Are we facing a constitutional crisis?

Anxious talk over a looming constitutional crisis instantly filled the air the other night after President Aquino announced on national TV that he did not agree with the Supreme Court’s decision nullifying key elements of his administration’s Disbursement Acceleration Program (DAP). More than a week has passed since the Court assailed the DAP for usurping the power of Congress to appropriate public funds. The President argued that this program, which was a way of rationalizing the use of public savings, had a solid basis in law. He said it was driven by good intentions and had produced results beneficial to the nation.

The President’s stance was seen by some as belligerent and defiant. It may be so. Still, it is difficult to see how it is leading the nation toward a constitutional crisis. Mr. Aquino himself declared in the same speech that his administration would appeal the Court’s decision and seek Congress’ approval of a supplemental budget for projects adversely affected by it.  Clearly, the aggrieved administration is availing itself of the legal tools and institutional mechanisms for an orderly resolution of the problem.

It would have been a different matter if Mr. Aquino had said that he considered the ruling unjust and therefore he would not abide by it.  Or, if he had said he was leaving it to the people to decide who is right on this issue. That would be tantamount to withdrawing the question from the legal sphere in order to politicize it. That would be a willful defiance of the Supreme Court. If the rule of law is to prevail, anything like that ought to trigger a move from Congress. Congress may decide to impeach the President—or, if it is so minded, it may pass a law to validate his assailed acts.

In a season of devastating typhoons, there is no need at this point to add to our people’s burden by floating dire scenarios of a constitutional crisis leading to political paralysis. To the contrary, our institutions appear to be functioning quite well. If we are dismayed by a supine Congress that seems to have been fattened and silenced by pork barrel funds, we should be gratified by a Supreme Court that seems to have recovered its voice as an independent trustee of state power.

A real constitutional crisis is a legally unresolvable conflict in government. It may take the form of an intense conflict among the different branches of government, or of chronic defiance by one level of governmental power against the authority of another—for example, federal power versus state power. The most prevalent is the conflict between separate branches of government—for instance, the president versus Congress, the president versus the Supreme Court, the House versus the Senate, the president versus the prime minister, the parliament versus the monarchy, etc.  An impasse occurs when legal or constitutional solutions or mechanisms have run out or can no longer be relied upon to yield acceptable outcomes. That was the situation our neighbor, Thailand, found itself in recently—until the military decided to seize power.

These things happen everywhere, but they are most common in societies undergoing rapid social change. They resemble the shifting of tectonic plates that trigger adjustments or rearrangements in the institutional structures of society. In the political system, constitutional challenges are bound to occur when, for example, a new leader comes to power on the wings of massive popular support. The mass support is taken as a mandate for deep reforms in government and society. The more daring and inventive these reforms are, the greater is the likelihood that they will be testing the limits of the law.

I think this is what happened with the DAP, a policy measure crafted by Budget Secretary Butch Abad. When P-Noy’s team assumed the reins of government in 2010, it saw how the budget had been thoroughly abused by the past administration. Several times during the Arroyo administration, a new general appropriations bill could not be passed, thus necessitating a reenactment of the previous year’s budget. This repeated failure to pass an appropriations measure effectively placed enormous amounts of public money in the hands of a transactional president who was perennially fighting for political survival. On top of this, Abad saw that almost every agency of government was setting aside savings for bonuses rather than spending these for projects and services. He devised a plan to remove the funds from the hands of nonperforming offices and put these at the disposal of offices that could efficiently use them. Thus was the DAP born.

The scheme was an attempt to discipline a chaotic budgetary practice that had thrived in the shadows of an intractable bureaucracy. This meant putting the reform measure down on paper and giving it a name, thus rendering it visible. It was this that the Supreme Court declared unconstitutional. To P-Noy, the Court may appear unsympathetic to governance reform initiatives. But, governance is not a function of the courts.

Just as a political leader will not succeed at governing if he is unable to think out of the box of the existing law, so too will a magistrate be untrue to her calling if she allows herself to be constrained by political considerations. The separation of powers that the Court is now piously enforcing—this differentiation of functions—is the only way a nation can manage the challenges of governance and justice in an increasingly complex world. We have every reason to welcome it.

(public.lives@gmail.com)