Constitutionalism, statesmanship, and the good

It is almost ironic that the current tension between President Aquino and the Supreme Court is about Congress’ definition of savings. The landmark cases that bring the great branches to the point of brinkmanship are usually about such polarizing issues as discrimination, marriage, religious liberty, reproductive health, death penalty, war—hot-button topics that agitate the populace and divide citizens along ideological lines. In contrast, today’s controversy revolves around the technical interpretation of concepts embedded in acronyms: the DAP (Disbursement Acceleration Program), GAA (General Appropriations Act), and RAC (Revised Administrative Code).

The media have tried their best to “laymanize” the issues, but the most they have communicated to the public is that the President is not happy with the Supreme Court’s decision because, for some reason, he did something wrong. How can the media succeed, given the steep learning curve required to understand the merits of the case? Many have tried, and failed with bleeding noses. How can the public effectively debate when arcane explanations exceed the 140-character limit of Twitter, are not meme-friendly, and will be crowded out by more exciting Facebook posts?

Perhaps it’s time the media and Facebook constitutionalists let the lawyers argue their cases in the Court, and bring the conversation to a level understandable to our citizens. The path has been initiated by the Inquirer’s Raul Pangalangan and John Nery, both of whom have gone beyond the legal arguments and moved the debate to a reflection of the decision’s larger implications. This may allow our people to see the lay of the land and connect with the President and the Court.

The DAP decision is, after all, but one case that will define the President’s relationship with the Court. We can frame the development of this relationship, bred across several important cases, in terms of competing visions of the good. On one hand, you have the Supreme Court with the Constitution as bible, and legalism its sword; on the other, you have the President who sees public interest as the highest good, and popular support his license to reform.

The Court sees as a valuable good the narrow, civilist interpretation of rules involving the use of public funds and would like to constrain discretion in their allocation. It therefore wants to precommit all presidents to its ideal standard of constraint and, in the process, is willing to risk the ire of a President unblemished by corruption so it may (it is hoped) tie the hands of potentially plunderous ones. This brand of legalism jibes with the Filipino’s sense of bar-oriented constitutionalism—we’re bound by the Constitution, though the heavens fall. We are governed by rules, not by people. We must apply the law looking not only at the “here and now,” but also at the days ahead.

The President sees himself as a statesman with a near-impossible mission of steering the ship of state from a decade of corruption that destroyed institutions, consigned the citizens to continued poverty, and further entrenched our country’s reputation as the “sick man of Asia.” He has produced results, and can give us a list of verifiable accomplishments—the improved numbers of the economy, the reform of the budget, and the aggressive pursuit of the corrupt. He believes his politics is transformative, and therefore must be given the freedom to begin such transformation, at the very least.

This freedom to reform society requires an environment of rules that will not shackle his discretion. These are difficult times, and the Constitution’s commands must be given practical breathing space so the President may straighten the nation’s path. The Constitution is here, not so that its rules may be imposed on the people regardless of consequence, but so that it may be an instrument for their welfare. We can assume this was the President’s view when, during his recent State of the Nation Address, he demonstrated the DAP’s ground results with repeated exemplars of how this program actually benefited impoverished and marginalized citizens. This is his way of asking us to “go beyond legalism and return everyone to the big picture,” as Pangalangan has noted.

Given the President’s and the Supreme Court’s disparate anchors for defining what is good, we can, along the lines of one of Nery’s theses, see the Court’s constitutionalism as potentially undermining the President-as-statesman’s mandate. To be sure, this is not a conflict between good and evil, right and wrong, but an unfortunate though hopefully temporary disagreement over business models for interpreting rules—one emphasizes freedom, the other, constraint. This interpretive disagreement is at its most intense in the DAP decision because, as Nery sharply notes, it touches the President’s “core achievement” and puts an embarrassing dent on it that can be painfully spun by critics—“you improved the economy, but ‘violated’ the Constitution and ‘raped’ Congress”; “you reformed the budget, but accumulated billions for ‘discretionary’ spending”; “you went after the corrupt, but ‘bribed’ senators with public funds.”

Nery also points out that the Supreme Court’s vaunted legalism can again rear its head in the other legacy issues that will be decided by the Court, that are or will be known also by their acronyms—the Edca (Enhanced Defense Cooperation Agreement) and BBL (Bangsamoro Basic Law). This is a matter of grave concern for everyone, and we can only hope that the leaders of our institutions can dig deep and find unity of vision at some level. The future is too important to be left to happy accidents of circumstance.

Florin T. Hilbay previously circulated this piece to his colleagues at the UP College of Law, where he teaches constitutional law. He is on secondment to the Office of the Solicitor General. His views in this piece are academic and personal.