Walking the talk

“… as far as issues regarding government actions are concerned, if there is a presumption of validity in favor of the executive action or legislative action, then I am on the side of judicial restraint.” This was Lucas P. Bersamin, upon assuming the role of his life as Chief Justice (CJ) and head of the Judicial branch of government last 2018.

This philosophy is anchored on respect for elected officials’ policies. Going by his record as a jurist, however, we see that the CJ did not always err on the side of restraint.

Today, a source of stress for the Departments of Finance, Budget and Local Government is the impending download of local government unit (LGU) shares in national taxes. This is by virtue of the Mandanas v Ochoa ruling, courtesy of CJ Bersamin who wrote the decision.

“Local government units shall have a just share, as determined by law, in the national taxes which shall be automatically released to them.” The congressional interpretation of this constitutional provision was that only national internal revenue taxes were included. CJ Bersamin for the Court repudiated the legislative policy determination and expanded the base to all national taxes.

Even executive action in criminal prosecution became a showcase. Famously, the high-profile Juan Ponce-Enrile v Sandiganbayan case debuted novel grounds for the grant of bail. Again, that was CJ Bersamin.

Volte-face. With his appointment as Executive Secretary (ES), Lucas P. Bersamin will have to forget about restraint. Deciding cases involves an entirely different calculus from executing laws. The deliberateness of the adjudication process gives way to the urgent action of administration.

To be sure, he was also the administrative head of the judicial branch. But Olympus on Padre Faura, with the CJ as Zeus, was an alternate reality. The high court has elaborate protocols and institutional designs geared towards respecting seniority. Designation to the several tribunals, boards, committees are contingent on your date of assumption. Not equals, really, except when voting.

As ES, he sits at the President’s wing. As gatekeeper, he wields enormous power deciding on what to prioritize. How does one decide, for example, which 30 of the 300 daily, equally important matters of state see the President’s pen? You’ll need tremendous intellectual bandwidth, political maturity and uncommon valor.

Prioritizing suggests a matter of ordering. The image is the pile of papers where the “favored” get to be on top and the “disfavored” hog the bottom.

For and on behalf. And he can sign “by authority of the President.” This is a superpower. In a Cabinet of equals, each has his own allocated “zone of action.” Typically, though, Justice, Defense, Foreign Affairs and Finance, owing to the size and importance of their operations, get extra prestige points. This “by authority of the President” was questioned as an undue delegation of power in Lacson v Pano. The disputed action of ES Juan Pajo was his reversal of a decision of the secretary of agriculture and natural resources.

The fiction, of course, is that it’s the President’s constitutional duty to personally act on every matter needing his imprimatur. The Supreme Court acknowledged that there are constitutional powers the President must exercise in person but they conceded that he is not barred from delegating to his Executive Secretary or his Cabinet the multifarious executive and administrative functions of his office that he cannot be expected to perform alone.

This is pursuant to the fiction of the unitary executive, with the same principles sustaining the doctrine of qualified political agency that makes alter egos of the President’s men.

Full faith and credit. The Office of the Executive Secretary is an auxiliary unit to assist the President. Even if equal in rank to other department heads, when he signs “by authority of the President,” his decision is that of the President’s and he sits higher than everyone else.

The Court, through Justice Conrado Sanchez and, in a subsequent case, through Justice (later Chief) Claudio Teehankee, explained: “… such decision is to be given full faith and credit by our courts. The assumed authority of the Executive Secretary is to be accepted. For, only the President may rightfully say that the Executive Secretary is not authorized to do so. Therefore, unless the action taken is ‘disapproved or reprobated by the Chief Executive,’ that remains the act of the Chief Executive, and cannot be successfully assailed.”

That’s judicial restraint.

Levelling up. I watched Dean Tony La Viña refer to the Bersamin appointment as a demotion. I would dissent. That would be the same as saying that as CJ and head of the judicial branch, he was equal to the President who is head of the executive branch.

Maybe co-equal institutions are separate but just as the divisions between them have been called parchment barriers, so also is being co-equal a parchment adjective. Acting for the President as ES and principal alter-ego entails enormous duty and responsibility, far more than what he knew as CJ in terms of delivery of service to the nation.

As ES, he also builds a more accessible bridge for two-way communications between the executive and judicial branches. This, in fact, cements the ascendancy of the executive in the branch power struggle since allies also head the two chambers of the legislature.

Observers also speculate on how ES Bersamin would advise the President in cases like the Pharmally standoff. Still pending with the Court is the Senate petition challenging the Memorandum by former ES Salvador Medialdea directing executive branch officials to absent themselves at legislative investigations.

No greater love. They were proud members of the Bulacan Provincial Disaster Risk Reduction and Management Office. They were preparing to risk their lives to rescue people in danger, as they had done for several years. Then they became the victims. It is a high honor and privilege to mention their distinguished names in this space. George E. Agustin. Troy Justin P. Agustin. Marby B. Bartolome. Jerson L. Resurreccion. Narciso Calayag Jr.