Red hands

The worst place in hell is reserved for those who commit the vilest acts on earth. In the third quarter of 2021 and lasting up to the latest adjournment of Congress last Feb. 3, the irregularities exposed in the halls of the House and Senate on the handling of public pandemic funds provided numerous candidates for Lucifer’s consideration.

Today, however, the inquisition of the principals from the involved national government agencies i.e. PS-DBM and DOH and contractor Pharmally Pharmaceuticals seems a distant memory. The campaign for 2022 and the slow march to normalcy has provided newer, pressing concerns.

The foul smell from the embers of that nightmare lingers. The antagonists at the beginning could barely explain away the questionable conduct and events. The protagonists were the public, represented by their lawmakers, who wanted to understand the giant can of worms the hearings opened up. On paper, it was a classic open and shut case of being caught red handed.

But simple as 1-2-3 became a protracted, convoluted and drawn-out soap opera. We witnessed all the ingredients, from both sides: defiance, contempt, grandstanding, award winning acting performances. In the end, protest. The Palace issued the controversial memorandum (the gag order) with strict instructions for executive officials to absent themselves.

Unsatisfactory resolution. The House investigation acknowledged the anomalies but limited accountability to the private personalities and minor public functionaries. It was a white wash for the big fishes. The Senate, on the other hand, caught the big fish but tried to net the largest whale, as their report recommended charges to be filed even against the President after June 30. Unsurpisingly, Blue Ribbon chair Richard Gordon’s colleagues balked. His committee report was never acted on.

The dark experience proves that we need to descend first to the Nixonesque deepest valley before knowing the magnificence atop the high mountain. Because courts can only act on real and not imagined controversies, this kind of “crap” had to happen first. The debate it triggered will ultimately be resolved in a manner redounding to the institution’s benefit (or not), with the Senate filing its petition for Certiorari and Prohibition with the Supreme Court.

The gag order invoked: the motivations of the senators; encroachment on the other branches; participation in it adversely affecting the executive department’s ability to fulfill its core mandates, especially at this time of pandemic. None of these are recognized categories of executive privilege and, yet, the issuance unrepentantly withheld information from Congress.

It is unlikely, however, that the Court will create new categories of exemption in the canon of privilege. In Senate v Ermita, Justice Conchita Carpio-Morales expounded on the high bar of its invocation, to wit: “to the extent that investigations in aid of legislation are generally conducted in public, however, any executive issuance tending to unduly limit disclosures of information in such investigations necessarily deprives the people of information which, being presumed to be in aid of legislation, is presumed to be a matter of public concern. The citizens are thereby denied access to information which they can use in formulating their own opinions on the matter before Congress – opinions which they can then communicate to their representatives and other government officials through the various legal means allowed by their freedom of expression.”

Not once, but twice. Just as Muslim Mindanao has twice been successful in the establishment of their autonomous region (first the ARMM then the BARMM), the Cordillera, the other constitutionally authorized area, has twice been a failure. In their first attempt in 1990, only the province of Ifugao voted to be a part of the proposed Cordillera Autonomous Region (CAR); in 1998, only the province of Apayao voted YES in the plebiscite. The other Cordillera provinces – Abra, Benguet, Ifugao, Kalinga and Mountain Province – demurred.

The CAR would have been established by Government even with only one province’s affirmative vote pursuant to the Constitutional provision, Art. X Sec. 18 that: “ ... only provinces, cities and geographic areas voting favorably in such plebiscite shall be included in the autonomous region.” The Supreme Court, however, rejected this interpretation. Essentially, the Court in Ordillo v Comelec said that one province cannot a region make.

Last week, four of the five major presidential candidates expressed their support for finally establishing an autonomous region for the Cordillera.

Progressive decentralization. Autonomous regions, as we know, are akin to the departure lounges if we consider federalism as independence in full flight. Sen. Koko Pimentel refers to autonomous regions as a step on the road to the final destination. He points out the constitutional continuum: (1) local autonomy; (2) autonomous region; (3) federalism.

As the Court has regularly invoked, autonomy contemplates decentralization. And there are two forms: decentralization of power and decentralization of administration. For autonomous regions – Bangsamoro and, possibly, the Cordillera – the flexibility of decentralization of power is accorded for them to develop in line with their own traditions and socio-economic/cultural truths.

We the people, through the Constitution, allowed for this enhanced autonomy but in a “guarded” way, to borrow from former Chief Justice Luke Bersamin. Art. X, Sec. 20 provides Autonomous Regions with greater legislative powers over: (1) Administrative organization; (2) Creation of sources of revenues; (3) Ancestral domain and natural resources; (4) Personal, family and property relations; (5) Regional urban and rural planning development; (6) Economic, social and tourism development; (7) Educational policies; (8) Preservation and development of the cultural heritage and (9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the region.

Apart from the advantages these powers give, they can expect an even higher share in IRA and also in the exploitation of their natural resources. All these, however, shall be recognized “within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the Philippines.”

We first encountered this protective phrase in senator Ferdinand Marcos Jr.’s stonewall against dismemberment in 2015’s Palace-endorsed Bangsamoro organic act.