Saturday, June 19, 2010

The Presidency

Once again the presidency will be passed on to a new leader. What is it that the Constitution has invested him with? We give him executive power. But what does this entail?

The seat of executive power in Philippine constitutional law has undergone a series of relocations. The 1935 Constitution vested executive power in the President. Under the original 1973 Constitution executive power was for the Prime Minister to exercise and the President was reduced to a mere "symbolic head of the State."

The idea of a merely ceremonial President, however, died even before it could be tested. When the original 1973 Constitution took effect, President Marcos, who was President under the 1935 Constitution, was allowed to retain his 1935 powers and at the same time became ceremonial President and Prime Minister. He never was merely a ceremonial head. In 1981, the 1973 Constitution was revised and the President was once more made head of state and chief executive, while the Prime Minister was reduced to being largely a ceremonial figure.

With the 1987 Constitution, the constitutional system has returned to the presidential model of the 1935 Constitution: executive power once more is vested in the President. During the deliberations of the 1986 Constitutional Commission there was no debate on the choice between a presidential or a parliamentary system.

In vesting executive power in one person rather than in a plural executive, the evident intention was to invest the power holder with energy. And since, even as originally set down in the 1935 Constitution, the powers themselves were couched in skeletal generalities, it was possible for a President to test the extent of those powers to the limit and even overwhelm the two other theoretically coequal departments.

The conviction that permeated the 1986 Constitutional Commission was that President Marcos had taxed executive power beyond allowable limits. Hence, to the specific powers given to the President -- to appoint, to ensure that the laws are faithfully executed, to be Commander-in-Chief of the armed forces, to grant clemency, and to contract foreign loans -- there have been attached more explicit structural limitations than were provided in previous documents. Nonetheless, the presidency that emerges from the 1987 text is still a potent institution largely because the primary source of political authority, election by the people at large, is still there.

The broad sweep of executive power was laid out generously by the Supreme Court in Marcos v. Manglapus which involved the attempt of Ferdinand Marcos to return from his exile. In concluding that the President had the authority to prevent the return of Mr. Marcos even in the absence of a specific law granting her such authority, the Supreme Court, speaking through Justice Irene Cortes, laid down the premise for its conclusion asserting the existence of “residual powers” not specifically mentioned in the Constitution. The Court then said that the enumeration in the Constitution of certain specific powers of the President did not mean that those were all she had. As the American constitutionalist Edward S. Corwin had said, the Article on executive power in the US Constitution was the most loosely drawn. “To those who think that a constitution ought to settle everything beforehand it should be a nightmare; by the same to­ken, to those who think that constitution makers ought to leave considerable leeway for the future play of political forces, it should be a vision realized.”

Corwin, after reviewing how the powers of the U.S. President had been exer­cised by the different persons who held the office from Wash­ington to the early 1900’s, and the swing from the presi­dency by commission to Lincoln’s dicta­torship, con­cluded that “what the presidency is at any particular moment de­pends in important measure on who is President.”

Arthur Schlesinger had something similar to say in his book The Imperial Presidency: For the American Presi­dency was a peculiarly per­sonal institution. It re­mained, of course, an agency of government subject to unvarying demands and du­ties no matter who was Pres­ident. But, more than most agencies of government, it changed shape, intensity and ethos according to the man in charge. Each President’s distinctive tem­perament and character, his values, stan­dards, style, his habits, ex­pectations, idiosyncrasies, compulsions, phobias recast the White House and per­vaded the entire government. The executive branch, said Clark Clifford, was a chameleon, taking its color from the character and per­sonality of the President. The thrust of the office, its impact on the constitutional order, therefore altered from President to President. Above all, the way each President understood it as his personal obligation to in­form and involve the Congress, to earn and hold the confidence of the elec­torate and to render an ac­counting to the nation and posterity determined whether he strengthened or weakened the constitutional order.

Our own history has seen how scary this chameleon character of the presidency can be. We have seen that the older Aquino, her successor Ramos, the populist Estrada, and the long reigning Arroyo all placed their own imprint on the Philippine presidency. We still have to see how it will be under the younger Aquino.

21 June 2010

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