Policymaking 101

If there are more EOs than RAs, one can draw the conclusion that the Chief Executive has arrogated upon himself the lawmaking powers of Congress.

September 12, 2022

It’s not uncommon how bureaucrats exert strong influence on the President toward the issuance of writs, decrees, and executive orders. A Cabinet secretary is at liberty to push the pen of the Chief Executive into signing an EO to cut corners and achieve whatever is best for the line department he or she heads.

By law, the “acts of the President providing for rules of a general and permanent character in implementation or execution of constitutional or statutory powers shall be promulgated in Executive Orders.” (Administrative Code, 1987) There’s undue risk when EOs tend to substitute for legislated enactments, also known as “Republic Acts.”

A republic act refers to a piece of legislation to create policy in order to carry out the principles of the Constitution. It’s crafted and passed by Congress and approved by the President, and can only be repealed by a similar act of Congress.

Obliquely, when the legislature is not in session, some Cabinet secretaries influence the President’s recourse to EOs to trip the whole legislative process. Unlike EOs, RAs that undergo a more thorough and broader democratic process of deliberations through a row of public hearings are least vulnerable to judicial review.

Under the Duterte administration alone, some 175 such EOs had been signed from 2016 to 2022, with 11 at the beginning of the year and 15 at the end of the term; with an average of about 28 or so from 2017 to 2021. Whereas, the 17th and 18th Congresses minted 311 and 464, respectively, all of bills that became law.

Put another way, the then president had signed 23 percent more EOs, over and above the RAs enacted via legislative fiat. In sum, then President Duterte inked 950 laws, and some of these will be rendered irrelevant, like the abolition of the Presidential Anti-Corruption Commission (EO 9) and the Office of the Cabinet Secretary (EO 43).

It’s interesting to characterize EOs signed by former presidents during their respective terms of office, more so of presidents “robbed” of the same (i.e., FM, Erap) and not the least, that of PGMA who exceeded a six-year term, the basis of which being nowhere found in the Constitution. One wonders on the number of EOs that PGMA may have signed in all the nine years she was president — a proof that the presidency is not constitutionally time-bound or cast in stone.

If an EO is signed to avoid notice or more of opposition to it, then it gives legislators reason to fear that whenever they are not in session, a parallel “writeshop” is taking place in line departments (i.e., DAR) or other major agencies (i.e., NEDA). The case of EO 1 graphically indicates how powerful an EO, as a policymaking tool, is since it can supersede two antecedent EOs of a former president in a single stroke of a pen.

Further, if there are more EOs than RAs, one can draw the conclusion that the Chief Executive has arrogated upon himself the lawmaking powers of Congress. During martial law, then president Ferdinand Marcos signed some 2,034 Presidential Decrees, while then Parliament churned out 884 laws — most of these are still in force and in effect.

There is yet no clear pattern how FM Jr. would navigate the vast waters of policymaking saved on five earlier 19th Congress’ bills he vetoed and EO 1 that repealed the two EOs in a whiff. Under the old “doctrine of nondelegability,” can the powers of Congress be delegated when such initiative is taken by the President himself?

Then US Chief Justice John Marshall thus said: “The exact limits or boundaries of power are difficult to discern.” In a comparative sense, RAs are less vulnerable to judicial interference than EOs that are easier to strike down by the court. Even EOs of US presidents were not spared the whip of judicial review.

By now, several laws have languished in permanent confinements in astonishing antiquity and obsolescence.


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