Why we should not impeach over DAP

Impeachment calls over the Supreme Court’s decision on the Disbursement Acceleration Program intentionally confuse the three completely different planes of unconstitutional, criminal and immoral. Sen. Alan Peter Cayetano correctly proposes that we accept the decision as part of our checks and balances and move on.

The DAP involved aggressive, systematic transfers from slow- to fast-moving projects, to stimulate the economy while infrastructure projects were reviewed for corruption. Congress’ power to appropriate funds met the President’s power to “realign” savings. Too much flexibility renders Congress inutile, yet the budget is not intended to be a straitjacket.

Law students will remember Justice Lucas Bersamin for the DAP decision, and he penned a comprehensive companion to Justice Estela Perlas-Bernabe’s likewise thorough decision striking down the pork barrel. It holds that, first, Congress sets the rules for declaring savings and the DAP transfers violated these, such as required time periods before a project can be declared savings and the National Treasurer’s certification that revenues exceeded targets.

Second, the President may realign funds only to existing projects but some DAP transfers were to completely new projects. Third, some DAP transfers were to departments outside the executive branch, such as Congress, which our Constitution explicitly prohibits. Senior Associate Justice Antonio Carpio’s concurring opinion distills all this into precise legal rules. We forget that Carpio was once a tax professor, and some students may prefer his simple, straightforward style of explaining the DAP.

Justice Marvic Leonen argues that the decision seemed to strike down the DAP as an abstract concept and there were scant concrete facts presented regarding concrete acts. He really invokes lack of “actual case,” which technically means the high court has no jurisdiction—also his position in the Cybercrime Act and Reproductive Health Act cases. During the oral arguments, his constitutional law professor and former UP Law dean Pacifico Agabin had to make the aggressive counterargument that the high court’s power to police “grave abuse of discretion” means it must necessarily establish facts, typically done only in trial courts. In this context, Leonen argues, largely to set guidelines for future cases, that the rules on declaring savings may need to be less strict in practice than Carpio’s black letter reading, and the President necessarily has broad discretion where the Constitution states no clear rule.

Despite how straightforward Carpio makes the rules seem, the high court invoked the “doctrine of operative fact” to let the unconstitutional transfers stand, given how unjust it would be to dismantle DAP projects such as the Project Noah storm warning program. Critics make much of Bersamin’s ominous last sentence: “The doctrine of operative fact … cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

However, this only emphasizes that the decision ruled on unconstitutionality, not liability. Even Carpio’s sound bite that the DAP is a “castration” of Congress’ power to appropriate is found only in the last paragraph of an otherwise dispassionately worded opinion that recognizes the DAP’s “noble end.”

Our leaders are entitled to interpret their own powers, even aggressively. Checks and balances contemplate sometimes turbulent clashes of wills. As James Madison’s classic “Federalist No. 51” prescribes: “Ambition must be made to counteract ambition.” Our safeguard is to scatter the powers of government among clever, strong-willed leaders who sometimes collide. The President might veto a new criminal law and Congress might overturn this. The Supreme Court might declare the law unconstitutional and the President might threaten to pardon anyone convicted under it. Congress might threaten to hold their budgets hostage.

Countless acts of government could have been argued as unconstitutional at the time. The first land reform programs under President Corazon Aquino might have unconstitutionally confiscated land without just compensation, as some landowners were paid with bonds and tax certificates. President Joseph Estrada’s deployment of Marines in 2000 to augment police visibility might have unconstitutionally undermined the police’s civilian character.

Chief Justice Reynato Puno’s moves against extrajudicial killing in 2007, well before any case was filed in the high court, might have unconstitutionally violated the judiciary’s fundamental “actual case” requirement. Inquirer columnist Randy David was unconstitutionally arrested in the middle of Edsa in 2006 but was prevented by the doctrine of operative fact from suing his captors despite winning the David vs Macapagal-Arroyo high court case now cited in textbooks. Justice Oliver Wendell Holmes Jr. called the constitution “an experiment, as all life is an experiment.” We grow and we learn from our officials testing their powers, even though we sometimes reject the experiment’s results.

Ultimately, whether to call for the President’s impeachment is a moral, not legal, issue. That the DAP had a “noble end,” had tangible results, and did not line his pockets were irrelevant to the legal issues but are of utmost importance to the moral ones.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) won his second Justice Irene R. Cortes Prize for Best Paper in Constitutional Law for research on constitutional interpretation by the President and Congress (The 2004 Canvass, 79 Phil. L.J. 39 (2004)).