Wednesday, April 30, 2008

Man does not live by rice alone

True, man does not live by rice alone, but democracy can really get problematic when the great mass of sovereign particles cannot get past subsistence level to be free from want. So when the needy bargain with their votes or go blindly by the bidding of their political lords (because power over basic needs is power over will) the free expression of the sovereign will is violated.

This is where we're stuck today: The Philippine economy is not growing enough to create surplus not only to provide and hold economic safety nets but also pay for certain essential infrastructure, physical and social, such as a meaningful program for a high-quality universal education in order to produce a large population geared up for a modern economy and an enlightened citizenry, the essential ingredient for a working democracy.

Creating the good society that democracy aims to pull off often involves a decision to conserve long-held beliefs, values, traditions and institutions, or, otherwise, revolutionize them. Whether to undergo transformation or not, it could be driven either by fear of a change for the worse or by hope for the better. Those with something or so much to lose will most likely lean toward conservatism and those with little or nothing to lose but their blighted station will veer toward radicalism. There are however well-intentioned individuals from across the political and social spectrum who will not shun adventurism to experiment on other pathways to progress.

At this stage of nation-building however, the burden of resolving, sans violent upheaval, the economic scarcity the country is facing is upon the laps of those with effective power or those who have access to various institutional sources of power. These powerholders are essentially the society's elites, who may have experienced some sort of Pauline conversion in secular sense, the way Filipinos in diaspora have been to some extent remade attitudinally, having been uprooted into new ways of doing things.

The change agents could in fact be new breed of productive men who must feel relatively deprived, not materially but morally, because they are challenged (or humiliated) out of individual and national pride for being elites in an economic basket case. Once this self-importance or sense of country is stirred, the decision to attain modernity will come easier such as on what approach to take in employing the country's resources to attain economic growth and development or how to allocate the economic surplus if and when created, depending on what ways of thinking they are willing to keep or unsettle. Even more specifically, on whether goods and services should be produced according to the autonomous decision of the individual wealth producers and entrepreneurs or government bureaucrats and specialists drawn in into those decisions in the context of public/private sectors coordination or partnership?

The looming "rice crisis" in the Philippines that threatens to destabilize the Arroyo government anew if it spins out of control is one such instance where the critical choice should have been decisively made long time ago. Today, the continuing breakdown of imagination is a telling reminder of failure to marry proven traditional practices with science in order to transition to modernity. We need not fall for or completely write off some doomsday "conspiracy theories" about giant corporate seed breeders controlling the food chain. Still a successful strategy for sustained agricultural surpluses in the area of rice production (possibly in conjunction with the development of the extractive sector) can be understood to pick up a good portion of the bill for the transition (e.g., foreign exchange from rice exports and similar agricultural supplies would help meet the need for imported capital goods necessary for industrialization).

If the political and entrepreneurial will on the part of those with effective power and resources held sway, there ought to be no excuse, given our equivalent natural and human resources, not to be competitive with rice exporting countries like our peers Thailand and Vietnam. But as it is, we are faced today with the humiliating reality of having botched big time to achieve and maintain food security for our growing population if only, at minimum, to keep their human dignity, or beyond which, for rational and free citizens of a surplus society to be actively involved in dealing with the many human problems that impact the system.

On the other hand, when only a handful of people perpetually hold power over the necessities of the many, our democracy, any democracy, is gravely imperiled.

The Hitlerian misadventures of Ferdinand Marcos that have turned upside down what's left of our democratic experiment and whose profligacy has vastly contributed to the morass we are in today will continue to haunt many Filipinos. Interestingly, however, it was during Marcos that the highest productivity level in agriculture has been observed. Since then, we have yet to see any substantive agenda to revolutionize our agriculture in terms of productivity-enhancing investments, such as research and development and infrastructure buildup. Any such policy redirection has apparently been eclipsed by the strategic focus on labor export and ultimately blindsided by the lure of OFW remittances of enormous worth. Now, in response even to this phenomenal stimulus, what novel ways of doing things have so far been agreed upon and pursued with a view to generating internally economic surpluses?

In the face of tendentiousness in favor of the old rent-collectors and money capitalists, real estate-based entrepreneurs and shopping mall taipans, without creating an adequate manufacturing base, general economic abundance and positive liberty for individuals in the service of democracy are unlikely to come about in the immediate future. Certainly, not when the legitimacy of the present political leadership remains in question.

Monday, April 14, 2008

Is the SC clueless of the meaning of legislative oversight?

The following is in part what the Supreme Court of the Philippines has held in Neri v. Senate Committee about the meaning of “congressional oversight” as earlier expounded in Senate v. Ermita:

At the outset, a glimpse at the landmark case of Senate v. Ermita becomes imperative. Senate draws in bold strokes the distinction between the legislative and oversight powers of the Congress, as embodied under Sections 21 and 22, respectively, of Article VI of the Constitution, to wit:
SECTION 21. 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.

SECTION 22. The heads of department may upon their own initiative, with the consent of the President, or upon the request of either House, or as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the state or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
Senate cautions that while the above provisions are closely related and complementary to each other, they should not be considered as pertaining to the same power of Congress. Section 21 relates to the power to conduct inquiries in aid of legislation. Its aim is to elicit information that may be used for legislation. On the other hand, Section 22 pertains to the power to conduct a question hour, the objective of which is to obtain information in pursuit of Congress’ oversight function. Simply stated, while both powers allow Congress or any of its committees to conduct inquiry, their objectives are different.

This distinction gives birth to another distinction with regard to the use of compulsory process. Unlike in Section 21, Congress cannot compel the appearance of executive officials under Section 22. The Court’s pronouncement in Senate v. Ermita is clear:
When Congress merely seeks to be informed on how department heads are implementing the statutes which it has issued, its right to such information is not as imperative as that of the President to whom, as Chief Executive, such department heads must give a report of their performance as a matter of duty. In such instances, Section 22, in keeping with the separation of powers, states that Congress may only request their appearance. Nonetheless, when the inquiry in which Congress requires their appearance is ‘in aid of legislation’ under Section 21, the appearance is mandatory for the same reasons stated in Arnault.
In fine, the oversight function of Congress may be facilitated by compulsory process only to the extent that it is performed in pursuit of legislation. This is consistent with the intent discerned from the deliberations of the Constitutional Commission

Ultimately, the power of Congress to compel the appearance of executive officials under section 21 and the lack of it under Section 22 find their basis in the principle of separation of powers. While the executive branch is a co-equal branch of the legislature, it cannot frustrate the power of Congress to legislate by refusing to comply with its demands for information. (Emphasis supplied.)

The availability of the power of judicial review to resolve the issues raised in this case has also been settled in Senate v. Ermita, when it held:
As evidenced by the American experience during the so-called “McCarthy era,” however, the right of Congress to conduct inquiries in aid of legislation is, in theory, no less susceptible to abuse than executive or judicial power. It may thus be subjected to judicial review pursuant to the Court’s certiorari powers under Section 1, Article VIII of the Constitution.

My original reaction to Senate v. Ermita was a play of words: “An oversight on oversight.” The pun was of course meant to play up the Court’s “careless error” (oversight) in understanding the scope of congressional “watchful care” (oversight) of public policy execution. Why the highest court of the land appears clueless (twice) about legislative oversight really boggles the mind considering that two incumbent members of the Court have been outstanding former members of the Congress, Justice Tinga (a three-term congressman) and Justice Nachura (a two-term congressman).

Legislative oversight is broadly acknowledged as a long-standing process inherent in the power to make laws exercised by Congress basically through its various committees. Any congressman or senator who deserves the title ought to be familiar with this very important legislative task the essential purpose of which is to ensure the government is held accountable for carrying out the letter and the spirit of the law the legislature enacts.

Oversight is in effect a monitoring function of the vast public policies emanating from Congress written in statutes that are oftentimes deliberately general. A good example is the Labor Code of the Philippines, which because of its rather broad structure still necessitates the promulgation of a more detailed Omnibus Rules Implementing the Labor Code to enforce effectively the legislative policy on labor. The idea behind what some would claim as amounting to a “re-delegation” is to explore not what the implementing agency must do but what it can do under the law to accomplish its intent. The legislature in turn keeps an eye on this implementation phase of the law through oversight.


The most familiar aspect of oversight involves legislative inquiry or investigation in aid of legislation. The inquiry may refer to a specific legislative proposal (or in aid of making law in the strict sense of the term) or extend to any and all matters vested by the Constitution in Congress; or it may be conducted to probe government inefficiency, corruption, fraud or abuse to inform itself in the formulation of policy on those areas of public concerns. The investigation is not deemed misused regardless of whether it results in actual legislation or not. In this sense, legislative inquiries in aid of legislation as expressly provided under Section 21, Article VI of the Constitution serve as a tool of the broader implied oversight power of Congress in similar way that the contempt power of Congress works as a tool of its investigatory power.

Another essential, and probably the most efficacious, legislative oversight tool is the power of the purse. By employing this oversight mechanism, Congress can curtail or increase funding for a governmental agency, or reduce its personnel or expands its functions, as may be warranted. It is in this sense that heads of departments on their own initiative may appear before Congress for “question hour” pursuant to Section 22, Article of the Constitution on matters pertaining to their departments such as to explain the need for departmental budgetary changes.

The congressional confirmation of the presidential appointments involving heads of executive departments, ambassadors and officers of the armed forces from the rank of colonels is an oversight function of no insignificant worth but it is oversight nevertheless. So is the oversight that takes place whenever members of congress consult with their constituencies to obtain information that may form part of their committee reports or be availed of in congressional debates.

Oversight, which comes in many other forms than congressional inquiries in aid of legislation, takes up a lot of legislative time and is often observed as being improperly used for grandstanding purposes or gaining sound bytes by some ambitious politicians. It is perceived as counterproductive sometimes or perhaps most of the time. One thing is however certain: the scope and meaning of legislative oversight are not confined only to the so-called “question hour” under Section 22, Article VI of the Constitution as the Supreme Court had boldly pronounced in Senate v. Ermita and then reiterated in Neri v. Senate Committee.

How could the Supreme Court miss it twice?

The first time, it is possible the Court may have committed an “error of judgment” which is not punishable per se; the second time, it is as not as easy to justify the voluntary ignorance as other than a political decision by a partisan court, a judicial misconduct liable to rise to the level of an impeachable offense.

Wednesday, April 09, 2008

Transparency mandate on foreign loans trumps executive privilege

According to Justice Holmes “The life of the law has not been logic: it has been experience,” because the “law embodies the story of a nation’s development.”

Many salient provisions of the 1987 Constitution of the Philippines, such as those dealing in human rights, accountability, transparency as well as the curtailment of presidential powers on the one hand and the expansion of congressional authority and the protection of judicial independence on the other, are lessons learned from the national experience of licentiousness and abuse of power during Marcos misrule.

Because of the strongman’s seemingly untrammeled profligacy, for example, the Philippines has become one of the most heavily indebted countries in the world and a laggard economy in the region.

It is quite explicable then that when it comes to contracting foreign loans under the post-Marcos constitutional regime, the President and Congress are not co-equal, the return to the presidential system notwithstanding. By express constitutional provisions (Section 20, Article VII) the authorization allowed the President to incur foreign debt remains subject to the limitations as Congress by law may provide, thereby according Congress a seniority position in this power relation between the two government branches.

But plain constitutional governance also supersedes legislative control over foreign loan disclosure requirements by the very absence in the Constitution of legislative authority to limit disclosure. Pursuant to Section 21, Article XII “Information on foreign loans obtained or guaranteed by the Government shall be made available to the public” without any limitation or qualification. This rigid disclosure requirement can be better appreciated if juxtaposed with the “right of the people to information on matters of public concerns” under Section 7, Article III, which while constitutionally “recognized” is “subject to such limitations as may be provided by law.”

What is more, in the tripartite partnership among the President, the Monetary Board and Congress in the matter of contracting or guaranteeing of foreign loans created by Section 20, Article VII in relation to Section 21, Article XII, the President occupies a status even junior to the Monetary Board. Accordingly, the “President may contract or guarantee foreign loan . . . with the prior concurrence of the Monetary Board” (indicating the requirement of the Board’s concurrence before initiating loan negotiation)(emphasis mine) and “in accordance with . . . the regulation of the monetary authority.” By contrast, no such prior Senate concurrence is required when it comes to the validity of a treaty or international agreement entered into by the President.

Such control mechanism in place is again understandable from the standpoint of the same dreadful experience the nation is still smarting over. For instance, the largest single debt of the Philippines was for the financing of the Bataan nuclear power station, a white elephant constructed during the dictatorship at the cost of $2.3 billion. The station has never been in operation and the country has struggled to repay the loan for over three decades.

The strategic switch in the now “cancelled” national broadband network (NBN) project from a built-operate-transfer (BOT) arrangement (which normally does not require direct government funding) to a scheme financed by a government foreign loan has been attended by testimonies of overpricing, bribery and a $70-million “commission” for Jose Miguel Arroyo, the presidential spouse. The scandal is reminiscent of the dubious change of heart in the selection of the contactor for the Bataan nuclear power plant from General Electric (whose lower bid had already been approved by a Marcos-appointed panel before being reversed by Marcos himself) to rival Westinghouse marred by charges of some $80 million kickbacks for Marcos.

We can never afford to have a short memory of a tragedy yet so fresh because even the younger generations of Filipinos of today are still paying for the faintheartedness, apathy and canine submission of our elders.

The cogency is thus inevitable in the proposition that if in the overarching constitutional architecture of disclosure and transparency, the general rule is the right of the people to information on matters of public concerns, and an exception to the rule where applicable is the doctrinal executive privilege, an obvious exception to such an exception is the specific constitutional mandate on disclosure of information on foreign loans. Very sadly, the majority of the Court in Neri v. Senate Committee by protecting presidential secrecy has voluntarily ignored in toto the all-important constitutional distinctions with potential consequences of crisis proportion.

Friday, April 04, 2008

Neri, a landmark ruling if held on half a page

No frills, Neri v. Senate Committee should have been a cut-and-dry case.

The essential FACTS and ALLEGATIONS are not complicated:
The testimony of Romulo Neri, former NEDA Director General, before the three Senate committees was to the effect that President Arroyo to spare the government from funding the proposed National Broadband Network (NBN) project had been first amenable to undertake the said project on a Build-Operate-Transfer (BOT) arrangement; it was however put aside to give way to one financed by a government-to-government loan to be obtained by the Philippines from China. Over other competitors, the project worth $329.48 million, now better known as the NBN-ZTE deal, was ultimately awarded to ZTE, a China owned corporation.

Of all the people in the Philippines, the highest election official of the land, COMELEC Chairman Benjamin Abalos - who had been alluded a number of times in the “Hello, Garci tapes” - appeared to have brokered the deal and offered Mr. Neri 200 million pesos in exchange for NEDA’s approval of the project. Mr. Neri informed President Arroyo of the bribe offer but Arroyo did not immediately order the investigation of the “crime” directly reported to her by Mr. Neri or cause the prosecution of Abalos. Arroyo however told Mr. Neri not to accept the bribe. At such point and thereafter, Mr. Neri has refused to answer further questions from members of the committees about what he and the President talked about invoking executive privilege.

Rodolfo Noel Lozada Jr, an erstwhile NEDA consultant who reviewed the NBN project testified before the Senate committees that the project was overpriced by $197 million and accused Abalos of demanding a $130-million “commission” from the project.

Jose De Venecia III, the son of former Speaker Jose de Venecia Jr., also testified before the Senate committees that the President’s husband, Jose Miguel Arroyo told him to “back off” from pursuing the project. De Venecia III co-owns Amsterdam Holdings Inc, which submitted a losing proposal for the NBN project.

In his testimony, De Venecia III further claimed that Mr. Arroyo wanted a $70-million “commission” from the project.
Following the testimony of Mr. Neri, three more important events happened: 1) The foreign loan was cancelled together with the NBN project; 2) Abalos quit as COMELEC chairman; and 3) Arroyo admitted over dzRH radio that she had been advised about the irregularities in the project the day before she witnessed the signing of the NBN-ZTE deal in China. (NOTE: The executed NBN-ZTE contract was also reportedly stolen.)

The ISSUE: Whether or not Mr. Neri should be required to answer more questions about the NBN-ZTE deal than he has already made available to the public despite his invocation of executive privilege?

What are NOT AT ISSUE: 1) That the President and other high-ranking executive officials, by established constitutional doctrine, are entitled to “executive privilege” to withhold information from Congress, the courts and the public, subject to constitutional limitations. 2) That by express provisions of the Constitution, Congress or any of its committees, have the power of inquiry in aid of legislation or by time-honored congressional practices and traditions and established constitutional doctrine the power of oversight, both powers being similarly subject to constitutional limitations.

The RULING (that never was):

The issue being thus narrowed, the APPLICABLE LAW is straightforward:
“Foreign loans may only be incurred in accordance with law and the regulation of the monetary authority. Information on foreign loans obtained or guaranteed by the Government shall be made available to the public.” (Section 21, Article XII of the Constitution)
The foregoing provision is an express constitutional limitation to the doctrinal executive privilege developed in American jurisprudence. The limitation is operative regardless of whether the information on foreign loan is being demanded by an ordinary taxpayer, the Monetary Board, or by Congress or any of its committees in aid of legislation. When it comes to information on foreign loans obtained or guaranteed by the government, judicial decisions of alien origin upholding the claim of executive privilege but are inconsistent with the constitutional requirement of disclosure are without force and effect. For how could a decision of an inferior foreign court modify an unmistakable constitutional mandate?

Under pain of penalty, Mr. Neri may therefore be compelled to disclose more information about the NBN-ZTE deal than he has already made available to the public despite invocation of executive privilege.

Postmortem ANALYSIS: Executive privilege encourages presidential unilateralism. When used against legislative oversight, the privilege serves to veto policymaking at its very inception. Why did the majority in Neri in the effort to uphold executive privilege choose to play blind to the clear language of accountability and transparency in the Constitution?

Wednesday, April 02, 2008

Neri, en route to judicial despotism

(This piece originally a reaction comment at mlq3’s blogsite is re-posted here, slightly edited, for easy reference)

I remember excusing myself from an invitation of Manolo Quezon to participate in the discussion on “separation of powers” in his talk show. However, I did draw his attention to a constitutional issue I had had a chance to delve into in an older commentary regarding the implication of the so-called expanded certiorari jurisdiction of the Philippine Supreme Court under Section 1, Article VIII of the Constitution as construed today by the justices. I was referring to the Court’s “judicial power” as defined in the said constitutional provision as including “the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.” (Italics mine). The suggestion was meant to express my apprehension about the potential for “judicial despotism” in the Philippines in the long term rather than the resort to Marcosian authoritarianism by President Arroyo in the short term.

I have pointed out in my commentary that Section 1, Article VIII is the realization of a singular mission of Mr. Chief Justice Roberto Concepcion (“Mr. Rule of Law” himself). The former Chief Justice’s hope, grown out of his unfortunate experience as chief justice, was to obviate another Javellana scenario wherein his brethren in robes conveniently have chosen to evade, on “political question” pretense, their judicial “duty” to rule on transcendental constitutional matters such as the adoption of a constitution.

Today, instead of a prescription for judicial duty, Section1, Article VIII is emerging as an alarming source of seemingly unlimited judicial powers, with the Supreme Court effectively transforming itself as a branch of government more equal among co-equals.

The Court had brandished a couple of times before this self-branded expanded certiorari authority, but in the most recent Neri v. Senate Committee decision, it brought out the monster out of the cave to cripple a coordinate branch of the government, or even encroach upon textually committed constitutional functions of the Senate or three of its committees.

To follow at this point Mr. Quezon’s painfully nostalgic drift to legal history, it should be noted that judicial review or the scope of judicial powers for that matter is actually vastly unsaid in the US Constitution. But Alexander Hamilton defended it in the Federalist papers during the campaign for ratification of the US Constitution, by arguing that “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them” unlike the executive who has the “sword” and the legislature the “purse.”

“The interpretation of the laws,” according to Hamilton, “is the proper and peculiar province of the courts” although he was also among the first to call such function an “arduous a duty.” The plea was characteristically Hamiltonian. He was countermajoritarian (i.e., anti-people power) and during the constitutional convention, delegate Hamilton was quite straightforward about his preference for a constitutional aristocracy, if not monarchy. Luckily for the Americans, none followed his lead, well, not until Chief Justice Marshall’s exercise in applied politics in Marbury v. Madison (1803), essentially a plagiarized version of Hamilton’s arguments.

Constitutional democracy in America was then in its infancy and yet taking place on a trial and error basis. One of such costly errors was the Court’s decision 50 years after Marbury in Dred Scott v. Stanford (1857). In Dred Scott, it was ruled that black people were not US citizens (because they were in fact not humans but property), heightening the political tensions that attended the American Civil War. The horrible cost was more American lives lost in the fratricidal war than in World War II.

Abraham Lincoln was among those vocally wary early on of “judicial despotism.” During his inaugural address in 1861, Lincoln assailed Dred Scott: “ . . . if the policy of the government upon vital questions, affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court, the instant they are made . . . the people will have ceased to be their own rulers . . ..”

Quite afflicted by the Lincolnian angst as a result of some recent disturbing pronouncements by the Philippine Supreme Court (Estrada v. Desierto, Francisco v. House of Representatives, Santiago v. Comelec, Lambino v. Comelec and Senate v. Ermita) as a student of Constitutional Law I have welcomed the following corrective measures: Make easier the constitutional requirement for people’s initiative, referendum and recall and make judges, lawmakers, political parties, professional politicians and the laws and the Constitution responsive to changing necessities of our own time instead of fawning deference to American jurisprudence, a flawed “jurisprudential colonial mentality” (to borrow the fighting words of Senator Meriam Santiago).

Neri v. Senate Committee is just another exercise of such “jurisprudential colonial mentality,” in a manner so degrading our Court is even willing to substitute a decision of a US court of appeal for what’s expressly mandated by our own Constitution.