Saturday, August 7, 2010

A History of Commissions; A Note on PAL

First there was the Davide Commission charged with the responsibility of looking into the failed coups of 1989. It was created by President Aquino. Sensing perhaps that there was some legal defect in the creation, Congress passed R.A. 6832 re-creating the Commission.

Next was the Narvasa Commission created by President Estrada to study and recommend possible changes in the Constitution. It was challenged in Court but the challenge came too late – after the Commission had made its report. Moreover, the Court ruled that the challenger had no standing to raise the issue of validity as a taxpayer. Commission saved!

There followed the Feliciano Commission to look into the truth behind the Oakwood mutiny. It was headed by former Justice Feliciano and I was one of the members.

The Melo Commission came next to investigate extrajudicial killings. It was headed by former Jutice Jose Melo and assisted by top NBI officials.

Both the Feliciano Commission and the Melo Commission were created by President Gloria Macapagal Arroyo. To my recollection, nobody with appropriate standing challenged the validity of the creation of these commissions.

Now we have the second Davide Commission but I see no Republic Act coming up to bolster it. Meanwhile it is being challenged by allies of former President Gloria Macapagal Arroyo who had created two unchallenged commissions.

One question being asked is whether under separation of powers the President can create offices. It is best that the matter be brought to the Supreme Court in a manner that will not be dismissed on the technicality of lack of “standing.” At the moment I cannot yet identify anyone who would have standing to challenge it.

• • • • •

Takeover PAL Operations?

In the face of the walkout of two dozen pilots from PAL, government started thinking what it could do. A Senator expressed that takeover of PAL operations was possible under the Constitution. Takeover was also mentioned by the Secretary of Justice as a possible last resort but the MalacaƱang Spokesperson was quick to say that they were not thinking takeover thoughts. Now both MalacaƱang and DOJ seem to have decided to keep their hands off PAL. But let us talk about takeover in the Constitution.

There are two ways in which the state can take over the operation of a public utility. The more radical mode is found in Article XII, Section 18 which says: “The State may, in the interest of national welfare or defense, establish and operate vital industries and, upon payment of just compensation, transfer to public ownership utilities and other private enterprises to be operated by the Government.” Eminent domain, in other words.

One key obstacle to resort to this mode of takeover is the requirement of “payment of just compensation.” The state becomes the owner of the public utility but only after payment of just compensation. Recent jurisprudence has emphasized that compensation is just when it is given promptly. This should present a big problem to a cash-strapped government especially if its agencies will also have to help farmers compensate Hacienda Luisita for the sugar lands. Moreover, it was not too long ago that the government decided to rid itself of PAL problems by privatizing it. Expropriation must be farthest from the mind of government now.

A milder mode of takeover is the assumption of responsibility for the operation of the public utility but without assuming ownership. This is the police power mode authorized in Article XII, Section 17: “In times of national emergency, when the public interest so requires, the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately-owned public utility or business affected with public interest.”

Last 2006 the Supreme Court said a mouthful about this power when President Gloria Macapagal Arroyo, confronted by what she saw as a tactical alliance among the political opposition, the authoritarians of the extreme Left represented by the NDF-CPP-NPA, and the extreme Right, represented by military adventurists, declared a state of emergency and threatened to takeover the operation of certain public utilities. To her credit, she never did.

Probably it was because of the long sermon delivered by the Supreme Court explaining the meaning of Article XII, Section 17.

In brief, the Court said: “Section 17, Article XII must be understood as an aspect of the emergency powers clause. The taking over of private business affected with public interest is just another facet of the emergency powers generally reposed upon Congress. Thus, when Section 17 states that the ‘the State may, during the emergency and under reasonable terms prescribed by it, temporarily take over or direct the operation of any privately owned public utility or business affected with public interest,’ it refers to Congress, not the President. Now, whether or not the President may exercise such power is dependent on whether Congress may delegate it to him pursuant to a law prescribing the reasonable terms thereof.”

The “emergency powers clause” the Court is referring to is the clause which authorizes Congress to grant emergency powers to the President “in times of war or other national emergency.” What is probably obvious is that Congress does not now see the PAL controversy as a problem approximating the severity of war or similar national emergency serious enough to justify the grant of emergency powers to the President.

9 August 2010

No comments:

Post a Comment