The Commission on Appointments has rejected the nomination of Ms. Gina Lopez as Secretary of the Department of Environment and Natural Resources. While the Constitution textually sets no limits on the President’s power to nominate, Congress has construed the Constitution to exclude from further nomination one who has been rejected by the Commission on Appointments, in contrast to to one whose nomination has merely been bypassed. In the latter’s favor, the President may issue a fresh appointment indefinitely.
Many are outraged, and for good reason. Lopez was fearless and she bared her fangs at mighty enterprises and powerful ventures. I do not think she had anything personal to gain by her staunch advocacy. She was—and remains— firmly convinced that much of the mining that is going on in the Philippines is not good for the country’s health. She found support in many who have taken up the cudgels for the right of future generations of a “healthful environment” and to a “balanced ecology.” But she made many enemies who are powerful, because they are monied—although Lopez is herself no pauper by any means! The members of the communities that have suffered from despoliation of the environment have taken up the refrain of indignation. And it is very difficult to shrug off the suspicion that big money has had big effects.
If Gina Lopez was so passionately committed to saving the countryside from being stripped to the bone by the ruthlessness of open mining —and other forms of mining as well—why did she lose the vote? It becomes tempting to suspect that Legislators received fat checks, or at least look forward to future largesse. But that might not exactly be it, or at least, not that completely. For one thing, Lopez is on record as having pooh-poohed the Constitution as a “scrap of paper”. And the questions asked at the confirmation hearing were not vacuous either: By what law did she act as she did—cancelling licenses, assessing fines, withholding permits? I remember distinctly her answers to most of the questions: “I used my discretion”. True, plenty of administrative action is discretionary —but precisely because of the dangers attendant to the exercise of discretion, the law confines, limits and provides checks for the exercise of discretion.
It then seems that Lopez’s undoing was her enthusiasm that would now allow itself to be confined by the law. One can of course insist that she was as impetuous as she was “for the common good”—but that is always a dangerous pretext for setting the law aside. I am not saying that she violated the law. I am, however, saying that many feared, I included, that she was quite prepared to shove the law aside in the earnest exercise of discretion for the sake of what, to her, was “the common good”. Already so much is entrusted to the discretion of administrative officials—and that is why it becomes all the more threatening when the zeal of one convinces her that she has the license to shoo all entrepreneurs and venturers from protected precincts, even when they are licensed to be where they are!
I most certainly wish someone at the DENR with the drive and the courage of Gina Lopez, and I regret it tremendously that she was not allowed to arrest the unconscionable rapaciousness that has virtually stripped our country of its resources and left a gaping ecological wound in several parts of the country. But I would like to have enthusiasm in the name of the law, and resoluteness empowered by the law—not one that makes of the law a marginal concern, or that cites the law vaguely because action has veered from its course!
But President Digong can still raise a valid constitutional question: Since the Constitution does not limit his power to nominate, can Congress, by enacting the rules for the Commission on Appointments, curtail his privilege to nominate by passing a vote rejecting a candidate? True, the Commission may reject a nomination, but can it prevent a repeat of the nomination? Of course, there is always the prospect of a persistent rejection—but would not be a matter of law but of politics!