• A commission born of deception, opportunism and evasion of Congress

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    YEN MAKABENTA

    First Read
    THE birth of the Commission on Human Rights (CHR) on May 5, 1987 was in many respects a premature delivery. The baby was premature because some people in authority at the time, finagled the establishment of the commission by unconstitutional means. The efforts thereafter to hide the circumstances of the CHR’s birth, and mask its unconstitutional foundations perverted the promotion and protection of human rights in the Philippines.

    While the forced creation of the CHR sought to fulfill an explicit aspiration of the 1987 Charter, it paradoxically doomed the human rights project to a shadowy existence, and persistent vulnerability to patronage politics and investigative journalism.

    In the subsequent debates over human rights policies, nowhere more pronounced than they are now, the nation developed “human rights fatigue”, because the truth about the birth of CHR has never been told; and many people who have profited from its murky beginnings and questionable foundations continue to hide the facts.

    Here are some of the facts.

    History tells an ignoble story
    On February 2, 1987, the Filipino people ratified the new Constitution of the Republic of the Philippines. Upon ratification of the Charter, then President Corazon C. Aquino ceased to be a revolutionary president who wielded both the legislative and executive powers of the Philippine government. From that day onward, Aquino could no longer create government agencies and appropriate public funds at will.

    Prior to the Charter ratification, there occurred on January 22, 1987, a tragic chapter in the life of the Corazon Aquino presidency – the Mendiola massacre in front of Malacañang Palace, wherein 18 farmers were killed by state forces.

    The massacre, also called Black Thursday by some in the media, occurred when state security forces violently dispersed a farmers’ march on the Palace in protest of government inaction on land reform. It is claimed that antiriot personnel disguised as civilians opened fire on unarmed protesters killing 18 people and injuring 101 others.

    President Aquino formed the Citizen’s Mendiola Commission (CMC) to investigate the incident. The commission failed to identify who fired on the marchers, and recommended instead further investigation by the National Bureau of Investigation (NBI).

    In protest over the Mendiola killings, the Chairman and Vice Chairman, respectively, of the Presidential Committee on Human Rights, Jose Diokno and J.B.L. Reyes, resigned.

    On May 5, 1987, six days before the holding of the first national elections under the 1987 Constitution on May 11, 1987, President Aquino issued Executive Order 163 to formally establish the Commission on Human Rights, and abolish the Presidential Committee on Human Rights.

    Significantly, Aquino created the CHR barely two months before the new congress (the eighth Congress) was scheduled to convene on July 27, 1987.

    The decision to preempt and bypass Congress was deliberate and calculated. The Aquino administration did not want the legislature to scrutinize the prospective law, and to have a hand in the creation of the human rights commission.

    Certain parties wanted total liberty to write the provisions of the enabling act. Certain parties also had their eye on the choice posts in the commission.

    There was anxiety in the administration that the human rights body might focus its investigative authority on unraveling the truth of what happened in Mendiola. The main conclusion was that the less Congress meddled in the creation of the commission the better for the administration.

    These sour beginnings condemned the CHR to its checkered history: weak statutory foundation, avoidance of massacres and violent incidents, appointment of commission chairs whose chief qualifications were membership in the Yellow Cult, and commissioners who were well-connected to influential politicians.

    The loud assurance of Senate President Koko Pimentel that the CHR will get its budget restored is no accident. He is the brother of a CHR commissioner, who could profit from Gascon’s departure.

    Executive Order 163
    The glaring fact that proves the lie behind the CHR is Executive Order 163, which is deceptively and wrongfully paraded as the enabling law behind the commission.

    I have before me and in my hands the text of President Aquino’s executive order. It is a remarkable document of self-dealing and usurpation of congressional authority.

    The EO bears the imposing title, Executive Order No. 163, “Declaring the effectivity of the creation of the Commission on Human Rights as provided for in the 1987 Constitution, providing guidelines for the operation thereof, and for other purposes.”

    It declares:
    WHEREAS, the 1987 Constitution has been ratified by the people;

    WHEREAS, the 1987 Constitution has created an independent office called the Commission on human Rights; and

    NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, by virtue of the powers vested in me by the Constitution, do hereby order:

    “Section1: The Commission on Human Rights as provided under Article XIII of the 1987 Constitution is hereby declared to be now in existence.”

    The tone is like that of God saying: ”Let there be light.”

    The order enumerates the powers and functions envisioned for the commission by the charter, and recites them verbatim:

    But the order does more that. It adds items and matters that can only belong to Congress’ authority; it assumes that Aquino had the power to wield it.

    Aquino on her own volition decides to call the CHR “a constitutional office”, suggesting that it is like the three constitutional commissions explicitly cited in the Charter: the Civil Service Commission, the Commission on Elections, and the Commission on Audit.

    Then, in a clear case of Aquino’s advisers dealing themselves, the EO declares:

    1)“The chairman and the members of the Commission on Human Rights shall be appointed by the President for a term of seven years without reappointment.”

    2) “The chairman and the members of the Commission on Human Rights shall receive the same salary as the chairman and the members, respectively, of the Constitutional Commissions, which shall not be decreased during their term of office.”

    The EO does not say that the commission will investigate only human rights violations by state actors. It says only that “it will monitor the Philippine Government’s compliance with international treaty obligations on human rights.” Nowhere are the police and the military mentioned.

    Finally, in an expansion of her authority. Aquino declares that, “The unexpended appropriations of the Presidential Committee on Human Rights are hereby transferred to the Commission on Human Rights. All properties, records, equipment, buildings, facilities and other assets of the Presidential Committee on Human Rights shall be transferred to the Commission on Human Rights.”

    It is a cardinal rule in US interpretation of the separation of powers that the President cannot appropriate what does not belong to him.

    EO 163 does not sound like an enabling act at all. It does not have the rigor and sweep of a real law.

    Without doubt, Congress, in exercising its powers of debate, review and deliberation, would have written a different and better law creating the human rights commission.

    As things stand therefore, the nation has been handed a statute of doubtful legality, an agency of questionable life expectancy, and state coffers must foot the bill.

    Fallacy of false assumptions
    Why are the country’s senators and citizens falling all over themselves to salvage the budget of the CHR?

    The reason, I am convinced, is the proclivity of people to be seduced and hoodwinked by the fallacy of false assumptions.

    The Senate, beginning with the Senate President, is dominated by the fallacy.

    The House members studied their logic courses in philosophy with more attentiveness.

    I shall discuss false assumptions and the CHR in my column on Tuesday.

    yenmakabenta@yahoo.com

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