That was a scene from the Marx Brothers comedy, “Duck Soup,” where Groucho Marx as President Firefly gets so lathered up he causes a diplomatic incident with a touchy ambassador.
Much as we like to think of ambassadors as either comical political appointees, or jaded diplomatic veterans for people to butter up for visas, they play much more important roles than that, of course.
How ambassadors are made –and the case of one particular ambassador, former Chief Justice Hilario Davide- is our topic for tonight.
I’m Manolo Quezon. The Explainer.
I. Extraordinary and plenipotentiary
We begin with the year 1815. That was the year of Napoleon’s final fall from power. The governments of Europe got together in Vienna, in what has come to be called the Congress of Vienna.
Among many other things, the powers that gathered there decided to sort out diplomatic practice. Protocol and precedence, which normally interest monarchies, was one of the Congress’ tasks.
That is why, for example, a Cardinal of the Roman Catholic Church has the international rank of a prince.
Now at the Congress of Vienna, a standard set of diplomatic positions emerged. They have remained more or less fixed to the present. In fact the 1961 the Vienna Convention on Diplomatic Relations reiterated many of the practices set down in 1815.
For our purposes tonight, let’s focus on what the 1815 and 1961 conventions set out as the standards for diplomatic representation.
Each country’s diplomatic office abroad is a mission, a diplomatic mission. Each mission has a head; when the head of a diplomatic mission is an ambassador, the mission is called an embassy. As head of mission, an ambassador is accredited, that is, formally accepted by another mission, by means of letters of credence. That is, one head of state sends another proof, in writing, that a person is indeed, the formal ambassador. The presentation of credentials is the most formal of state contacts next to a state visit. In this photo, President Roxas received the first Spanish ambassador.
Now the Vienna convention spells out the various diplomatic personals of people. There’s:
The Ambassador who is the personal representative of a head of state. As such, they’re grandly known as Ambassadors Extraordinary and Plenipotentiary. Extraordinary is, ironically, the ordinary term for this rank, as “ordinary” ambassadors exist but rarely so; plenipotentiary means he has full powers to represent the head of state.
The Minister: more formally, an Envoy Extraordinary and Minister Plenipotentiary. If a minister heads a diplomatic mission, then the mission’s known as a Legation.
And there are these ranks, whose jobs vary from government to government.
The First Secretary;
The Second Secretary;
The Third Secretary;
The Attaché; and,
The Assistant Attaché.
And finally, someone known as the Chargé d’affaires which is a fancy way of saying, officer-in-charge. An embassy or legation has a Charge when a more senior diplomat isn’t around. If an embassy is in between ambassadors, then the charge is often referred to as acting ad interim, or a Charge a.i.
The ambassadors and so forth in a country are the diplomatic corps; their most senior member or the Apostolic Nuncio is the Dean of the Diplomatic Corps.
Now you often hear of consuls, too. Consuls actually belong to a parallel organization, in a sense. If an ambassador and other diplomats are tasked with representing their home country, consuls have different responsibilities. They are in charge of matters related to individuals and businesses; and mainly attending to the interests of their citizens abroad. Now consuls come in different ranks, too:
The Vice-Consul and,
Consulate-generals and consulates are subordinate to the government’s embassy. Wherever there’s a Consul-General, theres a consulate-general. Where there’s a Consul, there’s a consulate.
We have a Consul-General in cities we consider of particular importance besides the capital of another nation, or where there are lots of Filipinos: New York City and Los Angeles, for example, are consulates-general; Chicago and Seattle have consulates. Passports, visas, getting Filipinos out of trouble –these are a consul’s jobs.
You can even have an honorary consul: for example, our honorary consul in Monaco, Mr. Zuellig of pharmaceuticals fame.
As long as we’ve aspired to be a nation-state, we’ve tried diplomacy and to have diplomats. Our first minister of foreign affairs was Apolinario Mabini. To obtain foreign recognition, our first republic sent out ambassadors. They didn’t meet with success: no nation recognized them.
During World War II, we had two governments, one recognized by the Allied Powers, which had Philippine representation in the Pacific War Council, but no diplomatic representatives, per se. And one recognized by the Axis Powers, which recognized the first Philippine Ambassador to Japan, Jorge Vargas.
It wasn’t until 1946, when we were finally recognized as independent by the family of nations, that we established a true foreign service in modern terms.
This complicated history means that our first internationally-accepted embassy abroad is in Washington, D.C., whose old chancellery, seen here, is our first internationally-accepted embassy, but our oldest embassy property, as such, abroad, dates to our government’s Roponggi property in Tokyo.
Our first Secretary of Foreign Affairs of the modern era was Elpidio Quirino, and our diplomatic service gained a reputation for attracting some of the best and the brightest.
Carlos P. Romulo, father of Foreign Affairs Secretary Roberto Romulo, and uncle of current Foreign Secretary Alberto Romulo, was the most famous of our pioneer diplomats.
Others include Narciso Ramos, father of president Ramos; writers S.P. Lopez and Leon Ma. Guerrero; and Diosdado Macapagal, future president.
But beyond the professional career diplomats, there are others who receive presidential appointments as ambassadors, ministers, and consuls, who aren’t career diplomats. They’re known as political appointees.
But whether one refers to career and political appointments, our constitution provides the legal framework for such things.
Article VII, Section 16 lists which ranks the President of the Philippines appoints –and a limitation on that power of appointment. Explainee, would you like to read the relevant portion of our constitution?
Art. VII, 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.
As you see, the President can’t just send out ambassadors; two OK’s are required.
One is, the consent of the country to which an ambassador will be sent is required.
For example, during President Marcos’s time, he sent his brother-in-law, Kokoy Romualdez to be ambassador to the USA. America wouldn’t accept him. And so, he became an ambassador ad interim, which meant he could do whatever the Marcoses liked, including supervising our embassy in Washington, D.C., and which meant if the USA had any business to transact, they had to do it with Carlos P. Romulo, our minister of foreign affairs, or Marcos himself.
The second requirement is that of Congress’s commission on appointments. How that works, when we return.
II. Appointments with destiny
That was a scene from the film, “Advice and Consent,” where Charles Laughton plays an elderly senator intent on blocking a presidential nomination. The rhetoric should be familiar to anyone whose observed a politician oppose a presidential appointment.
American practice when it comes to ambassadorial appointments, has been refined by two centuries of clashes and traditions.
A case in point was controversial ambassador to the United Nations John Bolton, a known critic of the UN. He was appointed US Ambassador and Permanent Representative to the United Nations on March 7, 2005. The Democrats used every means to delay and block confirmation, including use of the filibuster. The result was that the US Congress went on recess without approving Bolton’s nomination.
So Bush then made what’s called a “recess appointment,” which lasts for the lifetime of a sitting congress or until the candidate is nominated again to the Senate. Then Bolton was renominated, but a Senate fighting an election didn’t act on the nomination. In November of last year, Bush then renominated Bolton so that he could be appointed before the current Congress expired. But as we know, the Republicans had done badly in the mid-term elections. Knowing a Democratic-controlled Senate would give him an even harder time, on December, Bolton resigned his ambassadorship.
Under our presidential system, the President appoints, and Congress confirms. But our system is rather different from the Americans. In the United States, the President appoints and the Senate provides what’s formally called “advice and consent.” That is, it accepts or rejects an appointments, whether to the cabinet, or of an ambassador. In our system, the Senate and the House approve appointments. They do so by means of a joint committee called the Committee on Appointments.
Under our present constitution, Articles VI, on the legislature, and VII, on the presidency, cover the ground rules on appointments and the Commission on Appointments.
First of all, who comprises the Commission on Appointments?
Art. VI, Section 18. There shall be a Commission on Appointments consisting of the President of the Senate, as ex officio Chairman, twelve Senators, and twelve Members of the House of Representatives, elected by each House on the basis of proportional representation from the political parties and parties or organizations registered under the party-list system represented therein. The chairman of the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments submitted to it within thirty session days of the Congress from their submission. The Commission shall rule by a majority vote of all the Members.
The Committee on Appointments dates to amendments to the 1935 Constitution, which originally provided for a unicameral National Assembly. When the assembly proposed amendments to restore the Senate, a deal was made. No one ever gives up something for nothing in politics, and if assemblymen were to restore the Senate, they wanted something in return.
That something was a say in approving appointments. So while our Senate, from 1916 to 1935, had the exclusive power to accept or reject executive appointments, the power’s been shared between the Senate and the House since the 1940 amendments.
In the first part of tonight’s episode, we saw that ambassadors and ministers are subject to congressional approval. There’s a deadline, thirty days. Within those thirty days, the Commission on appointments approves, rejects, or bypasses nominations made by the President of the Philippines.
Approval is of course, the best scenario for a president and his appointee. Rejection, the worst case scenario.
But being bypassed is a middle ground: the Commission on Appointments sets aside the appointment, without necessarily inflicting the humiliation of outright rejection on the nominee. This is the grey area all practical politicians love, as it makes room for wheeling and dealing.
But a President can insist on a nominee. He can simply reappoint a bypassed, and even a rejected official. In the past, presidents didn’t even make appointments without making sure congressional approval would just be a formality.
In cases where there’s opposition, a president would try to win the nomination fight; but if he lost, he’d withdraw the nomination or the nominee would withdraw. Presidents like George W. Bush might fight for a year or two, but eventually would accept political reality and look for a more acceptable nominee.
Here at home, of course, traditions count for less and so, Justice Secretary Raul Gonzalez, for example, has been bypassed 8 times. But he’s still there.
But Congress has a lifetime, a three-year term; and its term is broken down into sessions, each of which lasts a year; and each year has its breaks, the recesses of Congress.
Now what happens if a president makes an appointment, and the Congress is in recess, that is, taking one of its periodic breaks?
The next paragraph of Art. VII, Sec. 16 of the Constitution tells us. Would you like to read it, Explainee?
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.
This power, like any presidential power, has been challenged in the courts. In Pimentel vs. Ermita, cabinet appointments made during the congressional recess were challenged by senators. The question involved the latin phrase ad interim, which we saw was a designation used even in embassies, to denote an officer-in-charge.
The Supreme Court said that a president who appoints someone as an acting official, didn’t require congressional approval, even if the position is one the constitution says can’t be permanently filled without a congressional ok. But it did say that an ad interim appointment did required congressional approval.
But the justices did go as far as to endorse this view penned in a textbook by Fr. Joaquin Bernas, one of the framers of our constitution. Explainee, please read it:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of them are effective upon acceptance. But ad-interim appointments are extended only during a recess of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover ad-interim appointments are submitted to the Commission on Appointments for confirmation or rejection; acting appointments are not submitted to the Commission on Appointments. Acting appointments are a way of temporarily filling important offices but, if abused, they can also be a way of circumventing the need for confirmation by the Commission on Appointments.
Now I asked you to read this because it goes to the heart of a recent, controversial appointment to an ambassadorship. It’s a case of a political appointee, former Chief Justice Davide. He’s been made our permanent representative to the United Nations.
In his January 22 column, Fr. Bernas whose opinion we just read, said that critics of Davide’s appointment –and his decision to take his oath as ambassador- were wrong. Basically, Bernas says that since Davide’s was an ad interim appointment, the President made clever use of a loophole in our constitution. Explainee, please read:
There are only two ways in which an ad interim appointment may be terminated. First, it is terminated when Congress bypasses it, that is, when Congress adjourns without any action on the subject by the Commission on Appointments. But then, if so bypassed, the President can renew the ad interim appointment. There is no constitutional limit on the number of renewals.
Second, it is terminated when disapproved by the commission. Disapproval is the definitive signal that the appointment should end and not be renewed.
But a political appointee, by the nature of his appointment, may satisfy the requirements of the law but raise political questions.
When he insisted on taking his oath to be our permanent representative to the UN during the Cebu Summit, Was former chief justice Davide, then, being a political hack? Our guest’s views when we return.
Claro M. Recto who could be devastatingly sarcastic, once said of the most famous son of Cebu, the great Don Sergio Osmeña that, “the problem with Sergio is that he is a statesman while in Manila but a politician when in Cebu.”
When chief justice Davide decided to take his oath as our representative to the United Nations, he did so without technically breaking the law. After all, Fr. Joaquin Bernas says it was ok. But was it politically wise?
By all means, our country deserves the services of former chief justices, but no chief justice should demean himself by insisting on serving if Congress won’t have him. Davide, in my opinion, should have waited before taking that oath.
There’s a story about the late Chief Justice Ramon Avanceña. In retirement for over a decade, he once had to fill out a form before a notary public in Iloilo. The notary public took the form and was going to stamp and sign it.
“Jurame,” the retired chief justice insisted, which means, “swear me in.” The notary public said there was no need to go through the formalities in view of the chief’s high rank.
“If the chief justice does not comply with the law, how can anyone else be expected to,” Avanceña replied, gently but firmly. “Jurame.” And so the notary public did, though 99.99% of Filipinos then and now probably ignore the requirement that all notarized documents have to be signed under oath.
The point of this little parable is that a chief justice even when retired, has to set the example of almost being fanatically law-abiding even if it means political suicide. That’s the only way he can be statesman in Manila, Cebu, and New York.