In this milieu of globalization good governance has become the most popular mantra among the developing countries. Good governance refers to the efficient and effective administration and management of the resources of the State to achieve maximum benefit for all the members/ inhabitants of the State. The encompassing benefit that everyone is anticipating and clamoring is development.
The Conceptual Framework
The Asian Development Bank in its effort to alleviate the poor condition of nations has formulated a framework called the “Four Pillars of Good Governance” . The components of which are: participation, accountability, predictability, and transparency.
The principle of participation derives from an acceptance that people are at the heart of development. They are not only the ultimate beneficiaries of development, but are also the agents of development.
Accountability is imperative to make public officials answerable for government behavior and responsive to the entity from which they derive their authority.
Predictability refers to the existence of laws, regulations, and policies to regulate society; and their fair and consistent application. The importance of predictability cannot be overstated since, without it, the orderly existence of citizens and institutions would be impossible.
Transparency refers to the availability of information to the general public and clarity about government rules, regulations, and decisions.
Applicability To Democracy
Etymologically speaking, democracy came from the Greek words demos meaning people and kratos meaning rule or rule of the people. It has been accepted in the academic sphere that its main elements are freedom, accountability competition and equality. As I have observed this framework will work effectively in countries which adopts democracy as their political philosophy because the components of the framework are compatible with the elements of democracy. Simply put following the words of the American President Abraham Lincoln, “it is a government for the people, by the people, of the people.”
Philippines As A Democracy
The Philippines after several years of direct and indirect colonization have experienced different forms of governance. We have been through ups and downs, fought battles, defeated and victorious at the same time. These events in our history have molded our present government system. We have adopted the democratic political philosophy of the Americans as evidenced by Article II, Section 1of the1987 Constitution which states that “the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”
As earlier stated, this republicanism or government of representatives was patterned after the American Constitution and system of government. Equally important to consider is the principle of separation of powers among the co-equal branches of the government, “obtained not by express provision but by actual division in our Constitution.” Agpalo in his book Philippine Political Law stated that, “the doctrine of separation of powers rests on the assumption that the three great powers of government must not be concentrated in the hands of one man or a group of men, as its anathema to, and destructive of, a democratic and republican form of government.” Inherent to this doctrine is the doctrine of checks and balances. It was instituted to curb or prevent the excesses in the exercise of powers by one branch of government. “Under the checks and balances system, each of the three branches of government limits the powers of the others, and thus, one branch can not become so powerful as to dominate the others.”
Worthy to mention also is another doctrine incidental to the two previously discussed—the blending or commingling of powers of the branches of government. This is the time when the great powers would share with each other to foster faster delivery of services and duties expected from them.
The Dilemma
An issue of paramount consideration in the field of constitutional law is who should prevail among the great branches of government when the doctrine of separation of powers and checks and balances are in conflict?
Article VI, Section 21 states:
The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure. The rights of persons appearing in, or affected by, such inquiries shall be respected.
Article VI, Section 22 also provides:
The heads of departments may, upon their own initiative, with the consent of the President, or upon the request of either House, as the rules of each House shall provide, appear before and be heard by such House on any matter pertaining to their departments. Written questions shall be submitted to the President of the Senate or the Speaker of the House of Representatives at least three days before their scheduled appearance. Interpellations shall not be limited to written questions, but may cover matters related thereto. When the security of the State or the public interest so requires and the President so states in writing, the appearance shall be conducted in executive session.
Article III Section 7 states:
The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.
Sections 21and 22 of Article VI are just two of the powers of Congress to check on the actions of the executive branch while Section 7, Article III is a constitutional right guaranteed to the people. This has been a relevant issue recently because these power and right were ostensibly rendered useless by the invocation of executive privilege.
Executive privilege is the power of the government to withhold information from the public, the courts, and the Congress. The privilege could either be: (1) State secrets privilege- information is of such nature that disclosure would subvert crucial military or diplomatic objectives. (2) Informer’s privilege- not to disclose the identity of persons who furnish information of violations of law to officers charged with the enforcement of the law. (3) Generic privilege- for internal deliberations has been attached to intra-governmental documents reflecting advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.
My Stance
All of the Philippine jurisprudence with regard the issue at hand leaned in favor of executive privilege but I am personally critical about it. I submit to the sacrosanctity of the doctrine of the separation of powers but the doctrine of checks and balances should also be placed to work properly.
The Chief Executive performs several functions: chief of State, commander-in-chief, chief diplomat, chief legislator, chief of the party, voice of the people, protector of peace, manager of prosperity and world leader among others. In the performance of such duties and in the fulfillment of the said responsiblities, it is important that certain information that would be detrimental to the State and to the public should be protected. The Presidency involves numerous decision making. According to the "rational actor model" a decision maker in their relations with other decision makers make a compromises in order to achieve the maximum benefit that should accrue to the State. This compromise may mean some advantage forgone in exchange for another or a reward in return for a favor, whatever the case maybe. Issues like this which involve national security and foreign relations should as much as possible be clandestine so as to protect the name of the State in the eyes of the belligerent eyes of the realists international actors.
Indeed every branch of government should respect the powers solely designated by the Constitution. Considering the present cases involving the invocation of President Gloria Macapagal Arroyo of executive privilege in order to avoid answering the questions of the Congress in the performance of their duty to conduct inquiry in aid of legislation, I fear that this will become a venue for the President and for the incoming Presidents to escape the queries with ease. I fear that the Chief Executive would abuse it by claiming every objectionable decisions to be covered by executive privilege. I fear that the privilege will become the respite of our unscrupulous higher government leader.
To shed some light to the morbid part of the issue, we should strike a balance between two demands-- demand for the benefit of the State and demand for the benefit of public interest. I do not intend to make assertions but I anchor my stance on the conceptual framework that I have presented at the beginning of my paper.
Participation
The people as the repository of sovereignty should be empowered. Their participation in governance and the decision making process should be given weight. Senate vs. Ermita stated that "while Congress is composed of representatives elected by the people, it does not follow that in every exercise of its power of inquiry, the people are exercising their right to information."
Although the constitutional right to information and access to public documents is not absolute, the people still have the right to know pertinent matters behind the decison of their representatives in order to create their public opinion and guide in the legitimate conduct of such governmental decision.
Accountability
The members of Congress and the President alike should be accountable to the people at large, who have chosen them as representatives to government. In like manner the people should never be incesssant to remind their representatives that they have a duty to fulfill and an obligation to comply. People should be vigilant of all the undertakings of the government officials and the government officials on the other hand must be considerate of the needs of the people they represent. The members of Congress should continue to make laws that are beneficial to the people. The President on the other hand should refrain from making decisions in closed door that would attract doubt. Arroyo and the next presidents should prove their worth as the highest official entrusted with the management of the country. Executive privilege as the name implies is a privilege that should be utilize when the situation so demands. These situations are related to national security, foreign policy and the like. It should not be used to cover all the anomalies or corrupt practices committed. If transactions do not fall under the exception, the high official should not make it fall under it. If there really is nothing to hide, why should we be afraid to tell the people? Why would we deny Congress an aid to craft legislation? Why would we deny the people their due?
Predictability
The case of Senate vs. Ermita discussed that a distinction was made between the inquiries in aid of legislation (Section 21, Article VI) and the question hour (Section 22, Article VI). While attendance was meant to be discretionary in the question hour, it was compulsory in inquiries in aid of legislation. That department heads may not be required to appear in a question hour does not, however, mean that the legislature is rendered powerless to elicit information from them in all circumstances.
It is important that Congress will be guided accordingly so that the laws that will be drafted will be based on real need and necessity not on mere stipulation. First and foremost in order to clarify this issue, the Congress should make a law which covers the subject of executive privilege. "Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the information which the privilege is meant to protect." Since executive privilege is not expressly stated in the Constitution but a mere exercise by virtue of experience, a law specifying the extent to which this can be used without neglecting the protection of the interest of the State in matters of national security and foreign policy would be beneficial to prevent over use of the privilege as a means of protection by deliberately claiming that transactions are covered by executive privilege. This will become a wake up call to the Chief Executive that (s)he will not always be covered by the cloack executive privilege.
It is to my idea that the laws that will be drafted by Congress will have a humungous impact on the whole society. Laws will be applied fairly if it was drafted fairly with sufficient and relevant facts. Legislative inquiry in aid of legislation should be upheld and should be strengthened to impose good governance on the three branches of the government.
Transparency
Denying certain information to the people would create an environment of distrust between the sovereign people and their representatives in government. Although the Chief Executive is given the privilege to keep information which would affect national security and foreign relations, (s)he should provide with proper explanation on the gravity of the matter and should not leave the public to think about the reasons for such. A statement is subject to several interpretations, on the same hand an invocation of executive privilege in the midst of anomalies and controversies would stir several interpretations which would be against the government. The Chief Executive would always claim protection of the interest of the State, yes it is important to maintain stability in our relations with other states and it is very important to maintain national security but every action should be coupled with transparency and truth because it is an implosion if our government would always claim to protect our image with the foreign countries forgetting that the domestic image has been crashed. A balance should be achieved. A harmony between the public interest and State interest must be established.
To sum up, following the "Four Pillars of Good Governance" as a framework I submit to the doctrine of separation of powers but believes in the doctrine of checks and balances to promote healthy democracy. Executive privilege is not a privilege to be scorned at because there really are matters that should be kept to preserve the State. But this privilege should not be abused to the advantage of the person who are only designated by the people to represent them in the administration of the State. There should be a balance between the demands of public interest and the demands of secrecy. I would never forget President Arroyo's promise of "building a strong Republic", I have been waiting for that, I have been expecting from her promises but it seems that I will continue and be patient to wait for some time. Good governance is the solution for all the problems of the Philippines. Good governance is the way to build a strong Republic. Good governance is achievable if their is observance of proper power allocation and devotion to the cause of promoting the interest of the State. We are all dreaming of rising from the ditch that we are in, don't stop dreaming but if our government leaders would continue to struggle for power, to gain from the government, and to abuse their position everything will just be a dream. Like the story of an Argentinian author, we would always stay in the "circular ruins."
