Charter Change or Cha-Cha debates are in the news again. Those in favor of this initiative are now being represented by two former actors, which unsurprisingly, could be a double-edged sword. On one side, their presence in the debate will surely attract more Filipinos to the issue. But on the other side, their prominence in the debate may actually dissuade many from taking this matter seriously.
Obviously, all Filipinos should earnestly take part in the Cha-Cha debate otherwise the constitutional reform process can be hijacked by predatory politicians. We know from experience that this will happen if civil society looks the other way. This means of course, that we have to study the 1987 Constitution. This is not an easy task, so hopefully, this piece will be helpful in getting a good start.
The Constitutional Convention that drafted the 1935 Constitution was overtly partial to the American constitutional structure. Hence, many scholars have wondered about the decision to adopt a unitary form of government instead of a federal arrangement akin to the United States.
Of course, the adoption of a unitary structure for the new independent republic was basically part of a broader scheme being instigated by Filipino leaders at that time. This deviation was purposely designed to establish an extremely strong executive branch. Sadly, this move has given rise to a constitutional order that allows governance of the entire country to be overly reliant on the very person residing in Malacañang Palace.
The bitter irony here is that those terrible years under the Marcos Sr. dictatorship should have jolted the collective heads of the 1986 Constitutional Commission to change course and avoid the folly of giving too much power to a single human being. And yet the 1987 Constitution still did exactly that.
Consider first Article VII, Section 1 on the Executive Department which states that, “The executive power shall be vested in the President of the Philippines.” Then read this in conjunction with Section 17 which provides that, “The President shall have control of all the executive departments, bureaus, and offices. He shall ensure that the laws be faithfully executed.”
For contrast, let us look at South Korea’s executive structure in its charter. Article 66 (4) of the Constitution of the Republic of Korea explicitly provides that “Executive power shall be vested in the Executive Branch headed by the President.” The other members of the Executive Branch are the Prime Minister (see Article 86) and the Supreme Council (see Article 88).
The most notable difference in the South Korean model is that executive power is given to an institution and not to a person. Note that it is vested in the “Executive Branch” whereas in our case, it is vested in the “President of the Philippines”.
The eminence of the Chief Executive in the constitutional order of the Philippines has given rise to the Doctrine of Qualified Political Agency or the “alter-ego of the President” principle. (See Carpio vs. Executive Secretary, G.R. No. 96409, February 14, 1992)
This constitutional doctrine recognizes the establishment of a single executive, meaning all the heads of the various executive departments are assistants and agents of the President. And correspondingly, the acts of the Secretaries of such departments, performed and promulgated in the regular course of business, are presumptively the acts of the Chief Executive, unless expressly disapproved or reprobated by him or her.
From this notion of a “single executive” evolved the “pleasuring the President” dogma, which fundamentally means that presidential appointees in the executive branch (particularly Department Secretaries) hold their posts at the complete sufferance of their boss. This legal principle has become a chronically abused excuse to cling on a little bit more to one’s office. In most cases, much to the displeasure of the public.
However, the most objectionable aspect of this “privilege” within the executive branch is that it allows cabinet secretaries and other officials of similar stature, indeed the very people tasked to manage public interest portfolios, to deflect demands of accountability.
By allowing them to assert the prerogative of pleasuring the President first and foremost, they are in effect relieved of the obligation to justify their actions (or inaction) to the people. This is of course an absolute travesty because a public office is a public trust. Meaning, all public officials, including the President, serve at our pleasure above all else!
So, it is not really correct to say that the 1987 Constitution is not the cause of our political and economic woes. Placing the blame squarely on rampant graft and corruption in government does not necessarily have to mean keeping our charter as it is. For as demonstrated here, it is the imperial presidency design in our constitution that fosters political patronage in government. And it is precisely this culture which allows graft and corruption to thrive.
It is understandable though to insist that a robust enforcement of our anti-graft and corruption laws is the most obvious and viable solution to this problem. Needless to say, with the ardent participation of civil society, this task must be pursued relentlessly. But it is clear as well that Malacañang’s strong influence in all matters of government can only be reversed by revising the 1987 Constitution. Hence, constitutional reform deserves serious consideration because it can actually address the very root cause of graft and corruption in government.
