#TalkThursday: DAP and the war between branches of gov’t

Transcript below:

Q: How do you view the President’s message to the Supreme Court warning about the third branch of government intervening?

I was bothered by that statement because the only reading, interpretation you can make about the 3rd branch intervening is the extreme action of impeachment. He’s talking about Congress, that’s the 3rd branch of government. It could also mean investigation like the Judiciary Development Fund etc but I think here, clearly he was signaling about impeachment.

When the president made that speech, it raised the stakes. The implications are enormous. But the next day, he gave a speech at the World Bank. I thought that was a more circumspect speech. That warning was still there but first he made it clear that he was doing this because it’s his right to file a motion for reconsideration. That’s fair. And he’s doing this, according to the President, while obeying the Supreme Court. That’s a big thing. He’s not defying the Supreme Court.

Q: What did he mean when he told the Supreme Court, “You’ve done something similar before” and “Why is it when we are the ones doing that, we are wrong?”

I think those 2 things are different. The first thing about you’ve done something in the past that you’re doing again, I think that refers to part of the decision regarding the statement on liability, which is non-binding. We call it an obiter. It has no legal value but it can be used politically and groups are using it politically. This is where the opinion says that while the Doctrine of Operative Facts applies to the acts itself, the fruits of the unconstitutional act, it does not apply to the implementors unless they show good faith.

That’s actually a very bad statement in the Supreme Court’s decision because it flips the presumption of innocence, regularity and good faith. And when you read the decision, that part seems to have been inserted. When I look at that, I think that’s the particular statement problematic for the president.

And it’s been done in the past. In the time of President Arroyo, when the Corona court issued the TRO against the hold order of President Arroyo and Justice Secretary De Lima defied that because she said the requirements of the TRO were not yet fulfilled and there were discussions in the en banc that certain requirements had to be fulfilled but in the course of issuing the TRO, those requirements appear to have been changed. And then Justice Sereno complained about it publicly.

Maybe the President was referring that something was done in this decision, I don’t know but I think it’s best for the SC to clarify this is not part of the decision. This is just an obiter and many of the justices actually don’t subscribe to that because it’s not fair to make a judgment on good faith, bad faith, liability. No facts at all to make that determination.

That needs to go to charges filed, trial, to have facts before any pronouncements on liability. I don’t even consider that guidance for lower courts at all.

Q: Can you elaborate on the doctrine of operative fact? Other groups are saying executive officials can be held liable for technical malversation.

Those are two different things. The decision actually confuses that that’s why I think the President is mad because it’s applying a different standard to the executive and that’s the whole point. There’s supposed to be presumption of good faith, regularity of functions. We apply that to the judiciary, legislature, to the executive branch.

In this particular case, the doctrine of operative fact definitely applies to projects and activities. It simply means that if a project was done under DAP, delivered, then it’s over and it’s recognized. You don’t tear down the building just because it was built by DAP. You don’t not pay the contractor. That’s where the doctrine of operative fact stops. It doesn’t have anything to do with good faith, bad faith, liability. It’s just a recognition that there are fruits of unconstitutional acts and they are to be respected.

Liability is entirely another thing and you’re not supposed to talk about liability here. If you talk about it, you start with presumption of innocence, presumption of good faith, presumption of regularity. All of that you have to grant to government officials. You have to grant to courts. You have to grant to the legislature. Otherwise, if you start with presumption of bad faith, that’s problematic. All the concurring opinions, including Justice Brion’s, says we have no finding on facts about liability. There are some speculations [Budget Secretary Florencio Abad was] a congressman, etc. [He] should have known [better]. It’s all speculation and from my point of view, not legally meaningfully.

Q: The President insists on the legality of the DAP citing the Administrative Code. But legal experts like Fr Bernas say the Code predates the Constitution. Why are we still debating the legality of DAP?

I think the administration has to do that. They need to make their case better probably. My understanding is they didn’t actually make this case before the court in its pleadings, in its oral arguments. I certainly don’t recall, particularly Article 49. They made it on the basis of Article 39.

Actually, Fr Bernas is wrong in terms of the date. The Administrative Code was issued after the 1987 Constitution took effect. The 1987 Constitution took effect in February, the Administrative Code in July. President Cory Aquino kept her legislative powers until July. That’s only when Congress met for the first time. Even if the Constitution took effect, she could issue an executive order. I actually worked on the Administrative Code, as a second year law student, a legal researcher for Professor Popo Lotilla. We wrote that with the Constitution in mind. We wouldn’t have written anything unconstitutional so the only thing to interpret Article 39 or 49 is in light with the Constitution, not in the way they are citing it to support DAP so to me, that argument holds no water at all, if that’s the main argument.

Of course, I must say the justices of the Supreme Court did a very strict reading of the Constitution, what I call to the letter reading of the Constitution of Section 25. Another Supreme Court, less strict constructionist, might have another reading. But under our system, we have one Supreme Court and that Supreme Court interprets the law and that’s the final word on the law. You can file a motion for reconsideration, which I think is fine to clarify certain things, but once the Supreme Court decides on that, we really have to obey.

Look at the consequences if the President says “I will not obey” which he has not. But the consequences down the road. If the electricity companies for example, if the Supreme Court rules against them, they will say, “No, we will not obey.” If a politician is ousted from his post because of a disqualification, “No, I will not obey.” If a governor, like what was done to [Laguna] Governor [ER] Ejercito ousted by the Comelec, if he says, “No, I will not obey because I am right,” we will have chaos in this country.

Q: Why did the Court mention liability at all if there is supposed to be presumption of good faith?

I’ve read thousands of Supreme Court decisions. Unfortunately in the Philippines, we’re fond of writing things that are not really part of the decision. It’s so different, my colleagues, elders in the Supreme Court, forgive me but in the US, decisions are very spare. They just decide on issues that have to be decided.

Here it’s one paragraph, in the end. It was important to do the doctrine of operative fact. That’s guidance for the executive branch, what to do with projects supported by DAP but it has nothing to do with the liability so they should have just stayed away from that. And wait for the right procedures for liability.

Plunder is certainly not the right case here. There’s no case for plunder. Nobody is saying the President or Secretary Abad benefited from this. On the contrary, there’s more evidence that the DAP has done well for the people, good for the people but there could be charges of technical malversation.

Right now, there’s no basis for that. But conceivably, that would be the case, the charge. And their good faith actually doesn’t even matter there. It’s a question of public funds and how they were used. And the fact that they were constitutional at the time they were used matters a lot because the unconstitutionality happens after. So the doctrine is related to that but those are entirely different things.

Q: The President warned against economic paralysis after the DAP ruling. But you make a distinction between law and governance.

I borrow that distinction from Professor Randy David. In governance, you have to stretch the limits of the law because you have to solve problems directly. Another colleague of mine, Dean Mel Sta Maria pointed out very well that ultimately, the President is responsible for this country. It’s not the Supreme Court, not the legislature so you have to give the president wide latitude but you never give the president unrestricted latitude because if you do that, that’s a dictatorship and we end up with people like Marcos.

So you give him wide latitude to innovate, to solve problems but with all these boundaries. And who sets those boundaries? It has to be the Supreme Court. That’s law. Governance is expanding those boundaries, stretching it and the law is actually telling you, you’ve stretched it enough. This is it.

I don’t buy the argument that the loss of DAP will lead to paralysis because DAP no longer exists. They in fact terminated it last year. They said it’s no longer needed. In the future, for emergencies, now you know. In the future, you have to pass special budgetary acts, special appropriations. You can do it fast I think. I think within a month, you can pass special appropriations if you have political will, especially if you have a majority like the President has in both houses of Congress. That’s not an excuse.

Finally, this is what puzzled me in the speech of the President. He said he can no longer use savings until the end of the year. That’s not true. Every month, government has savings. Every agency has savings. Those savings can actually be pulled, be used but only to augment existing items. But there’s really no way around that because if the president chooses what to spend, where to spend, then you’re no longer a presidential system. You’re a parliamentary system of government.

I actually thought the president gave a very strong argument for a parliamentary system of government. He said, “The problems of the country are so many. I want to solve them and I have good faith in trying to solve them and I need the money, resources to do that and I need it immediately.”In a parliamentary system, you don’t have to do that. Because the prime minister is also in Congress, is also in parliament and you are the party in power so you just change the budget anytime.

In our system, it’s not like that. Congress decides where to spend the money on. The president spends the money, has flexibility to move the money from one item to another but never add additional items and never cross-border transfers. That’s plain language. The administrative code does not authorize that. Nothing authorizes that except practices.

They inherited all these practices, put them together in one package called them DAP. It was their transparency that caught them with this unconstitutional bind because they put it in one package and called it something while putting together practices in the past.

Q: A Twitter follower asks: “Is the Supreme Court unassailable? Must we take their word as done in good faith?”

No, the Supreme Court, once it makes its decision, can be criticized, should be criticized. That’s why I’m criticizing the liability obiter of the Supreme Court. Right now, there’s no MR so we can talk about the case. Yes, we can criticize the SC but we do have to comply. If we don’t comply with the SC, then who do we comply with for big issues, for these issues?

There’s a reason the Supreme Court was given this power by the 1987 Constitution, it’s called the expanded power of judicial review. This was the Marcos experience. If you can guarantee me that we will never have a Marcos in this country, that our president will always be as good as President Aquino, as sincere as President Aquino, if you can guarantee me that, let’s take away the power from the Supreme Court. But if you can’t guarantee me that, then we’re better off having a Supreme Court that makes mistakes but is the final arbiter for disputes. If there were no disputes here, the President can do what he wants.

Q: How should the administration move forward? Shouldn’t the decision translate to budgetary reforms?

A lot of it the government has already done. Secretary Butch Abad has really been good with budgetary reforms. The fact that they have budgets on time every year, performance-based budgeting. I think Congress has a lot to do. Congress has to be very serious about its role in budgeting. There has to be a congressional office that really does the budget. The budget now is done by the DBM, given to Congress. It should be the DBM, working with the congressional budget office. Permanent staff, professional staff. Same staff as the DBM: economists, governance specialists, lawyers who will do this.

Second, the government needs to be forewarned that we have a strict constructionist Constitutional Court. A court that will interpret the Constitution to the letter, not just the spirit. We are forewarned about that and therefore we want to be very careful. We want legal reviews, even of old practices to be sure they are covered when they make decisions.

But I do think the President and Congress can still do a lot. It’s just that it needs to be based on more solid legal work to be done.

As for this specific thing, an MR would be good, good luck with that. I hope when the decision comes out, especially if the court also clarifies the obiter nature of the liability statements there, I hope the president would have the grace to reluctantly accept the decision and move on.

Q: So the Court can clarify the liability issue in resolving the MR?

In the resolution they can do that or the justices can have concurring opinions. This part might not be in the part of the justices because none of the concurring opinions refer to that part of the main opinion. I was surprised Justice Leonen said we should not be speaking about liability here does not mention that part of the decision at all in his concurring opinion. So if the court did that, I wouldn’t consider that weakness. If they made a mistake, they should acknowledge they made a mistake and as far as I’m concerned, that’s a clear mistake.

And things happen. Justice Bersamin is one of the most brilliant justices, one of the best in procedure. He knows presumption of innocence really well. It might have gotten lost in the writing, rushing to get it out because media was here. That might have gotten entangled with the doctrine of operative fact. Or just to be silent, this part we don’t have to mention because it’s not right to mention it. I would not consider that the SC bowing to pressure but doing the right thing.

Q: Let’s go to politics. What’s the impact of this issue on the Aquino administration going into its last two years?

Politics is so fickle to predict what will happen in the next 2 years. But I will predict in the next 6 months. We’re just starting to see the downtrend because it was only in the last two days of the Pulse Asia survey the DAP came out and it was not even factored into the SWS survey because they ended earlier than Pulse so for sure, in the next quarter this will be reflected, around August survey.

I think it will be factored in, the speeches of the president and what at first seemed defiance although I’d take that back now. He wasn’t necessarily defiant. He was mad, angry. But if people saw that as defying the SC, it would lead.

These are popular decisions. It’s very clear. If you’re talking about popularity, the DAP, PDAF decisions, people see this as one. The president is rightly incensed that people would compare DAP to PDAF. I agree with him. But unfortunately, to the media, to the people, media in general, it’s confused. And one and the same thing, it’s corruption, both, right? So that will have an effect, in the same way when the president tried at first to defend PDAF, it was untenable to defend it.

They need to figure out, call it jujitsu. How to move this from a political point of view, also to an advantage and the way to do it, the president started to do it, is to show the projects. The list, assuming it’s a good list. That’s what has to be released to the public.

Q: But funds from DAP were also given to lawmakers implicated in the pork barrel controversy. The issue of whether the funds were used properly or not hasn’t been settled yet, right?

No, the executive branch has not taken responsibility for that which honestly, I find strange. Like any PDAF fund, this money is given to agencies. They were projects identified, implementors were endorsed, there was pressure from legislators but this lodged with the executive branch. These are not cross-border transfers. This money was given to executive agencies so it’s still strange for me that they won’t vouch for how the money is spent. I think it’s 9% of the DAP. That’s strange for me. They need to take responsibility for all funds that the implementing agencies implemented.

Q: What does this debate mean for our democratic institutions?

If it’s resolved properly, it would be very healthy. We made it and we are stronger as a democracy. Strong SC, stronger president.

The legislature will benefit the most from the DAP, PDAF decisions because they have more power. My friend was saying, “Do you really want that?” My answer is that’s what the constitution actually says. The power should belong to the people and the people are represented by the representatives. They really are, ironically, because some of them are the alleged villains, the legislative branch is the one that benefits the most. They have a greater role now in budget-making that they never had before. But to get there, all the branches of government really need to get their act together.

The Supreme Court also needs to do something here. It’s not as if they are completely blameless as Dean Sta Maria points out. It’s the language, the way they put suddenly, turned around the presumption of good faith, regularity. They need to fix that. The SC needs to be conscious more about the governance implications of their decisions.

Yes, that is not their concern, that’s true, but they need to know that when they declare something unconstitutional. There are things that happen on the ground. I will defend the right of the court to do that. We remember the MOA-AD. It’s a reality that when you do something like that, people die. In this case, you do have an impact on government projects that are important, that can also be life-saving so they need to be more conscious about that, deciding according to their law and deliberation.

They are a deliberative body. You know they disagree on DAP but they found a way to move forward. The DAP decision is strange because it does not declare any law, provision, budgetary circular, any DBM and any program unconstitutional. It actually gives guidance only. It just tells the government these are the acts you shouldn’t be doing. It does not give the findings that any acts you done actually violate this but there was enough evidence showing the acts were being done.

When will we find out about the programs really unconstitutional, only when there’s a comprehensive audit by the COA, which will now be guided by this decision. It’s an advisory opinion. The SC doesn’t usually do, but it was so important they did this now. An audit will make that clearer. We need to be able to find as a society a way to make our institutions work together to achieve the common end the president says he wants which is the good of the people.

One thing I’m sure, part of doing good for the people is to obey the SC once it makes its decision because if you don’t, that’s the ultimate wang-wang, to say, “I will not obey because I’m right.” I’m not saying the president said that because he is filing an MR. But down the road, I can see people misusing the words of the president and not obeying any court, any lawful order because “I’m right.” That’s problematic for society.

 – Rappler.com