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