Aquino must play lawyer

Op-Eds have obsessively debated the Disbursement Acceleration Program for two weeks, but ignored the central issue of whether one agrees that individual DAP transfers were unconstitutional, as the Supreme Court ruled. Critics pointedly tried to equate unconstitutionality with criminal liability or immorality. Those sympathetic urged President Aquino to rise above the fray and above mere legal technicalities to focus on what is best for the country. Both danced around the crucial legal issue of how responsibility for spending should be allocated among the three great branches of government. It is about time each citizen considered his own answer.

Inquirer publisher Raul Pangalangan said it best, cautioning that “law is an instrument that can enslave its maker.” He described how the legal attack that ended legislators’ pork barrel next struck the President with the DAP decision and the high court with scrutiny over the P1.8 billion Judicial Development Fund. He eloquently concluded: “But today the Filipinos seem to want a rule-bound daang matuwid…. The President … must refuse to play lawyer when what the country needs is a statesman.”

This important argument has impeccable basis. First, the President and his secretaries necessarily make their own interpretations of budgetary rules as they implement them, subject to the high court’s final interpretation. Second, law should not claim a higher pedestal than the other disciplines needed to build a nation, such as economics. Third, sovereignty ultimately resides in the people themselves. In this broadest of philosophical contexts, all constitutional issues are ultimately political, as high court decisions without political validation have no moral force. Thus, the President is justified in reiterating the DAP’s beneficial effects all the way to his last State of the Nation Address, even though these are irrelevant to pure legal analysis.

But one cannot remove this argument from its broad philosophical context to downplay the legalities of a legal issue. It is a mistake not to appreciate the President playing lawyer and publicly debating the high court on legal interpretation. Perhaps we would have respected this had it been done with more gravitas. Admittedly, the President’s combative manner in his July 14 DAP speech that preceded his Sona was an unfortunate distraction. Further, he pounded on the weakest legal argument, that our Administrative Code somehow justifies the transfer of savings from the executive to another branch, which is explicitly prohibited by the Constitution.

Nevertheless, one appreciates the motion for reconsideration from the dream pairing of Solicitor General Francis Jardeleza and his legendary constitutional law professor, retired justice Vicente V. Mendoza. Portions of the motion were more credible than expected, though it received no media attention. It most importantly argues that the rules defining savings, the category the President may transfer under the Constitution, are mostly from legislation and not in the Constitution itself. A new law may always be passed to supersede judicial interpretation of legislation, and legislators now propose to more broadly define “savings.”

Jardeleza, for example, challenges the decision’s conclusion that funds left over when the President suspends a project do not become savings he then has the power to transfer. The President has broad discretion to suspend a project when “the public interest so requires” under Section 38 of the Administrative Code. Jardeleza notes how some secretaries assessed certain projects as unlikely to be implemented and suggested that funds be transferred. He argues that such funds should be used elsewhere instead of leaving them idle due to the fear that the President might abuse this prerogative to rewrite the budget wholesale. Whether or not the high court agrees, Congress may legislate to render its opinion irrelevant (outside rules explicit in the Constitution, such as the prohibition on cross-border transfers of savings).

The real debate is only now arising as citizens ask concrete questions about the 2015 budget. For example, civic groups immediately zoomed in on various lump sums in the 2015 budget and scrutinized their parameters. One must recall that even Senior Associate Justice Antonio Carpio, who has been most vocal about drawing precise lines to restrict pork barrel, stated that a line item may have a specified but broad use, and the President’s contingency, calamity and intelligence funds are obvious examples. These funds may even be augmented with savings which can be spent under the same broad purpose, and this is all allowed under the Constitution. It is important for the debate not to become reactionary because some flexibility really is necessary when spending billions. The debate is strikingly concrete, and I saw Deputy Presidential Spokesperson Abigail Valte explaining on Twitter that salaries for storm warning system Project Noah have already been programmed in the general budget, but some discretion is needed for contingent items such as hazard pay.

No philosophizing or talk of prosecution thus spares us from the tedious task of deciding what rules should govern our budget, with the constitutional law caveat that men are not angels and rules must apply to future saint and scoundrel alike. We cannot tell the President to stop playing lawyer. Rather, we must exhort him to play better.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) explored how a president may counter the judiciary’s broad powers in “Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review,” 86 Phil. L.J. 523 (2012).