• President Duterte is a strong unitary executive

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    YEN MAKABENTA

    First word
    DOES President Duterte have the space or the authority to govern the Philippines? Yes, he does.

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    Is it the job of the Philippine President to administer the affairs of the Philippine Republic? Yes, it is.

    This was so for the 15 other Presidents of the republic. And so it is for the 16th President today.

    This is what Duterte critics are loath to face – that regardless of whether Nikki Haley said the words or not, President Duterte, in fact and in law, has the space and the support of the Filipino people to govern the Philippines? And that the Trump administration and most Americans recognize this too?

    Add the fact that the new Trump foreign policy has swerved away from the goal of democratizing the world and towards affirming the sovereignty of nations over their affairs–and the Philippine opposition, whatever its color, must face the prospect of struggling for political power solely under its own steam. With scant hope of an assist from the US government.

    If the US State Department follows through on deleting the word “democratic” from its mission statement (I am awaiting confirmation of this by the US embassy), there will be a sea change in international relations. Less hubris, and more realism.

    Theory of unitary executive
    In Article VII, Section 1 of the Philippine Constitution, the Charter provides: “The executive power shall be vested in the president of the Philippines.”

    In other sections of the article, the specific powers and functions of the president are enumerated.

    In his explanation of Article VII in his book on the Constitution (The Constitution Explained, National Book Store, Manila, 1987), Con-com commissioner and author Jose N. Nolledo writes: “The president in a presidential system is the head of state and the head of government. He has control over department secretaries and can over-rule their decisions. The department secretaries are his alter egos. He is elected at large by the people, but he is removable by impeachment. He exercises veto power over bills passed by the Congress.

    “Executive power is basically the power to execute the laws and rule the country as chief executive, administering the affairs of government.”

    Theory of the unitary executive
    Like the US president under the US constitution, the Philippine president is a unitary executive.

    According to the legal analyst and author, Judge Andrew Napolitano, “prior to Watergate, the generally accepted theory of management of the executive branch of government was the unitary executive. This theory informs that the president is the chief executive officer of the federal government and is the sole head of the executive branch. He is also the only person in the executive branch who is accountable to the voters, as he, and he alone (along with the vice president), who has been elected by the voters.

    “As such, this unitary executive theory informs that everyone in the executive branch of the federal government works at the pleasure of the president.”

    Napolitano goes much further: “Under this theory, the president is constitutionally, legally, morally and ethically free to direct any person in the executive branch as to how he wants that person to perform his or her job. And the recipient of such direction is free to resign if the direction appears unlawful. That is at least the theory of the unitary executive.”

    George W. Bush actively embraced the theory of the unitary executive. Following the September 11,2001 terrorist attacks, he exercised prerogative powers. He took America to two wars in the Middle East.

    According to the book, The Politics of the Presidency, by Joseph A. Pika and John Anthony Maltese (CQ Press, Washington, D. C. 2010), “supporters of the unitary executive argue that because the president alone possesses the executive power, the president must have control over the executive branch and its administration.”

    The authors opine that the actions of individual presidents, statutes enacted by Congress, the emergence of customs, and institutional development have contributed to the expansion of the US presidency.

    I will note lastly that along with the presidential powers, Congress has oversight powers over the executive, in addition to its exercise of the legislative power. This prevents the president from possessing a monopoly of administrative power.

    The judicial branch has the power of judicial review. It has the constitutional authority to examine an executive or legislative act and to invalidate that act if it is contrary to constitutional principles.

    Strong vs weak unitary executive
    Some will probably prefer to avoid the full scope and meaning of the unitary executive.

    From Wikipedia, I found this note: “Although the general principle is widely accepted, there is disagreement about the strength and scope of the doctrine. It can be said that some favor a ‘strongly unitary’ executive, while others favor a ‘weakly unitary’ executive.

    “The former group argue, for example, that Congress’ power to interfere with intra-executive decision-making (such as firing executive branch officials) is limited, and that the President can control policy-making by all executive agencies within the limits set for those agencies by Congress. Still others agree that the Constitution requires a unitary executive, but believe this to be harmful, and propose its abolition by constitutional amendment.”

    Extreme forms of the theory have developed. John Dean contends: “In its most extreme form, unitary executive theory can mean that neither Congress nor the federal courts can tell the President what to do or how to do it, particularly regarding national security matters.”

    According to law professors Lawrence Lessig and Cass Sunstein, “No one denies that in some sense the framers created a unitary executive; the question is in what sense. Let us distinguish between a strong and a weak version.” In either its strong or weak form, the theory would limit the power of Congress to divest the President of control of the executive branch. The “strongly unitary” theory posits stricter limits on Congress than the “weakly unitary” theory.

    Some scholars oppose even the “weakly unitary” theory and favor creating a plural executive, as in the many state governments that separately elect an attorney general. However, these scholars acknowledge that a constitutional amendment would be required to eliminate the federal unitary executive.

    Apology to Nikki Haley
    Is this discussion designed to cover my egregious error in attributing an unverified quotation to Nikki Haley? No.

    It only means that I will not stand by while my colleagues in the Times and elsewhere have been roused to contend over the issue of fake news. I am acutely aware of my catalytic role here.

    I have written the office of ambassador Haley to inform her of and apologize for my mistake. I expect to receive a reply and I will publish it accordingly.

    For now, I will only urge my readers to read again the offending quote and comprehend its meaning. It reads: “The Philippines is suffocating. We must give President Duterte the space to run his nation. We must respect their independence. It is not our purview to decide administrative issues for the Philippines.

    “That is the job of the president.”

    Not a single line is unreasonable or unsupported by the Philippine Constitution. Only the word “suffocating” seems misplaced, because the Philippines leads most nations today in GDP growth.

    What clearly angers many is that I reported in my column that a key member of the Trump cabinet threw a bone of support for President Duterte. They worry that it could mean as well the extension of support by the Trump administration.

    Many still glory over the thought that the White House disinvited President Duterte after a storm of criticism in the US media and the US Congress.

    The question now is whether the disinvite policy will be withdrawn, following Trump’s address to the UN, and with the coming visit of President Trump to the Philippines and Vietnam in November.

    The disinvite may be reversed. In that event, Duterte critics will have to hope that DU30 will stick to his vow not to go to Washington, because he said America is “lousy”.

    yenmakabenta@yahoo.com

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