The Philippine Constitution empowers the chief executive to borrow foreign loans on behalf of the Republic "with prior concurrence of the Monetary Board and subject to such limitations as may be provided by law."
Once again, one sees the extensive reach of the executive "power of the purse," enclosed in the supreme law of the land; only this time, instead of enclosed within an explicit description of public appropriation, the "power of the purse" is tucked within the capacity of the chief executive to ask foreign lenders credit in exchange for constitutionally protected "state secret" investment returns (the specifics of which, we will never know), thanks to executive privilege.
Yes, consent of the Monetary Board and limitations demanded by law, which Congress makes, provides a certain degree of accountability to executive borrowing. But given executive privilege, how is it possible for transparency to flourish under these current constitutional conditions?
Without congressional inquiry, lawmakers are unable to hold accountable the executive branch. Although the legislative branch may limit the chief executive through the laws it enacts, laws are insufficient checks to executive excesses (1) when they are neither updated nor tuned to limit the different approaches or new ways in which the chief executive do business with foreign lenders and thus get foreign loans; (2) lack of transparency allows no scrutiny of state concessions to foreign lenders; (3) and even if the chief executive is restrained by existing laws, Congress is not allowed to demand access to and scrutiny of executive agreements which may include foreign loans, an impasse which is shielded from congressional inquiry by virtue of executive privilege.
Let us not forget that accountability is only possible when transparency exists. Without congressional scrutiny and consent on executive agreements, laws that limits how and how much the chief executive borrows are useless.
As a result, I propose that a specific congressional resolution noting the limit and duration of such borrowing authority, with each house voting separately, is required before the chief executive is authorized, on behalf of the Republic, to borrow foreign loans.
The power of the purse is not limited to appropriations of funds found within the purse, but also funds that emanate outside the purse. The danger of delegating borrowing authority to a single officer of the state, with few or insufficient restraints, is a danger that can lead us not only to economic collapse, potential abuse and dire corruption, but also to the lost of our liberty to decide how our money is spent, whether be it for self-interest or the common good.
Monday, June 1, 2009
Friday, May 1, 2009
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.
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.
Monday, April 13, 2009
Line Item Veto Power favors a Strong Presidency; thus, it is Inimical to a Stable Federal Republic
One always wonder why appropriation of public funds requires de facto approval by the Philippine chief executive.
If we are to be reminded of the past, lawmakers were once called "tongressmen" for being morbidly corrupt. Virtuous rule by a statesmanlike figure such as former President Cory Aquino ensured that such lawmakers were kept under leash or so help us, they would spend public money like there is no tomorrow.
Unfortunately, her reign did not last, as provided for by the Philippine Constitution. Chief executives after her were accused of corruption while one even got convicted of plundering the nation's wealth.
Without a doubt, what was once an office that ensured adherence to the law has become the very office which became the source of patronage, corruption, and utter disregard for the rule of law.
Therefore, the time has come for the executive branch to be reined in.
If the executive branch is to be kept under leash, one must abolish or remove the constitutional power which perpetuate and reinforce executive dominance in terms of appropriating public funds.
That executive prerogative is called "line item veto."
In the hands of a chief executive that adheres to the rule of law, a line item veto is a tool to be reckoned with, especially in terms of legislative excesses. Nonetheless, in the hands of an ignoramus or a shrewd and corrupt chief executive, such power is extremely dangerous; indeed, line item veto had become the chief executive's threat to a particular legislator's pork barrel fund, a legislator whose crucial vote may determine the success of a pending bill beneficial to the chief executive.
If the line item veto is the chief executive's leash to a corrupt legislator's public spending, what on earth can hinder the chief executive from using such veto power to influence a fellow corrupt legislator from voting the chief executive's way? What constitutional restriction could stop a corrupt chief executive from threatening a particular legislator's (perhaps even legitimate) pet projects with a line item veto, unless the legislator kowtow to the chief executive's whim?
As of current, none.
Line item veto is an executive power that is beyond the reach of the system of checks and balances enshrined in the Philippine Constitution. The very essence of a line item veto power negates the use of (1) normal veto, (2) congressional 2/3 override of presidential veto (as explained by the long absence of (1) and (2) in congressional journals), and it (3) discourages other legislators from reconsidering the entire bill, as long as their proposed "line items" remain intact in the final draft.
It allows the rejection of hidden, unaccounted, and rushed appropriations; thus, it prevents abuse; but it also enables the rejection of clauses, or perhaps, even words that are vital to the interpretation and implementation of a bill, making the proposed bill "toothless" and thus, a watered down version.
Indeed, I dare say that line item veto is the most efficient form of the executive's power to check legislative excesses.
But the consequence of such efficiency is the very destruction of the separation of powers among the branches of government.
Fot it allows the chief executive to wield tremendous "power of the purse," that is, the power to micromanage the time and manner public money is spent. No wonder, the Philippine Media is used to the notion that the Office of the President or the Department of Budget and Management appropriates, gives, hands out or releases public funds. Hello! The key to the treasury is kept by Congress, if no one has noticed!
Indeed, such veto is a tool that, when used for good, can effectively check legislative misappropriation; but when used for bad, can slyly supersede accountability and transparency vital to a government under the rule of law.
For this reason, I propose that the line item veto power of the chief executive be stricken from the letter of the Philippine Constitution.
In consequence thereof, I also recommend the inclusion of a pocket veto in the amended charter, right before congressional adjournment or recess, to give additional flexibility to the chief executive and his ability to restrain what may be considered bad legislation.
One must also point out that the chief executive has not been completely disarmed by removing that specific kind of veto power. Normal veto remains intact, and it is sufficient to counter legislative abuses.
As an example, unlike the U.S. Constitution, the Philippine Constitution is explicit in the sense that the previous year's budget appropriations can roll over to the next until a new appropriations bill is passed by Congress. If the legislative branch exceeded its appropriation authority (by going beyond the proposed budget of the chief executive (Philippine Constitution, Article VI, Section 25 [1]), then the chief executive may use normal veto in order to fulfill his constitutional duty of checking legislative over-appropriation.
More so, the Constitution requires the chief executive to explain his "objections" to Congress (Article VI Section 27 [1], second sentence); perhaps, the best way to publicly rebuke those who proposed to increase the budget beyond congressional authority would be to explain as to why he objected, such as a lavish pork barrel spending.
If Congress insists that such legislation is passed, it is arguable that the chief executive can appeal to the public through the press before such legislation is passed over his veto, which in political lingo translates to a threat of failed incumbencies hanging over the heads of those legislators, leaving to the people to decide whether such legislation is appropriate in their judgment.
If we are to be reminded of the past, lawmakers were once called "tongressmen" for being morbidly corrupt. Virtuous rule by a statesmanlike figure such as former President Cory Aquino ensured that such lawmakers were kept under leash or so help us, they would spend public money like there is no tomorrow.
Unfortunately, her reign did not last, as provided for by the Philippine Constitution. Chief executives after her were accused of corruption while one even got convicted of plundering the nation's wealth.
Without a doubt, what was once an office that ensured adherence to the law has become the very office which became the source of patronage, corruption, and utter disregard for the rule of law.
Therefore, the time has come for the executive branch to be reined in.
If the executive branch is to be kept under leash, one must abolish or remove the constitutional power which perpetuate and reinforce executive dominance in terms of appropriating public funds.
That executive prerogative is called "line item veto."
In the hands of a chief executive that adheres to the rule of law, a line item veto is a tool to be reckoned with, especially in terms of legislative excesses. Nonetheless, in the hands of an ignoramus or a shrewd and corrupt chief executive, such power is extremely dangerous; indeed, line item veto had become the chief executive's threat to a particular legislator's pork barrel fund, a legislator whose crucial vote may determine the success of a pending bill beneficial to the chief executive.
If the line item veto is the chief executive's leash to a corrupt legislator's public spending, what on earth can hinder the chief executive from using such veto power to influence a fellow corrupt legislator from voting the chief executive's way? What constitutional restriction could stop a corrupt chief executive from threatening a particular legislator's (perhaps even legitimate) pet projects with a line item veto, unless the legislator kowtow to the chief executive's whim?
As of current, none.
Line item veto is an executive power that is beyond the reach of the system of checks and balances enshrined in the Philippine Constitution. The very essence of a line item veto power negates the use of (1) normal veto, (2) congressional 2/3 override of presidential veto (as explained by the long absence of (1) and (2) in congressional journals), and it (3) discourages other legislators from reconsidering the entire bill, as long as their proposed "line items" remain intact in the final draft.
It allows the rejection of hidden, unaccounted, and rushed appropriations; thus, it prevents abuse; but it also enables the rejection of clauses, or perhaps, even words that are vital to the interpretation and implementation of a bill, making the proposed bill "toothless" and thus, a watered down version.
Indeed, I dare say that line item veto is the most efficient form of the executive's power to check legislative excesses.
But the consequence of such efficiency is the very destruction of the separation of powers among the branches of government.
Fot it allows the chief executive to wield tremendous "power of the purse," that is, the power to micromanage the time and manner public money is spent. No wonder, the Philippine Media is used to the notion that the Office of the President or the Department of Budget and Management appropriates, gives, hands out or releases public funds. Hello! The key to the treasury is kept by Congress, if no one has noticed!
Indeed, such veto is a tool that, when used for good, can effectively check legislative misappropriation; but when used for bad, can slyly supersede accountability and transparency vital to a government under the rule of law.
For this reason, I propose that the line item veto power of the chief executive be stricken from the letter of the Philippine Constitution.
In consequence thereof, I also recommend the inclusion of a pocket veto in the amended charter, right before congressional adjournment or recess, to give additional flexibility to the chief executive and his ability to restrain what may be considered bad legislation.
One must also point out that the chief executive has not been completely disarmed by removing that specific kind of veto power. Normal veto remains intact, and it is sufficient to counter legislative abuses.
As an example, unlike the U.S. Constitution, the Philippine Constitution is explicit in the sense that the previous year's budget appropriations can roll over to the next until a new appropriations bill is passed by Congress. If the legislative branch exceeded its appropriation authority (by going beyond the proposed budget of the chief executive (Philippine Constitution, Article VI, Section 25 [1]), then the chief executive may use normal veto in order to fulfill his constitutional duty of checking legislative over-appropriation.
More so, the Constitution requires the chief executive to explain his "objections" to Congress (Article VI Section 27 [1], second sentence); perhaps, the best way to publicly rebuke those who proposed to increase the budget beyond congressional authority would be to explain as to why he objected, such as a lavish pork barrel spending.
If Congress insists that such legislation is passed, it is arguable that the chief executive can appeal to the public through the press before such legislation is passed over his veto, which in political lingo translates to a threat of failed incumbencies hanging over the heads of those legislators, leaving to the people to decide whether such legislation is appropriate in their judgment.
Friday, March 20, 2009
Judicial and Bar Council: Why Dissolve this Oligarchial Body
In the most exclusive and ex officio fashion, the Judicial and Bar Council (JBC) is tasked by the Philippine Constitution to determine the qualification of potential candidates to the judiciary. The council is empowered to recommend and disqualify applicants based upon legal, moral, and merit qualifications. The purpose of such council is to abjudicate a candidate's qualification by virtue of the council's expertise, not by its representativeness or as a call it "democratic credentials."
This council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive. Although in the past, the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution is a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.
But as a democratic polity, the Philippines deserves better.
Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the legitimacy which a confirming authority such as the Commission on Appointments (CA) or the Philippine Senate can provide.
There is no de jure and de facto separation between executive and judicial appointments except that the CA confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the JBC; hence, appointed members of the executive branch have more electoral legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral legitimacy is also questionable.
Since the legislative branch does not participate on the confirmation of members of the SC, the Philippine Congress is virtually helpless in restraining the appointing powers of the chief executive. Unlike the system of checks and balances under the U.S. Constitution, the Philippine Constitution lacks a stable structure of checks and balances. Instead, it relies on appointed constitutionally-created commissions, such as the JBC, to function as constitutionally-empowered but supposedly politically-neutral government institutions to restrain the three great departments of government.
Although the Philippine Congress exercises the power to remove impeachable officials, it does not have the authority to prevent the appointment of an unworthy appointee; and yet the ability to prevent "engot" appointments are as much important, if not more, as having the capacity to remove "engot" appointments. Stop gangrene at its root.
Indeed, the 1987 framers tend to dismiss the principle of limited power through the necessary affirmation of actions of a branch of government by another branch of government (appropriations, passage, execution or constitutionality of laws, etc) insofar as appointments of public officials are concerned. To the 1987 framers, clashes of opposing interests (or "ambitions" as Madison puts it) between the two most politically inclined branches of the goverment (the executive and the legislative branch) are unreliable to produce public good (that is, recruit worthy citizen-bar members to the judiciary) and may only be applicable to a mature and informed polity.
The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body (CA or the Senate) is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!
Indeed, how can the judiciary escape the taint of political appointment if the appointing authority is already tainted?
The dilemma lies on the 1987 framers' premise to rely on the person's personal pursuit of common good, instead of strengthening the institutional processes geared towards the common good.
As it is said, politics in the Philippines is too personal. Processes (e.g., due process), whether be it political or legal, are merely a formality that in a culture of "palusot," are usually circumvented.
After all, why do we need due process, if we have benevolent leaders for us to follow?
Sunud-sunurang engot.
Lastly, for JBC to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
~
This council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive. Although in the past, the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution is a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.
But as a democratic polity, the Philippines deserves better.
Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the legitimacy which a confirming authority such as the Commission on Appointments (CA) or the Philippine Senate can provide.
There is no de jure and de facto separation between executive and judicial appointments except that the CA confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the JBC; hence, appointed members of the executive branch have more electoral legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral legitimacy is also questionable.
Since the legislative branch does not participate on the confirmation of members of the SC, the Philippine Congress is virtually helpless in restraining the appointing powers of the chief executive. Unlike the system of checks and balances under the U.S. Constitution, the Philippine Constitution lacks a stable structure of checks and balances. Instead, it relies on appointed constitutionally-created commissions, such as the JBC, to function as constitutionally-empowered but supposedly politically-neutral government institutions to restrain the three great departments of government.
Although the Philippine Congress exercises the power to remove impeachable officials, it does not have the authority to prevent the appointment of an unworthy appointee; and yet the ability to prevent "engot" appointments are as much important, if not more, as having the capacity to remove "engot" appointments. Stop gangrene at its root.
Indeed, the 1987 framers tend to dismiss the principle of limited power through the necessary affirmation of actions of a branch of government by another branch of government (appropriations, passage, execution or constitutionality of laws, etc) insofar as appointments of public officials are concerned. To the 1987 framers, clashes of opposing interests (or "ambitions" as Madison puts it) between the two most politically inclined branches of the goverment (the executive and the legislative branch) are unreliable to produce public good (that is, recruit worthy citizen-bar members to the judiciary) and may only be applicable to a mature and informed polity.
The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body (CA or the Senate) is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!
Indeed, how can the judiciary escape the taint of political appointment if the appointing authority is already tainted?
The dilemma lies on the 1987 framers' premise to rely on the person's personal pursuit of common good, instead of strengthening the institutional processes geared towards the common good.
As it is said, politics in the Philippines is too personal. Processes (e.g., due process), whether be it political or legal, are merely a formality that in a culture of "palusot," are usually circumvented.
After all, why do we need due process, if we have benevolent leaders for us to follow?
Sunud-sunurang engot.
Lastly, for JBC to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
~
Friday, February 13, 2009
Rommel Aberia
PAKIUSAP, PAKITANGGAL YUNG PICTURE NA HINDI SA IYO SA FRIENDSTER ACCOUNT MO.
MGA KAPATID, PAMANGKIN, AT PINSAN KO SILA.
ETO ANG WEBSITE NYA.
http://profiles.friendster.com/65566554
MGA KAPATID, PAMANGKIN, AT PINSAN KO SILA.
ETO ANG WEBSITE NYA.
http://profiles.friendster.com/65566554
Friday, January 30, 2009
Journalists, Beware of How You Tell the Story; Heavy Editing Creates Misconception and Misinformation
All it takes is a wrong impression.
In pursuit of finding the most appropriate words while minding the cost of space every character in an article creates, one must not sacrifice accuracy and the full conveyance of meaning, in the altar of efficiency and cost-effectiveness.
For those not versed in the notion of executive orders (EO), executive orders are directives from the chief executive, emanating from his constitutional duty to "ensure that the laws be faithfully executed" (Philippine Constitution, Article VII, Section 18).
Indeed, executive orders are written commands of the chief executive to the executive branch in order to fulfill their role as executors of the law, not as alterers, amenders, or modifiers of the law; as the Philippine Constitution gives the chief executive "control of all the executive departments, bureaus, and offices," it is necessary for the chief executive to give final direction when overlapping boundaries of duty creates confusion and discord within the executive branch.
It is quite absurd for anyone to think that executive orders or even decisions/findings of committees created by the chief executive can supersede Acts of Congress, given that the notion of executive orders are subordinately tied to the execution of laws, which are also called congressional acts (i.e., laws = congressional acts). Unless specified by law, which Congress makes (i.e., allowed by congressional acts) or by constitutional mandate, executive orders has no bearing when it comes to other branches of government, i.e., Congress and the Supreme Court.
Hence, it is fallacy to say that a mere executive order can amend the ARMM law, not to mention the law is an organic act in itself. Although I highly doubt that the author of the article meant what I have just stated, it is expected of journalists to write articles that reflect accuracy based on facts, to help their fellow citizens make informed decisions.
Perhaps, emphasis on the creation of a committee that would RECOMMEND changes to the ARMM law would be more appropriate, don't you think?
In pursuit of finding the most appropriate words while minding the cost of space every character in an article creates, one must not sacrifice accuracy and the full conveyance of meaning, in the altar of efficiency and cost-effectiveness.
For those not versed in the notion of executive orders (EO), executive orders are directives from the chief executive, emanating from his constitutional duty to "ensure that the laws be faithfully executed" (Philippine Constitution, Article VII, Section 18).
Indeed, executive orders are written commands of the chief executive to the executive branch in order to fulfill their role as executors of the law, not as alterers, amenders, or modifiers of the law; as the Philippine Constitution gives the chief executive "control of all the executive departments, bureaus, and offices," it is necessary for the chief executive to give final direction when overlapping boundaries of duty creates confusion and discord within the executive branch.
It is quite absurd for anyone to think that executive orders or even decisions/findings of committees created by the chief executive can supersede Acts of Congress, given that the notion of executive orders are subordinately tied to the execution of laws, which are also called congressional acts (i.e., laws = congressional acts). Unless specified by law, which Congress makes (i.e., allowed by congressional acts) or by constitutional mandate, executive orders has no bearing when it comes to other branches of government, i.e., Congress and the Supreme Court.
Hence, it is fallacy to say that a mere executive order can amend the ARMM law, not to mention the law is an organic act in itself. Although I highly doubt that the author of the article meant what I have just stated, it is expected of journalists to write articles that reflect accuracy based on facts, to help their fellow citizens make informed decisions.
Perhaps, emphasis on the creation of a committee that would RECOMMEND changes to the ARMM law would be more appropriate, don't you think?
Monday, December 15, 2008
Amendment Proposals to the 1987 Philippine Constitution
ARTICLE 2
Section 19: change "effectively controlled by" clause with "beneficial to and considerably controlled by"
If the winner-takes-all electoral system is inevitable, preliminary membership voting (primaries - elections within a party to pick the official party candidate) must be introduced into the Philippine electoral system and eventually required under the law. This means the choice of candidates presented by the party to the electorate will be decided by the many within a political party under penalty of law, away from the secret arbitration and negotiation of party leaders.
Section 5 (1) & (2) Lower House composition and manner of electing members
In General, the same as Section 2 (1) except that the party-list representation system instituted within the 1987 Constitution shall be expanded to cover all members of the Lower House. Given the expansion of such electoral system, sectoral representation now have a theoretical equal chance in obtaining legislative seats without fear of losing due to lack of financial capacity; the need to provide special election procedures for sectoral representation is moot. Through this, the advantage of candidates with considerable amount of spending power lavishing election periods with extravagant election campaigns shall be considerably lesser, resulting in the election of candidates based upon actual electoral legitimacy, not campaign war funds.
However, as a consequence of strengthening party politics, the registration of political parties in the Philippines must be closely guarded and heavily scrutinized by law to mitigate the issue of the relaxed nature of forming political parties, where traditional political parties unify under popular individuals or demagogues devoid of purpose, direction, and expertise. Indeed, a group of individuals intending to register their group as a political party must register their official manifesto (party platform) and be issue-based, disqualifying those groups whose main application are on the basis of their most popular or financially capable member.
Also, the number of seats in the House must reflect the current number of legislative districts in the Philippines. A certain maximum number of House seats must remain in effect; as representation is based on census, the issue of redistributing legislative districts ought to be in the discretion of the several states, as will be discussed in subsection (4).
(3) Qualifications of a legislative district
(4) Reapportionment of legislative districts
In order to maintain a federal form of government, the states ought to have the right to determine the composition of legislative districts within their boundaries. In the past, the Philippine Congress, based upon census, reapportions legislative districts as provided by the Constitution.
To remove the letter and spirit of centralization in the republic, one of the most important factors is giving the state a leading structural role in the reorganization of legislative districts. Delegating such considerable power to the states is essential to the federal structure in the sense that states without the power of reapportionment do not have the flexibility to respond to changing demographics and adapt to the demands of the times. If states cannot choose the manner in which it decides to be represented, the resulting consequence would be a federal legislature that, although may not under represent the people as a whole, misrepresent local constituents through past gerrymandering of legislative districts. Indeed, delegating such power to the states allows the existence of a district reapportionment system that tolerates the uniqueness of each state as a political unit.
All in all, if indeed we are serious in creating a federal system of government, power to reapportion legislative districts must be transferred to the several states.
Section 16 (3) Suspension of legislators
When a member of the upper and lower house has been suspended, his or her voting privileges are taken away with the suspension. Although prudence dictates that such legislators be punished, the unintended consequence of such corrective action is legislative districts or, in the case of senators, states losing their rightful representation.
In a democracy, certain officials of the state were granted the power to appoint officials in the name of practicality and expediency. Elected officials are mandated to nominate, confirm, and then appoint other officials because it is unthinkable for the whole citizenry to do so. Hence, representative democracy was born in modern times. However, the relationship between the pursuit of accountability and efficiency are quite inverse; the more wants to have accountability the more one should less expect smooth decision making.
This is the dilemma at the heart of the Commission of Appointment. Slow scrutiny, as demanded by accountability, is expected by the people while smooth and quick deliberation of confirming appointed officials are necessary for the proper functioning of government. The compromise then was the creation of a special commission within the legislative branch, specifically tasked on approving nominations made by the chief executive.
But the problem with this commission is its exclusive nature. Even though half of the Senate is represented and an equal number is reserved for House members, the commission neither carry the popular and institutional legitimacy which the House or the Senate enjoys nor is it representative enough given that a commission with so few members represent the entire mandate of the people to confirm to their offices essential officers of the state.
The fact that in Philippine politics appointed officials frequently state that they were "serving under the leisure of the President" (thus, disregard the legislative confirmation in the appointing government officials ) serves to give notice to our legislators how limited the view of appointed officials regarding the appointment process; it also shows the importance of having either the upper or lower House, voting as a whole, to confirm the officers of the state and thus have a recognizable stake in their appointment.
Thus, in the name of legitimacy and expediency, I suggest transferring to a particular legislative branch, voting as a whole, which will have the least number of members (the Senate perhaps) in the amended 1987 Constitution the full responsibility of confirming nominated candidates. The trick here is persuading the other House that their powers will not diminish even if such House does not participate in confirming potential officers of the state. That such powers were only exclusively due to the speed which a single legislative body with fewer members can possibly provide, without having to sacrifice the institutional legitimacy it can confer, must be emphasized. Perhaps it should be also argued that the there are some powers that are exclusive to each House and such delegation was determined by their function, without prejudice to the co-equal essence of each house.
Or if the other House is not open to curtailing their confirming power, have the two Houses, voting as a whole, make the confirmation of nominated individuals a congressional priority, with a newly created appointment committees on each House making the crucial recommendation.
Section 22 - Executive Privilege of government officials
Executive privilege is exactly what it suggests - an executive's privilege, i.e., a privilege. The meaning of the word "privilege" suggests that the word is a benefit granted upon the assumption of office, not a right which absolves the holder of any wrongdoing in the eyes of the law. Indeed, one must emphasize that it is not a license to circumvent constitutional restrictions on governmental power but an waiver rarely used in order to fulfill a duty which requires substantial infringement of the social contract for the common good.
More so, executive privilege is and will always be subject to due process. Due process, if it is properly functioning, is capable of determining the need to temporarily allow a constitutional infringement for the common good. An impregnable executive privilege is tantamount to granting absolute power to hide abusive and ultra vires tendencies of governments, which history testifies as common.
The need for accountability and transparency ought to limit executive privilege when credible evidence suggests that such privilege is not being used to perform an essential official duty that requires constitutional infringement but for the advancement of personal gain.
Hence, the argument that executive privilege ought not to be questioned is unheard of in a liberal democracy, but is acceptable only in illiberal democracies or authoritarian regimes.
Section 25 (5) Fund disbursement by High Officials
(6) Abolish Discretionary Funds
Section 27 (2) Remove Line Item Veto
One always wonder why appropriation of public funds requires de facto approval by the Philippine chief executive. If we are to be reminded of the past, lawmakers were once called "tongressmen" for being morbidly corrupt. Virtuous rule by a statesmanlike figure such as former President Cory Aquino ensured that such lawmakers were kept under leash or so help us, they would spend public money like there is no tomorrow.
Unfortunately, her reign did not last, as provided for by the Philippine Constitution. Chief executives after her were accused of corruption while one even got convicted of plundering the nation's wealth. Without a doubt, what was once an office that ensured adherence to the law has become the very office which became the source of patronage, corruption, and utter disregard for the rule of law.
Therefore, the time has come for the executive branch to be reined in.
If the executive branch is to be kept under leash, one must abolish or remove the constitutional power which perpetuate and reinforce executive dominance in terms of appropriating public funds.
That executive prerogative is called the line item veto.
In the hands of a chief executive that adheres to the rule of law, a line item veto is a tool to be reckoned with, especially in terms of legislative excesses. However, in the hands of an ignoramus or a shrewd and corrupt chief executive, such power is extremely dangerous; indeed, line item veto had become the chief executive's threat to a particular legislator's pork barrel fund, a legislator whose crucial vote may determine the success of a pending bill beneficial to the chief executive.
Indeed, if line item veto is the chief executive's leash to corrupt legislators' public spending, what on earth can hinder the chief executive from using such veto power to influence a fellow corrupt legislator from voting the chief executive's way? What constitutional restriction could stop a corrupt chief executive from threatening a particular legislator's (perhaps even legitimate) pet projects with a line item veto, unless the legislator kowtow to the chief executive's whim?
As of current, none.
Line item veto is an executive power that is beyond the reach of the system of checks and balances enshrined in the Philippine Constitution. The very essence of a line item veto power negates the use of (1) normal veto, (2) congressional 2/3 override of presidential veto (as explained by the long absence of (1) and (2) in congressional journals, and it (3) discourages legislators from reconsidering their vetoed proposal, as long as their interest remains intact in the enacted bill.
I dare say that line item veto is the most efficient form of the executive's power to check legislative excesses. But the consequence of such efficiency is the very destruction of the separation of powers among the branches of government, as it allows the chief executive to wield tremendous "power of the purse," by micromanaging the time and manner public money is spent.
Indeed, such veto is a tool that, when used for good, can effectively check legislative misappropriation; but when used for bad, can slyly supersede accountability and transparency vital to a government under the rule of law.
For this reason, I propose that the line item veto power of the chief executive be stricken from the letter of the Philippine Constitution.
In consequence thereof, I propose the inclusion of a pocket veto in the amended charter, right before congressional adjournment or recess, to give additional flexibility to the chief executive and his ability to restrain what may be considered bad legislation.
One must also point out that the chief executive has not been completely disarmed by removing that specific kind of veto power. Normal veto remains intact, and it is sufficient to counter legislative abuses.
As an example, unlike the U.S. Constitution, the Philippine Constitution is explicit in the sense that the previous year's budget appropriations can roll over to the next until a new appropriations bill is passed by Congress. If the legislative branch exceeded its appropriation authority (by going beyond the proposed budget of the chief executive (Philippine Constitution, Article VI, Section 25 [1]), then the chief executive may use normal veto in order to fulfill his constitutional duty of checking legislative over-appropriation.
More so, the Constitution requires the chief executive to explain his "objections" to Congress (Article VI Section 27 [1], second sentence); perhaps, the best way to publicly rebuke those who proposed to increase the budget beyond congressional authority would be to explain as to why he objected, such as a lavish pork barrel spending.
If Congress insists that such legislation is passed, it is arguable that the chief executive can appeal to the public through the press before such legislation is passed over his veto, which in political lingo translates to a threat of failed incumbencies hanging over the heads of those legislators, leaving to the people to decide whether such legislation is appropriate in their judgment.
(4) Replace "tax exemption" with "tax deduction"; "all members of Congress" with "both Houses of Congress"
Civic duty obliges payment of taxes by citizens and those under the responsibility of the state. Congress ought to have the power to grant exemptions, but the power to grant tax exemptions must be de-emphasized in comparison to granting "tax deductions." No state can survive without considerable resources. Unless pertaining to institutions that traditionally have been tax exempt (such as the church and charitable institutions), tax exemptions are inimical to the stability of the state; hence, tax deductions are much preferrable.
Section 32 (Initiatives and Referendums - Put to the ballot explicitly unresolved questions to be decided by the people)
ARTICLE 7
Section 3 ( eliminate "no" on the second sentence i.e., Vice President requires approval)
Section 4 (President and Vice President elected together)
Section 8 (presidential incapacity - inability of the president to discharge the duties of his office; not only through written notice)
Section 9 appointment of SC Justices without congressional confirmation
Section 16 (power to nominate government officials)
Section 20 (Borrowing/foreign loans require specific legislative resolution/consent)
The Philippine Constitution empowers the chief executive to borrow foreign loans on behalf of the Republic "with prior concurrence of the Monetary Board and subject to such limitations as may be provided by law."
Once again, one sees the extensive reach of executive "power of the purse," enclosed in the supreme law of the land; only this time, instead of hiding within an explicit description of public appropriation, the "power of the purse" is hidden within the capacity of the chief executive to ask foreign lenders credit in exchange for an undetermined interest rate, thanks to executive privilege.
Yes, consent of the Monetary Board and limitations demanded by law, which Congress makes, provides a certain degree of accountability to executive borrowing. But given executive privilege, how is it possible for transparency to flourish under this current constitutional conditions?
Without congressional inquiry, lawmakers are unable to hold accountable the executive branch. Although the legislative branch may limit the chief executive through the laws it enacts, laws are insufficient checks to executive excesses (1) when they are neither updated nor tuned to limit the different approaches or new ways in which the chief executive do business with foreign lenders and thus get foreign loans; (2) even if the chief executive is restrained by existing laws, Congress is not allowed, to a certain extent, to demand scrutiny of executive agreements which may include foreign loans, a situation which is shielded from congressional inquiry by virtue of executive privilege.
Let us not forget that accountability is only possible when transparency exists. Without congressional scrutiny and consent on executive agreements, laws that limits how and how much the chief executive borrows are useless.
As a result, I propose that a specific congressional resolution noting the limit and duration of such borrowing authority, with each house voting separately, is required before the chief executive borrows foreign loans.
The power of the purse is not limited to appropriations of funds found inside the purse, but also funds that emanate outside the purse. The danger of delegating borrowing authority to a single officer of the state, with few or insufficient restraints, is a danger that can leads us not only to economic collapse, potential abuse and dire corruption, but also to the lost of our liberty to decide how our money is spent, whether be it for self-interest or the common good.
Section 21 (treaty ratification; executive agreements must be in compliance with Philippine laws)
Section 22 (address to congress; remove second sentence)
ARTICLE 8
Section 4 en banc decisions (finality decided by en banc); supreme court's right to hear cases by its own discretion
Section 5 (venue change for place of trial)
Section 8 Abolish the Judicial and Bar Council
In the most exclusive and ex officio fashion, the Judicial and Bar Council is tasked by the Philippine Constitution to determine the qualification of potential candidates to the judiciary. The council is empowered to recommend and disqualify applicants based upon legal, moral, and merit qualifications.
Indeed, the efficiency with which a select few members, emanating from various branches of government, private institutions, and the citizenry, can provide is exemplary: provided that the ultimate purpose of such council is to abjudicate a candidate's qualification by virtue of the council's expertise, not by its representativeness or as a call it "democratic credentials."
Indeed, this council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive.
Although in the past the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution was a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.
But as a democratic polity, the Philippines deserves better.
Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the popular legitimacy which a confirming authority such as the Philippine Senate can provide.
Indeed, because the legislative branch does not participate in the confirmation of the members of the SC, I have no qualm in saying that the system of checks and balances in terms of appointing the members of the Judicial department is non-existent; hence, in that sense, I am tempted to say that there is no such thing as "separation of powers" between the executive and judicial branches; the judiciary is a mere executive department whose main purpose is to project its theoretical independence to allow the perception of being a separate department.
Indeed, there is no de jure and de facto separation between executive and judicial appointments except that the Commission on Appointments (CA) confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the Judicial and Bar Council; hence, I am obliged to say that appointed members of the executive branch have more electoral/popular legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral/popular legitimacy is also questionable.
The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!
Regardless of whether such appointment has been politicized, politics end when a Justice (or Chief justice) assumes his position as a member of the judiciary, in which case, the separation of powers principle obliges the members of the judiciary to be impartial, whosoever favorably appraised or appointed them.
Oh, I am sorry, of course, in a society where debt of gratitude pervades in the political structure (which includes the judiciary), all of what I have said is irrelevant; what I have said only applies to democracies that seriously adheres to the notion of "separation of powers" and "checks and balances," not only dimwittedly profess or half-heartedly believes in such principles.
For this council to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
Section 14 (requirement to explain refusal for judicial review)
ARTICLE 9
(A) Section 6 (make clear second sentence)
ARTICLE 10 (delete)
ARTICLE 11
Section 3 (3) delete 1/3; replace with majority of House members
Section 9 appointment of Ombudsman; require congressional approval
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 the need for legislative confirmation of the Office of the Ombudsman suggests that members of Congress at that time were among 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 to fulfill the duties delegated to this office; having in mind that giving members of the legislative branch, who may themselves be potential targets of investigations of the Ombudsman, confirming powers to the occupants of the investigative body as inimical to the pursuit of justice against corrupt officials given the zeitgeist of corrupt practices at that time, the 1987 framers saw the necessity of weakening the system of checks and balances in favor of the chief executive, perhaps earnestly banking on 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 upon 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.
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 by itself repairs institutional malfunction by fitting evil against evil, the 1987 framers relied too much on moral leadership to counter government excesses, forgetting what the American political philosopher/founding father/President, James madison, one of the architects of the U.S. federal system of government, meant when he said "ambition must be made to counteract ambition."
Indeed, Although the 1987 framers may have determined that a powerful but benevolent ruler (in the form of a strong presidency) is the answer to the corruption that ever cripples the government in the eyes of the general public; but how did they come to the conclusion that such an individual exists and more so, even if he does exist, he may continue his benevolent rule long after the Constitution so prohibits?
Thus, 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 -- the system of checks and balances through equal separation of powers (hence, equal capacity to check each other's act) -- in order to remove the corruption that cripples government legitimacy and effectiveness.
By giving too much power to the chief executive, there exists an unequal separation of powers and the system of checks and balances is fundamentally and inherently ineffective to counter potential abuses by the chief executive because the Constitution itself is favorably leaning towards a strong presidency.
ARTICLE 12
Section 2 (abolish the 60 per centum Filipino ownership requirement for corporations that seeks to tap natural resources on public domain)
Section 10 replace "shall" with "may"
3rd sentence - delete
Section 19: change "effectively controlled by" clause with "beneficial to and considerably controlled by"
Once the global economic crisis subsides, I believe replacing this constitutional mandate will further encourage foreigners to invest in our country and provide much needed capital for economic development.
ARTICLE VI
Section 2 (1) How Senators are elected
If 3 or more senators will represent each state, I suggest a proportional representation system with a minimum qualification threshold as the most appropriate mode of electing federal senators within the state. A deciding factor for this suggestion is the strengthening of party politics away from personal politics. This way also, the lost of representation in terms of the minority vote is almost nil (less is better than none), which in winner-takes-all electoral systems may mean one party rule in terms of all senators elected within a state.
If the winner-takes-all electoral system is inevitable, preliminary membership voting (primaries - elections within a party to pick the official party candidate) must be introduced into the Philippine electoral system and eventually required under the law. This means the choice of candidates presented by the party to the electorate will be decided by the many within a political party under penalty of law, away from the secret arbitration and negotiation of party leaders.
Section 5 (1) & (2) Lower House composition and manner of electing members
In General, the same as Section 2 (1) except that the party-list representation system instituted within the 1987 Constitution shall be expanded to cover all members of the Lower House. Given the expansion of such electoral system, sectoral representation now have a theoretical equal chance in obtaining legislative seats without fear of losing due to lack of financial capacity; the need to provide special election procedures for sectoral representation is moot. Through this, the advantage of candidates with considerable amount of spending power lavishing election periods with extravagant election campaigns shall be considerably lesser, resulting in the election of candidates based upon actual electoral legitimacy, not campaign war funds.
However, as a consequence of strengthening party politics, the registration of political parties in the Philippines must be closely guarded and heavily scrutinized by law to mitigate the issue of the relaxed nature of forming political parties, where traditional political parties unify under popular individuals or demagogues devoid of purpose, direction, and expertise. Indeed, a group of individuals intending to register their group as a political party must register their official manifesto (party platform) and be issue-based, disqualifying those groups whose main application are on the basis of their most popular or financially capable member.
Also, the number of seats in the House must reflect the current number of legislative districts in the Philippines. A certain maximum number of House seats must remain in effect; as representation is based on census, the issue of redistributing legislative districts ought to be in the discretion of the several states, as will be discussed in subsection (4).
(3) Qualifications of a legislative district
(4) Reapportionment of legislative districts
In order to maintain a federal form of government, the states ought to have the right to determine the composition of legislative districts within their boundaries. In the past, the Philippine Congress, based upon census, reapportions legislative districts as provided by the Constitution.
To remove the letter and spirit of centralization in the republic, one of the most important factors is giving the state a leading structural role in the reorganization of legislative districts. Delegating such considerable power to the states is essential to the federal structure in the sense that states without the power of reapportionment do not have the flexibility to respond to changing demographics and adapt to the demands of the times. If states cannot choose the manner in which it decides to be represented, the resulting consequence would be a federal legislature that, although may not under represent the people as a whole, misrepresent local constituents through past gerrymandering of legislative districts. Indeed, delegating such power to the states allows the existence of a district reapportionment system that tolerates the uniqueness of each state as a political unit.
All in all, if indeed we are serious in creating a federal system of government, power to reapportion legislative districts must be transferred to the several states.
Section 16 (3) Suspension of legislators
When a member of the upper and lower house has been suspended, his or her voting privileges are taken away with the suspension. Although prudence dictates that such legislators be punished, the unintended consequence of such corrective action is legislative districts or, in the case of senators, states losing their rightful representation.
But why should states and its residents be punished for an act that they were not responsible for? Why should they suffer for a crime which they did not commit? In response to this, I propose state legislatures ought to be allowed by majority vote to proxy vote in the federal legislature when federal legislators are suspended, provided that no election has occurred electing a representative or senator to replace the same. Such act of allowing transmutation of the majority vote of a state legislature to a federal legislative vote when a representation is suspended, treating it with the same effect and legitimacy of a vote of a federal legislator, solves the issue of non-representation during times of personal error in the part of a federal representative.
In this case, I must admit that full representation is more important than the efficiency and speed of delivering congressional duty.
Section 18 - Abolish the Commission on AppointmentIn a democracy, certain officials of the state were granted the power to appoint officials in the name of practicality and expediency. Elected officials are mandated to nominate, confirm, and then appoint other officials because it is unthinkable for the whole citizenry to do so. Hence, representative democracy was born in modern times. However, the relationship between the pursuit of accountability and efficiency are quite inverse; the more wants to have accountability the more one should less expect smooth decision making.
This is the dilemma at the heart of the Commission of Appointment. Slow scrutiny, as demanded by accountability, is expected by the people while smooth and quick deliberation of confirming appointed officials are necessary for the proper functioning of government. The compromise then was the creation of a special commission within the legislative branch, specifically tasked on approving nominations made by the chief executive.
But the problem with this commission is its exclusive nature. Even though half of the Senate is represented and an equal number is reserved for House members, the commission neither carry the popular and institutional legitimacy which the House or the Senate enjoys nor is it representative enough given that a commission with so few members represent the entire mandate of the people to confirm to their offices essential officers of the state.
The fact that in Philippine politics appointed officials frequently state that they were "serving under the leisure of the President" (thus, disregard the legislative confirmation in the appointing government officials ) serves to give notice to our legislators how limited the view of appointed officials regarding the appointment process; it also shows the importance of having either the upper or lower House, voting as a whole, to confirm the officers of the state and thus have a recognizable stake in their appointment.
Thus, in the name of legitimacy and expediency, I suggest transferring to a particular legislative branch, voting as a whole, which will have the least number of members (the Senate perhaps) in the amended 1987 Constitution the full responsibility of confirming nominated candidates. The trick here is persuading the other House that their powers will not diminish even if such House does not participate in confirming potential officers of the state. That such powers were only exclusively due to the speed which a single legislative body with fewer members can possibly provide, without having to sacrifice the institutional legitimacy it can confer, must be emphasized. Perhaps it should be also argued that the there are some powers that are exclusive to each House and such delegation was determined by their function, without prejudice to the co-equal essence of each house.
Or if the other House is not open to curtailing their confirming power, have the two Houses, voting as a whole, make the confirmation of nominated individuals a congressional priority, with a newly created appointment committees on each House making the crucial recommendation.
Section 22 - Executive Privilege of government officials
Executive privilege is exactly what it suggests - an executive's privilege, i.e., a privilege. The meaning of the word "privilege" suggests that the word is a benefit granted upon the assumption of office, not a right which absolves the holder of any wrongdoing in the eyes of the law. Indeed, one must emphasize that it is not a license to circumvent constitutional restrictions on governmental power but an waiver rarely used in order to fulfill a duty which requires substantial infringement of the social contract for the common good.
More so, executive privilege is and will always be subject to due process. Due process, if it is properly functioning, is capable of determining the need to temporarily allow a constitutional infringement for the common good. An impregnable executive privilege is tantamount to granting absolute power to hide abusive and ultra vires tendencies of governments, which history testifies as common.
The need for accountability and transparency ought to limit executive privilege when credible evidence suggests that such privilege is not being used to perform an essential official duty that requires constitutional infringement but for the advancement of personal gain.
Hence, the argument that executive privilege ought not to be questioned is unheard of in a liberal democracy, but is acceptable only in illiberal democracies or authoritarian regimes.
Section 25 (5) Fund disbursement by High Officials
(6) Abolish Discretionary Funds
Section 27 (2) Remove Line Item Veto
One always wonder why appropriation of public funds requires de facto approval by the Philippine chief executive. If we are to be reminded of the past, lawmakers were once called "tongressmen" for being morbidly corrupt. Virtuous rule by a statesmanlike figure such as former President Cory Aquino ensured that such lawmakers were kept under leash or so help us, they would spend public money like there is no tomorrow.
Unfortunately, her reign did not last, as provided for by the Philippine Constitution. Chief executives after her were accused of corruption while one even got convicted of plundering the nation's wealth. Without a doubt, what was once an office that ensured adherence to the law has become the very office which became the source of patronage, corruption, and utter disregard for the rule of law.
Therefore, the time has come for the executive branch to be reined in.
If the executive branch is to be kept under leash, one must abolish or remove the constitutional power which perpetuate and reinforce executive dominance in terms of appropriating public funds.
That executive prerogative is called the line item veto.
In the hands of a chief executive that adheres to the rule of law, a line item veto is a tool to be reckoned with, especially in terms of legislative excesses. However, in the hands of an ignoramus or a shrewd and corrupt chief executive, such power is extremely dangerous; indeed, line item veto had become the chief executive's threat to a particular legislator's pork barrel fund, a legislator whose crucial vote may determine the success of a pending bill beneficial to the chief executive.
Indeed, if line item veto is the chief executive's leash to corrupt legislators' public spending, what on earth can hinder the chief executive from using such veto power to influence a fellow corrupt legislator from voting the chief executive's way? What constitutional restriction could stop a corrupt chief executive from threatening a particular legislator's (perhaps even legitimate) pet projects with a line item veto, unless the legislator kowtow to the chief executive's whim?
As of current, none.
Line item veto is an executive power that is beyond the reach of the system of checks and balances enshrined in the Philippine Constitution. The very essence of a line item veto power negates the use of (1) normal veto, (2) congressional 2/3 override of presidential veto (as explained by the long absence of (1) and (2) in congressional journals, and it (3) discourages legislators from reconsidering their vetoed proposal, as long as their interest remains intact in the enacted bill.
I dare say that line item veto is the most efficient form of the executive's power to check legislative excesses. But the consequence of such efficiency is the very destruction of the separation of powers among the branches of government, as it allows the chief executive to wield tremendous "power of the purse," by micromanaging the time and manner public money is spent.
Indeed, such veto is a tool that, when used for good, can effectively check legislative misappropriation; but when used for bad, can slyly supersede accountability and transparency vital to a government under the rule of law.
For this reason, I propose that the line item veto power of the chief executive be stricken from the letter of the Philippine Constitution.
In consequence thereof, I propose the inclusion of a pocket veto in the amended charter, right before congressional adjournment or recess, to give additional flexibility to the chief executive and his ability to restrain what may be considered bad legislation.
One must also point out that the chief executive has not been completely disarmed by removing that specific kind of veto power. Normal veto remains intact, and it is sufficient to counter legislative abuses.
As an example, unlike the U.S. Constitution, the Philippine Constitution is explicit in the sense that the previous year's budget appropriations can roll over to the next until a new appropriations bill is passed by Congress. If the legislative branch exceeded its appropriation authority (by going beyond the proposed budget of the chief executive (Philippine Constitution, Article VI, Section 25 [1]), then the chief executive may use normal veto in order to fulfill his constitutional duty of checking legislative over-appropriation.
More so, the Constitution requires the chief executive to explain his "objections" to Congress (Article VI Section 27 [1], second sentence); perhaps, the best way to publicly rebuke those who proposed to increase the budget beyond congressional authority would be to explain as to why he objected, such as a lavish pork barrel spending.
If Congress insists that such legislation is passed, it is arguable that the chief executive can appeal to the public through the press before such legislation is passed over his veto, which in political lingo translates to a threat of failed incumbencies hanging over the heads of those legislators, leaving to the people to decide whether such legislation is appropriate in their judgment.
(4) Replace "tax exemption" with "tax deduction"; "all members of Congress" with "both Houses of Congress"
Civic duty obliges payment of taxes by citizens and those under the responsibility of the state. Congress ought to have the power to grant exemptions, but the power to grant tax exemptions must be de-emphasized in comparison to granting "tax deductions." No state can survive without considerable resources. Unless pertaining to institutions that traditionally have been tax exempt (such as the church and charitable institutions), tax exemptions are inimical to the stability of the state; hence, tax deductions are much preferrable.
Section 32 (Initiatives and Referendums - Put to the ballot explicitly unresolved questions to be decided by the people)
ARTICLE 7
Section 3 ( eliminate "no" on the second sentence i.e., Vice President requires approval)
Section 4 (President and Vice President elected together)
Section 8 (presidential incapacity - inability of the president to discharge the duties of his office; not only through written notice)
Section 9 appointment of SC Justices without congressional confirmation
Section 16 (power to nominate government officials)
Section 20 (Borrowing/foreign loans require specific legislative resolution/consent)
The Philippine Constitution empowers the chief executive to borrow foreign loans on behalf of the Republic "with prior concurrence of the Monetary Board and subject to such limitations as may be provided by law."
Once again, one sees the extensive reach of executive "power of the purse," enclosed in the supreme law of the land; only this time, instead of hiding within an explicit description of public appropriation, the "power of the purse" is hidden within the capacity of the chief executive to ask foreign lenders credit in exchange for an undetermined interest rate, thanks to executive privilege.
Yes, consent of the Monetary Board and limitations demanded by law, which Congress makes, provides a certain degree of accountability to executive borrowing. But given executive privilege, how is it possible for transparency to flourish under this current constitutional conditions?
Without congressional inquiry, lawmakers are unable to hold accountable the executive branch. Although the legislative branch may limit the chief executive through the laws it enacts, laws are insufficient checks to executive excesses (1) when they are neither updated nor tuned to limit the different approaches or new ways in which the chief executive do business with foreign lenders and thus get foreign loans; (2) even if the chief executive is restrained by existing laws, Congress is not allowed, to a certain extent, to demand scrutiny of executive agreements which may include foreign loans, a situation which is shielded from congressional inquiry by virtue of executive privilege.
Let us not forget that accountability is only possible when transparency exists. Without congressional scrutiny and consent on executive agreements, laws that limits how and how much the chief executive borrows are useless.
As a result, I propose that a specific congressional resolution noting the limit and duration of such borrowing authority, with each house voting separately, is required before the chief executive borrows foreign loans.
The power of the purse is not limited to appropriations of funds found inside the purse, but also funds that emanate outside the purse. The danger of delegating borrowing authority to a single officer of the state, with few or insufficient restraints, is a danger that can leads us not only to economic collapse, potential abuse and dire corruption, but also to the lost of our liberty to decide how our money is spent, whether be it for self-interest or the common good.
Section 21 (treaty ratification; executive agreements must be in compliance with Philippine laws)
Section 22 (address to congress; remove second sentence)
ARTICLE 8
Section 4 en banc decisions (finality decided by en banc); supreme court's right to hear cases by its own discretion
Section 5 (venue change for place of trial)
Section 8 Abolish the Judicial and Bar Council
In the most exclusive and ex officio fashion, the Judicial and Bar Council is tasked by the Philippine Constitution to determine the qualification of potential candidates to the judiciary. The council is empowered to recommend and disqualify applicants based upon legal, moral, and merit qualifications.
Indeed, the efficiency with which a select few members, emanating from various branches of government, private institutions, and the citizenry, can provide is exemplary: provided that the ultimate purpose of such council is to abjudicate a candidate's qualification by virtue of the council's expertise, not by its representativeness or as a call it "democratic credentials."
Indeed, this council represents the most elitist institution in the Philippine government. Membership is limited to the Chief Justice as ex officio Chairman, Justice Secretary, a retired Justice of the SC, a representative of the Integrated Bar, a law professor, and a "representative of the private sector -all of them non-elected officials and nominated by the chief executive.
Although in the past the council and its function may have been said as practical, its composition as a public institution is too undemocratic, and indeed, in a sense, oligarchial. Without a doubt, its inclusion in the 1987 Constitution was a step forward from the 1973 Constitution, which enabled the chief executive unlimited appointment powers.
But as a democratic polity, the Philippines deserves better.
Beholden to the chief appointing authority, this council, however morally endowed and meritoriously qualified, is outdated and must be abolished. Its credibility notwitstanding, the council lacks the popular legitimacy which a confirming authority such as the Philippine Senate can provide.
Indeed, because the legislative branch does not participate in the confirmation of the members of the SC, I have no qualm in saying that the system of checks and balances in terms of appointing the members of the Judicial department is non-existent; hence, in that sense, I am tempted to say that there is no such thing as "separation of powers" between the executive and judicial branches; the judiciary is a mere executive department whose main purpose is to project its theoretical independence to allow the perception of being a separate department.
Indeed, there is no de jure and de facto separation between executive and judicial appointments except that the Commission on Appointments (CA) confirms potential candidates in the executive branch while the judiciary are de facto confirmed by the Judicial and Bar Council; hence, I am obliged to say that appointed members of the executive branch have more electoral/popular legitimacy than members of the judiciary, while also noting that the CA's capacity to confer electoral/popular legitimacy is also questionable.
The argument that the appointment of SC Justices as being politicized when confirmed by a legislative body is inconsistent and baloney; the appointment of SC Justices is and has always been a political process; it is political because the people must have some say regarding magistrates who shall judge fairly among themselves; more so, it is very political because without the appointment of the chief executive, it is impossible for the Judicial Department to exist, if one has not noticed!
Regardless of whether such appointment has been politicized, politics end when a Justice (or Chief justice) assumes his position as a member of the judiciary, in which case, the separation of powers principle obliges the members of the judiciary to be impartial, whosoever favorably appraised or appointed them.
Oh, I am sorry, of course, in a society where debt of gratitude pervades in the political structure (which includes the judiciary), all of what I have said is irrelevant; what I have said only applies to democracies that seriously adheres to the notion of "separation of powers" and "checks and balances," not only dimwittedly profess or half-heartedly believes in such principles.
For this council to continue in its duty meant that the Filipino people is not yet ready to hold accountable and have a say on who shall judge over them, at least through legislators that act as representatives that confirm magistrates of justice.
Section 14 (requirement to explain refusal for judicial review)
ARTICLE 9
(A) Section 6 (make clear second sentence)
(C) COMELEC - gradual abolition of its natural essence; states shall, by their own election commission manage elections
ARTICLE 10 (delete)
ARTICLE 11
Section 3 (3) delete 1/3; replace with majority of House members
Section 9 appointment of Ombudsman; require congressional approval
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 the need for legislative confirmation of the Office of the Ombudsman suggests that members of Congress at that time were among 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 to fulfill the duties delegated to this office; having in mind that giving members of the legislative branch, who may themselves be potential targets of investigations of the Ombudsman, confirming powers to the occupants of the investigative body as inimical to the pursuit of justice against corrupt officials given the zeitgeist of corrupt practices at that time, the 1987 framers saw the necessity of weakening the system of checks and balances in favor of the chief executive, perhaps earnestly banking on 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 upon 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.
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 by itself repairs institutional malfunction by fitting evil against evil, the 1987 framers relied too much on moral leadership to counter government excesses, forgetting what the American political philosopher/founding father/President, James madison, one of the architects of the U.S. federal system of government, meant when he said "ambition must be made to counteract ambition."
Indeed, Although the 1987 framers may have determined that a powerful but benevolent ruler (in the form of a strong presidency) is the answer to the corruption that ever cripples the government in the eyes of the general public; but how did they come to the conclusion that such an individual exists and more so, even if he does exist, he may continue his benevolent rule long after the Constitution so prohibits?
Thus, 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 -- the system of checks and balances through equal separation of powers (hence, equal capacity to check each other's act) -- in order to remove the corruption that cripples government legitimacy and effectiveness.
By giving too much power to the chief executive, there exists an unequal separation of powers and the system of checks and balances is fundamentally and inherently ineffective to counter potential abuses by the chief executive because the Constitution itself is favorably leaning towards a strong presidency.
ARTICLE 12
Section 2 (abolish the 60 per centum Filipino ownership requirement for corporations that seeks to tap natural resources on public domain)
Section 10 replace "shall" with "may"
3rd sentence - delete
ARTICLE 14
Section 6 (no national language; english is lingua franca)
Tuesday, November 11, 2008
Avoid McCarthyistic Tendencies on the Use of Congressional Subpoena Powers; Due Process is Essential to Proper Legislative Oversight
During the height of the Cold War, U.S. Senator Joseph McCarthy became famous for questioning individuals who allegedly hold sympathy for and support communist ideals and pratices by using the subpoena powers of the U.S. Congress.
McCarthyism, or what became known as suspicion of Americans with alleged communist ties have become a nasty lesson in U.S history for those whose pursuit of public duty is unbound by established procedural regulations. Due process was enshrined in the U.S. Constitution to remove such arbitrary use of legitimate coercion in pursuit of preserving societal interest while protecting the right of an individual against the same; but indeed, it was blalantly ignored.
As history shows, lives were ruined, reputations were lost, and the livelihood of individuals questioned during the so called McCarthy Trials were threatened on the basis of hearsay and mere suspicion without credible evidence. It was a classic case of an abusive display of congressional power: a legislative investigation run amok, devoid of due process and in utmost disregard for individual citizens with inalienable rights guaranteed by the U.S. Constitution.
It may happen in our time and place if we let our zealousness to do what is right and to correct what is wrong go above our heads, allowing our ourselves to pursue public duty untempered by established procedures and neglecting adherance to the rule of law.
For what makes Mccarthyism distinct to current legislative investigations is merely the issue at stake; as opposed to communist suspicion, alleged corrupt pratices by former Filipino government officials are, regardless of whether be it the Fertilizer Fund or the Euro General scandal.
Article VI, Section 21 of the Philippine Constitution states that,
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.
Please note the second sentence. "The rights of the persons" being questioned "shall be respected." Even Pontius Pilate will be given a fair trial when the day of judgment comes, so whay not extend the same respect to those individuals?
I am not saying that the upper and lower house of the Philippine Congress have not given the citizens in question what is their due. My point is coming from the concern that the improper exercise of such congressional power will further exacerbate the distrust we, the common people, have in terms of elected officials wielding such considerable powers.
The Philippine Supreme Court has already limited the parameters of legislative inquiry by mere technicality because the Philipine Senate had not been able to satisfy the "duly published rule of procedures" requirement of the Philippine Constitution during the Neri Case.
Granted that a significant number of SC Justices were hand picked by the current Philippine president, but such fiasco could have been avoided had the Philippine Senate made sure that the individuals being questioned were made aware of the rights and expected duties a citizen have when being questioned before a Senate inquiry.
Nonetheless, make no mistake. I am not delegating blame here. The dilemma surrounding the current Senate investigations are growing pains natural to fledging democracies where missteps are to be expected.
The sluggish response in the sense of Senate President Villar's signature on the subpoena for General de la paz may be welcomed as taking the time to study the legality of the summon being served to the police official; hopefully, it is the case. If indeed such is true, it exemplies a thinking politician, assessing the ramification of a potential ultra vires action on the part of the Philippine Senate, the actual situation of which may have been another blunder on its part.
However, one must not be too slow all the time. Constant slowness is a trait of dysfynctional government and such may be interpreted by the public as ineffectiveness in the part of those whose authorization is required for the summons to be served.
The Filipino people is watching, dear legislators. Watch your steps and when exercising express powers granted under the Philippine Constitution, do so in a manner which complies with procedural rules created in order for the officers of the state to fulfill their sworn duty without prejudice to the rights of the citizens being questioned.
After more than two decades of autocratic rule, congressional oversight power, as embodied in its in aid of legislation inquiries, is a welcome and formidable tool against the abusive tendencies of all levels of government officials.
Use it well and shrewdly.
The Court may be packed; nonetheless, if there is will, there is a way. One thing the Court cannot overrule is public opinion. If public opinion is with you, the Court will think twice before it decides against your actions and it is more likely that even the Court will see your point of view. Should I mention the ancestral domain issue?
With the level of graft and corruption in our country, I expect committee investigations by the Philippine Congress to increase tremendously.
Do not hold back, as long as due process is adhered to.
Keep asking questions. Bother them until the fat lady sings.
McCarthyism, or what became known as suspicion of Americans with alleged communist ties have become a nasty lesson in U.S history for those whose pursuit of public duty is unbound by established procedural regulations. Due process was enshrined in the U.S. Constitution to remove such arbitrary use of legitimate coercion in pursuit of preserving societal interest while protecting the right of an individual against the same; but indeed, it was blalantly ignored.
As history shows, lives were ruined, reputations were lost, and the livelihood of individuals questioned during the so called McCarthy Trials were threatened on the basis of hearsay and mere suspicion without credible evidence. It was a classic case of an abusive display of congressional power: a legislative investigation run amok, devoid of due process and in utmost disregard for individual citizens with inalienable rights guaranteed by the U.S. Constitution.
It may happen in our time and place if we let our zealousness to do what is right and to correct what is wrong go above our heads, allowing our ourselves to pursue public duty untempered by established procedures and neglecting adherance to the rule of law.
For what makes Mccarthyism distinct to current legislative investigations is merely the issue at stake; as opposed to communist suspicion, alleged corrupt pratices by former Filipino government officials are, regardless of whether be it the Fertilizer Fund or the Euro General scandal.
Article VI, Section 21 of the Philippine Constitution states that,
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.
Please note the second sentence. "The rights of the persons" being questioned "shall be respected." Even Pontius Pilate will be given a fair trial when the day of judgment comes, so whay not extend the same respect to those individuals?
I am not saying that the upper and lower house of the Philippine Congress have not given the citizens in question what is their due. My point is coming from the concern that the improper exercise of such congressional power will further exacerbate the distrust we, the common people, have in terms of elected officials wielding such considerable powers.
The Philippine Supreme Court has already limited the parameters of legislative inquiry by mere technicality because the Philipine Senate had not been able to satisfy the "duly published rule of procedures" requirement of the Philippine Constitution during the Neri Case.
Granted that a significant number of SC Justices were hand picked by the current Philippine president, but such fiasco could have been avoided had the Philippine Senate made sure that the individuals being questioned were made aware of the rights and expected duties a citizen have when being questioned before a Senate inquiry.
Nonetheless, make no mistake. I am not delegating blame here. The dilemma surrounding the current Senate investigations are growing pains natural to fledging democracies where missteps are to be expected.
The sluggish response in the sense of Senate President Villar's signature on the subpoena for General de la paz may be welcomed as taking the time to study the legality of the summon being served to the police official; hopefully, it is the case. If indeed such is true, it exemplies a thinking politician, assessing the ramification of a potential ultra vires action on the part of the Philippine Senate, the actual situation of which may have been another blunder on its part.
However, one must not be too slow all the time. Constant slowness is a trait of dysfynctional government and such may be interpreted by the public as ineffectiveness in the part of those whose authorization is required for the summons to be served.
The Filipino people is watching, dear legislators. Watch your steps and when exercising express powers granted under the Philippine Constitution, do so in a manner which complies with procedural rules created in order for the officers of the state to fulfill their sworn duty without prejudice to the rights of the citizens being questioned.
After more than two decades of autocratic rule, congressional oversight power, as embodied in its in aid of legislation inquiries, is a welcome and formidable tool against the abusive tendencies of all levels of government officials.
Use it well and shrewdly.
The Court may be packed; nonetheless, if there is will, there is a way. One thing the Court cannot overrule is public opinion. If public opinion is with you, the Court will think twice before it decides against your actions and it is more likely that even the Court will see your point of view. Should I mention the ancestral domain issue?
With the level of graft and corruption in our country, I expect committee investigations by the Philippine Congress to increase tremendously.
Do not hold back, as long as due process is adhered to.
Keep asking questions. Bother them until the fat lady sings.
Tuesday, October 21, 2008
In God We Trust: It's a Pity Money Can't Buy Renewed Trust in the Financial System
It is said that money can buy anything.
But given the current situation at hand, it would be more accurate to say that that holds true, if one would exclude money's buying power when it comes to purchasing renewed confidence in a weakened financial system.
To make it worse, it seems investing more money alone cannot induce more trust in the credit system.
Just as it is foolish to argue that the mind can be harnessed to solve a psychological illness given that the source of the problem is coming from the brain itself, I find it quite similar when it comes to literally pumping money being the main factor in solving a global financial meltdown.
It has been projected that the public debt of the United States will reach to new unchartered heights - pass beyond 10 trillion dollars - which is at least 72 % of the U.S. GDP (PPP 2007).
If the United States was a developing country, the IMF would already be breeding around our necks demanding structural adjustments which meant: reducing fiscal spending, striving for a balanced budget, increased privatization of government-owned and controlled equities, and liberalization of trade policies.
But it is not. The credit of the United states is the first guarantor of global financial transactions, using its supposed financial and political stability as its main assets; indeed, managers within the international banking system sleep well knowing that Uncle Sam would come to the rescue when the time comes, just as Don Quixote would rescue his Dulcinea; and last but not the least, sovereign states with growing economic potential invest in U.S. securities like salt water in the ocean.
So, how can the U.S. think that it is not invincible? Outside advice, past experience, dependence to external volatility, and common sense might have dissuade a typical country from pursuing the path of relatively extreme laissez-faire capitalism in terms of allowing the growth of fairly unchartered markets such as high-earning speculative hedge fund investments and the derivatives market, unsullied by federal regulation.
Now, one of the few promises we here from U.S. presidential candidates, democrat or republican, in terms of "fixing" the U.S. economy are regulation, regulation, and regulation. To them, the invisible hand is too slow to react and to reach equilibrium meant a turtle like return towards previous economic levels.
The American public is on a rampage because the U.S. Congress has bailed out public and private financial institutions, of which some corporate leaders may have contributed to the financial meltdown but none the less received hefty bonuses while the common folk still have to brace the impact of the financial calamity to trickle down upon themselves. The thought of a complete breakdown in the U.S. credit system, which tremendously affect how business is done in the U.S., have forced lawmakers to find a political solution to the economic problem, even in the midst of protests, for indeed the worst may come had such solution not been approved.
The question is, if such is the case, is there really an invisible hand and if there is, should one believed that it is self-repairing? Like the human immune system, are there limits to its capacity and if there is, what are they?
Well, whatever they are, many economists believe that time and more regulations are needed to solve this crisis in the financial system, in addition to the considerable amount of money already being infused. But the fact remains that the more regulation in the financial system, the more the existence of this invisible hand is less convincing.
In any case, the status quo in the global financial system is about to change. Full faith in the credit of the United States, although wavering but never the less steady, would remain the biggest insurer and holder of wealth for the forseeable future.
However, the ability of the United States to convince other countries to pursue unhindered liberal market reforms, through the IMF and other international financial institutions, would be seriously questioned especially by those from the East Asian Region.
The call for a creation of an Asian Monetary Fund as well as IMF's current advisory tendency during these troubled times, as opposed to a global institution with formidable lending capacity, in addition to the combined and coordinated monetary efforts by sovereign central banks to ease current interest rates, are signs of a paradigm shift in the balance of economic power which is moving towards a multi-polar world economic order.
Indeed, the time for state capitalism is nigh.
But given the current situation at hand, it would be more accurate to say that that holds true, if one would exclude money's buying power when it comes to purchasing renewed confidence in a weakened financial system.
To make it worse, it seems investing more money alone cannot induce more trust in the credit system.
Just as it is foolish to argue that the mind can be harnessed to solve a psychological illness given that the source of the problem is coming from the brain itself, I find it quite similar when it comes to literally pumping money being the main factor in solving a global financial meltdown.
It has been projected that the public debt of the United States will reach to new unchartered heights - pass beyond 10 trillion dollars - which is at least 72 % of the U.S. GDP (PPP 2007).
If the United States was a developing country, the IMF would already be breeding around our necks demanding structural adjustments which meant: reducing fiscal spending, striving for a balanced budget, increased privatization of government-owned and controlled equities, and liberalization of trade policies.
But it is not. The credit of the United states is the first guarantor of global financial transactions, using its supposed financial and political stability as its main assets; indeed, managers within the international banking system sleep well knowing that Uncle Sam would come to the rescue when the time comes, just as Don Quixote would rescue his Dulcinea; and last but not the least, sovereign states with growing economic potential invest in U.S. securities like salt water in the ocean.
So, how can the U.S. think that it is not invincible? Outside advice, past experience, dependence to external volatility, and common sense might have dissuade a typical country from pursuing the path of relatively extreme laissez-faire capitalism in terms of allowing the growth of fairly unchartered markets such as high-earning speculative hedge fund investments and the derivatives market, unsullied by federal regulation.
Now, one of the few promises we here from U.S. presidential candidates, democrat or republican, in terms of "fixing" the U.S. economy are regulation, regulation, and regulation. To them, the invisible hand is too slow to react and to reach equilibrium meant a turtle like return towards previous economic levels.
The American public is on a rampage because the U.S. Congress has bailed out public and private financial institutions, of which some corporate leaders may have contributed to the financial meltdown but none the less received hefty bonuses while the common folk still have to brace the impact of the financial calamity to trickle down upon themselves. The thought of a complete breakdown in the U.S. credit system, which tremendously affect how business is done in the U.S., have forced lawmakers to find a political solution to the economic problem, even in the midst of protests, for indeed the worst may come had such solution not been approved.
The question is, if such is the case, is there really an invisible hand and if there is, should one believed that it is self-repairing? Like the human immune system, are there limits to its capacity and if there is, what are they?
Well, whatever they are, many economists believe that time and more regulations are needed to solve this crisis in the financial system, in addition to the considerable amount of money already being infused. But the fact remains that the more regulation in the financial system, the more the existence of this invisible hand is less convincing.
In any case, the status quo in the global financial system is about to change. Full faith in the credit of the United States, although wavering but never the less steady, would remain the biggest insurer and holder of wealth for the forseeable future.
However, the ability of the United States to convince other countries to pursue unhindered liberal market reforms, through the IMF and other international financial institutions, would be seriously questioned especially by those from the East Asian Region.
The call for a creation of an Asian Monetary Fund as well as IMF's current advisory tendency during these troubled times, as opposed to a global institution with formidable lending capacity, in addition to the combined and coordinated monetary efforts by sovereign central banks to ease current interest rates, are signs of a paradigm shift in the balance of economic power which is moving towards a multi-polar world economic order.
Indeed, the time for state capitalism is nigh.
Tuesday, October 14, 2008
How to Quickly Destroy the Credibility of ASEAN and the Treaty of Amity and Cooperation (TAC): The Preah Vihear Temple Border Dispute
Article 2 of the Treaty of Amity and Cooperation in Southeast Asia states that the signatories of the pact,
shall be guided by the following fundamental principles :
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
b. The right of every State to lead its national existence free from external interference, subversion or coersion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves. *
In a matter of 10 months, Cambodia and Thailand have embarked towards a journey that could discredit a vital instrument of peace within the Southeast Asian region and the path taken by both sides can possibly cause ASEAN to lose face in the eyes of the international community.
The border dispute surrounding the Preah Vihear Temple area is indeed a matter of national pride and security for both countries and must be approached from the perspective of cool-headed diplomacy; indeed, the issue must be taken away from the rhetoric of national and military leaders that could undermine not only Thai-Cambodian relations, but the stability and credibility of ASEAN as a successful and functioning institutional mechanism for dispute resolution.
Need the two countries be reminded that as signatories to the Southeast Asian regional peace treaty, ASEAN could become a laughingstock among interregional governmental organizations for its failure to neutralize or even reduce the tensions that could lead to a territorial conflict between Cambodia and Thailand?
Indeed, the policy-makers of the two countries ought to remember that the prevailing reason for ASEAN integration is that countries within the region acknowledge that peaceful cooperation is necessary for the notion of a regional identity and stability to prosper and progress.
The question now presented is can ASEAN move forward to the vision of a cultural, economic, and (possibly) political community if member states are unable to shed their extreme nationalistic attitudes towards territorial issues at the expense of pursuing regionalism?
Reducing barriers to free trade, setting up a regional socio-economic community with a binding legal charter, and announcing to the world the birth of the ASEAN way and identity are meaningless and miniscule achievements if the regional integrity of ASEAN is undermined by this long-standing border dispute, an issue which could lead to an unthinkable disintegration.
Simply put, if you want to cut ties with family, make sure to claim each other's real estate property and instead of exhausting the advise and council of fellow family members to settle the property dispute amicably, keep making threats that could further escalate the situation.
Thus, Preah Vihear, in a political sense, reflects the serious flaws of regional confederational governments when the issue of national territory becomes involved and where sovereign entities may take the path of reverberating back towards the isolationist cave of nationalism.
To encourage internal strife within the region in order to defend the integrity of the national territory, however significant such territorial issues may be to a particular nation, is a failure of national leadership, and its inability to coordinate policies within the context of regional consultation and consensus.
It must be noted that the issue of Sabah between Malaysia and the Philippines, not to mention the issue of Spratly Islands between China and a significant number of ASEAN countries, should have been a good example for Cambodia and Thailand to suspend territorial issues for the sake of regional stability and harmony.
Also, the facts attest to the issue of the border dispute as already decided through international judicial arbitration; indeed, for a country to have sought an international governmental organization for national recognition of such territory, regardless of whether it pertains to a specific cultural significance, is tantamount to declaring belligerent attitudes vis-a-vis the other state party involved in the dispute.
It is now in the hands of Cambodia and Thailand to decide whether both truly desire to achieve regional peace and prosperity for the entire southeast Asian region.
* - Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976
http://www.aseansec.org/1217.htm
shall be guided by the following fundamental principles :
a. Mutual respect for the independence, sovereignty, equality, territorial integrity and national identity of all nations;
b. The right of every State to lead its national existence free from external interference, subversion or coersion;
c. Non-interference in the internal affairs of one another;
d. Settlement of differences or disputes by peaceful means;
e. Renunciation of the threat or use of force;
f. Effective cooperation among themselves. *
In a matter of 10 months, Cambodia and Thailand have embarked towards a journey that could discredit a vital instrument of peace within the Southeast Asian region and the path taken by both sides can possibly cause ASEAN to lose face in the eyes of the international community.
The border dispute surrounding the Preah Vihear Temple area is indeed a matter of national pride and security for both countries and must be approached from the perspective of cool-headed diplomacy; indeed, the issue must be taken away from the rhetoric of national and military leaders that could undermine not only Thai-Cambodian relations, but the stability and credibility of ASEAN as a successful and functioning institutional mechanism for dispute resolution.
Need the two countries be reminded that as signatories to the Southeast Asian regional peace treaty, ASEAN could become a laughingstock among interregional governmental organizations for its failure to neutralize or even reduce the tensions that could lead to a territorial conflict between Cambodia and Thailand?
Indeed, the policy-makers of the two countries ought to remember that the prevailing reason for ASEAN integration is that countries within the region acknowledge that peaceful cooperation is necessary for the notion of a regional identity and stability to prosper and progress.
The question now presented is can ASEAN move forward to the vision of a cultural, economic, and (possibly) political community if member states are unable to shed their extreme nationalistic attitudes towards territorial issues at the expense of pursuing regionalism?
Reducing barriers to free trade, setting up a regional socio-economic community with a binding legal charter, and announcing to the world the birth of the ASEAN way and identity are meaningless and miniscule achievements if the regional integrity of ASEAN is undermined by this long-standing border dispute, an issue which could lead to an unthinkable disintegration.
Simply put, if you want to cut ties with family, make sure to claim each other's real estate property and instead of exhausting the advise and council of fellow family members to settle the property dispute amicably, keep making threats that could further escalate the situation.
Thus, Preah Vihear, in a political sense, reflects the serious flaws of regional confederational governments when the issue of national territory becomes involved and where sovereign entities may take the path of reverberating back towards the isolationist cave of nationalism.
To encourage internal strife within the region in order to defend the integrity of the national territory, however significant such territorial issues may be to a particular nation, is a failure of national leadership, and its inability to coordinate policies within the context of regional consultation and consensus.
It must be noted that the issue of Sabah between Malaysia and the Philippines, not to mention the issue of Spratly Islands between China and a significant number of ASEAN countries, should have been a good example for Cambodia and Thailand to suspend territorial issues for the sake of regional stability and harmony.
Also, the facts attest to the issue of the border dispute as already decided through international judicial arbitration; indeed, for a country to have sought an international governmental organization for national recognition of such territory, regardless of whether it pertains to a specific cultural significance, is tantamount to declaring belligerent attitudes vis-a-vis the other state party involved in the dispute.
I suggest for the political leaders of the two countries to take the path of reconciliation and spare ASEAN further embarrassment in the international community. A win-and-win situation exists if national territory issues are not given priority over the issue of regional cooperation.
It is now in the hands of Cambodia and Thailand to decide whether both truly desire to achieve regional peace and prosperity for the entire southeast Asian region.
* - Treaty of Amity and Cooperation in Southeast Asia Indonesia, 24 February 1976
http://www.aseansec.org/1217.htm
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