Corporate Watch
By Amelia H. C. Ylagan
Separation of Powers is not adhered to in Constitutional Law solely by virtue of its force as doctrine… It provides the structure for Limited Government, and the Power interrelationships indispensable to a Free and Independent Judiciary… It is, indeed, the cornerstone in the constitutional edifice. For as put in the French Declaration of the Rights of Man, without the separation of powers, there is no Constitution (Dean Perfecto V. Fernandez, “Separation of Powers as Juristic Imperative,” Philippine Law Journal volume 58, third quarter 1983).
The different powers of Legislation, Execution, and Adjudication are each lodged in a separate Branch of government… the Legislative, the Executive, and the Judicial branches. Each of these branches has a definite legal relationship to the others. Such relationships are summed up in the principles of equality and separation. On the principle of Equality, each Branch is the equal of the others; hence, it may not be controlled by the others, and in turn, it may not control either or both of them. On the principle of separation, each Branch is separate and distinct from the other branches, and may exercise only the Power lodged with it but not other Powers (Ibid.).
The vitality of the Separation of Powers is not affected by the Systems of Checks and Balances in its varied forms. The principle endures and prevails so long as two conditions obtain. First, the Tripartite System must exist, with Legislative, Executive and Judicial Branches. Second, No Branch must be empowered to prevent the functioning of the other Branches, or to exercise the Power or Powers belonging to them (Ibid.).
The doctrine of Separation of Powers in a democracy is described for us by the late Professor Perfecto V. Fernandez (1931-2000), “an august and imperial name in legal history,” as eulogized by Dean Pacifico Agabin of the University of the Philippines College of Law (Law Monitor: July 2000). Still, the Separation of Powers in Philippine government could be difficult to understand for the ordinary citizen: for what we see in the political practicum seems to be different from what should be, as explained by Prof. Fernandez.
Structurally, we have the Tripartite system of the separate and coequal Executive, Legislative and Judicial branches of government. But in thinking and in action, are they really separate and coequal? What if one branch offers itself to be controlled by another?
Barely a month after Rodrigo Duterte of the political party PDP-Laban was elected president by 14 million Filipinos on May 10, 2016, the losing Liberal Party (LP) formally expressed to him their support in the House of Representatives (The Philippine Star, June 8, 2016). Ironically, “data analyzed by ABS-CBN Investigative and Research showed that nearly half (116 out of 238) or 49% of (then) incoming district representatives are LP members; only three (including then Speaker aspirant Pantaleon Alvarez are from PDP-Laban, the political party of presumptive President Rodrigo Duterte (ABS-CBN News, May 23, 2016). Thus was formed the “super-majority” composed of the PDP-Laban, the LP, the Nacionalista Party of businessman Manuel Villar, the Nationalist People’s Coalition of tycoon Eduardo Cojuangco, Jr., the National Unity Party, Lakas of detained former president Gloria Macapagal-Arroyo and the Makabayan bloc, which consists of militant party-list representatives (Ibid.).
No more the multiparty system born of the 1986 Edsa People Power Revolution that ousted 14-year dictator Ferdinand E. Marcos, Sr., and his martial law single-party Kilusan ng Bagong Lipunan (KBL). Like the KBL, the present “super majority” might be called a single-party system, and the first disregard of the principle of equality and independence of each branch of government. Political analyst Richard Heydarian said that “Duterte has effectively consolidated power (and) partnership with the legislature (ABS-CBN, May 23. 2016).”
What more proof of this consolidation of power when “with a vote of 217 (yes)-4 (no)-0 (abstention), lawmakers approved House Resolution (HR) Number 1015 explaining lawmakers’ reasons for junking the impeachment complaint filed by opposition lawmaker and Magdalo Representative Gary Alejano (Rappler, May 30, 2017).” The complaint did not even have to go up to the Senate, and President Duterte is free of impeachment complaints for a year thereafter.
But it was clear even before this that the Legislature supported President Duterte more than any Congress has ever supported the incumbent Executive, especially in the aspect of staying in power.
On May 23, President Duterte declared martial law in the entire Mindanao amid the ongoing clashes between government troops and Maute group terrorists in Marawi City, as announced by presidential spokesman Ernesto Abella in a briefing in Moscow, where the President was meeting with top Russian officials (ABS CBN, May 23, 2017). He said martial law in the area will be in effect for 60 days, under constitutional limits.
The post-Marcos constitution imposed safeguards on martial law, including the requirement for Congress to approve its imposition and extension. Constitutional expert Christian Monsod, one of the framers of the 1987 Constitution said that the Senate and the House are mandated to convene jointly to discuss (not to approve) the declaration (philstar, May 29, 2017). Within the mandated 48 hours disclosure, Duterte submitted copies of Proclamation 216 declaring martial law in Mindanao to Senate President Aquilino Pimentel III and House Speaker Pantaleon Alvarez (Ibid.). But Congress was set to go on recess until July 24, and snubbed the requirement to jointly discuss and effectively ratify Proclamation 216 (Ibid.).
The Supreme Court can also rule on the legality of the declaration of martial law. However Duterte said in January 2017 he would ignore the constitutional safeguards if necessary, and may impose martial law across the nation. “I don’t care about the Supreme Court… because the right to preserve one’s life and my nation, my country transcends everything else,” he said (Agence France Presse, May 24, 2017). The Separation of Powers doctrine can be interpreted and applied in many ways.
Hours before the end of Duterte’s initial 60-day declaration of Martial Law in Mindanao, the Senate and the House of Representatives, in a Joint Session, voted overwhelmingly to approve the extension of martial law in Mindanao until Dec. 31 this year as sought by President Duterte (BusinessWorld, July 23, 2017). Sixteen senators voted to extend martial law and four against; the House of Representatives voted 245 in favor and 14 against (Ibid.).
It is near the first extension deadline, and President Duterte had written Congress for another extension of his declaration of martial law, citing continuing threats of ISIS-inspired terrorists, local terrorists groups and the New NPA (philstar, Dec. 13, 2017). This, despite the declaration of peace in Marawi by Duterte himself on Oct. 17 (UNTV, Oct. 20, 2017). Amidst questions of legality raised by some small bands of oppositionists and activist groups, the Senate voted 14-4 while the House voted 226-23 in favor of extending the declaration for another year during a joint session in the Congress Dec. 12 (Ibid.).
It seems that whatever Digong wants, Digong gets. No need to belabor the other shows of power of the Executive abetted by the Legislature, like the ongoing impeachment procedures in the House of Representatives of Chief Justice Maria Lourdes Sereno, and the proposed impeachment of the Ombudsman, Justice Conchita Carpio-Morales.
In layman’s language, what does this Separation of Powers really mean for us ordinary Filipinos?
Amelia H. C. Ylagan is a Doctor of Business Administration from the University of the Philippines.
