The DAP decision: Lessons on politics, governance

With the decision in the consolidated case of Araullo v. Aquino III, the Supreme Court had found the Disbursement Acceleration Program (DAP) of the administration of President Benigno S. Aquino “partially constitutional”, “partially unconstitutional.”

In its wake, as seen in the news, critics have gladly seized on DAP’s partial unconstitutionality to raise scenarios of impeachment against the President, or raised calls for the resignation of Budget Secretary Florencio “Butch” Abad.

These criticisms ride on the popular anger against “pork barrel” freely-disbursed lump sum allocations such as the Priority Development Assistance Fund (PDAF) declared unconstitutional in Belgica v. Executive Secretary – this time aimed at Malacañang rather than Congress.

We will not join the bandwagon. We do not support the impeachment of the president and we leave it up to Secretary Abad, an exemplary public official by any standard, to discern whether his resignation will benefit the country. We trust he will make the right decision.

In this article, we think beyond this politics of outrage, which could just be a moment or are warnings of major upheavals ahead, and reflect on the longer term political and governance implications of the DAP decision.

A judicial challenge to an act of the executive (or the legislative, for that matter), is ultimately an act that seeks to limit an instance of the exercise of that governmental power – when done right, in an effort to curb abuse and protect what is right. In parsing DAP, in declaring some of Aquino’s actions constitutional, and some unconstitutional, the Supreme Court had essentially left the President’s prerogative to augment proper budget expenditures from proper budget savings intact, but clearly defined what augmentation is not.

What augmentation is, according to the ponencia, and defined in Art. VI, Sec. 25 (5) of the 1987 Constitution, and authorized within each year’s General Appropriations Act (GAA), is the use of clearly-identified savings in the expenditures of government departments and offices to augment clearly-identified, actual deficiencies within those respective government departments and offices. What augmentation is not, however, is to allocate what was not authorized as an expenditure in the GAA. It is not a transfer of executive department savings to legislative lump sum allocations (cross-border augmentation) – by virtue of the latter’s unconstitutionality, or at the very least, because such itself violates Art. VI Sec. 25 (5).

Savings

There, too, was a problem in addressing the definition of “actual savings” that is the source of augmentations. To quote from the ponencia, actual savings, strictly speaking, is the money left over from GAA-authorized items which are “authorized was completed, finally discontinued, or abandoned”; or because the policy targets were reached at lower cost due to increased efficiencies; or because of vacant government positions or leaves-of-absence without pay. Araullo held that it did not contemplate the use of money that had yet to be used: the controversial “unobligated allotments” of slow-moving government projects; or the unprogrammed funds, which are standby appropriations authorized in the GAA, which are available only under specific circumstances and conditions. One of DAP’s errors, but a critical one, was that it considered funds otherwise not considered by law as “actual savings”, as actual savings, making them available for disbursement by the President.

As with Belgica, Araullo exposes the underbelly of Philippine money politics: the roles and powers over the budget-crossing borders. With PDAF, it was the legislature getting an all-but-assured slice of the pie for legislators to spend on their own programs as they see fit; a usurpation of executive roles. With the unconstitutional portions of DAP, it was the Chief Executive allocating savings and unprogrammed funds to projects or programs independent of authorized GAA allocations (including DAP handovers to legislators); a usurpation of legislative functions. It would be crude but otherwise uncomfortably close to the mark to describe a “DAP’ed” president as a mini-Congress, and a “PDAF’ed” legislator as a mini-president.

Yet this confluence and contradiction of roles has likely subsisted in the foundations of Philippine politics-in-practice – certainly since PHILCONSA v. Enriquez earlier ruled pork barrel as constitutional, allowing the practice to continue with judicial leave. For all the diatribes raised against Aquino in the wake of the PDAF scandal, the truth is that, as with his predecessors, he had inherited prior practices of Philippine government that have become so ingrained in political culture.

Malice

Other than outright malice (which has to be proven first!), nothing else but the honest belief that “pork is right (if used right)” would have motivated congressmen who cried foul and threats of impeachment over Belgica. And I do believe (despite others that claim otherwise) that what motivated the administration on the exercise of and its defensiveness with DAP was not the malice they denounce, but a similar honest belief that the Executive could reallocate unused money as it did, for the good of the nation.

Ironically, it was Aquino’s own high standards of daang matuwid that allowed the Court to resolve the DAP question as it did – or for the question to explode into public consciousness as it did. The records of the case will reflect the packages of memoranda and orders in relation to DAP money movements: amply documented and volunteered upon summons.

Admittedly, and as will be elaborated later, an audit will still be necessary to uncover the full story of DAP (and the Court did note that documents relating to DAP’s conceptualization were “scarce”), but the evidence package offered in Court was enough for the Justices to parse how the President exercised his powers, the bone of contention in Araullo.

If anything, such level of documentary detail, readily presented upon order, would be evidence of good faith on the part of the administration. Which is where our discussion now turns to the question of impeachment against Aquino, or calls for Abad to resign. Ever since last year, there has been an undercurrent of vindictiveness in the campaign against pork. Understandable, given the scale of the scandal, and the defenses offered by all the parties under attack – whether Senators Enrile, Estrada, or Revilla; or Aquino or Abad – that some feel are just attempts to deflect or delay the inevitable condemnation. And we feel that anger in critical op-eds, or the vitriol in the comment boards of news outfits and social media.

Unconstitutional but not criminal

Yet here we must demur. Legally and morally, to condemn requires proper evidence – culpable violation in case of impeachment, or the commission of the elements of the crime charged, in case of criminal prosecution. As Professor Randy David observed in his Inquirer column, reflecting on his arrest in the wake of President Arroyo’s Proclamation 1017, a policy being unconstitutional does not always mean the policy-maker being criminal – or culpable for that matter.

Justice Marvic Leonen pointed it out clearly in his separate opinion: “…to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of administrative or criminal liability even before the proper charges are raised, investigated, and filed.”

If we keep insisting that government officials should always be held liable, especially criminally liable, for acts subsequently declared to be unconstitutional by the Court, then all government would be paralyzed by terror, unable to exercise such powers even granted to them by the Constitution, for fear of the next prosecution (whether truly aggrieved or politically motivated) thrown in their direction.

The Supreme Court may be the final arbiter of constitutionality, but by virtue of separation of powers, the Executive and Legislature get first crack at interpretation of the constitutionality of their acts (“contemporaneous construction”). Such interpretation is still open to challenge by any aggrieved party, but a principle of law is that constitutionality is generally presumed; its unconstitutionality must be proved. Until proven otherwise, the law grants the President or Congress the benefit of the doubt.

Absent further evidence on malicious or culpable acts of the Administration, it is enough that Araullo reestablishes the proper budget-handling borders of the separated powers of government.

Governance

This leads us to our next set of implications: governance. As pork had become ingrained in national politics, it had also wormed its way into governance, into the implementation of policy – and the spending of money on policy. PDAF again demonstrates how dependent public services, even those provided by NGOs, were on the largesse of legislators, such that the system could be manipulated with ghost NGOs. It feeds into the patronage politics of Philippine governance: that public services and the benefits every citizen receives, by law, from government is held hostage by the political elite, who can then extract staying power and the occasional graft from his constituency and budgetary allocation.

It should be noted that the same Secretary Abad critics are now wont to hang for DAP, is the same Secretary Abad who declared, in his Metrobank Professorial Chair lecture last year at the Ateneo School of Government, that the budget could be a tool for citizen empowerment (particularly though inclusive budgeting reforms introduced under his watch, such as bottom-up budgeting).

Weeding governance of bad budgetary habits strengthens good and responsive governance. Subjecting government allocations and allotments to stricter scrutiny and controls, thanks to the restoration of the borders, will ultimately help in restoring fiscal credibility to Philippine governance: the legislature authorizes where the money goes, the executive releases the money to such expenditures, with the citizenry participating at the budget planning, deliberation, and execution stages, either through their elected representatives or as citizen organizations.

Still, good governance has up to 27 years to catch up on a history of bad budgetary habits, since the restoration of traditional political dynamics following the fall of the Marcos regime. In the short term, government and citizenry both will have to break some of those habits: congressionally-“branded” scholarships and free clinics; the basketball courts and multi-purpose halls, that seem to be the low-hanging fruit of GAA allocations to public works.

Padrino system

There will likely be a painful adjusting period as constituents suddenly find themselves without a padrino, learning instead political habits of interest aggregation, interfacing with representatives and bureaucrats, of leveraging policy planning and execution to their benefit. As our colleagues have found in the G-Watch project, this learning process is more needed – and more painful – outside the cities, in the bailiwicks of trapo dynasties, and among a population so used to binyag-kasal-libing interaction with their political representatives.

Padrinos and trapo dynasties may seem more the terrain of Congress, but Abad’s concept of budget-as-empowering is sorely needed in Malacañang as well. Keynesian economics does hold that government spending does have a stimulus effect on the economy – Justice Leonen’s concurrence to Araullo noted this; exemplified by the World Bank report cited in the majority that found DAP to have contributed 1.3% to the 2011 gross domestic product growth.

Yet a dependence on DAP as a stimulus tool may yet breed dependence on executive “augmentations” in the name of economic growth.

In the earlier-referred Metrobank lecture, Abad had rightly described the national budget as an arena of struggle among competing interests – but heretofore that struggle and those interests were assumed to be in congressional deliberation, not executive execution. This is the danger implied in Araullo’s finding that augmentations made outside of GAA line items were unconstitutional, as were cross-border releases to Congress.

The accusation that DAP may have been used to secure the votes needed for Chief Justice Renato Corona’s impeachment, or the RH Bill’s passage, stings the most in this regard. True or untrue (or simply very uncomfortable timing), it has become highly embarrassing for the Office of the President at the least. At most, it makes the Office of the President as much a padrino of his own constituency (e.g., Congress) as a local political lord.

Mitigating such dangers requires robust accountability. Araullo complements Belgica by delineating, once and for all, the roles and functions of the branches of government in the budgetary process. It is easier to color within the lines, after all, when the lines themselves are clear.

Accountability

Judicial decisions alone, however, will not color between the lines, so to speak. Financial accountability is the reserve of the system of checks and balances among the branches of government (which Araullo and Belgica thankfully clarify), and of the Commission of Audit, its raison d’etre.

It also ought to be the resolve of citizens to watch over the effective and equitable expenditure of public funds through project monitoring, and working with government – a cause our school, the Ateneo School of Government, has championed through the social accountability framework.

However, there is something Malacañang ought to do now, in the wake of Araullo. So far, what has been made public by court action were the DAP-related memos and subsequent documentation of the Office of the President. As noted in the ponencia, other documents remain to be revealed, such as the decision-making process behind DAP’s creation, and of course the proverbial paper trail of the money, especially once it left executive hands. This goes double for the releases to legislators, in case it can help clarify the paper trail in the PDAF cases on file now and later, and to clarify which personalities or programs may benefit from the doctrine of operative fact under a good-faith defense (as Justice Antonio Carpio cautions in his separate opinion).

We would like to repeat, however, that this exercise in accountability must not turn into an exercise of vindictiveness. Accountability based on threat (or at least threat alone), a climate of fear of the hangman’s noose, will not be sustainable. Where liabilities can be established, as Justice Leonen observed, there the proper cases may be filed (and if the travails of the PDAF prosecution team be instructive, then those liabilities must be thoroughly established).

But as with the Benhur Luy revelations, Araullo can help guide everyone’s hand in establishing a better structure of public finance management and accountability. Fully threshing out this promise is best left to a future article, but suffice to say that Araullo and Belgica mitigate, if not eliminate, the risks opened up by the earlier PHILCONSA ruling.

The administration’s habit of documentation, too, is a hopeful portent of practices to come, and a willingness of Aquino officials to further disclose the extents and consequences of DAP in the name of accountability and better governance design. (Besides, a working Keynesian stimulus is a good achievement, especially for an administration earlier criticized for dragging its feet on post-Arroyo government spending.)

Admit mistakes

And to help stimulate both accountability and discussions for governance redesign, here we must submit unsolicited, but hopefully useful, advice for the administration, to tone down the self-righteous defensiveness.

Araullo, as well as Aquino’s forthcoming submission of the requested evidences, already point to good faith exercised in the execution of DAP. The presidential prerogative for constitutional augmentation has not been stripped. It is possible to look at the Supreme Court decision as a starting point for dialogue and reform. As with persons, it helps for governments to admit their mistakes as a step towards reconciliation and recovery. It also helps that the populace be ready to dialogue with its mistaken, but cooperative, government – but we have already stressed this point in previous paragraphs.

So where does the country go from here? How does the Philippine polity “go cold turkey”, bear the withdrawal symptoms from weaning itself from a dependence on pork barrel? Money, legitimately or illegitimately appropriated and disbursed, had been used in times past to grease the wheels of legislation and execution.

This is what Congress crowed about in the wake of Belgica, to take away the proverbial prop upon which their Houses stand. But the very picture of “political horse-trading” did not envision the exchange of money, especially the people’s money, but the aggregation and trading of political, economic, and social interests deliberated openly, for which the money will then be disbursed, and the reward is continued political (and practical) relevance to their constituencies (as well as their respective salaries).

Idealistic, we know – even America struggles with corrupt money politics and pork, though manifested in different forms (e.g., “earmarks”).

Yet it is high time we learned the habits of modern, accountable politics. Consider Araullo and Belgica a badly-needed intervention, a judicially-mandated stint in rehab that may finally give Philippine politics a chance to detoxify, shed some bad money habits, and come clean into the 21^st century.

As with any intervention, it would help for the intervenors to approach their addict-subject with detachment and compassion; with sensitivity as well as resolve. – Rappler.com

Follow Dean Tony La Viña on Facebook and on Twitter via @tonylavs. Christian Laluna is a first year law student at the Ateneo Law School. He works as a part-time writer and communications specialist at the Ateneo School of Government.