The populist jugular

This is not the first time President Aquino has appealed directly to the people to pressure the courts, but he may not have it so easy now as in the past.

He has gotten away with it twice. The first was in late 2011 when he defied the Supreme Court’s order allowing former president Gloria Macapagal-Arroyo to escape abroad and effectively evade corruption charges. The next was in 2012 when he marshaled public opinion to pressure the Senate acting as an impeachment court to unseat Chief Justice Renato Corona. Today Arroyo is under hospital arrest and Corona is no longer chief justice. Both times, the populist playbook worked its magic.

On Monday evening when the President addressed the nation on the Disbursement Acceleration Program, he once again defied legal niceties and went straight for the jugular, appealing to common sense, the “simple, nonlegalistic mind,” and substantive justice. “Without doubt, any good leader would want to implement projects that benefit the public at the soonest possible time. I do not see any reason to delay benefits for our countrymen, especially because we have the wherewithal to alleviate their plight. [I]f you delay the benefits due them, you prolong the suffering of the Filipino people. … My conscience cannot bear this. … Let us remember: The National Treasury belongs to our citizens.”

Malacañang’s website innocuously labels the speech as the President’s “National address … On the filing of a Motion for Reconsideration on the SC decision on the DAP.” But really, Mr. Aquino was turning the tables on the Supreme Court, which has often echoed its US counterpart: “We are not final because we are infallible, but we are infallible only because we are final.” Not final enough, Mr. Aquino seemed to say. It is the people’s Constitution, and the people, through their elected President, should have a say in how it is read. Sure, he seemed to say, you have the power to interpret the Constitution, but I have the power to interpret what the Court says.

When the President said, “We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene,” he wasn’t offering the olive branch. He was daring the courts: Your legitimacy based on the Constitution? Or my legitimacy based on what is good for the people?

But it may not be so easy for the President to win this round. And that is why he has adverted to one of the Court’s unmentionables, its Achilles’ heel, the P1.775-billion Judiciary Development Fund, for which the Commission on Audit has sought more transparency. The Court’s response is woefully unconvincing. “There is no discretion on how to spend JDF funds—whether as to amount, percentage or purpose,” according to its spokesperson. Yet the only constraint on Chief Justice Ma. Lourdes Sereno’s discretion is, in her own words, that the P1.775 billion be spent “for the benefit of the members and personnel of the judiciary to help ensure and guarantee the independence of the judiciary as mandated by the Constitution and public policy, and required by the impartial administration of justice.” Such bare-bones constraints for such a huge amount.

That is why we should read the unsubtle threat when the President told the Court: “We find it difficult to understand your decision. You had done something similar in the past, and you tried to do it again; there are even those of the opinion that what you attempted to commit was far graver.” Already the COA has asked why, in 2012, the justices declared for themselves P3.2 billion in “savings” or one-fifth of its allocation even if obligations remained unpaid.

In other words, if the Court wants to be legalistic, Mr. Aquino was asking: “Abiding by the principle of ‘presumption of regularity,’ we assumed that you did the right thing; after all, you are the ones who should ostensibly have a better understanding of the law. And now, when we use the same mechanism—which, you yourselves have admitted, benefit our countrymen—why is it that we are wrong?”

On the other hand, the Court may likewise be playing to the gallery, and relying on the democratic consensus against discretionary funds. Then we must not forget that this Court validated the pork barrel thrice in the past, even praising it as a mechanism to protect minority legislators not in Malacañang’s good graces. It struck down the pork barrel only after public outrage pushed it to do so. The politics of judicial decision-making is surely not lost on the President, and if the Court wants to play high-stakes democratic politics, Monday evening was his turn to call the bluff.