‘Separation of Powers’ fading away

By Michael Henry Yusingco, LL.M

The recent drama in the House of Representatives is a teaching moment for us. It is an opportunity to learn a fundamental feature of the 1987 Constitution. Note that 78% of our people know nothing about our charter. An “appalling statistic” according to one law school dean. And so, every education effort counts.

Our lesson comes from the lengthier response of Congresswoman Gloria Macapagal-Arroyo to the removal of her “Senior Deputy Speaker” title. Specifically, this paragraph:

“In the Philippines, the House leadership has traditionally been closely associated with the sitting President, and this relationship of deep trust has been beneficial in smoothly enacting the legislative agenda of the President. I think this is acceptable, because in the Philippines, the check and balance needed in a democracy has traditionally been well-provided by the Senate.”

She is correct to say that the Speaker of the House of Representatives, since the time of President Corazon Aquino, has always been a very close ally of Malacañang. But she is utterly wrong to assert that this is acceptable. Actually, this traditional closeness is more accurately characterized as a persistent violation of the separation of powers prescription of the 1987 Constitution.

Our government structure, as designed by the constitution, is anchored on the principle of separation of powers. As explained in the old case of Angara vs. Electoral Commission:

“The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere.”

The even older case of United States vs. Ang Tang Ho provided a more simplified explanation of what separation of powers entailed:

“It is the duty of the Legislature to make the law; of the Executive to execute the law; and of the Judiciary to construe the law. The Legislature has no authority to execute or construe the law, the Executive has no authority to make or construe the law, and the Judiciary has no power to make or execute the law. Subject to the Constitution only, the power of each branch is supreme within its own jurisdiction, and it is for the Judiciary only to say when any Act of the Legislature is or is not constitutional.”

But the sublime importance of the separation of powers was best expressed in a dissenting opinion in the case of Metro Manila Development Authority vs. Concerned Residents of Manila Bay:

“Now then, if it be important to restrict the great departments of government to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that one branch should be left completely independent of the others, independent not in the sense that the three shall not cooperate in the common end of carrying into effect the purposes of the constitution, but in the sense that the acts of each shall never be controlled by or subjected to the influence of either of the branches.”

Our experience has demonstrated that this particular closeness between the President and the Speaker of the House of Representatives has made it possible for one side to exert undue influence over the other. For this reason, this usual intimacy and familiarity is truly a direct contravention of the 1987 Constitution. And so, it will never be acceptable even if our political elites think so.

It is even wrong to see this closeness as beneficial, as it purportedly facilitates the smooth implementation of the President’s legislative agenda. There are other institutions that can serve this purpose without violating the separation of powers prescription, such as the Legislative-Executive Development Advisory Council or LEDAC.

The separation of powers prescription is also a constitutional mechanism to maintain the balance of power amongst the three branches. Pertinently, this also entails preventing one branch from abusing its own given power. It is particularly useful in thwarting any dictatorial aspirations of the executive branch.

And it is worth pointing out that both chambers of Congress, meaning the Senate and the House of Representatives, are responsible for the “check and balance needed in a democracy”. The fact that the Senate has been more dutiful in carrying out this constitutional mandate does not relieve the House of Representatives from any reckoning for its failure to do so. This is another point missed by the response of Congresswoman Arroyo.

The traditional closeness of the President to the House Speaker is undermining this constitutional “check and balance” mechanism because the latter has become utterly subservient to the former. Remember when rivals to the post deemed it proper to let then President Rodrigo Duterte decide which of them should be Speaker? How can the House of Representatives perform its constitutional duty to hold the executive branch accountable when its leader is constantly deferential to the Chief Executive?

So, we should be more sensitive to displays of this “traditional closeness”. We should be alarmed when we see the Speaker always at the side of the President. And of course, we should also be bothered when lawmakers are too docile and forgiving of the Chief Executive. The fact is legislators do not serve the President. They owe their allegiance to the constitution and to the people.

If we do not reclaim this truth, then the separation of powers in our government will just continue to fade away. Good governance and accountability in public office will just be textbook concepts that our students will debate about in classrooms.

And if we want to see more public officials who strictly adhere to constitutional principles and prescriptions, then we should take our vote more seriously. Electing the same quality of people that we see now in office will simply not lead to the positive outcomes we have all been pining for.

The author is a law lecturer, policy analyst and constitutionalist.