President Benigno Aquino III’s speech on Monday evening defending the Disbursement Acceleration Program left me stunned. He could not have chosen a worse strategy and worse battlefield. He attempted to defend the DAP’s legality after the Supreme Court unanimously declared it unconstitutional and no legal scholar criticized this conclusion, and attempted to force a popularity contest when public opinion was clearly against the DAP. He chastised the gods of Padre Faura armed only with bluster; the Inquirer described him the next day as “stubborn and combative.”
I respect Mr. Aquino for standing by the DAP and refusing to sacrifice subordinates. The decision gave him maneuvering room, invoking the doctrine of operative fact to let unconstitutional DAP-funded projects stand, and he discontinued the DAP even before the lawsuit. He could readily have reiterated the good achieved but conceded that even he is bound to obey a high-court decision he disagrees with. The issue would have been closed and attempts to charge his officials with plunder are already being laughed off, given that the high court never declared that they pocketed funds.
Instead, he made his bombastic attack on the high court.
He persisted in disputing legality, but made no legal arguments. (The decision itself recognized the DAP’s good effects, but these are irrelevant to its unconstitutionality.) He criticized the high court’s analysis of how savings are declared under existing laws (as only savings may be realigned), yet his lawyers never argued that the president, not Congress, should write the rules on declaring savings, and justices interpellated them at length regarding such minutiae.
Mr. Aquino specifically cited Section 39 of the Administrative Code, which allows him to transfer “savings.” However, the high court questioned how he declared savings in the first place. Further, critics immediately pointed out that he astonishingly contradicted the Constitution’s clear text with his claim that Section 39 allows transfers of savings to other branches.
His most alarming line was: “We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene.” Although the separation of powers does contemplate coequal branches going “head to head,” the high court remains the Constitution’s final arbiter. Pushing his allies to legislate a supplemental budget to validate the DAP would have been a far more suave rebuke.
Even his simile was unfortunate: “a motorist who parked in a ‘no-parking zone’ because he had to rush to save the life of an accident victim.” The motorist did not just violate parking rules, but, to use Senior Associate Justice Antonio Carpio’s term, also “castrated” Congress’ power to appropriate. This is so central to the separation of powers that Charles de Montesquieu’s “The Spirit of Laws” classically illustrated the doctrine, with the executive holding the sword but the legislative holding the purse.
Mr. Aquino keeps emphasizing that the judiciary has to be confronted. Yes, there were high-court decisions that were validly criticized at the start of his term, and not just the order that would have let former president Gloria Macapagal-Arroyo fly out of the country. The methods of interpretation used to justify Arroyo’s midnight appointment of Renato Corona as chief justice are now questioned. The Truth Commission to investigate Arroyo’s administration was struck down using the human-rights doctrine of equal protection, because it would investigate only one and not all past administrations. This, however, blatantly contradicts textbooks as such “strict scrutiny” is typically reserved for racial discrimination cases (“Gloria M. Arroyo as human rights victim,” Opinion, 1/16/12). Mr. Aquino also decried flip-flopping decisions involving Philippine Airlines unions and the creation of cities.
But 2014 is radically different. Mr. Aquino faces Justice Lucas Bersamin’s well-argued, unanimous decision—that some savings were transferred to other branches alone makes it difficult to defend the DAP—and a restless public demanding greater scrutiny. Further, even in Corona’s impeachment, we proved stubbornly deaf to even valid criticism of high-court decisions, and the prosecution connected with the public only after switching to corruption accusations.
Perhaps it falls to our justices to be the cooler heads. The high court kept the case apolitical, with Bersamin categorically stating during arguments that he was interested in discussing legal analysis, not prosecution. In rejecting Mr. Aquino’s motion for reconsideration, the justices might reiterate that they make no finding regarding liability. They might limit prosecution only to cases of actual theft and preempt charges of technical malversation, or misapplication of funds without need to prove that funds were pocketed, by emphasizing that Mr. Aquino did have some basis to authorize the DAP transfers. He might then claim victory and call off a pointless war over a discontinued spending program.
Sadly, if our society could more readily appreciate that unconstitutional is not necessarily criminal or immoral and not be too swayed by rabble-rousers, perhaps Mr. Aquino would not need to act overly protective of his officials and perceived legacy. Bluster and legality aside, we will hopefully not lose sight of the broader context that we are relieved to have both a President we still trust and a vibrantly functioning democracy.
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)).