I offer a nuanced understanding of the principle and practice of checks and balance in democratic polities. Checks and balances is based on the notion of co-equality of branches of government (three in the case of presidential systems).

 

President Benigno Aquino III

President Benigno Aquino III

The notion of co-equality of branches of government is more myth than reality. This is most specially true with the Philippine presidential systemwhere the executive branch is, de facto, clearly the most powerful part of government.

The Philippine president is the head of state, commander-in-chief of the armed forces, chief of the public bureaucracy, and the country’s chief architect of foreign policy as well as its premier diplomat.

While the constitution stipulates that the legislature has the power over the public purse, real power is wielded by the branch which actually releases public money for purposes supposedly specified by the approved national budget. And that branch is the executive headed by the president. Often, the release of public money is done through the president’s alter ego–the budget secretary.

 

Philippine Congress

Philippine Congress

 

With an edge over the legislature, the executive can leverage the release of money to influence the passage of so-called administration bills, including the budget itself.

In command of the entire public bureaucracy, the executive has a great edge over the legislature in budget preparation. In this sense, legislators can only tinker with the budget bill proposed by the executive. In fact, most if not all legislators are merely interested in the money allocated for their constituencies or their districts as well as what they can pocket.

The judiciary is acknowledged as the weakest, de facto, branch of the government. The Supreme Court is at its apex, a court that is merely reactive rather than pro-active (notwithstanding bouts of judicial activism). The SC cannot do anything, not being a tryer of facts, unless a case is brought to its sala. The judiciary will likewise have to wait for its funds to be released.

 

Supreme Court (photo from Philstar)

Supreme Court (photo from Philstar)

 

It is clear that the executive is the most powerful governmental branch.

This runs counter to the thoughts and wishes of the English political philosopher, John Locke, who developed the notion and principles of separation of powers and the corollary checks and balances.

Locke argued that the most powerful governmental branch should be the legislature since the body is most representative of the citizenry. He would not be in favor of empowering the head of state–one person–over all other branches of government as he came from a great struggle of the English people against an absolutist monarch.

Meanwhile, pioneering Filipino political scientist Remigio Agpalo, echoing anthropologists studying Southeast Asia and other pre-modern “big men” societies, argued in the 1960s and early 1970s that the country had a predilection for a so-called “pang-ulo” system akin to an elected monarchy.

Agpalo’s arguments were soon used to buttress the Marcos dictatorship. Among others, they were also used to oppose changes to a parliamentary system for the Philippines.

If we locate the discussion within the Philippine context, one can note that the Philippine president is more powerful than the US president, the latter operating in a federal framework. For instance, the Philippine president is commander in chief of all armed forces. In contrast, state governors are in control of their respective National Guards (Army National Guard and Air National Guard).

The operational challenge, specially in the light of DAP and PDAF controversies, is make co-equality and checks and balance more reality than myth.

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President Benigno Aquino III delivering his SONA

President Benigno Aquino III delivering his SONA

Today is another State of Nation Address (SONA) day in the Philippines.

The SONA is supposed to be a report of the country’s chief executive on his government’s accomplishments over the past year as well as his plans for the future. In the case of President Benigno S. Aquino III, his plans for the remaining years of his term.

Sadly, the SONA had been transformed into something less than that. For one, the exercise has become a fashion spectacle, an obscene, ostentatious and insensitive display of wealth, pomp, and bad taste in the midst of hunger and poverty.

Second, it became a game of up-onemanship, a swell pissing contest. A president will list his accomplishments and declare he did more than his predecessors or all other previous administrations combined. What should he do that? He is not eligible to run for re-election anyway. Why can’t a president talk and report to the nation as the President of all Filipinos and not as leader of his party? After all, the members of the opposition are fellow Filipinos, fellow citizens, and thus also his constituents.

After President Fidel V. Ramos, all chief executives have been put on the defensive sometime during their presidency and it has limited their effectivity.

President Joseph “Erap” Estrada faced accusations of grand corruption and tried to parry his political opponents by launching a war against the MILF in Mindanao. Eventually, he was impeached and removed by another people power insurrection.

Following the revelation of her taped conversations with a top COMELEC official suggesting that the count be tampered in her favor, President Gloria Macapagal-Arroyo was put on the so-called “survival mode”.

This time around, President Noynoy Aquino has to deal with a Supreme Court decision that declared his Disbursement Acceleration Program (DAP) (or budget impounding schemes, as other would have it) unconstitutional. He chose to go on an offensive short of calling the Supreme Court as the obstruction to his progressive reforms. He says he will follow processes and file a motion for reconsideration with the Court. Then, he commits the gaffe of accusing the Court of committing the same proscribed cross-border transactions when in fact, the Court did not.

In today’s SONA, will the President continue to be defensive or defiant even? Or will he now, among others invite the nation, including the opposition, to support plans and programs in key areas such completing the peace process with the MILF, the rehabilitation of victims of the horrendous calamities that visited our country in recent years and the reconstruction of their habitat, and preparing the country for ASEAN Integration 2015?

Will he president of all Filipinos or will he remain narrowly partisan? Will he dig in behind his defensive moat or will he reach out to build unity of purpose?


 

 

 

Supreme Court on DAP (photo from Philstar)

Supreme Court on DAP (photo from Philstar)

 

In a near-unanimous decision, the Supreme Court declared yesterday certain acts under the controversial Disbursement Acceleration Program (DAP) as unconstitutional.

 

The court resolution states that DAP acts violate Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers of the executive and legislative branches.  Under the Constitution, while the executive proposes an annual budget, no public monies can be allocated and spent unless covered by a general appropriations act enacted by Congress and passed into law by the President.

 

The high court declared the following acts and practices under the DAP as unconstitutional:

  • the withdrawal of the unobligated allotments from implementing agencies and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Act;
  • the cross border transfers of the savings of the executive to augment the appropriations of other offices outside the executive; and
  • the funding of projects, activities, and programs that were not covered by any appropriation in the General Appropriations Act (GAA).

The DAP is considered by many as the “president’s pork barrel”.  Earlier, the Supreme Court also ruled that congressional pork barrel, or the Priority Development Assistance Fund (PDAF) as unconstitutional.

 

Senator Jinggoy Estrada aka Sexy (photo from Philstar)

Senator Jinggoy Estrada aka Sexy (photo from Philstar)

The DAP earlier hit the headlines when Senator Jinggoy Estrada bared that several senators received some P50 million to P100 million supposedly in exchange for voting to convict former Chief Justice Renato Corona.

Estrada had questioned the “persecution” he has received for allegedly diverting his pork barrel, the Priority Development Assistance Fund (PDAF), to bogus nongovernment organizations.

 

The President and his fighting slogan

The President and his fighting slogan

The Palace as well as House speaker Feliciano Belmonte, Jr. sought to pooh-pooh the SC decision on the DAP by saying the President Aquino has since stopped the program.

 

from suertres.forumotion.com

photo from suertres.forumotion.com

Later, he declared that President Aquino could not be impeached over the DAP because he acted in “good faith”.

 Haven’t the good speaker heard that many roads to hell since time immemorial–from Caligula to Hitler to Ferdinand Marcoswere paved with good intentions?

 

House Speaker Feliciano Belmonte, Jr. (photo from Inquirer)

House Speaker Feliciano Belmonte, Jr. (photo from Inquirer)

Good faith, good intentions are never a valid defense against harmful deeds, against unconstitutional acts.

Such reasoning will not wash; if a series of unconstitutional acts were committed in the past, stopping does not cure them of their unconstitutional nature.

Qua unconstitutional acts, they constitute impeachable acts as culpable violations of the Constitution.

 Impeaching the President will first have to be done in the House of Representatives which should approve by a minimum 1/3 vote the articles of impeachment so they could be transmitted to the Senate.

Since a ruling coalition headed by the President’s Liberal Party controls the House, it remains to be seen if the House will impeach the president.

The onus is on House Speaker Feliciano Belmonte, Jr., currently vice chairman of the ruling Liberal Party.  Belmonte is a proven political butterfly having been a long-time member of the ruling Lakas-Kampi-CMD under then President Fidel Ramos in1992 up to 2009 under President Gloria Macapagal-Arroyo where he last held the position of senior vice president for external affairs.

Can Belmonte afford not to do anything as the DAP has already been declared unconstitutional by the Supreme Court?

Would he want to be seen as somebody condoning the wrong-doings of the President?  Wouldn’t his instincts tell him to save himself first instead of going down with the President?

The President faces a broad coalition of political enemies who would be interested in impeaching him.  This coalition includes Senator Juan Ponce Enrile, the Estradas, the Revillas, and the camp of former President Gloria Macapagal Arroyo.  As it is, the Sandiganbayan simultaneously suspended Arroyo as representative of Pampanga.  Rumor is likewise rife that Erap Estrada will be unseated as mayor of Manila due to residence issues.

At the sub-national level, it includes the Jalosjos political clan of  Zamboanga which was practically shut out in the 2013 elections.

Vice President Jojo Binay need not do anything overt. If the president is impeached, he will succeed Aquino as president.

If ever, this will be the second time that a sitting president will be impeached.

 As always, I think we will make history.