Aquino’s half-baked legal defense

When President Benigno Aquino delivered his televised address on the pork barrel last Oct. 30, he probably hoped to channel US President Barack Obama’s “change is coming” speech. He fell frustratingly flat, instead recalling former President George W. Bush’s “you’re either with us or against us.” Facing a citizenry forced to reflect on the structure through which taxpayer money flows, P-Noy could only reiterate the overused refrain that he is not the thief his predecessor is, and that his “bosses” should keep faith with his grand crusade against corruption.

P-Noy appeared deaf to his bosses. No one has accused him of theft. Nor is it unimportant to punish the thieves. However, the issue has progressed to how the theft is of a magnitude possible only if impunity has been institutionalized.

He discussed our democratic institutions solely by emphasizing that our Constitution allows his Disbursement Acceleration Program. He is correct, as the DAP is a highfalutin’ label for the President’s power to realign savings across the executive branch, a power that the Speaker of the House, Senate President and Chief Justice likewise have over their branches. His legal defense, however, stopped halfway, failing to address the alleged abuse of this valid power. Instead, he appealed for faith in “martsa sa tuwid na daan” and emphasized how the DAP stimulated the economy and gave aid to typhoon victims and families of soldiers killed in action against rebels in Zamboanga. Unfortunately, that the end justifies the means is not a legal defense and sadly cheapens the sacrifices of typhoon victims and soldiers.

Having personally stood on the legal plane, he must confront the legal attacks instead of dismissing them, “kung hindi mo kayang bumango, pabahuin mo na lang lahat.” First, he is accused of transferring executive-branch savings for use by individual lawmakers, allegedly to entice senators to impeach then Chief Justice Renato Corona. P-Noy downplayed: “Sa kabuuang DAP releases noong 2011 at 2012, siyam na porsyento po nito ang ginugol sa mga proyektong iminungkahi ng mambabatas.” However, the percentage is legally irrelevant and in any case still represents billions. P-Noy’s words reflect a distinction seemingly accepted by the Supreme Court in the oral arguments on lawmakers’ pork: A post-budget project recommended by a lawmaker but ultimately authorized by the President does not violate the separation of powers and the Constitution. Legalities aside, however, the apparent grant of discretionary funds to lawmakers with no connection to legislating weakens P-Noy’s moral high ground.

Second, P-Noy is accused of abusing his power to realign funds by outright canceling projects to create savings, then realigning the savings. This is reasonable criticism because, otherwise, a truly abusive president could theoretically cancel the entire budget and realign it to taste, rendering Congress’ duty to pass the budget superfluous. The reasonable response is that P-Noy inherited several projects that his administration found not merely inefficient but dubious, and stopped them. One recalls the severe criticism that the economy slowed at the start of his term due to a drastic drop in government spending—a hefty price for his focus on corruption. One would be hard pressed to argue that a president has no authority to suspend a project he has grounds to deem suspicious, although the reasoning wears thin by the middle of his term.

Third, P-Noy is accused of exceeding his power to realign by diverting funds to items not in the budget. This is an objective criticism because the power to realign is constitutionally limited to using savings to “augment” items in that branch’s budget. An item is either in the budget or it is not.

P-Noy must thus give a simple, objective response.

What is frustrating is that in a rare moment where the country is debating institutions, P-Noy reduced the issue to personalities, all but saying, “You’re either with us or against us.” While the majority are clearly with him, they are beginning to understand that the issue goes far beyond him. The fact that we believe that P-Noy has not stolen is precisely why it is so important to ponder our institutions during his term.

A newfound ethic brought by the popular leader will be with us for less than three years, yet institutional powers premised on his ethic will outlast our generation. Even if one keeps faith with the grand crusade of “daang matuwid,” the broad discretion P-Noy now claims would give pause in the hands of a less scrupulous chief executive. Thus, had P-Noy outright promised to prohibit all types of discretionary funds for lawmakers and work with Congress to put in place clear parameters for executive-branch discretionary funds and realigned savings, we would hail him not just for reaffirming his integrity, but also for ensuring that it will carry beyond his administration.

Instead, P-Noy gave us an unsatisfactory half of a legal discussion. Certainly, the Supreme Court will be in a mood to finish it if P-Noy tarries. In the emotional high point of the arguments on lawmakers’ pork, Senior Associate Justice Antonio Carpio underscored that in reaction to martial law, our post-Edsa Constitution grants the high court an expanded power to strike down even a constitutional act tainted by “grave abuse of discretion.” This expanded power was intended to be aimed at an overreaching president, and P-Noy must realize that it is far more powerful than his half-baked legal defense of DAP.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association’s committee on constitutional law and teaches at the University of the East.