Diane Alferez Desierto

Hyper-Presidentialism: Separation of Powers without Checks and Balances in Argentina and Philippines

Presidential power is difficult to control through formal institutional checks. Even where constitutional and statutory limits exist, Presidents often seek to work around them. For example, independently elected Presidents may invoke the separation of powers as a justification for acting unilaterally without checks from the legislature, the courts, or other oversight bodies. To illustrate the difficulty of controlling chief executives, we use the cases of Argentina and the Philippines, both of which recently amended their constitutions in an effort to limit presidential power. Newly enacted checks and balances have been inadequate to counter excessive assertions of executive power that undermine constitutional principles. Recent Presidents, determined to reinterpret or ignore the text, have justified their unilateral actions by asserting that the constitutional separation of powers prevents other government actors from interfering with their actions. Their interpretations emphasize the division of labor and downplay inter-branch checks. By raising the separation of powers to a canonical principle that trumps a complementary system of checks and balances, these Presidents have shielded themselves from scrutiny, undermined the effectiveness of other branches, and aggrandized their own power. Although Argentina and the Philippines may be extreme cases, their recent history should raise red flags in presidential democracies, both newly emerging and well-established. In particular, despite the obvious and substantial differences between the United States and our cases, they should lead Americans to ponder both the need for checks on the executive and practical ways to make them work effectively without causing the government to grind to a halt.

Necessity and National Emergency Clauses

Unveiling the complex dynamic between State sovereignty and necessity doctrine as historically practiced in international political relations, this book proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses in specialized treaty regimes.

Universalist Constitutionalism in the Philippines: Restricting Executive Particularism in the Form of Executive Privilege

In Romulo Neri v. Senate of the Republic of the Philippines (March 25,2008), the Philippine Supreme Court upheld a Cabinet member’s claim of executive privilege in a legislative inquiry involving controversial high-level corruption in government transactions, after the narrow Neri majority transplanted a test of ‘presidential communications privilege’ from American jurisprudence. The Neri majority’s abrupt importation of American jurisprudential doctrine caused the untoward expansion of the doctrine of executive privilege, with unsettling implications for universalist constitutional politics. This was an unprecedented departure from the settled pattern of Philippine constitutional jurisprudence, which, before Neri’s promulgation and in strict adherence to the universalist normative structure of the 1987 postcolonial and post-dictatorship Philippine Constitution, had generally favored a greatly-delimited sphere of unreviewable Presidential discretion. This Article applies a universalist reading of the postcolonial and post-dictatorship 1987 Philippine Constitution to a specific form of executive particularism - the doctrine of executive privilege. Executive privilege is not found anywhere in constitutional text, but exists through judicial recognition. Given this doctrinal singularity, the Philippine Supreme Court’s methodology and use of foreign sources in recognizing executive privilege should be seen as an open area for contestation and critique. Posing a universalist dialectic to the problem of executive privilege, I argue that while Presidential control of information regarding public transactions is typically fraught with the particularist justifications of “sovereign prerogative” and “national interest,” executive privilege can be scrutinized from the lens of the 1987 Constitution’s universalist ideology. In this case, universalist ideology is ascertainable from expressly-constitutionalized universalist rights to information and access to government data, as well as international legal standards on the right to information that are likewise present in the Philippine constitutional system due to the Incorporation Clause. Judicial sensitivity to universalist constitutionalism in the 1987 Constitution should therefore favor a return to restricted executive particularism, and ultimately, a more limited scope of executive privilege.