Violating the separation of powers

Jose C. Sison - The Philippine Star

One of the basic principles of our Democratic Republic, well enshrined in our Constitution is the principle of “Separation of Powers” among the three branches of government: the Legislative, the Executive, and the Judicial departments. Each of the three departments has their own separate powers and functions and co-equal with each other.

Basically, Legislative power is the power to make laws and to alter or repeal them. It is vested “in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum” (Section 1, Article VI).

Executive power is the power to enforce and execute the laws of the land. It is vested in the President of the Philippines (Section 1 Article VII) who is both “Head of State,” or ceremonial head of the government, and “Chief Executive” with supervision and control over the heads of the executive departments or Cabinet members who hold office in advisory capacity.

Judicial power is the power to interpret and define the laws enacted by the Legislative department which includes the duty to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Section 1, Article VIII).

Separation of powers is founded on the belief that, “by establishing equilibrium among the three power holders, harmony will result, power will not be concentrated and thus tyranny will be avoided” (please see Bernas, Primer on The 1987 Philippine Constitution, p. 14).

This basic principle comes into mind now in view of two recent developments in our present government. The first is the implementation of R.A. 10354 or the Responsible Parenthood and Reproductive Health Act of 2012 (RPRH Law); and the second is the current impeachment proceedings against the Chief Justice of the Supreme Court on complaint of a private lawyer endorsed by Congressmen of the ruling party. The complaint is apparently due to the Chief Justice’s adverse and dissenting opinions in cases involving this administration.

It is true that the Supreme Court has already declared the RPRH Law as “not unconstitutional.” But in the ruling the SC likewise issued a Temporary Restraining Order (TRO) prohibiting the distribution of artificial contraceptives until the Food and Drug Administration (FDA) has issued a certification that these contraceptives are not abortifacients, or they do not “primarily or secondarily induce abortion.”

In issuing the TRO, the SC has categorically rejected the theory that life begins only upon implantation of the live ovum or the fetus in the mother’s womb (uterus), and not upon the conception of the fetus itself. Under the law, women can use contraceptives when they are already pregnant for as long as the fetus has not yet been implanted in their uterus. So with this ruling issued in 2015, the SC has categorically prohibited and struck down the certifications and re-certifications issued by the FDA on contraceptive drugs and devices including “Implanon and Implanon NXT” not only because they kill a live fetus in the mother’s womb but also because they prevent the implantation of a live fetus in the mother’s uterus.

It is sad to note however that at the start of the year, while the TRO was still in full force and effect and without any certification yet from the FDA as to contraceptives that do not primarily or secondarily induce abortion, the President already issued an Executive Order for the full implementation of the RPRH Law allowing and promoting the use of a wide range of artificial methods of contraception and birth control pills supposedly for purposes of family planning in the exercise of responsible parenthood, and for the reproductive health of women.

Then about a week ago, the FDA also issued an advisory declaring all contraceptive products, including “Implanon and Implanon NXT,” as “non-abortifacients.” More unfortunate in this connection is that the Department of Health (DOH) Undersecretary for regulation has even declared that the SC TRO was automatically lifted even before the SC itself issues an order lifting it, after determining whether the FDA advisory is in accordance with its ruling about the meaning of “abortifacient.”

Obviously, these moves of the Executive department on the RPRH Law violate the principle of separation of powers. They flagrantly disobey the SC TRO and arrogate unto themselves the Judicial power vested in the Supreme Court and such other lower courts established by law in interpreting the laws of the land.

But the more flagrant violation of this principle is the current action of the House of Representatives on the impeachment complaint filed against the Chief Justice of the Supreme Court, a co-equal branch of the government. While it is true that “the House of Representatives shall have the exclusive power of impeachment upon verified complaint filed by any member of the House or by any citizen upon endorsement by any member thereof, the proceedings now being conducted in the committee on justice clearly violates the principle of separation of powers and other provisions of the Constitution.

Firstly, the Lower House entertains a verified complaint of a private citizen based on information which are not of his own personal knowledge but on the knowledge and information of a news reporter and allegedly of a justice of the SC itself who has denied said allegation. Then the Committee is already inquiring into and interfering with, the internal proceedings of the SC in the exercise of its Judicial power.

As a friendly advice again, the Executive and Legislative departments should reconsider their actions on these two controversies and simply stop them right away. All of us should just concentrate on the more pressing problems facing our country and people.

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