Letter Reply of Sen Trillanes to Sen Miriam Defensor Santiago regarding the Baseline Issue

17 September 2008

HON. MIRIAM DEFENSOR SANTIAGO
Senator
Senate of the Philippines

Subject : Your Letter-Request Dated 08 September 2008

Dear Sen. Santiago:

I write with reference to your letter dated 08 September 2008 requesting the undersigned:

“xxx to cite the specific basis for [my] charge that the appointment of Sec. Eduardo Ermita as chair of the Technical Working Group on [the Philippine] Baselines [Bills] is allegedly: ‘unconstitutional, illegal and improper’. If possible, kindly quote the legal provision.”

Improper Venue/Forum

First of all, considering the fact that it was your Office which designated Executive Secretary Eduardo Ermita as chair of the Technical Working Group (TWG) on the Philippine Baselines Bills, I do not believe that your Office would be the proper venue or forum to thresh out and/or rule upon this particular issue for obvious reasons.

I have filed my resolution, P.S. Resolution No. 614, asking for the Senate to convene itself into a committee of the whole to look into this matter and I intend to pursue the same. I believe it is more appropriate to allow the matter to proceed in accordance with the Rules of the Senate so that the same can be properly resolved and/or disposed pursuant to the Rules.

No Submission to Jurisdiction

I have been told that I am not in any way obliged to comply with your request nor am I bound by your 15-day deadline. Personally, I believe that it should either be the Senate as a committee of the whole or the Committee on Rules which should resolve this issue.

However, as a courtesy to a fellow senator and without submitting to the jurisdiction of your Office/Committee on the matter, I will oblige your request and explain my position on the matter.

The Specific Basis

As cited in P.S. Resolution No. 614 itself, my claim that the appointment of Executive Secretary Eduardo Ermita as chair of the TWG of the Senate Committee on Foreign Relations is “unconstitutional, illegal and improper” is based on the doctrine of separation of powers between the executive and legislative branches of government [See: The Fifth Perambulatory (Whereas) Clause, Page 2, P.S. Resolution No. 614].

Legal Basis

The principle of separation of powers is quite a well known doctrine in any introductory course in government and I have been told that it is also an important doctrine in Political law. But to accommodate your further request for me to quote the legal provision(s) and/or basis of my claim, my staff came upon your own position as you have extensively discussed in Chapter 3 of your book: CONSTITUTIONAL LAW TEXT AND CASES, VOLUME I, POLITICAL STRUCTURE, Second Edition [2000], particularly on pages 163 to 212.

Allow me to directly quote a few relevant passages from your book in support of my position, to wit:

THE PRINCIPLE OF SEPARATION MEANS THAT THE GOVERNMENTAL POWERS ARE DIVIDED AMONG THE THREE DEPARTMENT OF GOVERNMENT–THE LEGISLATIVE, EXECUTIVE, AND JUDICIAL–AND THAT EACH IS SEPARATE FROM THE OTHER . As a principle, it has been described in our constitutional system as a feature that is both characteristic and cardinal . The principle has been traced back to Cicero, Aristotle, Locke, and Montesquieu .

THE PHILIPPINE CONSTITUTION ESTABLISHES THREE GREAT DEPARTMENTS OF GOVERNMENT: THE LEGISLATIVE TO PASS THE LAWS; THE EXECUTIVE TO APPROVE AND EXECUTE THEM; AND THE JUDICIARY TO EXPOUND AND ENFORCE THEM . THE DIFFERENCE BETWEEN THE DEPARTMENTS IS THAT THE LEGISLATIVE MAKES, THE EXECUTIVE EXECUTES, AND THE JUDICIARY CONSTRUES, THE LAW; xxx .

xxx xxx xxx

The Philippine Constitution contains an implicit division of the powers of government among the three departments . Xxx.

xxx xxx xxx

The Constitution provides: Article 6 Section 1:”The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives …”. Article 7 Section 1:”The executive power shall be vested in the President of the Philippines.” Article 8 Section 1: “The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. ”

xxx xxx xxx

Separation of powers has been described as “probably the most important principle of government declaring and guaranteeing the liberties of the people” . It prevents the exercise of autocratic power . It prevents the exercise of autocratic power .

xxx xxx xxx

The Constitution does not specifically provide for the principle of separation of powers. Instead, it divides the power of the state among three branches, by creating separate legislative, executive, and judicial departments . Xxx.

There is no precise definition of the doctrine of separation of powers. The theory is that “A POWER DEFINITELY ASSIGNED BY THE CONSTITUTION TO ONE DEPARTMENT CAN NEITHER BE SURRENDERED NOR DELEGATED BY THAT DEPARTMENT, nor vested by statute in another department or agency”.

xxx xxx xxx

The three departments of government are independent, because each one derives its authority directly or indirectly from the people and is responsible to them. WITHIN ITS JURISDICTION, EACH DEPARTMENT IS SUPREME, AND POSSESSES THE POWER OF EXCLUSIVE COGNIZANCE, MEANING NONE OF THE OTHER DEPARTMENTS HAS THE RIGHT TO INVADE ITS SPHERE OF OPERATION.

The optimum relationship among the departments should be harmonious and independent, in that NO ONE DEPARTMENT SHOULD SEEK TO CONTROL ANY OF THE OTHERS. Each department should in the first instance refer to the constitution to determine what government powers have been delegated to it; xxx. “ONE DEPARTMENT MAY NOT BE CONTROLLED OR EVEN EMBARRASSED BY ANOTHER UNLESS THE CONSTITUTION SO ORDAINS.” [Underscoring and highlighting provided]

But even without having the privilege of reading your comprehensive discussion on this matter, I believe that anybody who has read our 1987 Constitution will find the arrangement of having the Executive Secretary, the one of the highest ranking functionary of the Executive Department of the Government, to act as the chairman of the Technical Working Group (TWG) of the Committee on Foreign Relations of the Senate which is supposed to draft the Philippine Baselines Bill to be highly improper and diametrically opposed to the doctrine of separation of powers.

This is particularly true in this case when the Executive Secretary has openly declared during the Committee’s hearing of 14 August 2008 that he intends to have Mr. Henry Bensurto, Secretary General of the Commission on Maritime and Ocean Affairs (CMOA) and/or the Secretariat from the Department of Foreign Affairs (DFA) to prepare the draft of the “substitute bill” which will replace the bills filed by the Senators.

Verily, it would appear that the Office of the Executive Secretary has already arrogated unto itself the role and/or duties of the Committee on Foreign Relations of the Senate because, as properly pointed out by the Honorable Sen. Rodolfo G. Biazon in his remarks during the plenary session last 03 September 2008, it is already the Office of the Executive Secretary which is issuing invitations to Senators to attend the meeting of the technical working group on the baseline issue and said meeting are supposed to be held at the very Office of the Executive Secretary in Malacañang.

Not only is this absurd because we now have an officer of the executive branch of government inviting Senators to what is supposed to be the exclusive function or activity of the Senate, I believe that this is also clearly in violation of Section 22, Rule XI of the Rules of the Senate which provides that it is only the Chairman of the committee or one-third (1/3rd) of its members who may call a special meeting of the committee and subject to the required three (3) day advance notice. Since the meeting being called by Mr. Ermita certainly does not qualify as a “regular” meeting of the committee, therefore, the same may only be called upon at the instance of the Chairman and/or with the concurrence of one-third (1/3rd) of the members of the committee, especially in this case where the meeting is supposed to be held outside the premises of the Senate.

Needless to state, I believe that it cannot be disputed that the duty and function of crafting bills is essentially a legislative function and, thus, cannot be delegated or assigned either directly or indirectly to functionaries of the executive branch of Government. This is tantamount to allowing the executive, which has shown undue and unusual interest in the Baselines bills not only in the Senate but also in the House of Representatives, to control the outcome of the legislative process. This is clearly contrary to the rulings and court precedents you cited in your book.

As you have expressly declared in your book:

“UNDER THE DOCTRINE OF SEPARATION, THE LAWMAKING FUNCTION IS ASSIGNED EXCLUSIVELY TO CONGRESS; THEREFORE, CONGRESS CANNOT DELEGATE THE POWER TO MAKE LAWS TO ANY OTHER AUTHORITY OR BODY. This is a cardinal principle of representative government.”
[Underscoring and emphasis supplied]

Hence, I believe that allowing the Executive Secretary, one of the highest functionaries of the executive branch, to preside over the TWG of the Committee on Foreign Relations of the Senate not only constitutes an undue intervention by the executive into the exclusive powers and duties of the legislature but likewise unduly imperils the much cherished independence of the Senate as an institution.

Finally, I submit that there are enough competent people in the Senate and in the Committee on Foreign Relations such that there is actually no need to import the Executive Secretary, or any functionary from the executive for that matter, to preside over the TWG meetings.

Thank you for your kind attention.

Very truly yours,

ANTONIO “SONNY” F. TRILLANES IV