The Explainer: Advice and consent

Advice and consent

Manolo Quezon – The Explainer

Posted at Mar 14 2017 01:01 AM

John Hurt as Caligula exercising his creative imagination in making his horse a senator.

In recent days you’ve been watching the proceedings of the Commission on Appointments, where our old and new politics are on display, courtesy of the two legislators you saw at their best –and worst—during the confirmation hearing on Gina Lopez.

Rep. Ronnie Zamora is as old school as it gets: he doesn’t shout, he purrs; he is shrewd, he is smart, he knows the rules, and he is ruthless. He knows public policy and the law backwards and forwards.

For his part, Sen. Manny Pacquiao is the new face of our politics: he is popular, eager, welcomes tutoring and is willing to say what no else will say, precisely because he is popular. And he has a bible quote for every occasion.

Chances, in watching these men and their colleagues, are you belong to one of two camps: those who consider these two gentlemen defenders of competence and professionalism in the public service, or extortionists too chicken to go against public opinion, when what they really want to do is turn Lopez into organic fertilizer.

But whichever side you’re on, there’s actually a principle at work, and it’s best illustrated with a story from the ancient past.

In ancient Rome, the Emperor Caligula so loved his horse, Incitatus, that he provided it with a marble stall, an ivory manger for its food (which included oats mixed with gold flakes), a jeweled collar and even a house. Or so said the historians Suetonius and Cassus Dio. But Caligula also wanted to appoint his horse as a consul of Rome –though not a senator, as most of us might have heard. The only thing that stopped this outrageous appointment was Caligula’s assassination. Historians today aren’t so sure if this was ever true: though some suspect that Caligula, the type of politician we know all too well today, liked to say outrageous things to humiliate the establishment and make himself popular with the people.

So the principle is this: power is liable to abuse and the best way to temper it is by subjecting the powerful to the power of others, however abusive they might be, in turn, as it balances out in the long run in the public interest. We know this principle as the system of checks-and-balances.

Americans rely on the United States Senate, in the language of the US Constitution, to render “advice and consent” to presidential appointments, from members of the cabinet and other agencies, to ambassadors, and appointments to the Supreme Court

Last year, we marked the centennial of the Senate, and when it was established in 1916 all the way to 1935, it alone exercised the power of confirming or rejecting executive appointments, based on American system.

Our view of the Senate as the bulwark of checks-and-balances in terms of the executive, dates from this period. This includes the role the Senate played, as the highest body composed of Filipinos since the chief executive during that time was an American, the Governor-General.

The early to mid 1920s, in particular, featured repeated clashes with Governor-General Leonard Wood, who found his appointments going through fierce confirmation hearings in the Senate.

In 1935, the Senate was abolished and in its place, a unicameral National Assembly was set up. It had a Commission on Appointments composed of 21 members. But the National Assembly was weak, with a Speaker who was only a ceremonial figure, and the president even holding office regularly on its premises, acting as his own floor leader.

In 1938, proposals were made along three lines to amend the constitution. First, to change the term of the president from one six-year term without reelection, to a four-year term with one reelection allowed. Second, to establish a national Commission on Elections. And third, to go back to the bicameral setup for the legislature, with the restoration of the senate, which this time around would be nationally-elected. These amendments came to pass in 1940.

But politics as we know, is the art of the possible. A sweetener was needed, to convince assemblymen to give up their exclusive power to confirm or reject appointments. The sweetener came in the form of a bicameral Commission on Appointments, this time composed of 12 congressmen and 12 senators, with the Senate President as chairman who only voted in case of a tie.

Of course under martial law and the scrapping of the 1935 Constitution, the Commission on Appointments went extinct. In a parliamentary setup, there’s no such thing. Since prime ministers come from the ruling party in the parliament, and select fellow members of parliament to form the cabinet, no limits can be placed by the parliament on itself.

In 1987 the Constitutional Commission decided to go back to the bicameral setup. Oddly enough, it didn’t revisit the reason for having a bicameral Commission on Appointments when it restored the body. This is odd, because the political compromise it represented, dating to 1940, was no longer relevant. Instead, the 1987 Constitution took judicial appointments out of the hands of the Commission on Appointments.

For his part, Constitutional Commissioner and eminent legal thinker Fr. Joaquin Bernas, SJ has expressed the opinion that in the case of the judiciary, the Commission on Appointments system is still better than the Judicial and Bar Council, the alternative that was created by the present constitution. The reason is that while the old system was and will be highly political, it was more democratic and able to introduce public opinion; on the other hand, restricting the vetting and recommending of judicial appointments to a body dominated by the legal profession can be too clubby for the public good.

The process goes like this. When the President makes an appointment to the cabinet, constitutional commissions, diplomatic postings or the military, the names are submitted to the Commission on Appointments. The Constitution says this is actually an independent commission outside Congress, but composed only of members of the Senate and the House. They have to decide on whether to reject or conform the appointment made, within the session before or during which that appointment was made. To expedite matters, the Commission creates committees which renders a report; if the report is favorable the whole Commission then votes on the nomination.

This sounds straightforward but we are a society that dislikes saying no, so more often than not, if the Commission can’t or won’t say no, it says, let’s wait. This is what being bypassed means. When you’re bypassed, the Commission didn’t exactly reject you, but didn’t approve you, either. Presidents at this point have one of two choices: keep up the fight, and resubmit the name for confirmation, or beat a strategic retreat and decline to renominate that person.

Sometimes, even if the Commission is inclined to say yes, some members for whatever reason –including ego or past grudges– invokes the most fearsome of the Commission on Appointment’s rules: the infamous Section 20. This says any member of the Commission, without having to say why, can force the Commission to suspend consideration of an appointee already approved by one of the Commission’s committees. And here’s the trick –usually this is invoked on the last day of the hearing, which means the nominee ends up stuck in limbo until the next session.

Recently, the Commission has decided to explore something long desired by legislators but never put in practice until now: to institute a three strikes and you’re out rule, to prevent presidents and their allies from just submitting names over and over.

It remains to be seen who, if any, of the current crop of bypassed nominees, will be the first to feel the consequences of that rule before the current Congress expires in 2019.

Manuel L. Quezon III.

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