Reviewing the IIRC Report

Someone asked me why the President should order a review of the report of the Incident Investigation and Review Committee (IIRC). Did he not give the responsibility of doing the investigation mainly to the Secretary of Justice and the Secretary of Interior and Local Government, both members of his inner circle? Actually the answer to that question was given long ago by the Supreme Court.

Under our presidential system there is only one President and "all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive."

What this means is that a decision of a department secretary, when not expressly disowned by the President, is already the President’s decision. But this also means that decisions of department heads are always subject to review and even reversal by the President if he chooses to do so. Every person who accepts a position in the executive department accepts it on this understanding.

This principle flows from the President’s power of control over all executive departments. As the Constitution says, “The President shall have control of all executive departments, bureaus and offices.” Moreover, in the hierarchy of department secretaries, the Executive Secretary occupies a position of preeminence when acting “by authority of the President.” Thus, the Executive Secretary, even if not the smartest, or even an Assistant Executive Secretary, when acting "by authority of the President," may reverse the decision of a department head.

Will the President accept the IIRC’s report in toto? He may or he may not. And even if he does, that would not be the end of the report. The report, aside from containing a recitation of facts and conclusions, also contains recommendations of administrative and criminal charges against certain persons. These recommendations, if acted upon, will have to go through the rigorous requirements of due process. They will also be a test of the political will of the new administration.

The charges against individual persons are serious and certainly the people concerned will demand that they be given a day in court. But another delicate aspect of the report is what it says about media. Quite obviously the members of the IIRC, in preparing the report, were aware that media, as vehicles of free expression and information, occupy a special position in the hierarchy of rights. Hence, the IIRC Report did not have any specific recommendation. I just hope that, in reacting to the behavior of media during the hostage crisis, whatever action is taken by government will not have the effect of prior restraint on future media actions.

Who should be in charge of the House

I was surprised that a number of persons expressed concern about the fact that the President did not appoint a care-taker while he was away. Behind some of this concern, I am sure, was an expression of sympathy for the Vice-President who appeared to have been left out. But the Vice-President himself did not seem to be bothered at all. And rightly so.

The absence of the President from the country is not a basis for the activation of the order of succession found in the Constitution. The Vice-President takes over the functions of the President in an acting capacity only when the incumbent President is temporarily incapacitated to perform the functions of his office. In this age of sophisticated means of communication, the President is not really away when he is away on a trip. And he certainly is not incapacitated when he can relive his early youth and enjoy hotdogs in the streets of New York!

relocation of informal settlers

You might say that the constitutional command is clear enough: “Urban or rural poor dwellers shall not be evicted nor their dwellings demolished, except in accordance with law and in a just and humane manner. No resettlement of urban or rural dwellers shall be undertaken without adequate consultation with them and the communities where they are to be relocated.”

Does this mean that the validity or legality of the demolition or eviction is hinged on the existence of a resettlement area designated or earmarked by the government? That would be the ideal; but jurisprudence has answered that question in the negative. What is required is that “the person to be evicted be accorded due process or an opportunity to controvert the allegation that his or her occupation or possession of the property involved is unlawful or against the will of the landowner; that should the illegal or unlawful occupation be proven, the occupant be sufficiently notified before actual eviction or demolition is done; and there be no loss of lives, physical injuries or unnecessary loss of or damage to properties.”

As can readily be seen, legal pronouncements on the subject will not be enough to prevent the confusion and damage to persons such as those which happened in recent evictions in Metro Manila.

27 September 2010