Dead in the water
SEARCH FOR TRUTH - Ernesto P. Maceda Jr. (The Philippine Star) - August 11, 2018 - 12:00am

The idea was to sell federalism. They ended up mortally wounding it.

No, we’re not talking about that infamous song and dance routine. Rather, we refer to the triple whammy from the President’s men: Secretaries Carlos Dominguez, Benjamin Diokno and Ernesto Pernia of Finance, Budget and Management and Socio-economic Planning. To borrow a favorite presidential turn of phrase, these three just HATE federalism.

Here is a sampling of their sound bites on the draft federalism provisions: fiscal nightmare; so many issues; who pays the national debt?; will wreak havoc on the economy; would absolutely not vote for it in its present form; credit rating will go to hell; we will all pay very high interest rates.

The Palace was obsessing about how to win over an aloof public when even the President’s own official family stood unconvinced. The Secretaries’ words were daggers through the heart of the hardworking members of the consultative commission. No one appreciates being made to play the fool. No wonder Commissioner Fr. Ranhilo Aquino wants their heads. In Fr. Aquino’s words, there is no freedom of expression for alter egos. The President alone makes policy – what is his cabinet doing questioning his decisions, once made?

The most powerful person in PRRD’s government. The usual suspects for this title are the ubiquitous Special Assistant to the President Christopher “Bong” Go and, now, after the House reorganization, Mayor Sara  Duterte. Of course, another mainstay on the list is the invincible Undersecretary Margaux “Mocha” Uson.

But we are making the case for Sec. Benjamin Diokno. Sec. Ben is channeling his inner Quixote and taking on three giant windmills. (a) Malacanang in this anti-federalism campaign; (b) the Supreme Court as he moves to reconsider the decision on the expanded internal revenue allotment to local governments; and (c) the House of Representatives in the budget reform bill where his insistence on cash based budgeting emerged as the secret potion to unify a divided House. How about that for power?

Its refreshing to see principled stands nowadays. They do more to elevate the debate than any dance or jingle ever can. Sec. Ben is not a lawyer and he is not alleging the unconstitutionality or illegality of these acts. Rather, it is the interests of efficiency, discipline, prudence, accountability that compels him. 

Wanted: information caravan on federalism? Be careful what you ask for.

Pambansang tanod. That was quite the entrance Ombudsman Samuel Martires made as he waltzed from the High Court to his new position at Agham Road. He announced a reform agenda starting with the “parking fee” practice outed by Ombudsman aspirant Atty. Edna Batacan. 

Also on the firing line are the indiscriminate public access to preliminary investigations and the issuances of press releases on findings of probable cause. These PR methods serve the two-fold purpose of deterrence and of reminding society that the Ombudsman is doing its job. But they have an incalculable prejudicial effect on the respondents’ presumptive innocence. The Ombudsman wants a better way.

On the surface, Ombudsman Martires appears to be a sensitive sentinel. This bodes well for all considering that his office is the emblem of public accountability, the constitutional watchdog designed to stand toe to toe with even the nation’s highest officials. Ombudsman Conchita Carpio-Morales indicted Presidents Gloria M. Arroyo and Benigno C. Aquino III after their terms. Also sitting Senators Juan Ponce-Enrile, Ramon “Bong” Revilla and Jose “Jinggoy” Estrada. She even tried to investigate impeachable official Chief Justice Renato Corona during the pendency of his impeachment proceedings.

Sammy’s choice. For her institution, Carpio-Morales was a giant. There is no reason Ombudsman Martires couldn’t be more gigantic. But hardly a week into his office and the President throws Sammy this double whammy. First, he divulges that Samuel Martires, before starting his term as Associate Justice of the Supreme Court, came to him for instructions. The President was being candid to his credit but to Martires’ discredit. And now, this conundrum on the dismissal of Overall Deputy Ombudsman Melchor Carandang. 

Despite all these grand plans, will the Ombudsman’s first action be to allow his men to be disciplined by the very subjects they are meant to check for excesses and abuses?

No issue. As noted previously, Gonzales v Office of the President recognized that regardless of how ardently Malacanang argues its authority, there is simply no law that recognizes this power in their office. The controversial Sec. 8(2) of the Ombudsman Act gave the President the power to discipline the Deputy Ombudsmen. The Supreme Court declared the provision unconstitutional. So, from where does the President now source this power to dismiss?

Senate President Aquilino “Nene” Pimentel Jr. and Presidential Legal Counsel Salvador Panelo would invoke the presumption of regularity of presidential action. Seriously? Even if the action is in direct defiance of a clear Court judgment? Presumption of regularity is a rule of evidence. It is not a source of power. It will not justify executive action when the same is ultra vires. 

Day of reckoning. The core constitutional principles of accountability and independence clashed in Gonzales. The Court sided with independence over accountability: “the drafters repeatedly and painstakingly drafted the constitutional provisions on the independent constitutional bodies to separate them from executive control. Even after the other delegates made it clear that the easier path would be to place these bodies under the control of the President, the majority nevertheless voted against these moves and emphatically expressed its refusal to have these offices be made in any way under the disciplinary authority of the Executive.”

Malacanang is again defying the Supreme Court pronouncement that they do not have the power to act. Ombudsman Carpio-Morales was confronted with this same choice when Carandang was ordered suspended by Malacanang. She opted to respect the Court decision and ignore the Malacanang order. Will Ombudsman Martires do the same thing?

Only one of his options leaves his institution dead in the water.

BENJAMIN DIOKNO CARLOS DOMINGUEZ CHARTER CHANGE FEDERALISM OMBUDSMAN
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