The Supreme Court as political reformer

There has always been a gap between our laws and our political reality. Nowhere is this more apparent than in the tensions between many aspects of our current political practice, on one hand, and the principles and ideals enshrined in the 1987 Constitution, on the other. The disparity stems from the fact that while our political reality reflects the exigencies of a largely traditional society, our laws are mostly copied from those found in modern societies.

Recent attempts to close that gap have come from both the political system and the legal system. The strong pressure to pass the freedom of information bill is a good example of the initiative that is coming from politics. Young legislators are leading this campaign.  But, interestingly, they are also coming from the legal system, particularly from the Supreme Court.

In two landmark rulings issued within less than a year of each other, the high court struck a decisive blow against the principal tools of traditional politics, citing a key constitutional provision on the separation of powers. Sometime last year, it declared the pork barrel system known as the Priority Development Assistance Fund unconstitutional. In doing so, it reversed two of its previous decisions that had seen nothing illegal in the practice. And just the other day, the same high court declared the so-called “Disbursement Acceleration Program” (DAP) of the present administration unconstitutional. Yet, in many ways, it could be argued that the DAP was nothing more than a rationalization of a longstanding practice that existed in previous administrations. Maybe the fatal mistake was to give it the formal name of a program, which made it susceptible to close scrutiny.

It would be surprising if the justices of the Supreme Court were unaware that Malacañang had customarily impounded unused funds lodged in different offices and agencies of government and used these for projects not previously programmed. This has always been one of the abiding sources of power of every sitting president. But, when the high court pronounced the PDAF unconstitutional for violating the principles of checks and balances and separation of powers, it was left with no choice but to apply the same reasoning to the DAP.  The issue in both instances is the preservation of the control system that is essential to the exercise of governmental power. Both decisions may be viewed as milestones in our difficult journey to political modernity.

There is no doubt that these critical moves by the Supreme Court were prompted in no small measure by the strong public reaction to the pork barrel scandal. Previous decisions of the high court on the PDAF had avoided equating the pork barrel system with corruption.  But, the story told by the whistle-blowers changed all existing perceptions. It confirmed what many have long suspected—that a large portion of the people’s money was being pocketed by their own elected representatives, with the tolerance, if not active collaboration, of various agencies of government. Their revelations showed that it was the structure of the disbursement system itself, tailor-made for patronage, that fostered the pattern of brazen criminal abuse that Janet Lim Napoles appeared to have perfected.

It was clearly this realization that set the Supreme Court on its current path. Political reform is not a function of the judicial system. The dismantling of existing structures of political patronage should have come from the political system. But, it fell on the high court to do the job, drawing freely on the abundant modernist impulses of the 1987 Constitution. This has important implications.

People expect sanctions to follow when the courts declare something illegal. That expectation seems, at first glance, to have been met when, soon after the PDAF was declared unconstitutional, plunder and graft cases were filed against erring lawmakers. But note that they were charged not for availing themselves of the PDAF, but for allegedly receiving kickbacks from the bogus nongovernment organizations and private suppliers they recommended as contractors for their PDAF-funded projects.

This is an important distinction to keep in mind in view of the recent Supreme Court decision on the DAP. Some sectors are clamoring for punitive sanctions against those who crafted this budgetary scheme, notably Budget Secretary Butch Abad, who is under pressure to resign his post. A few people out there who are especially critical of P-Noy are saying that the high court’s ruling lays the ground for an impeachment case against him. Others are calling for a restitution of all the money that was disbursed through the DAP—a demand that may do more harm than good.  The high court has to be lauded for reminding us of the fundamental design of our system of government, but I don’t believe its decision on the DAP contemplates any such sanctions.

As in the case of the PDAF, for sanctions to have any warrant, one needs to prove there was willful or conscious violation of the Constitution, that money disbursed through the DAP was either used to bribe anyone or was illicitly siphoned off to enrich some individuals.  Any of these scenarios has been made plausible by the President’s own admission that 9 percent of the DAP funds went to projects identified by lawmakers. The least that the government can do to match the challenge of reform coming from the Supreme Court is to respond to these suspicions by promptly rendering a full account of the billions in public funds it released through the Disbursement Acceleration Program.

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