Modern governance and the Constitution

The most important testament to our aspiration to be a modern democratic state is the Constitution no less.  Although some of its formulations may sound traditionally moralistic, one cannot fail to detect in all its basic provisions the unequivocal commitment to modern values such as equality before the law, separation of powers, supremacy of civilian authority, a professional bureaucracy, accountability of public officials, separation of church and state, the autonomy of the family, etc.  We tend to take these things for granted as conventional to all constitutions, but, in fact, there is a whole coherent philosophy underpinning them.  It is a philosophy of modernity, whose logic we are beginning to understand only now.

Thanks to some of the issues being brought to public attention during this political season, Filipinos are acquiring a better sense of the whys and wherefores of these constitutional values. The only downside to this is that since they are being raised in the context of the electoral campaign, these issues are liable to be dismissed as nothing but symptoms of politicking.

The issues that have recently been raised against Senator Manny Villar are a case in point. They center on the question whether it is proper for a public official who wields immense political authority to intervene on behalf of his business firms in their dealings with government agencies and regulatory bodies.

No, this is not about the controversial C-5 road extension that passed through the housing projects built by Senator Villar’s housing firms. The senator, who is running for president, has been accused of appearing at a board meeting of the Securities and Exchange Commission in 2007, “unannounced and uninvited,” in order to personally plead for a waiver of a standing rule affecting the initial public offering of shares of stocks held by a company that he and his wife, also a legislator, own. The SEC, to its credit, turned down his request.  Between the considerable power of one politician who could initiate investigations “in aid of legislation” and the interests of ordinary investors, local and foreign, the agency chose to protect the latter.

Sen. Villar has denied these allegations.  He said he would leave it to the company to answer these charges, but added: “It’s clear that I am not doing anything wrong, and this is just politicking.”

His chief legal officer, lawyer Nalen Rosero-Galang, argued in a press statement that the public offering of the shares of Vista Land was above board and complied with all the rules of the Philippine Stock Exchange and the requirements of the Securities Regulation

Code.  She confirmed that Sen. Villar did indeed appear before the PSE but saw nothing wrong in this.  “The PSE is a private corporation, not a government agency.  Senator Villar appeared in his private capacity, as a controlling shareholder of an applicant, not as a government official.”  Interestingly, she neither confirmed nor denied the appearance of Sen. Villar at a board meeting of the Securities and Exchange Commission.

The SEC is a government agency that plays a vital role in the country’s economic system. Its official website says that among its functions is “to curb fraud and manipulation and to prevent the exploitation of the investing public.”  The conduct of its work has a direct impact on the credibility of economic instruments that are offered to the public.  When a sitting senate president calls the head of the SEC or gatecrashes its meeting to follow up a matter affecting his business interests, it makes no difference whether he is doing so in his private capacity or as a senator of the land. It is both unethical and illegal.

Article VI, Sec. 14 of the 1987 Constitution provides: ‘No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or before the Electoral Tribunals, or quasi-judicial and other administrative bodies…. He shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to act on account of his office.”

In an era when political authority and wealth were held by the same people, wielders of public office were not only permitted but expected to use their power to further their private interests.  That era is gone. Although politicians everywhere may continue to act in this manner, and the public may wink at it as part of the political reality, this is no longer acceptable ethically or legally.  That is the reason for the renewed interest in the constitution as a guide to modern governance.

It is certainly not the first time (nor will it be the last) that a high public official has used his power or influence to pressure a government institution into issuing a decision or granting a favor from which he will draw pecuniary or personal benefits.  So what is new? Isn’t this what being in power is all about?  The difference, I think, is that nowadays we expect public officials to be less brazen, more circumspect, and more indirect.  To me, that is progress.  More than ever, we expect institutions to be able to summon enough spine to stand up to abuse of political authority.

I am aware that the effect of exposés like this on the public consciousness could be to further erode what remains of our faith in government.  But I am confident that in the long term, the gain would be the strengthening of our system of governance through its growing insulation from all forms of social power, and the raising of the standards by which we measure those in public service.