Fortified legislature

In most democracies, the legislature is the most powerful branch of government because it represents and expresses the sovereign will of the people. This is especially true in parliamentary systems. Here, the chief executives, called prime ministers, are elected by and owe absolute loyalty to parliament. Once parliament loses confidence in them for whatever reason, they are deposed. The tripartite separation of powers finds no application in parliamentary governments.

Legislative supremacy. In many European countries, the judiciary is inferior to parliament. Judicial power is normally divided among many high courts. Their supreme courts review civil, criminal and commercial decisions of lower courts; their constitutional courts adjudicate constitutional issues; and their high administrative courts decide appeals from executive agencies (like their equivalents of our Bureau of Internal Revenue, Bangko Sentral ng Pilipinas, Securities and Exchange Commission). Normally, these high courts cannot reverse actions of parliament, save for the constitutional courts in exceptional cases.

In presidential systems, the legislature is also considered the repository of the sovereign will, but because the chief executive, called the president, is elected by direct vote of the people and is thus not totally beholden to the legislature, he (or she) is constitutionally-granted enormous powers that easily eclipse the lawmakers’.

Since legislative power is exercised by hundreds of elected representatives (and senators) who must first collegially deliberate and agree before they can act, the president becomes the most powerful official. Assisted by a Cabinet and other officials, the president can act alone and fast. Hence, he/she easily outmaneuvers and overpowers the legislators.

Power of the purse. Presidential dominance characterized our 1936 Charter. But as I discussed on Aug. 17 in this space, the 1987 Constitution weakened the presidency. To curtail executive abuses and excesses, it fortified Congress and empowered the Supreme Court.

Legislative power is simply the power to make laws and to modify or repeal them. The most important law is the General Appropriations Act (GAA) or budget which is enacted yearly. To fortify congressional control over the public purse, the 1987 Constitution expressly provides, “No public money shall be paid out of the treasury, except in pursuance of an appropriation made by law.”

And after such appropriation is “made by law” via the GAA, not even Congress is authorized by the Charter to pass another law “authorizing any transfer of appropriations.” There is one very limited exception; the president (or Senate president, or House speaker, or chief justice or the heads of the constitutional commissions) “may, by law (passed by Congress), be authorized to augment any item in the (GAA) for their respective offices from savings in other items of their respective appropriations.”

This exception, called the power of augmentation and referred to by President Aquino as Disbursement Acceleration Program or DAP, had been discussed extensively in my three columns last July 6, 20 and 27, and I will not belabor them now.

Suffice it to say that our new Charter had tightly barricaded the congressional power over the purse and limited presidential intervention, as shown by the DAP decision of the Supreme Court.

Other legislative fortifications. In my Aug. 17 column, I already discussed the stringent legislative limitations on the martial law powers of the president, making it impossible for any chief executive to become a dictator under the new Constitution, unlike under the old one which Ferdinand Marcos used as basis for his oxymoron “constitutional authoritarianism.”

Aside from this, our new Charter granted Congress extensive powers to check the presidency, some of which are:

1. It made it easier for Congress to remove presidents (and other impeachable officials) from their office. The 1936 Charter required two-thirds vote of all representatives to impeach, and three-fourths vote of all senators to convict, but under the new one, only one-third of all representatives and only two-thirds of all senators, respectively, are needed. This old Charter provided four grounds for impeachment: culpable violation of the Constitution, treason, bribery and other high crimes. Our new Charter added two more: graft and corruption, and betrayal of public trust.

2. Under the 1936 Charter, department heads may be prevented from attending congressional probes, “when the public interest shall require… and the President shall so state in writing.” However, under our new one, “when the security of the State or the public interest so requires and the President so states in writing, (their) appearance shall be conducted in executive session,” but cannot be banned.

3. Under the old Charter, lawmakers were exempted only from civil arrests, but under our new one, the privilege was extended to criminal arrests for offenses punishable by not more than six years imprisonment “while Congress is in session.”

4. Under both Constitutions, Congress may, by law, confer emergency powers on the president to carry out a declared national policy, but under our new one, such powers “shall cease upon the next adjournment” of Congress.

5. Under the old Charter, treaties may be entered into by the president provided two-thirds of all the senators concur. Under our new one, even “international agreements” need two-thirds vote of the Senate.

* *  *

Comments to [email protected]