DUTERTE LEXSEDLEX

THE law is harsh, but it is the law. We are a government of laws and no one is above them. We have a republic where people are equal in the eyes of the law. Citizens may be sovereign, but it is the law, crafted by their elected representatives, that rules supreme. The sovereign people may be the source of power and authority as their consent determines political legitimacy, but they are bound by a fundamental law called the Constitution, from where all other laws emanate. The architecture of power is constructed around the law in such a way that the people who make it are different from those who implement it, and there is a distinct body tasked to interpret it. These three functions are separate and co-equal.

This is, however, in theory. In practice, states have accorded much power to their heads, and where the heads of government become distinct from the heads of state, it is the former that retains the executive authority while the latter usually becomes a mere symbol. As a former colony of the United States, the Philippines has adopted the American system, where the president is the head of both the state and government and is seen as the core of political power. But even then, the president is not a king or an absolute ruler. He cannot make laws as this is the role of Congress. He cannot usurp the power of the courts to interpret those laws.

The president cannot be above the law. He cannot exceed whatever power is granted to him by Congress as he implements laws that it legislates, even as such power, and the act of Congress vesting such power, would be subject to the expanded power of judicial review by the Supreme Court. Unfortunately, of all the three branches of government, it is the judiciary that does not have active powers, as it can only act when called by a legitimate agent with a legal standing on an issue. This system of checks and balances is thus prone to a breakdown when a president who has become a cult-like figure who counts on the support of a loyal political base ends up also controlling Congress. The independence of the lawgivers is weakened, even as the idolatry of the majority of the sovereign people grants legitimacy to presidential acts. The courts will be helpless, as they can only act when someone files a case. The Supreme Court cannot act

We saw this when President Rodrigo Duterte ordered the surrender of inmates freed through the good conduct time allowance by threatening that they would be arrested. The presumption of regularity, considering that the allegations of corruption in the system are questions of facts, would have required that due process should have been accorded to those who already benefited from the acts of the state. In addition, in order to arrest a person freed presumably in good faith, a court order should have been sought first. All of these were violated, but an inmate unjustly denied of his or her right must first run to the courts to seek protection of the law. Under the system, only these persons have the legal standing to sue. No urgent motion for a temporary restraining order was filed. Thus, the order of the President was legitimized. By the same limits imposed by the Constitution on the courts, with consent by those victimized, President Duterte ended up being above the law.

Congress, as the maker of laws, is supposed to be the first line of defense against executive overreach. It controls the budget and it has oversight functions to investigate acts of the president and his alter egos. It can legislate laws that can clip presidential powers and authority. It can override a presidential veto. And the Constitution has vested on Congress the sole power to remove a president through the process of impeachment. Aborted as it may have been, our recent history saw this power flexed during the impeachment of former president Joseph Estrada. All it took was an independent House led by a speaker with a spine.

Unfortunately, an independent Congress appears to have become a rarity in our political system and culture. The key to independence is the existence of robust, mature and ideologically defined political parties, which we lack. We exist in what noted political scientist Remigio Agpalo has referred to as a “system where we have a political culture focused on a leader, and not on parties or ideologies. This system nurtures patronage, where support and proximity to the president is political insurance, thereby leading to a post-election landscape populated by fluttering political butterflies migrating towards the president, abandoning or dragging their makeshift nominal parties. We thus have a Congress that is populated by turncoats of all shapes and sizes, and where some from the nominal political opposition may even find themselves in the majority.

A Congress like this can never be relied upon to become an effective check on the powers of the president. It is a Congress that stood by when the President committed acts that under the Constitution are already impeachable, such as when he granted China fishing rights within our exclusive economic zones, or when he abrogated the Visiting Forces Agreement with the US, without seeking congressional concurrence.

It is these structural flaws in our political system that emboldens the President to boldly condone Debold Sinas for his violation of the law, or to proclaim the propriety of the procurement of overpriced personal protective equipment prior to an objective investigation. An idolatrous political base ready to bamboozle and troll the opposition, an uncritical citizenry ready to express trust and approval in online surveys, a Congress that is spineless, and a Supreme Court with its hands tied and cannot act on its own, and we have the lethal formula for the emergence of a king above the law.