President Aquino walks to interact with his guests following his address to the nation in a live broadcast from the Presidential Palace in Manila on July 14, 2014. The President defended the government鈥檚 position in the now controversial Disbursement Acceleration Program (DAP), which was ruled as unconstitutional by the Supreme Court. AP
We must rise above the din of partisan maneuvering and see that what rages today is not just a contest among political titans but a clash between two competing bases of legitimacy.
The first is the law, which antigraft crusaders deploy against both the Priority Development Assistance Fund (PDAF) enjoyed by legislators and the Disbursement Acceleration Program (DAP) enjoyed by the President.
The second is common sense and the public good, which President Aquino has invoked to explain what he has done to jump-start the economy and deliver social projects. He would go beyond legalism and return everyone to the big picture.
It鈥檚 not just that these claims clash with one another. Worse, the protagonists take turns switching from one frame to another whenever it suits their cause. It鈥檚 as if we鈥檙e watching gladiators fight, but the ground beneath the coliseum keeps shifting.
What a difference a year can make.
In July 2013 when the Inquirer broke its investigative report on the pork barrel scam, who would have imagined that eventually all three branches of government would be accusing one another of dipping their hand in the public till?
Just like the Watergate scandal that began with a bungled burglary, the pork barrel expos茅 began as the abduction and rescue of, as we would later discover, the insider-turned-whistle-blower.
No, this wasn鈥檛 the handiwork of constitutional checks-and-balances operating sua sponte (on their own) like 鈥渁 machine that would go of itself.鈥�
Instead, it took a free and courageous press to expose Janet Lim-Napoles鈥� racket, which in turn provoked a Million People March to abolish pork barrel, and today the three senators of the realm who profited most from Napoles鈥� operation are under arrest.
While the press can try to bridge this gap between the two conversations, the legal and the moral, it abides by the old wisdom that the ultimate check against the abuse of power lies not in institutions but in ourselves. 鈥淓ternal vigilance is the price of liberty; power is ever stealing from the many to the few.鈥�
The turning of the tide
Remember that when the Supreme Court struck down the PDAF, the bad guys were the legislators, and the biggest winner was the President.
The high court said that Congress should limit itself to enacting the annual budget, the General Appropriations Act (GAA), and should leave to the President the discretion on how to carry it out.
The court frowned upon any 鈥減ostenactment鈥� powers by legislators, e.g., to choose which bridge or school to build, and which builder will get the contract.
But that precisely is the patronage power, to reward friends and punish enemies.
In effect, the high court reposed the largess solely in the hands of the President 鈥� and people didn鈥檛 seem to mind.
Fast forward to the DAP, and the conversation suddenly changed.
What troubled the public was the broad discretion that the President had exercised outside the GAA.
The turning of the tide was unexpected.
To this day, President Aquino has not been accused of having pocketed any public money.
His reputation for honesty stands. He insists that all the funds had been directed to projects that benefit the people.
The accusation is merely that he has taken constitutional shortcuts. Yet today he faces three impeachment cases, tarred and feathered no differently from those who actually thieved and stole with neither guilt nor shame.
His critics argue that the ends do not justify the means, and insist that the public good requires good governance.
The power of legalese
The strongest challenge against President Aquino鈥檚 insistence of what he calls 鈥渢he simple, nonlegalistic mind鈥� is that his daang matuwid鈥攖he right path鈥攈as itself relied on the power of legalism.
Sure, it was substantive justice that triggered the public鈥檚 outrage over the PDAF. Sure, it was that outrage that pushed the Supreme Court to declare the PDAF unconstitutional, because the court, left to itself earlier, had thrice validated the PDAF as God鈥檚 gift to budgetary flexibility, even praising it as the protector of minority congressmen against the party in power.
But the final blow against the PDAF was entirely legal, namely, that the legislators had encroached into post-GAA implementation, a power that belongs to the President.
That has set the legal tone of the ensuing debate on the DAP. And now the coup de grace against the PDAF becomes the opening salvo against the DAP.
2 boundaries
To summarize briefly, there are two relevant, bright-line boundaries laid down by the Constitution.
One, 鈥渘o money shall be paid out of the Treasury except in pursuance of an appropriation made by law.鈥�
Public money can be spent only according to the GAA enacted by Congress.
Two, 鈥渘o law shall be passed authorizing any transfer of appropriations.鈥�
Once Congress approves the GAA, no one may tinker with it鈥攂ut the President and the heads of the other departments may 鈥渁ugment any item in [their budgets] from savings in other items of their respective appropriations.鈥�
The Supreme Court said the President鈥檚 definition of 鈥渟avings鈥� was too broad; he deemed all unspent funds 鈥渟avings,鈥� which he then 鈥渞ealigned鈥� for other projects not covered in the GAA.
Next, the 鈥渁ugmentation鈥� of funds may be made only within each branch of government, but the President had made 鈥渃ross-border鈥� transfers outside the executive branch, e.g., to the Commission on Audit.
Et tu, Meilou?
The legalistic approach has its limits. That was President Aquino鈥檚 point when he turned the tables on the Supreme Court for itself attempting 鈥渃ross-border鈥� transfers, and balked only after the DAP had been exposed.
These involved P1.865 billion and P100 billion, respectively, which crossed the border, so to speak, in both directions, from the executive to the Supreme Court, and vice-versa. What鈥檚 sauce for the goose is sauce for the gander. 鈥淲hy behold the mote in thy brother鈥檚 eye, but consider not the beam in thine own?鈥�
The legalistic approach also feigns indifference to the real world consequences of the court鈥檚 obiter dicta (or side comments, distinguished from the 鈥渞atio鈥� or the core ruling).
The court, having struck down the DAP, held that as far as possible the DAP-funded projects should not be reversed or undone, citing a doctrine called 鈥渙perative fact.鈥�
But when the court added that the doctrine 鈥渃annot apply to the authors 鈥� of the DAP, unless there are concrete findings of good faith,鈥� the learned magistrates certainly knew that they were laying the groundwork for future prosecution, and not merely talking off-the-cuff. Thus the President鈥檚 query: Whatever happened to the presumption of innocence?
But its true limit is its indifference to public opinion. When the court rejects the taxman鈥檚 request to see their statements of assets, liabilities and net worth (SALN), saying they had shown them to others anyway in the past, they were making a legal point (鈥淵ou need our permission鈥�) but missing the political point (鈥淚f you don鈥檛 have anything to hide 鈥� 鈥�).
Finally, the court has its own discretionary fund, the P1.775-billion Judiciary Development Fund. A Marcos-era law gave the Chief Justice the 鈥渟ole discretion鈥� over how it is spent, save for one motherhood guideline, 鈥渇or the benefit of the members and personnel of the judiciary to help ensure and guarantee the independence of the judiciary.鈥�
The Commission on Audit questioned the P3.19 billion in savings that the Supreme Court prematurely declared in 2012, in much the same way for which it had chastised the President, and has called upon the court to adopt more specific spending rules and abandon its unfettered discretion.
鈥楬e who rides the tiger 鈥︹��
In this context, the law is an instrument that can enslave its maker. As the ancients have said, 鈥淗e who rides the tiger cannot dismount.鈥�
Locally we tend to read the Constitution as if it were a user鈥檚 manual or a technical code. But John Marshall, widely considered America鈥檚 greatest chief justice, warns: 鈥淲e must never forget that it is a constitution we are expounding.鈥� It is 鈥渋ntended to endure for ages to come, and consequently to be adapted to the various crises of human affairs.鈥� That is why legal scholars have called for a return to 鈥減opular constitutionalism鈥� lest we, Harvard law professor Richard Parker warns, 鈥渋nflat[e] constitutional law, its grandiose puffing as law imagined to be 鈥檋igher鈥� [and feed] on disdain for the political energy of ordinary people.鈥�
President Aquino is getting mixed signals from the Filipino people. He waved the banner of a moral crusade aimed at lofty goals, and, many times in the past, they cheered him on even as he defied the Supreme Court and its traditions.
But today the Filipinos seem to want a rule-bound daang matuwid, that is, confined by the rules President Aquino has used against its enemies.
The President must by now understand why the moral high road is the road less traveled, but he must refuse to play lawyer when what the country needs is a statesman.
听
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