Court’s doublespeak

No two ways about it. The Disbursement Acceleration Program is either legal or illegal. Yet when the Supreme Court goes to great lengths to finesse its ruling, to appease an indignant public while leaving the powers-that-be safe from jail or impeachment, it makes supreme politicians out of our justices.

What makes this doublespeak even worse is the emerging practice of the Court to first release a “teaser” of its decision as though it were dipping its toe in the water to check the temperature. It plays two forms of politics. Popular politics, so that it can calibrate how far it can push public opinion before it puts pen to paper. Internal politics, so that having gone public, it locks itself into a carefully negotiated dispositif that gains the majority’s vote and yet leaves individual justices enough room to tailor their reasoning to suit whoever it is they want to please, whether the sovereign public or their political patrons.

The anti-Aquino forces are already calling for impeachment. They should hold their horses. Just look at the “preview” that was released on Tuesday. The Court merely strikes down certain “acts and practices under the DAP.” It doesn’t strike down the DAP. The DAP itself remains standing.

However, when the Court lists those “acts and practices,” they form the very core of the DAP! To start with, where did the DAP get its funds? From prematurely declared “savings.” Congress allocates funds for specific uses, and the President spends them as instructed. But here, before he spends them fully, he declares the unspent funds as savings too early and “without complying with the statutory definition of savings.”

That wasn’t a mere “act and practice.” This was precisely how the Palace has justified the DAP. Some departments are slowpokes, the others quicker to the draw. The DAP aimed to accelerate spending by shifting the funds from the slow- to the fast-moving programs. The Palace meant well, but its solution was illegal. The Palace can deliberately slow down the spending, take the money it refused to spend as directed by Congress, and transform this into money it can freely spend for other purposes.

So eager was the Palace to find spendable moneys that the Court had to stop it from using “unprogrammed funds,” like earnings made by government agencies, “despite the absence of a certification by the National Treasurer” that the funds had already been earned. Without the DAP, there would be no funds to be disbursed, taken from prematurely declared savings and yet-to be-earned earnings.

Next, what if these fast-moving agencies lay outside the executive branch? Can the DAP send funds their way? No, it can’t. That’s what the Court stops when it refers to “cross-border transfers [from] the Executive to augment the [budgets] of other offices outside the Executive.” The Constitution allows the President to “transfer appropriations” only within his own department, and not, for instance, to the Commission on Audit which is independent from him.

Finally, the Palace wanted to push fast-moving projects, but it didn’t limit itself to uses already authorized by Congress in the annual budget. And that is why the Court strikes down spending “not covered by any appropriation in the General Appropriations Act.” Again, the Court refers to the express requirement in the Constitution that such a fund transfer can be made to augment only existing items authorized in the budget.

The Court struck at the heart of the DAP, and yet purported to strike down only “acts and practices” rather than the DAP itself. So what should we look out for when the full text is released?

The dispositif is silent on whether the acts became punishable only after the Court struck them down. Earlier there was speculation that the Court will make the ruling prospective, because this will validate the previous acts by the Palace and protect it from liability. That didn’t come to pass. However, the DAP’s dispensers can still say they were acting in good faith all along and can be punished only if they persisted after Tuesday’s ruling.

Those who want to impeach President Aquino are engaging in premature jubilation. Even if the Palace has committed unconstitutional acts, impeachment is reserved only for “culpable violations” of the charter, implying criminal intent which will be easily negated by the proper rationales of the DAP that the Court will inevitably record. The mischief won’t be found in the grand gestures made on Tuesday. It lies in the details that will follow and which, from the looks of it, will embed a legal sanctuary within a Supreme Court decision.