Mad about the DAP

I am trying to understand the strong surge of emotion that has been unleashed by the Supreme Court’s recent decision on the Disbursement Acceleration Program or DAP. So much moral agitation fills the air that one cannot help but suspect that dormant political grudges and prejudices are being manipulated in order to portray the DAP as more than just an unconstitutional order of the executive, but as a criminal and immoral act.

The separation-of-powers doctrine that is the focus of this ruling seems to me hardly comparable in transcendental importance (to borrow a phrase dear to lawyers) to the bill of rights as a constitutional value. Indeed, while this idea is present in every constitution the nation has written, it has probably been more honored in the breach than in the conformance. Yet, when some angry people talk about the DAP today, it is as though an unspeakable crime against democracy has been committed.

A friend of mine, former Philippine ambassador to Chile Rodolfo Arizala, recently sent me a sobering quote from a 1939 Supreme Court decision (Planas v. Gil). “There is more truism and actuality in interdependence than in independence and separation of powers, for as observed by Justice Holmes in a case of Philippine origin, we cannot lay down ‘with mathematical precision and divide the branches into watertight compartments’ not only because ‘the great ordinances of the Constitution do not establish and divide fields of black and white,’ but also because ‘even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other.’ (Springer v. Government [1928]).”

To me a “watertight” separation of powers is an evolutionary achievement of modern society, rather than a norm that is enforceable under all conditions. Even as I personally rejoice in the Supreme Court decisions on the Priority Development Assistance Fund and the DAP, and regard them as reformist steps that bring us closer to our constitutional ideals, I am under no illusion that political conditions will always favor a strict enforcement of this norm. Perhaps it is just this administration’s tough luck that a sequence of events, purely accidental in nature, has made a strict reading of this constitutional doctrine possible at this time.

In May 2010, as she prepared to leave the Palace, Gloria Macapagal Arroyo insisted on appointing the new chief justice before the president-elect, Benigno S. Aquino III, could formally take office. When this plan was questioned, the Supreme Court ruled that the outgoing president had all the right to do so. Still, simple courtesy should have restrained the outgoing president from exercising that option, and a sense of propriety should have prevented Renato Corona, the beneficiary of that brazen midnight appointment, from accepting it. But that wasn’t what happened. To everyone’s consternation, Corona became chief justice.

The new President did not take this sitting down. Armed with a strong electoral mandate, he mobilized his allies in Congress to reverse the outcome of this preemption of presidential powers. Corona was impeached for lying about his properties and bank deposits in his statement of assets, liabilities and net worth. This costly venture was paid for not only in the form of diverted legislative energy, but also—for P-Noy—in terms of unnecessary expenditure of political capital and public funds. Knowing how politics runs in our country, we could only speculate on how much additional PDAF was doled out in the course of this exercise.

But this was long before Janet Lim-Napoles and Benhur Luy came into the picture. Up to that point, the PDAF was constitutional. Government justified it as a legitimate way of identifying local projects. Analysts saw it as a tool of political patronage. But no one equated it with plunder. When the Napoles scam was exposed by the media, the public outcry reverberated through the chambers of the Supreme Court. Twice in the recent past, the magistrates of the high court had affirmed the legality of the PDAF. But, in 2013, when it was again brought before them, they struck it down as unconstitutional, thus supplying a legal warrant to public anger.

No one foresaw how the issue would hit the President, who had won on a vision of ethical governance. After Luy and other whistle-blowers narrated how lawmakers routinely raided their PDAF using Napoles’ network of fake nongovernment organizations, three senators were charged with plunder. One of them, Sen. Jinggoy Estrada, in a vain attempt to fudge the issues, delivered a privilege speech in which he insinuated that the administration had tried to shape the outcome of the Corona impeachment by offering additional PDAF. His point was that the President had the biggest pork barrel of all. Instead of merely saying these were not bribes, Malacañang responded by talking about stimulus spending using savings under the DAP. This prompted critics to go to the Supreme Court to question its legal basis.

Under different circumstances, no one outside the Cabinet would have known that the DAP existed. Not because of any conscious effort to conceal it, but only because the conventional budget practices it contained had not been challenged. If the Supreme Court now says these practices violate the Constitution, so be it. But it is one thing to say they are unconstitutional, and another to presume malice behind them. If an investigative report on the DAP had been written before July 2013 when the pork barrel controversy first erupted, I doubt if it would have elicited the kind of disgust we are now expected to feel over its uncovering.

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