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Presidential Idolatry and the Constitution
I charge the President with culpable violation of the
Constitution and betrayal of public trust on three counts for which she is
answerable under Section 2, Article XI.
By Sen. Aquilino Pimentel
Posted by Bulatlat
Thank you, Mr. Chairman and Mr. President, for your kind invitation
which Zyke Garcia conveyed to me - to speak before the members of the
Philconsa today on the occasion of Constitution Day.
Today is also the 115th birth anniversary of the eminent
constitutionalist, Claro M. Recto, who presided at the Constitutional
Convention in 1934. It was the Recto-led Convention that produced the 1935
Constitution, the first Constitution of the Commonwealth of the
Philippines and also the first Constitution of the Republic.
We now have a new basic law of the land, the 1987 Constitution, the 3rd
since the 1935 fundamental law. In between 1935 to 1987, we had the 1973
basic law.
Importance of Constitutions
Constitutions are important in democratic countries like ours because they
limit the powers of the government and ensure protection of the rights and
liberties of the people.
Essentially, the provisions of our Constitutions - with the possible
exception of the 1973 Basic Law - are similar. They limited the powers of
government by distributing them to the three major branches of
government and assured the people of their basic and fundamental civil,
political and human rights.
Our problem, then, as regards the present Constitution is not that the
powers of government are not limited because governmental powers are duly
fettered. Neither does our problem arise from its failure to guarantee the
basic rights and the fundamental liberties of our people because these are
duly guaranteed.
Idolatrous gov't
Our problem is that the leader of the government, the President, idolizes
the formalistic rituals, not the substantive mandates, of the
Constitution. She engages in double speak in that she seems by her words
to uphold the Constitution even as by her deeds she violates it. She
apparently forgets that just as the 10 Commandments prohibit idolatrous
obeisance to false gods, the Constitution also proscribes idolatrous
homage to official false pretenses that promote self over the national
interest.
This was what the eminent constitutionalist, Claro M. Recto, had warned
against in his September 25, 1958
speech, The Paradoxes of Our Democracy. He said that "The government
seems to have discovered the secret of what we may call a 'democratic
dictatorship'." Recto explained that under a democratic dictatorship "We
are allowed to enjoy the appearances of democracy while its substance is
stealthily being sucked away" xxx and "we (become) the happiest serfs
because we don't realize that we are serfs and we believe ourselves to be
free."
Continuing threats
Prophetically, the very things that Recto had decried decades ago as
pitfalls on the road towards the attainment of our democratic ideals are
as threatening today as they were then.
To go straight to the
point, I charge the President with culpable violation of the Constitution
and betrayal of public trust on three counts for which she is answerable
under Section 2, Article XI.
CHARGE NO. 1 - During
the last presidential campaign, the President illegally used the trust
funds raised through the Road Users Tax and of the Overseas Workers
Welfare Administration for her own purposes.
Specifics
She had some P1.4 billion raised by the Road Users' tax transferred to
fund her patently partisan political project: Kalsada Natin, Alagaan Natin.
She also authorized the transfer of some P4 billion from OWWA funds to the
PhilHealth supposedly to enable the poor to have access to public health
services.
Argument
While the objectives might have been good, it was still wrong for the
President to have done so. The reason is that the Road Users Funds and the
OWWA funds are trust funds.
The funds, therefore, cannot be used for any purpose other than that
specified in the law that created them.
The Constitution mandates that: "All mon(ies) collected on any tax levied
for a special purpose shall be treated as a special fund and paid out for
such purpose only [Article VI, Section 29 (1) 1st sentence]."
By misusing the trust funds of the Road Users Law and the OWWA, at the
very least, she betrayed the public trust for which she should be made
answerable.
CHARGE NO. 2 - The President illegally authorized the payment of some $68
million dollars or P3.762 billion for the purchase of six search and
rescue vessels for the use of the Coast Guard without Congressional
authority.
Specifics
The President gave "Full Powers" on July 30, 2001 to DOTC Sec. Pantaleon
Alvarez to meet, confer and negotiate in behalf of the Republic a loan
agreement in an amount not exceeding $71,136,000 for the purpose of buying
the six vessels.
Subsequently, she ordered the release of SAROs on various occasions to
cover the costs ($68.4 million or some P3.762 billion) of the acquisition
of the six vessels.
Argument
It was wrong for the President to have done so. The Constitution is clear.
"No money shall be paid out of the Treasury except in pursuance of an
appropriation by law" [Article VI, Section 29(1)].
By illegally authorizing the payment of the vessels in question without
any Congressional appropriation, the President culpably violated the
Constitution for which she is answerable.
CHARGE NO. 3: The President willfully and blatantly abused her power of
appointment.
Specifics
Because of time constraints, I will cite only the following as egregious
examples of the abuse of her power of appointment.
(a) DND undersecretaries
The President abused her power of appointment by appointing six
undersecretaries to the Department of National Defense. The Administrative
Code of 1987 provides for the appointment of only one undersecretary. The
President, however, has appointed not one but six undersecretaries and six
assistant secretaries, offices that the law has not provided for.
(b) Bureau of Immigration & Deportation
The President abused her power of appointment by appointing five
commissioners - one commissioner and four assistant commissioners - to the
Bureau even as the law (Rep. Act No. 613, as amended) provides that there
should only be three.
(c) Quedancor & Land Bank
The President abused her power of appointment by appointing Cito Lorenzo
to chair Quedancor even as the law provides that it is the Secretary of
Agriculture who sits as the ex-officio chair of that corporation.
The President abused her power of appointment when she appointed the same
Cito Lorenzo to chair Land Bank even as the law states that it is the
Secretary of Finance who acts as the ex-officio chair of the Bank.
Argument
While the power of the President to fill up offices created by law is
acknowledged, the presidential power to appoint is circumscribed by
applicable laws. In other words, the power to appoint is not absolute. It
is limited not only by the Constitutional requirements as to
qualifications but also by law as to the number of offices that may be
filled up.
She also abused the presidential power of appointment by appointing
Lorenzo to positions that were not vacant and were, in fact, reserved by
the laws creating Quedancor and Land Bank to officials in ex-officio
capacity as already mentioned.
Implications
The legal - perhaps, the better adjective is illegal -implications of her
abuse of the power of appointment are the following:
1. The persons, thus appointed, illegally exercise powers either by
presiding at or by participating in the meetings of their respective
offices or Boards;
2. They illegally
make decisions that may affect the rights and obligations of the people
dealing with them; and
3. They illegally
collect salaries, perks and per diems that are attached to those offices.
Usurping and bypassing Congress
The illegal exercise of the power of appointment by the president renders
nugatory the power of the purse that the Constitution has placed in the
hands of Congress.
Parenthetically, as the only senator from Mindanao,
I hate mentioning the appointments of Cito Lorenzo, who is also from
Mindanao,
to the two government-controlled financial bodies to call attention to the
penchant of the President to abuse her powers of appointment.
I raise the issue only because I believe that unless we are prepared to
set aside narrow partisan or parochial concerns in defense of the
Constitution and the Rule of Law, I am afraid that the "stealthy"
undermining by the Executive of the basic foundations of our Constitution
that Recto had warned against more than 50 years ago could become more
prevalent today than it was in his generation.
Willful transgressions
I cannot imagine that the President is unaware of the serious implications
of her culpable transgressions of the Constitution and the Rule of Law.
Although she is not a lawyer, she has a good legal team in Malacanang and
has access to brilliant minds of the Bar. Her misuse and abuse of the
powers of the presidential office, then, cannot but be deemed to have been
done maliciously, that is willfully and deliberately, for which she is
answerable under the Constitution and the applicable laws.
For the sake of our nation, the presidential legal advisers would do well
to remind the President that the Constitution and the laws of this
Republic are there for her to advance the public weal. The Constitution
and the laws are there to remind her that the presidency is hers but only
for a moment and is, thus, a stewardship that she must exercise only for
the good of the nation.
Aggressive militancy
Again, let us hear what Recto had to say on the matter. In a speech he
delivered on February 8, 1953, some
52 years ago, he said: "xxx a Constitution is only as good as the men (and
women) who enforce, and the men (and women) who obey and respect it. xxx
(For) we are the Constitution in the sense that it can live only in us,
through us, for us and because of us."
Under Recto's thesis, the faithful implementation of the Constitution
depends on: 1. the goodwill of its executors; and 2. the goodwill of the
people who are expected to respect and obey it.
Without the President's honest-to-goodness commitment to uphold the
Constitution, she won't be able to implement it for the good of the
people.
And without the people's aggressive militancy to defend the Constitution
and the Rule of Law, their basic rights and their fundamental liberties
would become dead letters that mean nothing to anyone.
Reducing us to slavery
Thus, as Recto said, we would all be reduced to the status of slaves so
blissfully ignorant of our having been taken in by duplicitous leaders who
say one thing and do another.
May I, therefore, suggest that the Philconsa take up the cudgels in behalf
of the people. After all, the Philconsa, I think, was organized precisely
to protect the Constitution and uphold the Rule of Law. I suggest that
there is no better opportunity for Philconsa to pursue its primary mandate
than when blatant challenges confront the Constitution and the Rule of Law
as they do today.
I suggest that Philconsa should do what Leonides told the invaders of his
land at Thermophylae some 2500 years ago: "Here's where we draw the line
and beyond it, you shall not pass!" In fine, Philconsa, perhaps, ought,
perhaps, to consider filing the necessary impeachment papers against the
President as was implied earlier.
Spirit of Liberty
To cap this talk, it may be good to recall what the great American jurist,
Justice Learned Hand, had to say about the Constitution and the spirit of
liberty.
"Liberty lies in the hearts of men and women; when it dies there, no
constitution, no law, no court can save it."
The converse is true that if liberty lives in the hearts of men and women,
one does not need a constitution or any law or court to save it.
Let us, then, keep the spirit of liberty alive in our hearts regardless of
our partisan political persuasions. After all, partisanship is merely of
transitory value. But liberty endures as an eternal good.
Maraming salamat po.
(Speech of Sen.
Nene Pimentel at the Philconsa commemoration of Constitution Day, Feb. 8,
2005, at the Manila Polo Club, Forbes Park, Makati City.)
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