Blending, not separation, of powers

The Supreme Court (SC) continues to be secretive? A truthful assets statements cannot lead anyone to trouble. Yet, the SC has again denied a request of the BIR (no longer Bigay Ikaw Regalo under the leadership of Kim Henares, whose shame campaign I disfavor though) for assets statements, making SC stand for Secretive Court. It would not even give the public certain rulings! Nor copies of papers in a case where the one requesting is not a party. For crying out loud.

Marcos was one tough criminal genius who imprisoned Senators Aquino, Diokno, Rodrigo, Mitra and Salonga. But, he had the full panoply of martial law to back up his egregious misadventure into kakistocracy and kleptocracy. Macoy had non-crony media outlets closed.

All AmPaw PNoy has done was to work for the ouster of a Chief Justice (CJ) and now three senators are in jail. Without martial law at that and with a Wild, Wild Press validating that media is the plural of mediocre (Rocky Bridges), knowing all the answers which are hopelessly contradictory. Columnists galore confirming Arthur Hoppe’s definition that a columnist such as I scan the papers, and finding something I don’t understand I proceed to explain it, in this paradise of sabong journalists.

Here, mediocrity can really go far. Cuz PNoy is Ampaw, sans martial law and does the legal traditional way, in freedom, such as in moving to recon. One should see what Franklin Delano Roosevelt tried to do with the US Supreme Court in the 30s.

This is the same SC which said Rene Corona’s post-midnight appointment was OK. The Constitution provided a way for the people to make him jobless by reversing the SC. He had decided to testify in his impeachment trial. Hara kiri. His legal team called Chit Carpio-Morales, who twisted the sword. You don’t ask a question the answer to which you don’t already know—was very early on drilled us by our betters who knew the law, not the judge. And a lawyer who defends himself has a fool for a client, another early lesson confirmed.

PNoy did threaten the Supreme Court (SC)—not with salvaging or detention, but with a motion for reconsideration. Thoroughly legal and traditional. Lame? I can’t see how.

Bribery? You do something now and collect a year later? Comic relief. Of course we have problems, following World II, the Marcos dictatorship and the GMA Power Grab.

We can always blame our horned leaders, including the haloed saints in the wings, who may come marching in in less than two years, if the comic impeachment tries succeed. For trying to give our people a better life?

But, we are scofflaws multiplying like rabbits in our ungovernable culture, aware of our Bill of Rights, but not our Bill of Duties.

In 700 days we won’t have PNoy to kick around anymore.

Today, we see court personnel demoing for the Supreme Court. Their right – outside of office hours. They did it during office hours in the case of Rene Corona. But, whatever for? The Judiciary Development Fund which only a Chief Justice from 1984 can deal with? The arrangement is so undemocratic. Others, particularly other unelected Justices and the elected lawmakers should be involved. Cross-border? We may even ask that the Fund be increased as the Judiciary may not have enough datong. In Makati where I live, the City’s executive gives allowances, vehicles and other perks to the judiciary.

If true, so what? If it is to improve the administration of justice. Those in government must work as one, not as a circular firing squad. Prof. Carlo L. Cruz, eminent son of the great late Justice Isagani A. Cruz, just gifted me (cum the usual blarney for a dedication) with a 2014 edition of Philippine Political Law. Justice Isagani moved me when in 2005 he dedicated a book “to a brilliant lawyer of lost causes, from a fellow loser.” I can live with losing. So can PNoy, I believe, but we are pledged to raise all colorable entertainable defenses, as in pro duty bound, under our lawyer’s oath.

All in government are pledged to try to work together to give our people a better life. “[T]here is some difficulty in classifying some of them [powers] as definitely legislative, executive or judicial. Justice Holmes put it vividly when he remarked that `the great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to another.’ “ At 134.

The point is have we all forgotten “blending of powers” and remember only their separation. Local governments like Makati and Taguig can continue giving judicial personnel allowances, vehicles and other perks, I submit. Cross-border, we are one family. Do the protesters want money from local government units stopped? I don’t.

I can even agree to giving Justices a million a month so they will stop collecting pay disingenuously in the Presidential Electoral Tribunal which has no case, as PNoy clearly won in 2010. For the masa, it’s no work no pay.

The protesters may wear any color, their right. Yellow remains my choice, forever and a day.
Meantime, the SC brags that it accounts to the people on the Judiciary Development Fund. PD No. 1949 says there should be quarterly reports, to be given, among others, to executive judges. I have been telling my students, for years, to get one copy of the reports from such judges, to pass my subject. Up to now, none.

Oh, yes, my source says, “ampaw, you might be happy with for a while but after 10 minutes, you’re hungry because there’s nothing in it,’ PNoy said in Filipino. `Ampaw’ is a pejorative for people lacking in substance.”

Look where the toughies are. Caged.

Pusong Mamon, I distrust anyone in whom the instinct to punish is powerful – Nietzsche. I was a fierce critic of Manong from 1972 up to his dishonest Memoirs but I don’t kick anyone wh o is down. Hors de combat. In Italy and Spain, I understand no jail time for septuagenarians. Way to go. He is going on 91.

But unwell Manong Johnny should be given civilized city arrest, as in the case of Suharto.
All this, from a human rights advocate trying hard to be a Christian.

source:  Manila Times

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Malacañang wants Constitution ‘revisited’

MALACAÑANG urged Congress Thursday to revisit provisions of the Constitution, in connection with the Supreme Court’s (SC) July 1 decision declaring as unconstitutional key portions of the Disbursement Acceleration Program (DAP).

Communications Secretary Herminio B. Coloma, Jr. told a press briefing that Congress could “introduce amendments or enact new laws” to shed light on certain constitutional provisions, particularly those cited in the high court ruling on the controversial presidential fund.

“Since we’re talking about the differences in interpretation of the law, maybe it would be better if Congress considers introducing amendments to existing laws, or enact new ones to clarify, particularly, the issues that arise from the SC decision on the DAP,” Mr. Coloma said.

“Focus should be on provisions related to savings and the process of augmentation,” he added.

On the presentation of the 2015 budget to Congress this month, Mr. Coloma said Congress can introduce amendments “to avoid any more questions with the implementation of the budget for next year.”

He said members of the Development Budget Coordination Committee (DBCC) -- composed of the Budget Secretary, the Director-General of the NEDA Secretariat, the Executive Secretary, the Finance Secretary and the Bangko Sentral Governor -- can present “certain proposals on how the proposed General Appropriations Act for 2015 may be framed in such a way that it will be compliant with the Supreme Court decision.” Mr. Coloma said the Budget department is already on top of this.

House Speaker Feliciano R. Belmonte, Jr. told BusinessWorld that amendments are also listed among the priorities of Congress.

“We want to do that, to study the... provisions that were cited in the DAP ruling. That’s part of the priorities. The term saving is not defined in the Constitution,” Mr. Belmonte said in a text message. -- Imee Charlee C. Delavin
 
source:  Businessworld

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DAP: Fallacies and the devil’s bargain

IT IS IN THE NATURE of small men to be petty. And to have the inability to admit mistakes. This whole issue of the Disbursement Acceleration Program (DAP) should have been excised from public consciousness after the Supreme Court made its ruling. After all, there are bigger, more urgent problems to address. But the government’s insistence that it is right and may incorrigibly do something similar sticks out like a bad sore one feels compelled to pay attention to.

The consensus is that the Supreme Court was right to state that the DAP-related acts or measures were illegal. The counterpoint from government apologists, however, is that the illegality was more technical than real, something only lawyers obsess about. Of the morality of the DAP, such is unquestionably right as the government was in “good faith.”

But sadly they mislead. From ad hominem (the Supreme Court is obstructionist), self-righteous (we acted in good faith and hence we are right) and strawmen argumentation (lawyers insist only they can comment on DAP), to tu quoque fallacies (the Court can’t rule on the DAP as it did similar acts as well), all miss the point that the law is there to be followed not merely when things are going well but necessarily so when situations are dire.

And this is precisely one of the underlying principles of our Constitution. That ours is not a government of passions or self-righteous ideologues but of laws. As James Madison wrote in Federalist No. 51: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

This is what the Wall Street Journal was saying when it commented on the DAP: Mr. Aquino “created a bad precedent.” Unfortunately, “taking an unconstitutional shortcut only dilutes accountability, relieves voters and congressmen from the consequences of their choices, and sets the stage for a more corrupt president in 2016 or beyond to channel spending for his own benefit.”

And frankly, the government itself was engaging in another fallacy: that of “either/or.” Either we did the DAP or social justice programs would have collapsed. That is a false dichotomy. As other commentators have pointed out, some of the programs for which the DAP was employed were actually truly needed. But the need for them had been identified long ago. Why then was it not vigorously insisted to be included in previous budgets? This administration had at least starting 2011 to do that.

The administration’s complaint is that our system is slow. That’s no excuse. Our system was precisely designed to be slow. To force each branch of government to confer with others, to ponder deeply, to force officials to move without haste, to plan far ahead.

The fact is, the government has fallen into the trap that many other governments before succumbed to: the belief of the righteousness of its cause and that it could solve everything only if it had the power to do so. Thus, like many other past governments, it comes before the people offering a deal: give us more power and we will achieve more. Give us more power and we will make your life better. We will get rid of corruption. We will be free of inequality. The offer will be about anything and everything. But such is a devil’s bargain.

Because we know this: “Power tends to corrupt, and absolute power corrupts absolutely.” We don’t even need refer to Lord Acton for this. Our history has that politician who promised all, including a nation great again -- only if he had more power.

Going back to the argument that the DAP issue is not only for lawyers: of course it isn’t. Matters of national concern involve every citizen’s duty and participation.

Ultimately (and many seem to not understand this), our political system is built on the idea that our country’s destiny lies not with the government but with the people. That’s why our government is one of merely limited powers. As Madison put’s it: government is merely an “auxiliary precaution,” there to assist the people to be able to do things for themselves.

Ours is a government of public servants, with limited functions delegated to them by the people. And the first thing they need to do to be good servants is to humbly set the good example of following the law.

Jemy Gatdula specializes in international economic law (WTO and ASEAN), and teaches international law and legal philosophy at the UA&P School of Law and Governance.

jemygatdula@yahoo.com

www.jemygatdula.blogspot.com

Mr Gatdula is also on Facebook and Twitter

source:  Businessworld

The problem with the high court

THE PROBLEM with President Noynoy Aquino and Budget Secretary Butch Abad is they are not mutant X-Men. They have no psychic powers. They cannot foretell what the Supreme Court will do. And they cannot exercise mind control over the members of the Supreme Court.

The problem is they are unlike Gloria Macapagal-Arroyo whose powers were so strong she could exercise mind control over Supreme Court justices even after she left Malacañang. Remember the Truth Commission and the Temporary Restraining Order on Gloria Arroyo’s hold departure order?

If the President and Abad had psychic powers, the Supreme Court would have upheld the constitutionality of the Disbursement Acceleration Program (DAP), and we would not have a crisis involving the Executive and the Supreme Court. We would have moved forward as a team.

Aquino and Abad are mere mortals who, in the case of the DAP, want to stimulate the economy through efficient and responsive public spending. The first thing they did upon assuming power was to review government spending, which in the previous administration was characterized by waste. The review slowed government spending and resulted in lower GDP (gross domestic product) growth rate. But the meticulous review of spending, especially in infrastructure, was necessary. Leaks had to be plugged before the ship of State could set sail again. Once the major leaks were plugged, the President and Abad hoisted the sails and went full speed ahead. The DAP was the hoist.

The DAP, in its essence the use of savings from other budget items to augment resources for underfunded important programs, is nothing new. It was a mechanism that was used by all previous previous administration since Cory Aquino’s, albeit under different names.

Like everyone not gifted with psychic powers, the President and Abad relied on well-established precedents, the Constitution, and the Administrative Code of 1987, specifically Book 6, Chapter 5, sections 38, 39, 49 (9) and (10). The Supreme Court on the other hand chose to ignore those well-established precedents and sections of the Administrative Code, focusing instead on those provisions in the Constitution that clashed with the provisions of the same Constitution the President and Abad stood by.

Such is the game of lawyers. Each side can present legal arguments to bolster its case. However, only the Supreme Court can end the debate and decide which argument is valid.

Having a final arbiter is good because lawyers will debate until someone puts a stop to it. But the final arbiter must always be one whose impartiality is above suspicion. The rule of law, too, is founded on predictability and stability. And the rule of law eschews judicial overreach.

To repeat, each side in the DAP debate has legal and constitutional arguments. The administration’s position is not a lonely one. The erudite lawyer Rene Saguisag, a gadfly for any administration, emphasizes the point that the President’s case on the DAP is “legally tenable and defensible.”

Even though the Supreme Court used legal arguments to strike down the essence of the DAP, the effect is devastating.

The Supreme Court ruling reinforces the belief that it creates instability and unpredictability of rules. The DAP, or its various forms in previous administrations, is normal practice. It is a fiscal tool for budget management and even for macroeconomic management. But the Supreme Court ruling, especially its presumption of the absence of good faith on the part of the Executive, will make the bureaucracy timid and in the immediate term will paralyze the implementation of projects.

The signal for bureaucrats or civil servants is that any innovative reform that invites controversy is dangerous. Bold reformist decisions and actions run the risk of being subjected to the intrusive interference of the Supreme Court.

The Supreme Court’s overreach is best illustrated by its insistence on its definition of savings (which is what is saved by near end of the year). This is vastly different from how a businessman, an economist, a student or a housewife determines savings.

The DAP ruling should be seen in the broader context in which the contemporary Supreme Court has created policy and institutional instability or unpredictability. To name a few:

• In March 2011, the Supreme Court reversed its own ruling on the cityhood law, specifically turning upside down an earlier decision on the illegality of converting municipality into cities.

• In October 2011, the Supreme Court, invoking technicality, took back its “final” resolution, which ordered the reinstatement of 1,400 flight attendants of the Philippine Airlines.

The president of the Flight Attendants and Stewards Association of the Philippines, Bob Anduiza, said: “Imagine, by a mere letter from Attorney Mendoza, the Supreme Court recalled three previous decisions!” (Estelito Mendoza is the lawyer of Philippine Airlines.)

• In November 2013, the Supreme Court declared the Priority Development Assistance Fund (PDAF) or the pork barrel system unconstitutional even though it ruled three times before that the PDAF or its earlier version, the Countrywide Development Fund, was constitutional.

In fact, in the first decision, the Supreme Court said that the pork barrel system was “imaginative and innovative.”

Apart from the reversals of decisions, opaque actions tarnish the integrity of the contemporary Supreme Court.

During the impeachment of Chief Justice Renato Corona, then Associate Justice Maria Lourdes Sereno agreed to testify before the impeachment court on how it reached its decision on the case of the Philippine Airlines Employees Association case. The Court gagged her.

Another instance of opaqueness is the ongoing investigation on the “Madame Arlene” case, which is about the allegation that this woman acts as a fixer with the Court. The investigation started months ago, and we haven’t heard a pip about it.

And now the Court is divided as to whether to suspend or dismiss a Sandigan justice who Associate Justice Angelina Sandoval-Gutierrez found guilty of accepting a bribe to acquit Janel Lim Napoles in a malversation case connected to the purchase of Kevlar helmets. Who voted for dismissal and who voted for suspension? Only the Court knows.

In light of all these, it is perfectly understandable that we question the Court’s ruling on the DAP. Enough is enough.

And so, if the problem with the President and Abad is they are not X-Men, the problem with the Supreme Court is it has become the team of Magneto -- unrestrained, disruptive and divisive mutants.n

Manuel Buencamino and Filomeno Sta. Ana III are fellows of Action for Economic Reforms.

www.aer.ph