Saturday, June 26, 2010

General Banigt;s Farewell & Noynoy's Oathtaking

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

General Bangit's Farewell & Noynoy's Oath Taking

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

GeneralBangit's Farewell and Noyonoy's Oathtaking

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

General Bangit's Farewell & Noynoy's Oath Taking

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

Bangit's Farewell and P-Noy'sOath Taking

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

General Bangit's Farewell & the President's Oath

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

General Bangit's Farewell Words

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

General Bangit's Farewell Words

In his farewell address to the troops General Bangit, outgoing Chief of Staff of the Armed Forces, expressed his concern that what happened to him might set a bad precedent that can politicize the Armed Forces. (Not that there has been no previous history of politics in the military!)

But what did happen to him? Amid talks that he would not be retained as Chief of Staff and would be replaced by the incoming President, he chose early retirement. Obviously his perception was that his place in the military service was being determined by political considerations. If you ask him whether Gloria Macapagal Arroyo chose him on the basis of personal loyalty to her (translate “political consideration”) I am not sure what he would publicly admit. Nor, I believe, would he publicly admit that his having been made Chief of Staff was a bad precedent. He was, I suppose he would claim, appointed purely on the basis of merit.

As I see it, however, the situation General Bangit found himself in was not unusual and, in a sense, has been made unavoidable by the Constitution itself. Consider the provision on the tour of duty of a Chief of Staff as found in the Constitution: “The tour of duty of the Chief of Staff of the armed forces shall not exceed three years. However, in times of war or other national emergency declared by the Congress, the President may extend such tour of duty.”

It will be noted that what the Constitution prohibits is the extension of the tour of duty of a Chief of Staff beyond three years. Commissioner de Castro, a former military man himself, expressed the reason behind the prohibition:

“It is very necessary that a Chief of Staff shall not be extended by the President, because if he wants to be a dictator, that would be the very reason why he would keep that man under his thumb so that he can command. . . . Remember [that] the Chief of Staff is the Commanding General of all the Armed Forces of the Philippines, and the President is the Commander-in-Chief. Pag nagkasundo iyang dalawang iyan, patay na ang bayan. That is the very reason I would like that the tour of duty of the Chief of Staff shall be for a three-year period without any extension.”

De Castro’s total prohibition of extension was not accepted by the Constitutional Commission, but it was made clear that, in order to avoid what de Castro feared, extension could be done only “in times of war or other national emergency declared by the Congress.”

The obverse of de Castro’s argument, of course, is that the country cannot have a Chief of Staff of the Armed Forces who is at loggerheads with the President, the Commander in Chief of the Armed Forces. For that reason, the Chief of Staff has not been given security of tenure. The law expresses the length of the tour of duty in negative terms. It does not say “the tour of duty shall be three years;” rather it says “shall not exceed three years.” And this is what General Bangit seems to lament.

General Bangit is not the only one who laments the state of the law. Since the law has also given rise to a “revolving door policy,” it is also lamented by those who fear that harmful effects can flow from the revolving door policy. The next time we get around to amending the Constitution, this policy on the tour of duty of the Chief of Staff will very likely be examined.

Incidentally, the United States whose military tradition has profoundly influenced our own, has only recently grappled with the problem of a conflict going on between a military General and the White House. General Stanley McChrystal, the commanding general of the US forces in Afgahnistan, was summoned to the White House and was eventually relieved of his command because of remarks critical of White House policy. McChrystal himself has apologized but his offer to resign was accepted.

The President’s Oath

I guess there is no more retreating from the President elect’s decision not to take his oath before Chief Justice Rene Corona and to do it instead before Associate Justice Conchita Carpio Morales. The reason given is that the President elect does not accept Corona’s support for the power of the President to appoint a Chief Justice during the constitutionally prohibited period and agrees instead with Justice Carpio-Morales’ strong dissent. The President-elect is making Corona responsible for the act not of one person but of a majority of the Court. Very awkwardly, however, the entire Court is being invited to attend the presidential inauguration!

Admittedly there is no law requiring that the President take his oath before the Chief Justice. But there is something symbolic about the head of the Executive Department honoring the highest officer of the Judiciary. It represents not just respect between two persons but respect between two important institutions.

The message the President-elect seems to be sending is that we might be having a President who will not only disagree with Supreme Court decisions not to his liking but might even act according to his dislike. I just hope that, for the good of the nation, this is just a temporary emotional aberration which will not be determinative of other Supreme Court decisions in the future. We will see what happens if the decision in the Hacienda Luisita case will not be to his liking. The case is now in the division chaired by the Chief Justice.

28 June 2010

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

Saturday, June 12, 2010

Who May Be Party List Rep?


The guiding philosophy behind the party-list system is clear enough. As the Supreme Court put it in 2001: “The party-list system is a social justice tool designed not only to give more law to the great masses of our people who have less in life, but also to enable them to become veritable lawmakers themselves, empowered to participate directly in the enactment of laws designed to benefit them. It intends to make the marginalized and the underrepresented not merely passive recipients of the State's benevolence, but active participants in the mainstream of representative democracy. Thus, allowing all individuals and groups, including those which now dominate district elections, to have the same opportunity to participate in party-list elections would desecrate this lofty objective and mongrelize the social justice mechanism into an atrocious veneer for traditional politics.”

Philosophy, however, must be brought down to the level of practice. To do this, two important questions must be answered. First, what parties and organizations my participate in the party-list system? Second, who may become party-list representatives? The answer to the first question is clearer than the answer to the second.

The Constitutional Commission of 1986 itself did not have a clear answer to either question. It did say, however, through Section 5, Article VI that members of the House of Representatives may "be elected through a party-list system of registered national, regional, and sectoral parties or organizations." From this it can be deduced that political parties are not excluded from participation in the system.

But then the provision goes on to say that the seats for the “party-list representatives shall be filled, as provided by law, by selection or election from the labor, peasant, urban poor, indigenous cultural communities, women, youth, and such other sectors as may be provided by law, except the religious sector." The phrases “as provided by law” and “as may be provided by law” have given to Congress the discretion to lay down some of the details for the system.

This the Congress did through R.A. 7941 which specified that the participating organizations must be such as “will enable Filipino citizens belonging to marginalized and underrepresented sectors, organizations and parties, and who lack well-defined political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole, to become members of the House of Representatives. Towards this end, the State shall develop and guarantee a full, free and open party system in order to attain the broadest possible representation of party, sectoral or group interests in the House of Representatives by enhancing their chances to compete for and win seats in the legislature, and shall provide the simplest scheme possible."

On the basis of these provisions a divided Supreme Court made the ruling that the intent of the Constitutional Commission and of the implementing statute, R.A. 7941, was not to allow all associations to participate indiscriminately in the system but to limit participation to parties or organizations representing the "marginalized and underprivileged.” The Court said that even political parties must comply with this requirement.

We now have a whole slew of organizations claiming to be “marginalized and underprivileged.” They claim to possess the qualitative requirement of being “marginalized and underprivileged,” qualities which can be verified from the activities and goals of the organization.

But what of a nominee who seeks to represent the “marginalized or underprivileged sector.” What qualities must he or she possess? The same 2001 decision said that the law “mandates a state policy of promoting proportional representation by means of the Filipino-style party-list system, which will ‘enable’ the election to the House of Representatives of Filipino citizens, 1. who belong to marginalized and underrepresented sectors, organizations and parties; and 2. who lack well-defined constituencies; but 3. who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a whole.”

R.A. 7941 itself says that a party-list representative must be “a bona fide member of the party or organization which he seeks to represent for at least ninety (90) days preceding the day of the election.” In other words, the law, as interpreted by the Court, prescribes the ideological requirement of having a heart that belongs to a marginalized and underprivileged sector.

This requirement for the party-list nominee is the tricky part. It is easy enough to deduce from the constitutional provision that the organizations involved in the system must belong to the marginalized and underprivileged sector. Moreover, that the organizations possess this quality can be verified. But personal ideological quality, while not easily disproved, can easily be feigned. Besides, it is not all that clear from the law that a nominee himself or herself must also belong to the marginalized and underprivileged class. Indeed, it is quite possible for one belonging to the elite class of society to be a member of a marginalized organization because he or she has a heart that bleeds for the underprivileged. In fact, in the constitutional enumeration of the qualifications of members of the House, the only thing that differentiates party-list representatives from district representatives is that that they need not be residents in any particular district. Should this list of qualifications be read as exclusive or can Congress add an ideological qualification?

How the Comelec and the Electoral Tribunal will apply this requirement to high profile party-list nominees, such as Mikey Arroyo, remains to be seen.

14 June 2010