[Blueboard] charter change-2

lnyjose at admu.edu.ph lnyjose at admu.edu.ph
Tue Feb 18 10:08:28 PHT 2003


PLEASE POST. THANK YOU.



Dear Readers,

A colleague of ours who has requested anonymity wrote three essays on the chief 
executive, which we will post on three installments. One of the large issues 
regarding constitutional change concerns a shift to a parliamentary form of 
government. This, in turn, involves a careful look at the relationship between 
the chief executive and the parliament. We believe that an understanding of the 
nature and powers of the chief executive and of the parliament is necessary for 
a more fruitful debate. We will tackle first the chief executive.

We welcome your comments. Please send to polsci at admu.edu.ph and/or 
lnyjose at admu.edu.ph  

DEPARTMENT OF POLITICAL SCIENCE, ADMU
--------------------------------

THE CHIEF IN GOVERNMENT:  FROM PRIMACY TO CO-EQUALITY
By a faculty member 

In countries with a “written constitution”  the basic design of government is 
provided for in the constitution.  A constitution, among others, creates the 
main offices of government, defines their powers and prerogatives, and 
prescribes the relations among them.    

Government has three main organs.  They can be called by their generic names as 
their specific names vary from country to country.  The government has a chief, 
an assembly, and a council.  There is in government (1) a single, identifiable 
head, (2) a democratic, representative, and popular body, and (3) a smaller, 
more aristocratic college with certain powers, functions, and powers. The 
Philippine government, for example, has a chief in the person of the president 
who is head of State and head of Government/chief executive.  The bicameral 
Philippine Congress is the assembly vested with legislative power and the 
collegial 15-member Supreme Court is the council that has judicial power.  

Governments may be designed differently but the three organs are always 
present.  The chief is often called the “president” or “prime minister”.  S/he 
is usually, as in the Philippine case, vested with the power to execute, 
implement, enforce, and administer laws and other authoritative decisions.  
S/he is also given certain symbolic-ceremonial-honorific functions and 
prerogatives.  The chief is usually regarded, for example, as the “first 
citizen”, the figurehead of national unity, and the embodiment of the nation-
state and its sovereignty.  In constitutional monarchies there is still a king, 
queen, or emperor. In the United Kingdom, Japan, Thailand, and in many other 
countries the royal sovereign used to be the chief but is now vested with 
purely ceremonial, nominal, and honorific functions.  The constitutional 
monarch remains titular head of State and may still draw upon certain “reserve 
prerogatives” in extraordinary situations because they retain quasi-religious 
and -mystical attributes.  The Thai and Khmer kings, for example, are still 
revered and venerated by their “subjects”; they are regarded as being “above 
politics” and even sacred. Even the emperor of Japan, now a purely ceremonial 
figure and with no role at all in actual day-to-day governance and policy-
making is revered as a sacred institution that symbolizes in the clearest and 
purest way the Japanese nation.

The assembly in every government is also given a variety of names.  It is often 
called Congress, Parliament, Senate, National Assembly, a House, or a Chamber.  
It is vested with the power to make, change, and repeal laws.  It is also 
usually given specific non-legislative functions (e.g., canvassing votes and 
proclaiming elected candidates and declaring war).  

The council usually has the power to adjudicate disputes and settle conflicts 
by applying and interpreting the laws.  It is often called the Supreme Court.  
In other countries a Constitutional Court is created in order to arbitrate 
contests between or among the other organs of government.  The Supreme Court, 
in these countries, has purely criminal and civil jurisdictions.

What is of interest is the politics among the three main organs; that is, how 
they relate to each other in law (de iure) and in fact (de facto).  Since at 
least the 18th century, the norm has been that the three should be separate, co-
equal, and coordinate and there should be mutual check and balance. No organ 
should rise above the others.  In republics like the Philippines the theory is 
that the people possess sovereignty, that is, to the people belongs all the 
powers of government (executive, legislative, and judicial).  The people 
establish a commonwealth with an organized government to which they entrust all 
the rights and prerogatives of sovereignty.  But the people distribute these 
powers among three organs – the chief, the assembly, and the council -- making 
sure that these powers are not monopolized by or concentrated in one organ.  

That the chief, assembly, and council are separate, coordinate, and co-equal is 
the norm today. This was not always the case, however.  A government of 
coordinate co-equals – a “government-in-equilibrium” -- was not always the 
norm.  The chief, assembly, and council were not always balanced.  One usually 
aspired for pre-eminence only to be challenged and even eclipsed by the other.  
There was constant struggle both for domination and equilibrium.  
For a long time in most societies the chief was dominant. The chief was 
government. In him was vested supreme, absolute, and plenary authority. He was 
sovereign: sole legislator, supreme judge, chief executive, and chief 
administrator.  In ancient civilized societies of the East, for example, the 
chief de iure had the fullness of supreme power (plenitudo potestatis) and 
was “ab-solute” or exempted from legal limits (ab legibus solutus).  His 
authority was limited only de facto: by his physical abilities and political 
skills.  In societies where religion and public affairs were fused into one 
organic whole divine law served as a check but in most cases the chief also had 
divine attributes either as an incarnation of or vicar of the deity.  These 
divine attributes only magnified further the chief’s status as source and 
center of everything. 

The chief customarily delegated his executive and administrative duties to a 
group of ministers.  Eventually one from this group became pre-eminent 
(protos, “the first”).  The chief minister became the chief executive officer 
and chief administrator of the realm.  He became very powerful but was 
nominally still just a servant of the chief.  The chief also usually had an 
advisory council.  This was an aristocratic body.  Its duties were prescribed 
and delineated by the chief.  In time it also came to have judicial 
responsibilities.  The chief delegated duties, functions, responsibilities, and 
authority but he remained sovereign and the source of all powers and 
prerogatives.

In time the chief had to permit an assembly to be formed and to have certain 
deliberative and representative functions.  The assembly was early on also 
highly aristocratic.  The powerful lords of the realm dominated it.  Eventually 
the common subjects became conscious of being citizens and demanded 
representation and voice in the assembly.  The aristocratic assembly became 
more and more democratic and popular.

The chief was divested of more and more powers and prerogatives.  The assembly 
and the council, in turn, became more and more prominent.  Today, as the result 
of a long period of struggle, legislative power is in the hands of the 
assembly.  The council monopolizes judicial power.  Even the executive power 
has been permanently transferred to the chief”s erstwhile chief minister.  The 
chief minister is now de iure and de facto head of the executive and 
administrative branch of government.  Can we say that he is now the chief?  The 
prime minister is, in countries like Britain, Germany, and many other countries 
which have a parliamentary form of government, the most visible and 
identifiable – indeed the principal and foremost – subject of government power 
and authoritative policy-making.  S/he formulates the major guidelines of 
policy, designs the agenda of government, and actively steers them through the 
floor of the assembly.  The “new chief” is an integral part of the legislative 
process, is usually a member of the assembly, and is the clearest 
representation of government and political authority both domestically and 
internationally.  Margaret Thatcher, Helmut Kohl, Konrad Adenauer, Winston 
Churchill, Mahathir Mohamad, Lee Kuan Yew, Indira Gandhi, Jawaharlal Nehru, to 
name just a few, were undoubtedly the chief – in law and in fact -- of their 
respective countries.

In countries with no history of having a traditional chief (i.e., former 
colonies that did not adopt the basic design of their colonial master’s 
government) like the United States and the Philippines, a chief was created.  
The U.S. Constitution of 1789 and the 1935 Philippine Constitution created a 
presidency. The chief’s powers and prerogatives are defined by the constitution 
and by other laws (including judicial rulings).  The normative principle was 
followed: the chief, assembly, and council are separate, coordinate, and co-
equal.  The chief could be countervailed by the assembly and overruled by the 
council.  Nevertheless the chief has on several occasions sought to rise above 
the assembly and council and regard himself, despite constitutional provisions 
which mandate the contrary, primus inter pares.  There is therefore a constant 
struggle for balance and equilibrium.         

Of the three organs the chief is often regarded with suspicion.  The fear is 
that the chief may consider himself a “first-among-equals” and later on even 
just simply “the first”.  The danger is that the chief may convince himself of 
his primacy and exploit it.  The temptation to once again be the “prince”  is 
very powerful. In some countries the chief, although constrained in law, has 
attempted, sometimes successfully, to restore the older and more “primitive” 
way of being chief with all its attendant powers and prerogatives. In certain 
instances the assembly and council passively tolerated or even actively 
endorsed such a restoration.  Inter armes silent lege (“amidst war, the laws 
are silent”): crisis has facilitated this kind of reaction. Using the pretext 
of an “emergency” situation the chief – always behind the cloak of legality – 
has usurped the powers and prerogatives of the two other organs of government; 
monopolized all authority; liberated himself from all constitutional and legal 
restraints; aggrandized the powers and prerogatives of his office and ruled in 
a way similar to the imperial chiefs of old.  All these were done either subtly 
and clandestinely or dramatically. The return of the “primordial princely 
chief” is always a threat.  The challenge today seems not to have changed: 
building and consolidating a “government-in-equilibrium”.      
	



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