Unconstitutional

On Feb. 24, 2006, then President Gloria Macapagal- Arroyo issued Proclamation 1017, placing the country under a state of emergency. The proclamation was based on a security report that there was a military plot to overthrow the government. Saying that while the attempt had been thwarted the danger remained, the proclamation revoked all permits for demonstrations that had been organized for that day to mark the 20th anniversary of Edsa People Power. Arrests were made and the offices of a newspaper were raided. I had the misfortune of being arrested by police for leading one of the demonstrating groups on Edsa.

I was brought to Camp Karingal, booked, detained, and charged with sedition. When I asked for the basis of my arrest, one of the police officers mumbled the phrase “state of emergency.” Although my detention was brief, I was later summoned to the Quezon City Fiscal’s office to answer the sedition charges the police had filed. My lawyers advised me to go to the Supreme Court to question the legality of my arrest under Proclamation 1017. Realizing it had made a mistake, Malacañang lifted the state of emergency after one week. But the high court nonetheless proceeded to rule on its constitutionality, ignoring the contention that the case had become moot.

As I recall, the high court’s ruling was highly nuanced. It sustained the president’s right to call out the armed forces and proclaim the existence of a state of emergency. But, it also made clear that a state of emergency did not suspend the bill of rights, thus declaring my arrest illegal.

Taking my cue from the ruling, I filed a case in the Office of the Ombudsman against the police general and the lawmen who arrested me. The Ombudsman dismissed the charges, arguing that the arresting officers had operated on the presumption that the presidential proclamation was constitutional in all its aspects. Not being a lawyer, I realized only then that acts of government that are unconstitutional do not necessarily carry a criminal or administrative liability. The crime or the offense needs to be proven separately and in the proper venue.

In his lucid concurring opinion on the case involving the Disbursement Acceleration Program, Associate Justice Marvic Leonen precisely makes this point: “Likewise, to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of administrative or criminal liability even before the proper charges are raised, investigated, and filed. Any discussion on good faith or bad faith is, thus, premature.”

One begins to appreciate the importance of this distinction after reading the Supreme Court’s ruling on the DAP—not just the main decision but also the separate concurring and dissenting opinions of the justices. One realizes that the decision is far from being a blanket declaration of unconstitutionality of an act of government. The careful nuancing of the justices’ opinions reflects their appreciation of the immense complexity of the issues involved.

The key issue is not, as many might suspect, whether or not to assign culpability for the objectionable portions of the DAP. As one may glean from a careful reading of the ruling and the separate opinions, the main issue rather is determining how much leeway to give to the political branch of government, notably the executive, in its pursuit of national objectives.

The high court is conscious that policymaking belongs to the political branches, and that the Constitution is not a straitjacket. And even as it is its task to ensure that the government abides by the Constitution, it avoids construing this mandate in a manner that discourages innovation in governance. The high court concedes the point that the DAP was not a single program or measure but a comprehensive budgetary policy with many reform components aimed at making public expenditure rational and effective. Unfortunately, this policy’s principal thrusts were poorly articulated in the document that became the basis for declaring major aspects of it unconstitutional—i.e., National Budget Circular No. 541.

The circular of the Department of Budget and Management made clear that it was going to pool savings from slow-moving or uncompleted projects, for the purpose of using these funds to augment the funding requirements of other programs, activities and projects. The idea was to speed up government spending on vital projects as a way of pump-priming the economy and sustaining growth. At the end of 2013, the DBM recommended the abolition of the DAP, saying that its objectives had been achieved. A total of 116 projects had been funded under this scheme.

The Supreme Court refused to consider the cases against the DAP moot and academic. It saw in these cases the opportunity to clarify the basic principles governing the operation of state power in a democratic system. Foremost of these is the internal differentiation of state power as expressed in the separation of the three branches of government. By pooling savings and deciding by itself how to use these, the executive effectively usurped a power that belongs exclusively to Congress. This was the same principle that led the high court to declare the Priority Development Assistance Fund unconstitutional. By appropriating lump sums for projects to be identified later by lawmakers, Congress in effect performed functions that belong exclusively to the executive.

Why is there a need to protect the separation of powers? The reason is simple: Only in this way do we ensure that every exercise of state power by a branch of government is capable of being checked by another. It is this vigilance that the term “unconstitutional” triggers.

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