Defending institutions

Critics of President Duterte accuse him of undermining the nation’s institutions — especially those charged with upholding the rule of law and maintaining the constitutional mechanisms of checks and balance — by attacking their current occupants. Mr. Duterte’s avid supporters, on the other hand, accuse his critics of destabilizing the presidency and laying the ground for regime change by their ceaseless attacks on his integrity.

Which one is more plausible?  Is President Duterte destroying our institutions, or are his detractors destabilizing the presidency?

First, it is quite obvious that not every criticism of incumbents is an attack on the institutions they represent.  Indeed, most such criticisms aimed at persons may equally be viewed as valid attempts to preserve the integrity of the institution.

Second, it is important to bear in mind that state institutions, and the public offices that constitute them, are ultimately based on the people’s continuing trust in their government.  Though they may often feel they have no choice in this matter, the people nonetheless abide by them not because they are coerced to do so, but because they believe in these institutions as essential instruments of public order, justice, and the common good.

Let us now consider the ongoing “word war” between the President and the Ombudsman.  Mr. Duterte has accused the Office of the Ombudsman of allowing itself to be a tool of the opposition by giving due course to a complaint for undeclared wealth filed by Sen. Antonio Trillanes IV.  Claiming that the complaint is malicious and has no basis, the President warns that he will set up an “independent body” to investigate the Office of the Ombudsman for its “partiality” and for soliciting bribes to settle cases.

The Ombudsman has replied with a terse statement: “Sorry, Mr President, but this Office shall not be intimidated.  The President’s announcement that he intends to create a commission to investigate the Ombudsman appears to have to do with this Office’s ongoing investigation into issues that involve him.  This Office, nonetheless, shall proceed with the probe, as mandated by the Constitution…. If the President has nothing to hide, he has nothing to fear.”

While the two officials can be removed from office only by impeachment, the Ombudsman’s powers are no match to the powers of the President. The President draws a considerable amount of his authority from his being elected to office. In our political culture, people tend to think that elective positions command greater legitimacy than appointive ones supposedly because they represent the will of the people. This has no basis either in law, or in fact.

The enormous powers of the state are distributed across a myriad of elective and appointive positions. Indeed, appointive positions are typically more demanding in the qualifications they set for occupants. But, it is true: Holders of appointive positions in our country tend to be vulnerable to attacks by politicians.

This is particularly so in the case of state agencies that are charged with investigating public officials and monitoring their performance, but whose functions cannot be categorized in any clear way under the judiciary or any other branch of government.  Not familiar with their work, the public may often be inclined to think of them as dispensable agencies without clear mandates. Examples are the Office of the Ombudsman and the Commission on Human Rights.

I call them “reflexive institutions” because, even as they are part of the state, they are there to observe the actions of the state itself — in their capacity as society’s “self-protecting device.” They exist basically to protect the people from the abuses that may be committed by state authorities.

This concept is clear in the way the Office of the Ombudsman defines its mission: “As protectors of the people, we shall endeavor, in cooperation with all sectors of Filipino Society, to promote integrity and efficiency and high ethical standards in public service through proactive approaches in graft prevention and public assistance, prompt investigation of complaints and aggressive prosecution of cases against government officials and employees.” The phrase “protectors of the people” is not a self-serving description; this is how the role is defined in Section 12, Article XI, of the 1987 Constitution.

Interestingly, the same phrase in its singular form, “protector of the people,” appears in the Constitution’s Sec. 3, Article II: “The Armed Forces of the Philippines is the protector of the people and the State.” But, unlike the AFP, the Office of the Ombudsman does not have an army or even a small police force to carry out its decisions.

It is thus far easier for the President to thwart the work of the Office of the Ombudsman than it is for the latter to destabilize the presidency. Mr. Duterte does not have to intimidate this small agency by threatening its officials with arrest if they fail to appear before any special commission.  Anyone can file an impeachment case against the Ombudsman, and the President’s loyal majority in Congress could give this due course if he so wishes. Moreover, under Republic Act No. 6770, the President himself may dismiss any of the Ombudsman’s deputies, after due process, on the same grounds for impeaching the Ombudsman.

Institutions like the Office of the Ombudsman are the state’s self-correcting mechanisms.  They can perform this almost improbable function only when they are able to stand their ground against those that seek to emasculate them, or make them an instrument for political ends.

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