Moot and academic

Should the Supreme Court dismiss the DAP (Disbursement Acceleration Program) case as moot and academic as government asks and move on to other things?

Well, I do think it should find it moot, but I don’t think it should find it academic. I’ve never for the life of me understood why “academic” has always accompanied “moot” to refer to something that no longer matters or is of little consequence. It does a humongous injustice to the concept of academic, which suggests teaching. There is a lesson to be learned from the DAP, and the Supreme Court should exert itself to make sure it is.

Does the DAP stray from the Constitution?

Yes, it does. Or did, being a thing of the past as Solicitor General Francis Jardeleza and Budget Secretary Florencio Abad argued last week.

I was one of those who wrote about it in that wise from the start. I said the idea of government enjoying a mechanism to use savings, or what it construed as savings, to pretty much tinker with the items in the General Appropriations Act was dangerous. It gave the president too much power. Ping Lacson himself would say later on it mounted a fiscal dictatorship.

I said the ends did not justify the means. Which was how government justified the DAP then, and which is how Jardeleza and Abad justify it now—or did last week before the justices: The leeway, flexibility, or lack of constraint, which the DAP entailed, was necessary to carry out reform in general and spur growth in particular.

Alas, their appearance before the justices last week did little to advance that proposition. They did not make things better, they made things worse for government.

If they proved anything, it was only how haphazardly the DAP had been conceived and executed, and how dangerous it might have been if it had not been stopped.

The memo that created it provided, among other purposes, for the use of withdrawn allotments to “augment existing programs and projects of any agency and to fund priority programs and projects not considered in the 2012 budget but expended to be started or implemented during the current year.” That flew in the face of the Constitution which expressly stated: “No law shall be passed authorizing any transfer of appropriations.”

Abad’s reaction to that being pointed out by Chief Justice Maria Lourdes Sereno herself was to apologize for that provision and promise to provide the Supreme Court with the history of the circular. But it raises eyebrows: You have an entire battery of lawyers to rely on, you have a sensitive mechanism to propose, and you commit so glaring an error as that? If you can’t be scrupulous in the crafting of something like that, how can you be scrupulous in the execution of it? Or more to the point, how can you be scrupulous in preventing, or reining in, any possible abuse? No wonder Justice Arturo Brion asked Abad if he wasn’t sure the DAP was crafted by “neophytes.”

Again, as Justice Lucas Bersamin pointed out, where’s the part that says the DAP was created to stimulate growth? All it says is that it intends to “create a big pool of savings.” To which Jardeleza replied astonishingly that the memo “does not tell the story of the DAP but simply serves to comply with the laws and the Constitution.” You have a compelling need to find a leeway to juggle the budget, which is to stimulate growth, a need you will cite again and again later on when called upon to do so, and you forget to state that from the very beginning? In your haste to merely meet requirements? Can it inspire confidence that spurring growth was really the first thing you had in mind when you created the DAP? Or was that just an afterthought?

Despite all this, I do think the Supreme Court should declare the DAP moot and move on to other things with the proviso that the budget department show ironclad proof the DAP had a short shelf life which ended in the middle of last year. Which is what Abad claims. Unlike the Priority Development Assistance Fund, this is not a case involving corruption—at least not one of the petitioners calling for it to be deemed unconstitutional has shown evidence the DAP resulted in corruption. Indeed, evidence might be shown that a good deal of it was used for what government claimed it was created—to generate jobs, livelihood, pump-priming activities.

A thoroughgoing condemnation of government, which is what declaring it unconstitutional will do, exposing the one president who has done much to fight corruption, however critics find it wanting, to petty and vengeful legal reprisals later on, seems out of proportion to the transgression. It can only make the crooks he hounded happy and raise again an “Open for Business” sign on out-and-out corruption in this country.

But a transgression was made, and I myself would like to see government admit to it and apologize for it. Specifically Abad whose brainchild the DAP was, whose disappearance when the DAP needed explaining made his boss catch a bullet for him instead of him catching a bullet for his boss. Instead of continuing to justify the DAP as something born of the best of intentions and waving it away as something already “extinct,” he should crawl out of his hole in a penitent’s sackcloth, figuratively or literally, and say for everyone to hear: “Through my fault, through my fault, through my most grievous fault. I should have known better than to unleash something that labored under the weight of all sorts of legal infirmities, thereby exposing the President to the one thing he has been waging a war against, which is unethical behavior in public office. The DAP is dead and buried, as well it should be. It will not rise again.”

The Supreme Court should rule the DAP as moot, but it shouldn’t rule it as academic. If by that is meant it should impart a lesson to the world.

One about the perils of hubris.