Executive control, presidential prerogatives

In the light of the raging issue about the ongoing review by the executive secretary of the report of the ad hoc presidential committee headed by the secretary of justice and the secretary of the interior and localgovernment that investigated the hostage-taking incident that happened last month in Manila, where 8 Hongkong nationals died, constitutionalist Joaquin Bernas, in his recent column, took the occasion to discuss briefly the theory of executive control, the theory of qualified agency, and the theory of presidential prerogatives, thus:

1. SOMEONE ASKED me why the President ordered a review of the report of the Incident Investigation and Review Committee (IIRC). Did he not give the responsibility of doing the investigation mainly to the secretary of justice and the secretary of interior and local government, both members of his inner circle? Actually the answer to that question was given long ago by the Supreme Court.

2. Under our presidential system, there is only one President and “all executive and administrative organizations are adjuncts of the Executive Department, the heads of the various executive departments are assistants and agents of the Chief Executive, and, except in cases where the Chief Executive is required by the Constitution or law to act in person or the exigencies of the situation demand that he act personally, the multifarious executive and administrative functions of the Chief Executive are performed by and through the executive departments, and the acts of the secretaries of such departments, performed and promulgated in the regular course of business, are, unless disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief Executive.”

3. What this means is that a decision of a department secretary, when not expressly disowned by the President, is already the President’s decision. But this also means that decisions of department heads are always subject to review and even reversal by the President if he chooses to do so. Every person who accepts a position in the Executive Branch accepts it on this understanding.

4. This principle flows from the President’s power of control over all executive departments. As the Constitution says, “The President shall have control of all executive departments, bureaus and offices.” Moreover, in the hierarchy of department secretaries, the executive secretary occupies a position of preeminence when acting “by authority of the President.” Thus, the executive secretary, or even an assistant executive secretary, when acting “by authority of the President,” may reverse the decision of a department head.

5. Will the President accept the IIRC’s report in toto? He may or he may not. And even if he does, that would not be the end of the report. The report, aside from containing a recitation of facts and conclusions, also contains recommendations of administrative and criminal charges against certain persons. These recommendations, if acted upon, will have to go through the rigorous requirements of due process. They will also be a test of the political will of the new administration.

6. The charges against individual persons are serious and certainly the people concerned will demand that they be given a day in court. But another delicate aspect of the report is what it says about media. Quite obviously the members of the IIRC, in preparing the report, were aware that media, as vehicles of free expression and information, occupy a special position in the hierarchy of rights. Hence, the IIRC report does not have any specific recommendation. I just hope that, in reacting to the behavior of media during the hostage crisis, whatever action is taken by government will not have the effect of prior restraint on future media actions.


see:
http://newsinfo.inquirer.net/inquirerheadlines/regions/view/20100927-294535/Reviewing-the-IIRC-report