VINCENT PAUL RABARA TALAO

SEPARATIONOF POWERS AND LAWS OUGHT TO BE ABROGATED

FOREWORD: SEPARATION OF POWERS The doctrine of separation of powers originally came into fruition from the philosophical dialogues in the famous "Politics", authored by the influential Greek Philosopher, Plato. The rudimentary and fundamental grouping of the three classes of powers, namely the executive, legislative and judiciary are known to be controlling in the government, and these three are completely independent, with respect to each other's distinct character, i,e., one does not encroach upon the power confided to the other. Noteworthy is the description by the ancient historian Polybius, of one of a mixed type of government, which carries three branches of government all rounded up into one yet keeps a certain character of "unity" in a sense that "...Each of the three branches of government checks the strengths and balances the weaknesses of the other two. Since absolute rule rests in no single body but rather is shared among the three, the corrupting influence of unchecked power is abated and stasis is achieved." ("Polybius and the Founding Fathers: the separation of powers". 1999 Donald E. Glover Award, outstanding final project. Marshall Davies Lloyd. St. Margarets School. Sept. 22, 1998. -http://mlloyd.org/mdl-indx/polybius/intro.htm) Through much remodeling of time and exposure to the evolution which transpired in every political system, the doctrine of "separation of powers" is understood in the contemporary world in a different way. The modern doctrine of separation of powers presupposes that the three distinct branches of the government namely the judiciary, legislative and executive, are not completely independent. There is no complete "separation" of powers. What is present is co-dependence, with consideration to the three distinct classes of powers present, to the end that what is being advanced by the three departments is the betterment of one state, by one government. In this sense, there is not a clear way of interpreting the separation of powers for the three branches, and obfuscation lies somewhere in between. On the one hand is the notion "separation of powers", and on the other, the characteristically "blending" (James Madison in The Federalist, no. 47, "Oxford Companion to the US Supreme Court: Separation of Powers."-http://www.answers.com/topic/separation-ofpowers#ixzz3HnABmfK7) of the three powers, in a way in which each one is supreme in its own sphere yet not completely independent and distinct from each other. This means there is a sense of "equality" in that, the powers of each branch is derived from one sovereign constitution, and "coordination", in that one branch is suppletory to the other. At this point, the system of checks and balances, essential to a tripartite system of government, is necessary in order

to achieve the stasis described by Polybius, as mentioned above, and prevent the tendencies of the resultant corruption that may befall an unbalanced tripartite system of government. Without strict compliance with the "system of checks and balances" accorded to the government in the modernized doctrine of separation of powers, it is nowhere to be found in the Constitution a better institutional safeguard of Democracy and Civil Liberty. "Separation of Powers" ensures the enforcement of a "limited government, and the power interrelationships indispensable" ("Separation of Powers" as a Juristic Imperative, Perfecto V. Fernandez). Thus, the power of the President is limited only to "all executive departments, bureaus, and offices, and to ensure that the laws are faithfully executed" (U.S. Library of Congress - http://countrystudies.us/philippines/80.htm), and the discretionary powers vested on the Chief Justice, being the highest judicial officer, is bound only within the confines of the Court and judiciary. Applying the tripartite system of government, the president cannot exercise his powers beyond what is contemplated in the Executive Powers, as distinguished from the Judicial and Legislative Powers. The system of checks and balances is the exemption to the equality accorded to each of the three powers, in a sense that, in cases of substantial departures or variations to each concrete constitutional system, one may be allowed to exercise some of the powers of the two. This is an important element of the modern concept of separation of powers since it is only through such that we may be ensured that in all three departments none of which exceeds the power that each may properly exercise in its own right nor one may trespass on the powers due the other two. The foregoing is best illustrated, firstly, in the Executive body, through its vetoing power. The executive body can practice a quasi-legislative power upon the right conferred by the Constitution upon the president to veto legislation, provided, that veto can be overridden by the vote of two-thirds of the House and Senate. In another example, the president is also granted a quasi-judicial power to override the decisions made by the judiciary on offenses that, upon the discretion of the President may be reprieved and pardoned by him, save in impeachment proceedings. It must, however, be noted at this early that the key distinction between the Executive Power and the Judiciary is that the former administers the primary duty contained in the law, while the latter is concerned with the administering tasks pertaining to violations of the same primary duties thereof ("Separation of Powers" as a Juristic Imperative, Perfecto V. Fernandez). Next, the Legislative body through the Congress, takes part in its own peculiar manner in the system of checks and balances, as illustrated in the impeachment proceedings upon the power vested upon it by the constitution:
1987 Constituion, Article XI

Section 2. The President, the Vice-President, the Members of the Supreme Court, the Members of the Constitutional Commissions, and the Ombudsman may be removed from office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and corruption, other high crimes, or betrayal of public trust. All other public officers and employees may be removed from office as provided by law, but not by impeachment. Section 3. (1) The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

It must be stressed that in the impeachment proceedings, separation of powers is vividly defined upon the rules implemented therein, whereby in case the one being impeached is the Supreme Court Chief Justice of the Philippines, the trial shall be presided upon by the President of the Senate:
Senate Resolution No. 890 RESOLUTION ADOPTING CERTAIN RULES OF PROCEDURE AND PRACTICE TO GOVERN IMPEACHMENT PROCEEDINGS IN THE SENATE VI. XXX The President of the Senate or the Chief Justice when presiding on the trial may rule on all questions of evidence including, but not limited to, questions of materiality, relevancy, competency or admissibility of evidence and incidental questions, which ruling shall stand as the judgment of the Senate, unless a Member of the Senate shall ask that a formal vote be taken thereon, in which case it shall be submitted to the Senate for decision after one contrary view is expressed; or the Presiding Officer may at his/her option, in the first instance, submit any such question to a vote of the Members of the Senate.

It may be inferred from such that the law has been created to confer equality on each offices of the government bodies, more importantly, on the matter of implementing the impeachment proceedings, in case there maybe issues raised against an office of a governmental body, whereby the system of checks and balances set in and secures the responsibility entrusted to the government officials involving public trust. In the foregoing, there is jurisdictional independence being accorded to the Senate President, who may preside in case the one being impeached is the Chief Justice, and in the court proceedings of the impeachment no jurisdiction or interlocutory interfering maybe assumed, by the other two branches of the government, even the judiciary. Recently, Ex-Solicitor General Frank Chavez was quoted to say that a T.R.O. being issued by the Supreme Court which may have a direct effect in the discourse of the impeachment proceedings of the Chief Justice was incursion into forbidden territory, which Senators has all the right to reject (Pp.3, Kalayaan, Vol. 1, Issue 6. February 17-23, 2012). Moreover, another exercise of the system of checks and balances is inherent in the existence of the "oversight powers" (oversight = watchful care or management; supervision) by the Legislative Department through the Congress, in its threefold roles of supervision, scrutiny and investigation over its legislative

enactments. "Oversight concerns post-enactment measures undertaken by Congress: (a) to monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (e) to assess executive conformity with the congressional perception of public interest." (Atty. Fred Pamaos, "Elections and Constitutional Law". September 18th, 2006 Blog. -http://jlp-law.com/blog/primer-separation-of-powersinquiry-in-aid-legislation/). By the same token, the judiciary contributes to the balance in the tripartite system by conducting judicial reviews in matters of dispute arising from excesses of power of the other branches of government which are brought to court for interpretation and specific application of the laws and the Constitution, more importantly, those which involve cases administrative in nature, like the impeachment proceedings (Ibid.)of the highest officials of the government, and the like charges of grave abuse of discretion in the judiciary, which are remedial measures and initiatives the people may resort to in the judicial branch in order that separation of powers is ensured and reinforced between each respective departments of the government. In the words of law Professor Perfecto V. Fernandez, the separation of powers must be taken for its usage not merely as doctrine but a judicial imperative ("Separation of Powers" as a Juristic Imperative, Perfecto V. Fernandez). Nevertheless, the nature of the tripartite system and the delineations and distinctions of powers therein is never obfuscated on these exemptions to separation of powers and equality between the law, by virtue of the system of checks and balances. Such system is borne by the necessity of a limited government, based on the tripartite constitutional systems a means derived to address the very same ends that a constitutional guarantee may be accorded with regards to substantial departures or variations on the separation of powers in the tripartite government.

LAWS OUGHT TO BE ABROGATED Having heretofore set forth the essential principles present in the doctrine of separation of powers and system of checks and balances, it must be clarified how difficulty may be ascribed to the present situation which the current government system has found itself entrapped with, which difficulty may be resolved by clinging onto the same fundamental and basic principles discussed in the foregoing, by the test of system of checks and balances , and reinforcing the concept of a limited government. The current tripartite government system must essentially be purged of substantial departures or variations, in this very same and exact manner. It must be reiterated that the executive, legislative and

judicial bodies must be careful not to exercise powers not belonging to its own, and that it must not vest itself with the powers belonging to that of another simply by exploiting the system of checks and balances as an excuse to the exercise of some of the powers of that of another. These are the clear and blatant instances characteristic of any substantial departures or variations and beyond what is contemplated in the doctrine of separation of powers: I. A rampant breach of the tripartite constitutional system in the government is cloaked yet visibly manifest in the Executive Department, which nevertheless has the power to command and form executive agencies, as mandated in the constitution, but not to the extent of usurping the authority and power that is not rightly within the purview of the Executive Power. To discuss this very matter, it must first be noted that the Constitutional mandate that is supposedly addressed the executive body is the following:
Section 16. The President shall nominate and, with the consent of the Commission on Appointments, appoint the heads of the executive departments, ambassadors, other public ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain, and other officers whose appointments are vested in him in this Constitution. He shall also appoint all other officers of the Government whose appointments are not otherwise provided for by law, and those whom he may be authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions, or boards. The President shall have the power to make appointments during the recess of the Congress, whether voluntary or compulsory, but such appointments shall be effective only until disapproved by the Commission on Appointments or until the next adjournment of the Congress.
- THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES (ARTICLE VII EXECUTIVE DEPARTMENT)

On this note, the president is mandated to carry out its functions to appoint officials, notwithstanding that such function must be clearly executive in character. The functions of the Executive are expressed in the Administrative Code of 1987 (Executive Order No. 292), as follows:
1987 (Executive Order No. 292). EXECUTIVE ORDER NO. 292 INSTITUTING THE "ADMINISTRATIVE CODE OF 1987" July 25, 1987 BOOK II DISTRIBUTION OF POWERS OF GOVERNMENT Chapter 1 BASIC PRINCIPLES AND POLICIES Sec. 1. Guiding Principles and Policies in Government. - Governmental power shall be exercised in accordance with the following basic principles and policies:

(8) The powers expressly vested in any branch of the Government shall not be exercised by, nor delegated to, any other branch of the Government, except to the extent authorized by the Constitution. XXX Sec. 21. Judicial and Bar Council. - (1) A Judicial and Bar Council is hereby created under the supervision of the Supreme Court composed of the Chief Justice as ex officio Chairman, the Secretary of Justice, and a representative of the Congress as ex officio Member, a representative of the Integrated Bar, a professor of law, a retired Member of the Supreme Court, and a representative of the private sector.

Nevertheless the executive department has gone so far as to abuse its discretionary power and as such, set itself above and beyond the constitutional security of system of checks and balances, upon touching on the forbidden grounds which are supposedly territories belonging to the judiciary, through its establishment of an Executive Agency of Justice under its exclusive control, when through the powers vested on the executed body, it mandated the creation of the Department of Justice, headed by the Secretary of Justice (a.k.a. the Presidents alter-ego) a role usurping the authority which must be exclusively delegated to the Judiciary (Ibid., E.O. 292, Sec.8, Book II, Chapter I), who has appointive capacities in the selection process of the Chief Justice, by virtue of the Judicial and Bar Council, which, clearly controverts the doctrine of Separation of Powers. The function of the Judiciary, through its highest court, the Supreme Court, was manifestly outlined as follows:
Section 5. The Supreme Court shall have the following powers: 1) Exercise original jurisdiction over cases affecting ambassadors, other public ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo warranto, and habeas corpus. (2) Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments and orders of lower courts in: (a) All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree, proclamation, order, instruction, ordinance, or regulation is in question. (b) All cases involving the legality of any tax, impost, assessment, or toll, or any penalty imposed in relation thereto. (c) All cases in which the jurisdiction of any lower court is in issue. (d) All criminal cases in which the penalty imposed is reclusion perpetua or higher. (e) All cases in which only an error or question of law is involved. (3) Assign temporarily judges of lower courts to other stations as public interest may require. Such temporary assignment shall not exceed six months without the consent of the judge concerned. (4) Order a change of venue or place of trial to avoid a miscarriage of justice.

(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the integrated bar, and legal assistance to the under-privileged. Such rules shall provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (6) Appoint all officials and employees of the Judiciary in accordance with the Civil Service Law. Section 6. The Supreme Court shall have administrative supervision over all courts and the personnel thereof.

- THE 1987 CONSTITUTION OF THE REPUBLIC OF THE PHILIPPINES ARTICLE VIII JUDICIAL DEPARTMENT

Other that what was mandated in the Administrative Code of 1987 (E. O. No. 292), nowhere in the Constitution may be found a clear basis of the enumeration of the functions that must be carried out by the Secretary of Justice other than what the discretionary powers of the Executive body, says they should be which is abhorrently and outrageously a grave abuse of discretion of the Executive. However, what the Department of Justice, in its website, (http://www.doj.gov.ph/?page=3&ID2=4&ID3=1) listed among its functions as an (Puppet Executive) Agency of Justice, particularly the Secretary of Justice, may be noted in the following:
Secretary of Justice Provides overall management and direction over the Department including all offices and agencies. Acts as the Attorney-General of the Philippines and ex-officio legal adviser of all government-owned or controlled corporations.

Moreover, the contemporary conception as regards the primary function of the Department of Justice is that it: (The Department of Justice) advocates its primary responsibility as the executive department of the Philippine government responsible for upholding the rule of law in the Philippines. (http://en.wikipedia.org/wiki/Department_of_Justice_%28Philippines%29) To set aright the discourse of laws ought to be abrogated, these must necessarily be directed against the series of laws mandating the puppet justice agencythe Department of Justice and its Secretarycreated by the Executive Branch of the Government which, in light of the doctrine of Separation of Powers, are clearly the substantial departures or variations which the System of Checks and Balances are guaranteed to guard against, in order that the tripartite government may effectively triumph, and make itself immune from corruption.

Perfecto V. Fernandez defined executive power as "the administration of primary duties provided in such General law, whether conditional of unconditional". The mandates of the constitution granting the executive branch the power to create a quasi-judicial agency directly under its control and influence, is an unjustifiable deviation from the doctrine of separation of powers:
XXX A quasi-judicial agency performs adjudicatory functions such that its awards, determine the rights of parties, and their decisions have the same effect as judgments of a court.

Fundamental to the tripartite system of government is the exclusive power of the judiciary to be in charge over all courts and the personnel thereof (Section 6, Article VIII, 1987 Constitution). This must be a clear example by which the system of checks and balances must apply with full force, to unveil in the executive department the illusion it creates upon mimicking the powers which supposedly to be exclusive and available only to the branch of the judiciary, more importantly, the power to perform judicial reviews. The Department of Justice was quoted to serve the distinct function to to uphold the rule of law and ensure the effective and efficient administration of justice (2009 Department of Justice Annual Report). Furthermore it has been said that such has been mandated, (the DOJ derives its functions) from Executive Order (EO) No. 292 otherwise known as the Administrative Code of 1987. However, it is nowhere to be found in the mandates of the Constitution or any existing law for that matter a special law delegating to the Department of Justice any special right to adjudicate ordinary cases and conduct judicial reviews motu proprio, which, in that case, is pre-emptive of what is supposed to be the sole and exclusive function of the judiciary. Neither is it classified under the Rules of Court (Section 1, Rule 43), as a quasi-judicial body apart from the judiciary, which, as provided for by legislation, may exercise special adjudicative powers to effect legal orders to a particular area of governmental concern, in connection to the function of such quasi-judicial body. In the case of Bautista v. Court of Appeals, the Department of Justice was adjudged to be an administrative agency of the government (hence, of the executive branch), which is not a quasi-judicial body. Nevertheless in the, 2009 Department of Justice Annual Report, one of the functions of the Secretary of Justice was impliedly asserted, thru the OFFICE OF THE CHIEF STATE COUNSEL (OCSC) OR THE LEGAL STAFF
XXX The Legal Staff prepared 10,006 decisions/orders/resolutions in aid of the Secretary of Justice's exercise of adjudicatory power/jurisdiction/appellate or revisory authority concerning controversies between and among government agencies XXX

Since the Department of Justice is under the direct supervision of the Executive Branch, and similarly, the Office of the President, whenever it exercises the power to effect its own decisions/orders/resolutions, which is undeniably adjudicative in nature, such as when, for instance, under the command of the Department of Justice, Public Prosecutors, who evaluate charges of offenses and thereafter proceed with the decision of whether to dismiss or prosecute such charges, are superseded by Departmental Resolutions, which cannot be helped but directly influenced and affected by the maneuverings and clout of the Executive Department, in that case, it may as well be concluded that the cases thus filed before the Department of Justice are already prejudged even before it has reached the judiciary. In a note in the case of Bautista v. Court of Appeals (http://bataspinoy.wordpress.com) it was averred that the adjudicative powers of the Secretary of Justice is absolute
Findings of the Secretary of Justice are not subject to review unless made with grave abuse of discretion.

Ironically, to uphold the rule of law and ensure the effective and efficient administration of justice, is to abolish, on grounds of being unconstitutional in virtue of the doctrine of the separation of powers, the mandates created by law to put the National Prosecution Service, directly under the control of the Department of Justice
PRESIDENTIAL DECREE No. 1275 April 11, 1978 REORGANIZING THE PROSECUTION STAFF OF THE DEPARTMENT OF JUSTICE AND THE OFFICES OF THE PROVINCIAL AND CITY FISCALS, REGIONALIZING THE PROSECUTION SERVICE, AND CREATING THE NATIONAL PROSECUTION SERVICE Xxx WHEREAS, to improve the quality of prosecution services, it becomes imperative, in the public interest, to reorganize and restructure the entire prosecution system, in line with the general reorganization of the executive branch of the government which is a priority measure of the Administration; WHEREAS, there is a need to regionalize the prosecution service in line with the government policy of decentralization, to rationalize the allocation of prosecution positions and functions in accordance with the requirements of the service, and to upgrade the salaries of all prosecutors, and of provincial and city fiscals; NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the powers in me vested by the Constitution, do hereby order and decree the following: Section 1. Creation of the National Prosecution Service; Supervision and Control of the Secretary of Justice. There is hereby created and established a National

Prosecution Service under the supervision and control of the Secretary of Justice, to be composed of the Prosecution Staff in the Office of the Secretary of Justice and such number of Regional State Prosecution Offices, and Provincial and City Fiscal's Offices as are hereinafter provided, which shall be primarily responsible for the investigation and prosecution of all cases involving violations of penal laws. The power of supervision and control vested in the Secretary of Justice includes the authority to act directly on any matter within the jurisdiction of the Prosecution Staff, the Regional State Prosecution Office or the Office of the Provincial or City Fiscal and to review, modify or revoke any decision or action of the Chief of said staff or office. Xxx

The Department of Justice, which is a cloaked executive arm of the government by setting forth a seemingly alter ego of the president, thru the Secretary of Justice, is replete with all the tendencies of collusions in the bureaucracy and precludes impartiality of the administration of justice to the state.

Another area which must not be overlooked but subjected to the rigor of implementing the system of checks and balance is the laws on the selection process of the chief justice of the Philippines, which, may deceivingly taint the justice system, by granting on the executive powers vested on the president the discretion to appoint whomever it wishes to take the seat of the head of the judiciary, in the person of the Chief Justice. The system of appointment of the chief justice in no way can grant independence to the judiciary, because undue influence may be exerted by the president on the former, leaving opportunities for collusion between the executive and the judiciary towards consolidation of motives between the two and deceive the constitutional system into believing that the tripartite government rule is still at force Republic Act No. 296 REPUBLIC ACT NO. 296 THE JUDICIARY ACT OF 1948 Section 11. Appointment of Justices of the Supreme Court. The Chief Justice and the Associate Justice of the Supreme Court shall be appointed by the President of the Philippines, with the consent of the Commission on Appointments. The Chief Justice of the Supreme Court shall be so designated in his commission; and the Associate Justice shall have precedence according to the dates of their respective commissions, or, when the commissions of two or more of them bear the same date, according to the order in which their commissions may have been issued by the President of the Philippines: Provided, however, That any member of the Supreme Court who has been reappointed to that Court after rendering service in any other branch of the Government shall retain the precedence to which he is entitled under his original appointment and his service in the Court shall, to all intents and purposes, be considered as continuous and uninterrupted.

. The integrity of a Judiciary whose members were all appointed by one authority is altogether questionable, and cannot be reconciled with the tripartite substantially

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democratic form of government, which adopts for its constitutional system, the doctrine of separation of powers. In order to establish the integrity of the judiciary, by virtue of the doctrine of separation of powers, completely free from being tainted by the undue influences that may possibly come forth and arise out of the executive department, thru the appointing powers of the President. Such controversies may be finally resolved by abrogating Republic Act No. 296, and upon consideration of the election of the Supreme Court Chief Justice, through voting. In reference to the words of Teodoro, a Bar topnotcher and Harvard-trained lawyer
"What is important is to protect the judiciary's credibility by ensuring that the process of selection is transparent and that whoever is appointed is acceptable to people".

REFERENCES http://politicsandgovernance.blogspot.com/2010/06/doctrine-of-separation-of-powers.html http://countrystudies.us/philippines/80.htm http://www.bcphilippineslawyers.com/republic-act-no-296/ http://jlp-law.com/blog/primer-separation-of-powers-inquiry-in-aid-legislation/ http://www.answers.com/topic/separation-of-powers http://www.answers.com/topic/separation-of-powers

http://bataspinoy.wordpress.com/2012/02/09/is-a-preliminary-investigation-a-quasijudicial-proceeding-is-a-doj-a-quasi-judicial-agency-exercising-a-quasi-judicial-functionwhen-it-reviews-the-findings-of-a-public-prosecutor-regarding-the-pres/

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