Powers of the Presidency: Preventing Misuse and Abuse

I will try again to live-blog, and update you on the issues and discussions here at the “Powers of the Presidency: Preventing Misuse and Abuse” Forum this morning. šŸ™‚

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Dr. Edilberto de Jesus, President of AIM and Former Secretary of Education and Ms. Teresita Quinto-Deles, INCITEGov Managing Trustee and Former Presidential Adviser on the Peace Process welcomes and opens “The Powers of the Presidency: Preventing Misuse and Abuse.” by the International Center for Innovation, Transformation and Excellence in Governance (INCITEGov) in partnership with the Asian Institute of Management (AIM) and with the support from the National Endowment for Democracy.

At this forum, there are 4 powers of the President the keynote speakers will tackle, but there are more powers of the president they wish to tackle in the future.

  • Power of the Purse – Emilia Boncodin, Former Secretary of Budget and Management
  • Power over Fiscal Policy – Ernest Leung, Former Secretary of Finance
  • Power of Appointment – Karina Constantino-David, Former Civil Service Commission Chairperson
  • Power of the Commander-in-Chief – Atty. Rodel Cruz, Former Undersecretary of National Defense

Accountability to Institutions that checks this powers, and accountability to the people.

THE POWER OF THE PURSE
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This presentation excludes the Power of the President over GOCC and LGUs. This will tackle the expenditure side, and the next speaker will tackle the resource side. The powers of the President this will discuss is the President’s authority to set the budget, spend the public funds, suspend appropriations or withhold approved budget, unpopular use of savings, approval of lump sum appropriations, grant incentives to all personnel of government in the executive branch.

Budget Setting:

  • President prepares and submits budget of expenditures as basis of general appropriations for approval of Congress. If the president fails to submit the budget on time makes the president liable and can be ground for impeachment.
  • Congress may not increase appropriations, and President may line-item veto, or veto in whole certain items.
  • An effective instrument of fiscal discipline because expenditures are based on identified source of revenue and financing.

Expenditure of Public Funds:

  • Appropriated by Congress, DBM releases appropriations, agencies obligate allotment to expenditure
  • An effective mechanism by which the Executive exercise control over the use of government funds, ensure allocation to agencies and instrumentalities, and track accountability.

All budgets in the recent past have been reenacted, in full or partially – meaning no budget was ever passed and the previous budget enacted. As of today, we still have no budget and we are running on 2009 budget.

Withholding of Appropriations

  • Suspension of expenditure of appropriation when public interest so requires, except otherwise provided in GAA.
  • Modification or amendment of allotment previously approved.
  • Necessary instrument for keeping public expenditures in line with fiscal objectives when there exists an unmanageable fiscal deficit and withholding of appropriation in 2003 when fiscal crisis was declared

Use of Savings

  • Cover deficit in any other item of appropriation
  • Practical approach to augment appropriations; use of savings will ensure smooth flow of expenditures. However it is subject to abuse (i.e., Agencies will force savings to fund personnel benefits, thus, projects will not be implemented.)

Approval of Lump Sum Appropriations

  • PDAF – Supposed to be an equalizing factor for the regions; Calamity Fund and Contingent Funds
  • AFMA, AFP Modernization Fund, Agrarian Reform Fund
  • Cover contingencies and flexibility in operations; however, it suffers from general lack of transparency and abuse of discretion (i.e., selective release of PDAF)

Grant of Personnel Benefits

  • Giving additional benefits to the executive branch.

There are checks to the Presidential Powers. There must be a congressional oversight, civil society participation, pubic information system (transparency, periodic reporting, citizen-friendly budget)

Over-all it’s an instrument for development, and meeting the countries objectives. “A budget is a good budget under a good president and a bad one in the hands of a bad president. It’s only as good as the President,” says Boncodin.

THE POWER OVER FISCAL POLICY
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Tax and Non-Tax revenues comprise the Revenue Effort of the Government. “For the Tax, we should bring it down towards simplification and unification. It will tend to be avoided because it’s high,” says Leung. In so far as presidential powers are concern, the President can always veto unsound tax measures. Those powers should be done for public welfare, and not for themselves and their allies.

PAGCOR earns more or less 10 Billion pesos, and by law must give 50% to the government. The question now is where the other 50% goes? That money doesn’t really get audited. There’s a significant amount which goes to the President. There are a lot of discretionary things in the office of the President. Once the President appoints people in those institutions with a different agenda, other than for the public welfare, and with not much citizen watch, it isn’t good.

In the non-tax revenue area, some of the government corporations, run it bad and get money from the budget, and becomes obligation to the budget side. We need to be vigilant with the Central Bank, and the republic had to absorb in 1993 300B pesos, despite our opposition in the finance industry. There’s no need for the central bank to have a positive net worth, much less a huge one, 50B pesos. However, we locked in a 10B peso mark, an unlikely compromise. You gave that power to the President not for them, but for you, for the public good – and not everyone is doing that.

We should borrow more locally, than foreign.

THE POWER OF APPOINTMENTS
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The power to appoint is the most important power of the president, even if it’s the most unnoticed. It deals with the most important resource of government, the people. It is the act of designating an individual who is to exercise the functions of a given office. It includes the power to appoint in an acting capacity, re-assign, transfer and discipline. The power to appoint has also become the power to control.

We have 1.3 Million or 89% in the career service. 28% are in the administrative personnel, the largest level are the 2nd level at 70% (highest level are division chiefs), and the third level is the smallest, most important in the bureaucracy are the executive and the highly specialized. The non-career comprises 11% of the government, 85 % of which are co-terminus to the President.

Presumptions of this power assume good faith, motivated by public interest, self-imposed limits of decency in a President. When this power is exercise, we assume he or she is choosing the best person at that time, in terms of competency, character and capacity.

The cabinet is a collegial body, an alter-ego of the President, are the direct supervisors of most Presidential appointees; but they themselves are Presidential appointees and serves at “the pleasure” of the President. If the cabinet exercises their powers, they are the immediate checks and balance of people the President appoints. The bureaucracy can also serve as a watchdog, by empowering government unions; but fail to do so because they stopped at getting better benefits for the personnel.

Because the president appoints at least 10,000 people, he or she cannot judiciously appoints the best people. It tends to become politicized in the end. Constitutional checks of this power includes the Commission on Appointments (ad interim appointments – allowed to people who need to go through CA during congress at recess – you have cabinet members haven’t been approved who serve 6 years). This is limited to Constitutional bodies (excluding Ombudsman, cabinet, foreign service, AFP)

In the Judiciary, the Judicial and Bar Council acts as checks and balance; but the members of the JBC are also Presidential appointees, except for the representative of the legislature. The permanent check to the President should have been the CSC. Inconsistencies between and within provision sof the Constitution and laws (PD 807) provides for CSC to approve all appointments except those of Presidential appointees even if CSC had the authority to prescribe, enforce and amend rules and regulations without approval of the President.

In the final analysis, it is the people and the civil society, mediated by media who makes the checks and balance. This is being done now, with the Supreme Court appointment of the supposed next Chief Justice.

How is this power misuse and abused?

  • Warped perspectives – personal loyalty above qualifications, political spoils above competence, appointment as reward, control above public service.
  • Ad interim appointments – an exception that is now the rule, a failed check
  • Third Level Appointments – no checks, no qualification standards, more than 55.67% not eligible, undermining professionalization
  • Excess Undersecretaries and Assistant Secretaries – undermining career paths
  • Appointments in an Acting Capacity – mechanism of control, “midnight” conversion into permanent positions
  • Calling Card Secretaries and Other Designations (Presidential Advisers, Consultants, Assistants) – most with the rank of Secretary, vague and sometimes duplicating and even comical titles, duplication of functions, confusion, blurring the lines of accountability
  • Desire Letter – something that has been happening all these years, and you’ll get confused and surprised of the appointments (if you are given the desire letter, you’ll have to appoint those people)
  • Abuses in the Power to Discipline
  • Abuses in Personnel Movement – floating status, replacement by non-eligible and political appointees, reassignment and transfer

The third level should be a repository of expertise, and and should be the model. If the third level is politicized, and can get in if they are strong to the appointing power, then they stop thinking. There are 81 excess USECS or ASECS by the time Karina left CSC. If you are in an acting capacity, you are removed if you do not follow orders.

The CSC came out with a memo telling the President nicely the violations in the Third Level, after that, 6 members of the Board were summarily removed. They were replaced with 6 other members in an acting capacity. Today we are plagued with midnight appointments of those in an acting capacities who turn out to be permanent.

In the final analysis, it is the character and the decency of the president and his or her honest dedication to public service and not just to power that will spell the difference between decency and judiciousness on the one had and misuse and abuse on the other.

POWER AS COMMANDER-IN-CHIEF
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In the constitution, the president serves as the highest ranking officer over “all armed forces,” for state and public welfare. Civilian authority is at all times supreme over the military. The president has a sequence of graduated powers:

  • Power to Call out Forces
  • Power to suspend Writ of Habeas Corpus
  • Power to declare Martial Law

When it becomes necessary the president may call out forces, meanwhile when he or she suspends Write of Habeas Corpus or to declare Martial Law, an actual rebellion or a necessity (respectively) happens. The state of Martial Law doesn’t suspend constitution or the Writ of Habeas Corpus, for that matter.

Emergency Powers of the President

  • Emergency Power – Congress may authorize the president, powers necessary to declare emergency powers on national policy, control.
  • Take-over Clause
  • Power of Appointment and Reorganization – chief of staff

Abuses in the excersise of the power:

  • warrantless arrests
  • unlawful searches and seizures
  • chilling effect
  • muzzling the press
  • curtailment of freedom of assembly and expression
  • confiscatory acts against private business

Recommendations:

  • Legislate law to limit powers but preserve essential prerogatives
  • Protect the independence and integrity of the judiciary
  • Support a professional and non-partisan armed forces
  • Empower vigilant citizenry
  • Choose well (next President)

We’re now in the Open Forum. šŸ™‚

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