Lack of Legislative Confirmation of the Ombudsman = 1987 Framers' Blunder

The Ombudsman and Lack of Legislative Confirmation

Here is another constitutional office whose "independence" is questionable.

Perhaps the intent of the 1987 framers was the creation of an investigative body beyond the influence and control of the three branches of government, having the sole power to prosecute and suspend alleged corrupt government officials.

The lack of legislative confirmation of the Office of the Ombudsman suggests that members of Congress, or those associated with or related to them, were amongst the targets of investigations by the Ombudsman, which can explain the need for an exclusive executive appointment, only constrained by qualification processes of the Judicial and Bar Council.

Indeed, the 1987 framers, in this sense, relied heavily on the chief executive to appoint an individual of outstanding capacity in order to fulfill the vital duties delegated to this office. Having in mind that giving members of the legislative branch confirming powers defeats the purpose of curtailing the powers of abusive and corrupt government officials within the legislative branch or those under their protection, the 1987 framers saw the necessity of weakening the system of checks and balances in favor of the chief executive, perhaps earnestly hoping on the people to elect a chief executive devoid of immoral and corrupt practices himself.

But what if the chief executive is himself, corrupt? How does the institutional mechanism within the Constitution address this problem? Given the array of exclusive prerogative granted to the chief executive, how can he be held accountable for his actions?

Line item veto ensures congressional indifference and incapacity; near absolute appointing powers enable the appointment of government officials who are beholden to, influenced by, and swear allegiance to the chief executive, rather than the Constitution; and appropriation powers of the chief executive is extensive to the point of the news media being accustomed to the Office of the President appropriating, giving, and releasing public money.

No doubt, the absence of legislative confirmation of the Ombudsman creates an imbalance within the system of checks and balances, leaving the chief executive with considerable institutional advantage vis-a-vis the national legislature.

The 1987 Framers' Blunder

This is where, I believe, the 1987 Framers failed in their wisdom.

By forgetting that the system of checks and balances through an equal separation of powers per se repairs institutional malfunction by fitting evil against evil, the 1987 framers relied too much on moral leadership to counter government excesses, ignoring what the American political philosopher/founding father/president, James Madison (who was also one of the architects of the U.S. federal system of government), meant when he said "ambition must be made to counteract ambition."

Indeed, the 1987 framers have determined that a powerful but benevolent ruler (in the form of a strong presidency) was the answer to the corruption that ever cripples the government in the eyes of the general public.

What baffles me regarding the subject of moral leadership is how did the 1987 framers come to the conclusion that an incorruptible individual, perhaps in the Platonic fashion, exists; more so, even if he does exist, I wonder whether the 1987 framers consider that our Constitution subscribes to the principle of rotation in office, a basic tenet of representative government, whose violation meant the destruction of democratic rule, and the beginning of tyranny?

Let us suppose that moral leadership is the answer to graft and corruption in the government. As previously stated, a tendency of benevolent rule is the concentration of power (in this case, the absence of legislative confirmation of the Ombudsman is a concentration of appointment powers) to a few (Judicial and Bar Council) and/or to a single person (the chief executive), capable of pursuing unadulterated altruism.

But even if moral leadership is effective to counter government abuses, the term of the chief executive is limited by constitutional restraint; hence, the million dollar question is: how could the chief executive exercise benevolent rule long after the Constitution so prohibits? Unfortunately, Aristotle's distinction between the ruled and the ruler is both a check against perpetual tyranny, and inseparably, perpetual benevolent rule.

As Arendt asserts, tyranny is not the suppression of liberty; but rather, the incapacitation of the people to govern themselves, or in a stricter sense, the drive to exclude each and any citizen of his membership in the public realm. Hence, by necessary implication, benevolent rule, where the concentration of power is inevitable, is the inseparable twin of tyranny.

Clearly, if one is to believe that "men are not angels," and societal ills are enduring, fixing government corruption through moral leadership only works when an incorruptible person exists; and he is allowed to rule in perpetuity. But make no mistake, I am not advocating virtuous rule at the expense of Aristotle's rotation principle. In our country, Marcos is an example enough to not rely on perpetual power, however morally endowed or meritoriously qualified a person is. I am merely suggesting that those who say that moral leadership is the answer to the corruption in a democratic government is sorely mistaken.

In a representative democracy, where the ruled and the ruler constantly rotate, moral leadership cannot replace in importance the concept that enables the branches of government to mind each other's business i.e., the system of checks and balances through equal separation of powers (hence, equal capacity to check each other's act), in order to lessen the ever present corruption that cripples government legitimacy and effectiveness in a much tolerable level: a level that promotes society's prosperity to posterity.

By giving too much power to the chief executive, there exists an unequal separation of powers; the system of checks and balances is inherently flawed, and ineffective to counter potential abuses by the chief executive because the Constitution itself is favorably leaning towards a strong presidency.