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Thursday, July 25, 2024

Legislation and democracy

"The Designated Survivor bill is not unconstitutional."

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Our country just missed an opportunity to craft a piece of timely and long-overdue legislation. House Bill 4062 could have been the enabling law needed to carry out Article VII, Section 8 of the 1987 Constitution.

The first paragraph of this section outlines the line of succession in case of a vacancy in the presidency. Fundamental is the proviso that the Vice President shall serve the unexpired term. But in the unlikely event of his or her death or inability, the Senate President, or if he or she is also unable to do so, the House Speaker shall act as President until a new President or Vice President shall have been elected and qualified.

The second paragraph of the same constitutional provision reads, “The Congress shall, by law, provide who shall serve as President in case of death, permanent disability, or resignation of the Acting President. He shall serve until the President or the Vice-President shall have been elected and qualified, and be subject to the same restrictions of powers and disqualifications as the Acting President.”

In plain language, the proviso, “by law” means Congress is mandated to pass a law establishing who shall serve as Acting President when a person within the line of succession as explicitly named by the Constitution dies, is permanently disabled, or has resigned – subject to “the same restrictions of powers and disqualifications as the Acting President” – which primarily means that he or she shall serve only until the election and assumption to office of a new President or Vice President.

Given the state of global events, ensuring a continuity in government should be given importance. In times when terrorist attacks, health pandemics and even natural disasters of increasing magnitude have become likely instead of remote possibilities, it would be best for the country to ensure a ready successor to the President, instead of simply leaving such matters of state to fate.

Unfortunately, the barrage of opposing public opinion from people who are too quick to make hasty conclusions even if they have not thoroughly verified or carefully researched the subject matter has stifled what could have been a truly landmark legislation.

It is clear from the Constitution itself that House Bill 4062 is not unconstitutional. In fact, determining the constitutionality of proposed legislation is usually deferred until after such bill has already been passed into law – only then can the Supreme Court decide on its constitutionality.

The reason for is that introducing a bill does not establish a “fait accompli.” The very aim of the legislative process is to thoroughly deliberate on proposed measures and examine its timeliness, scope, purpose and necessity, and to take action appropriately. The Constitution requires three readings before a law is finally approved and transmitted. It would take months of exhaustive deliberations both in the committee and on the plenary. This will be accompanied or followed by another lengthy parallel process in the opposite legislative chamber, culminating in weeks of further fine-tuning in the bicameral conference committee. Even then, the President may choose to approve or veto, in part or as a whole, the approved bill.

Needless to say, the constitutional test of all proposed legislative measures is of fundamental importance in the legislative process.

Take, for example, House Bill 4062. Essentially, the bill is a “Designated Survivor Bill.” It empowers the President to designate a successor in the unlikely event that the President, the Vice President, the Senate President and the House Speaker were to die or become incapacitated at the same time – therefore contemplating a scenario wherein the constitutional successor and even those in the constitutional line of succession are unable to assume the presidency.

How likely is this possibility? Say a terrorist attack on Congress during the State of the Nation Address. Or a mega-earthquake in the nation’s capital. Or a nuclear attack on the Philippines centered on Metro Manila. This has happened in many countries, there is no reason not to believe this could happen to our own.

It is exactly this scenario that House Bill 4062 has in mind. In fact, consistent with the Constitution, the bill proposes the following provisions:

First, the appointment by the President of a “designated survivor” is made “pro hac vice” and shall limited to the circumstances under which it had been made.

Second, a “designated survivor” is to be appointed only when all those in the line of the presidential succession are attending the same event or all in the same place.

Third, the appointment shall have no effect if one in the presidential succession (such as the Vice President, etc) survives the occasion or the gathering.

Far from what many insinuated, the bill does not attempt to supplant the Constitution, particularly the established line of presidential succession provided for in Article VII, Section 8 of the 1987 Constitution.

Admittedly, the bill is far from perfect. Two important provisions should have also been included as necessary improvements.

First, prior to empowering the sitting President to appoint a “designated survivor”, the bill should have established those who could act as President beyond the House Speaker. The power to designate a member of Cabinet as a “designated survivor” should not be done motu proprio, but should rather be established by law. The fact that the President would choose a “designated survivor” from those already in the line of succession as provided by law would make such appointment less arbitrary.

The bill should have therefore first established a clear line of succession to the presidency, beyond what is enumerated by the Constitution. Practicably, this said line of succession should include members of the Cabinet, since they are all part of the executive branch of the government.

In fact, this is the existing legal dispensation in the United States, after which we patterned our constitutional tradition. The US Congress had passed the United States Presidential Succession Act, a federal statute establishing the presidential line of succession at least on three occasions: 1792, 1886 and 1947. The 1947 Act was last revised in 2006.

The second provision that could have improved House Bill 4062 was to explicitly provide that such assumption by a “designated survivor” would “be subject to the same restrictions of powers and disqualifications as the Acting President.” Which means, unlike the Vice President, a “designated survivor” who has assumed the presidency would not serve the remainder of the presidential term, but only until a new President is elected and qualified. Therefore, part of the priorities of a “designated survivor” acting as President is to call for presidential elections at the soonest opportune time.

These provisions could have been introduced in the course of the legislative process, but that would no longer be possible. The deluge of unfair criticism, even personal attacks on her, has unfortunately caused the author, Rep. Precious Hipolito-Castello to request the House of Representatives that the bill be withdrawn and archived permanently.

What is obvious, though, is partisan politics has again impeded what could have been an act of statecraft. Democratic societies are meant to evolve as they adapt and adopt the realities of the day. When the 1987 Constitution was drafted and ratified, perhaps they thought of a terrorist attack or a global pandemic as, to say the least, a remote possibility. But that is no longer the case. In a time when it is imperative for enterprises to prepare and put in place a business continuity plan – the business of running the government is definitely no exemption.

It is disturbing that those who parade themselves as protectors of liberal democracy have little regard for the very democratic processes that have been set in place by the Constitution itself. All that they have done was to unfairly criticize without a single attempt to dialogue or offer any suggestion otherwise. They only see democracy the way they perceive it, and find little tolerance for those who do not share their views, much more their loyalties. They are legalistic when they see fit, but insist on dissent when they find it expedient.

Same as the Pharisees of Biblical times, the opposition has proven themselves to be a crowd of sanctimonious and self-righteous hypocrites – who in their mind, can do no wrong while the existing administration can do no right.

Such is the sad reality of politics in our country.


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