Arab News Newspaper: From Statesman to Political Hack

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 former Chief Justice Hilario 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 percent 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.

But as it is, Davide is poised to be the Filipino John Bolton.

The controversial John Bolton, a known critic of the UN, 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 midterm 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.

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.

In the Philippines, of course, traditions count for less and so, Justice Secretary Raul Gonzalez, for example, has been bypassed eight 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?

A paragraph from Art. VII, Sec. 16 of the Philippine Constitution tells us.

“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 okay. 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:

“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.”

This goes to the heart of the recent, controversial appointment of Davide to the United Nations.

In his Jan. 22 column, Fr. Bernas, 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:

“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. So when Davide insisted on taking his oath to be our permanent representative to the UN during the recent Cebu Summit, Davide was being a politician - a mere hireling of a president. And not a statesman, who would have never hidden behind an ad interim appointment.