Rewriting the Rules: Duterte’s POGO Order and the Separation of Powers Debate

By Louis ‘Barok‘ C. Biraogo

THE controversy surrounding former President Rodrigo Duterte’s Executive Order No. 13 (EO 13) and its role in enabling the proliferation of Philippine offshore gaming operators (POGOs) is a legal quagmire that invites a thorough examination. The recent assertions by Batangas Rep. Gerville Luistro that Duterte’s EO 13 “encroached” upon the legislative powers of Congress bring to the fore significant questions about the separation of powers, the extent of executive authority, and the legal ramifications of such actions.

Historical Background: From Marcos Sr. to Duterte

The roots of this issue trace back to the era of Ferdinand Marcos Sr., who, through Presidential Decree No. 1869, established the Philippine Amusement and Gaming Corporation (Pagcor) in 1977. Pagcor was designed to regulate gaming establishments within the country, and its Charter was further amended by Republic Act No. 9487 in 2007. Notably, neither of these laws made any mention of online gambling, a concept that was virtually nonexistent at the time.

Fast forward to 2017, when Duterte issued EO 13, ostensibly to combat illegal gambling and clarify the jurisdiction of various agencies over gaming operations. However, this executive order also allowed licensed online gambling operators to cater to individuals outside the Philippine territory, effectively creating a legal framework for POGOs. This move has since been criticized as an overreach of executive power, bypassing the legislative process required to amend or supplement existing laws.

Luistro’s Assertions: A Case of Executive Overreach?

Rep. Luistro’s critique hinges on the principle that when the law does not provide for a particular regulation, it should not be created through executive fiat. This is grounded in the doctrine of the separation of powers, a fundamental aspect of democratic governance where the legislative, executive, and judicial branches have distinct and separate functions. The issuance of EO 13 by Duterte arguably blurred these lines, as it introduced a new regulatory framework for online gambling without the necessary legislative endorsement.

Provisions of Philippine Laws and Ethical Standards:

Separation of Powers: Article VI, Section 1 of the 1987 Philippine Constitution vests legislative power in the Congress of the Philippines. By creating a regulatory framework for POGOs through an executive order, Duterte’s actions may be seen as an encroachment on this legislative authority.
Supreme Court Precedents: The Philippine Supreme Court has consistently upheld the doctrine of separation of powers. In cases like Angara v. Electoral Commission (G.R. No. L-45081, July 15, 1936), the Court emphasized that no branch of government should encroach on the powers vested in another. EO 13’s introduction of online gambling regulation could be viewed as a violation of this principle.
Ethical Standards: The Code of Conduct and Ethical Standards for Public Officials and Employees (Republic Act No. 6713) emphasizes the importance of adhering to the rule of law and the Constitution. By bypassing Congress, Duterte may have violated the ethical obligations to respect legislative authority.

The Defense: Presumption of Constitutionality and Executive Discretion

On the other hand, proponents of Duterte’s actions, including his former spokesperson Harry Roque, argue that EO 13 is presumed constitutional unless challenged and overturned by the courts. This argument rests on the principle that executive orders, like legislative enactments, are presumed valid until proven otherwise.

Provisions of Philippine Laws and Ethical Standards:

Presumption of Constitutionality: As noted by Roque, the Philippine legal system operates on the presumption that all executive and legislative actions are constitutional unless proven otherwise. This principle is rooted in the case of Garcia v. Executive Secretary (G.R. No. 157584, April 2, 2009), where the Supreme Court upheld the presumption of constitutionality.
Judicial Deference: The judiciary often defers to the executive branch on matters of policy unless there is a clear violation of the Constitution. In this context, the regulation of online gambling could be seen as a policy decision within the executive’s purview, especially in the absence of explicit legislative prohibition.

Legal Consequences

Assessing Duterte’s legal accountability in this matter involves a nuanced understanding of both the constitutional framework and the political context. While there is a strong case to be made that EO 13 overstepped executive bounds, the presumption of constitutionality and the potential for judicial deference to executive discretion make this a challenging case for Duterte’s critics.

The Supreme Court, in cases involving the separation of powers, has often shown restraint in invalidating executive actions unless there is a clear and unmistakable breach of the Constitution. As such, any legal challenge to EO 13 would need to convincingly demonstrate that the order constituted not just a questionable policy decision, but a violation of the constitutional separation of powers.

Legal Options

For Luistro and those opposing EO 13, the primary legal option is to file a petition before the Supreme Court challenging the order’s validity. This would likely involve arguing that EO 13 oversteps executive authority and usurps the legislative power of Congress, with the aim of having the order declared unconstitutional.

For Duterte and his supporters, the legal strategy would involve defending the EO on the grounds of the presumption of constitutionality, arguing that the regulation of online gambling falls within the executive’s authority to enforce laws and protect public interest.

Recommendations

For Luistro and Opponents:

Pursue Legal Action: File a petition before the Supreme Court challenging the constitutionality of EO 13. Focus on the separation of powers and the legislative intent behind Pagcor’s charter.
Legislative Clarification: Push for new legislation that clearly defines the scope of Pagcor’s regulatory authority, explicitly addressing the issue of online gambling to prevent future overreach.

For Duterte and Supporters:

Strengthen Legal Defense: Prepare to defend the constitutionality of EO 13 by emphasizing the executive’s role in law enforcement and public policy implementation.
Engage in Legislative Dialogue: Encourage a dialogue with Congress to address the concerns raised by EO 13, possibly through amendments to existing laws that would explicitly authorize or regulate online gambling under Pagcor’s jurisdiction.

Conclusion:

The controversy surrounding Duterte’s EO 13 and the regulation of POGOs is a complex legal issue that strikes at the heart of the separation of powers in the Philippine government. While there are strong arguments on both sides, the ultimate resolution will likely rest with the judiciary. As this case unfolds, it will serve as a critical test of the boundaries of executive authority and the robustness of constitutional checks and balances in the Philippines.