Saturday, May 8, 2010

Mental Incapacity of an Incumbent President

As election day approached (and I am assuming that when this piece comes out elections will be going on), one issue which became a matter of public discussion was whether presidential candidates should submit themselves to psychiatric test. Nothing came of it but, just the same, let me say something about it.

I realize that there are civic minded citizens who want presidential candidates to submit to a psychiatric test. The first thing I would say is that in a democracy it is the electorate who decide whether a candidate is fit for the office he or she is aspiring for. It is for that reason that the Constitution itself is very economical in its enumeration of what the qualifications should be. In the case of the President, all that is required is that he or she be a natural born Filipino citizen, a registered voter, able to read and write, at least forty years of age on the day of the election, and a resident of the Philippines for at least ten years immediately preceding the election.

Where does mental capacity come in? A candidate for president must be a validly registered voter, and, according to the law an “insane or incompetent person declared as such by competent authority” may not be registered. But the incompetence of a person must be challenged and proved in an exclusion proceeding as provided by law. In the case of the current presidential candidates, none of them was ever properly challenged. The only extant and scattered challenges (and correctly ignored) have been bogus documents of highly suspicious provenance.

One might ask whether a law may be passed requiring candidates to undergo psychiatric test. Enough to say that the law requiring drug testing for candidates was declared to be unconstitutional as invasive of the constitutional right to privacy. Moreover, in the case of national candidates, their qualifications enumerated in the Constitution may not be added to by Congress. A law requiring psychiatric test would suffer the same fate.

However, it is not as if the Constitution were unmindful of the possibility that the electorate, while initially correct, might be proven to be wrong. A President might turn out to be unfit for the office and for reasons that cannot be the subject of impeachment. (Impeachment is limited to culpable violation of the Constitution, treatson, bribery, graft and corruption, other high crimes, or betrayal of public trust.) A President, for instance, might in the course of his term manifest signs of mental imbalance affecting his capacity to govern. It is not generally known that the Constitution has provision for such or similar situations.

The Constitution deals with the thorny issue of deciding whether the President is still able to perform his functions or not. If the President is able to make the decision and is willing to declare himself disabled, he certainly has the power to declare so. This power was recognized in the agreement of March 1958 between President Eisenhower and Vice-President Nixon which stated that "In the event of inability the President would -- if possible -- so inform the Vice President" who would then exercise "the powers and duties until the inability had ended." But if the President himself is unable to make the decision or, though able, is unwilling to admit his incapacity, can somebody else decide for him? There was no clear answer to this question in previous Constitutions. Section 11 of Article VII attempts to supply the answer with a rather elaborate provision.

“Sec. 11.. 11.;. 11.;. 11.;. 11.;. 11.;. 11.; Whenever the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice-President as Acting President.

“Whenever a majority of all the members of the cabinet transmit to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice-President shall immediately assume the powers and duties of the office as Acting President.

“Thereafter, when the President transmits to the President of the Senate and to the Speaker of the House of Representatives his written declaration that no inability exists, he shall reassume the powers and duties of his office. Meanwhile, should a majority of all the Members of the Cabinet transmit within five days to the President of the Senate and to the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Congress shall decide the issue. For that purpose, the Congress shall convene, if it is not in session, within forty-eight hours, in accordance with its Rules and without need of call.

“If the Congress, within ten days after receipt of the last written declaration, or, if not in session, within twelve days after it is required to assemble, determines by a two-thirds vote of both Houses, voting separately, that the President is unable to discharge the powers and duties of his office, the Vice-President shall act as President; otherwise, the President shall continue exercising the powers and duties of his office.”

Let us just hope that there will be no occasion for using this provision either legitimately or illegitimately.

10 May 2010

1 comment:

  1. 失去金錢的人,失去很多;失去朋友的人,失去更多;失去信心的人,失去所有。...............................................................

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