Review everything
The Supreme Court decision on the controversial Disbursement Acceleration Program only “partially grants” the prayer of the nine sets of petitioners, but in fact it is an almost complete defeat for the Aquino administration. The most important concession is important indeed; the Court ruled that in general, the so-called doctrine of operative fact applied to the DAP spending, offering the administration a considerable measure of protection in the legal battles looming ahead. But two or three other administration arguments sustained by the Court (for example, that the DAP did not need a specific appropriation law) are peripheral to the issue.
The issue is: Is the DAP constitutional? The Court’s unanimous answer (only Justice Teresita Leonardo-de Castro did not take part in the decision) was a resounding no. The same advice that President Aquino’s allies have offered to advocates of his impeachment, therefore, applies to those associates of Mr. Aquino who are considering a motion for reconsideration. The odds look insurmountable.
To be sure, the cogently argued majority decision, written by Justice Lucas Bersamin, makes a point of emphasizing the justices’ “appreciation of the DAP as a plan or strategy validly adopted by the Executive to ramp up spending to accelerate economic growth.” But “a most careful scrutiny” of the manner in which the DAP was implemented reveals that, at its core, it is unconstitutional.
Three holdings are particularly instructive.
First, a key common provision in the 2011 and 2012 budgets was found to be “textually unfaithful to the Constitution for not carrying the phrase ‘for their respective offices’ contained in Section 25(5)” thereof. The result was that the General Appropriations Acts (GAAs) for those two years “thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive. To that extent did the 2011 and 2012 GAAs contravene the Constitution.”
The Court did not review all the national budget laws since Congress was restored in 1987, so we need to determine whether other administrations also (literally) scanted the Constitution. The simple conclusion of textual infidelity, however, is powerful and unanswerable.
Second, the Court struck at the DAP’s accelerated definition of savings: “the foregoing principles caution us to construe savings strictly against expanding the scope of the power to augment. It is then indubitable that the power to augment was to be used only when the purpose for which the funds had been allocated were already satisfied, or the need for such funds had ceased to exist, for only then could savings be properly realized. This interpretation prevents the Executive from unduly transgressing Congress’ power of the purse.”
That no single lawmaker objected to the DAP spending, until Sen. Jose “Jinggoy” Ejercito Estrada disclosed the program as part of a (self-contradictory) defense of his integrity in the wake of accusations that he had plundered the Priority Development Assistance Fund, does not mean there was no transgression of the power of the purse. Rather, this silence must be understood as an all-too-willing consent, either to longstanding tradition (Congress may hold the purse, but both history and experience reveal that a powerful executive actually controls the purse strings) or to recent political accommodation.
Third, the Supreme Court held that even the powerful presidency our Constitution provides for must be guided by a sense of its own limits. “Although the [solicitor general] rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which included the GAAs), such authority did not translate to unfettered discretion that allowed the President to substitute his own will for that of Congress. He was still required to remain faithful to the provisions of the GAAs, given that his power to spend pursuant to the GAAs was but a delegation to him from Congress. Verily, the power to spend the public wealth resided in Congress, not in the Executive.”
Again, the political reality through all these many years has been markedly different. Congress has always deferred to the privileges of the Executive. The DAP ruling suggests a radical review of political practice.
