Good faith or arrogance?

 

 

So much has been said about good faith as a valid defence to President Aquino’s illegal redistribution of government funds under the Disbursement Acceleration Program (DAP) which was recently declared unconstitutional by the Philippine Supreme Court. This promises a long and continuing government intramural between the executive and judicial branches, for as long as the Aquino administration insists that the DAP was conceived with good intentions and that it benefited those for which the impounded savings were spent.

Will Budget Secretary Florencio Abad resign or stay? Aquino tells him to stay put.

The main problem with good faith as an excuse is that it was never intended to be a defence for illegal behaviour. Where it was borrowed, primarily from the law of contracts and obligations, good faith is meant to be a precondition or an implied term in any contract between parties, such as the sale of goods or in negotiations of commercial transactions. It is the general presumption in contract law that parties to a contract deal with each other in good faith, honestly and fairly to temper inequalities in their relationship – the end in view is to preserve the right of the parties to receive the benefits of the contract.

 

The principle of good faith or the duty to act in good faith is frowned upon in most common law jurisdictions, unlike in civil law regimes where it is generally accepted although its application in contract determinations has also created certain legal uncertainties. But that is not the subject of this blog, however.

 

How the covenant of good faith in contract law can easily be transposed to the affairs of government is therefore a challenging conundrum. It could be the rationale for the Supreme Court in avoiding this issue. Instead, the high court looked at previous precedents and invoked the doctrine of operative fact, that the consequences of a declared unconstitutional law or executive act cannot always be erased or disregarded. In other words, while a law could be nullified on constitutional grounds, it effects however may be sustained. Why? Because it would pose a big burden for the government to undo what has been done, and equity alleviates this burden.

 

Imagine if the President and his entire cabinet can seek refuge every time under the cloak of good faith for all their actions, it would be like bestowing papal infallibility to this cabal. They would be emboldened to do whatever they wish for they could never do wrong. It’s also like imposing a Machiavellian sense of justice, that the end justifies the means, which is not the sort of moral standard government officials must observe.

 

Having said that, it is however clear that the President cannot use good faith as defence for his or his staff’s mistakes in the execution of laws or government programs. Perhaps, the President should revisit his oath of office. In taking his oath he has sworn to preserve and defend the Constitution and revisiting it might have a calming effect on his feelings of vindictiveness and resentment toward the Supreme Court’s decision in striking down the DAP.

 

In defending the Constitution, the President must also recognize that all laws or decrees like the Administrative Code he has been dangling, although not inconsistent with the fundamental law of the land, have only secondary importance.

 

The President’s allies in Congress are now contemplating scrapping the Judiciary Development Fund (JDF), apparently in response to the high court’s rebuke. Arguing that the JDF is a form of judicial pork barrel, the President’s allies are also insinuating a lack of transparency in the accounting and reporting of the said fund by the Supreme Court Chief Justice. If the true motivation was to diminish the integrity of the Supreme Court, perhaps the President’s allies should take a step back and consider the constitutional ramifications of their counter threat. The Constitution guarantees fiscal autonomy for the judiciary and any attempts to dilute it will again be struck down as unconstitutional, if not an infantile response to the Supreme Court’s reproach of the President.

 

In striking down the DAP, the Supreme Court did not find the President guilty of a criminal act. There was therefore no need for childish tantrum. The Supreme Court merely nullifies the DAP, which, by the way, the President’s Solicitor General has argued is moot since it was no longer being implemented. Why would then the President decide to speak on nationwide television to unleash his attack against the Supreme Court under the guise that he was merely reporting to his “bosses,” the Filipino people?

Time to show your true colours, President Aquino asks supporters to wear
yellow ribbons to show their support for his administration.

President Aquino’s latest public behaviour betrays the vindictiveness and ignorance of a child in the body of a grown man.

 

As leader of his country, the President should realize that ours is a representative democracy where the people have agreed to delegate their power to the institutions of government as envisaged by the fundamental law of the land. While it is true that the people are the real “bosses,” the President is not supposed to run to them for help whenever another co-equal branch of government chastises his illegal actions. Unless the President is invoking the constitutional right of the people to initiate legislation by initiative or referendum. Or perhaps, if he is mobilizing the people to a nationwide revolution or another people power to abolish the government and install a better one. But that certainly is not the case, not for this President who is simply hanging on to the legacy of his more popular parents in restoring democracy in the country after twenty years of political repression and dictatorship.

 

His argument that the DAP was good for the people, albeit being unconstitutional, is also a false message because reality does not support it. The DAP was supposed to perk up government spending to stimulate a laggard economy. Whether it was accomplished could probably mitigate the finding of illegality by the Supreme Court – the doctrine of operative fact.

 

But reality bites and it is scathing and harsh.

 

President Aquino and his officials claimed that the DAP stimulated the economy in 2011, with DAP spending contributing to 1.3 percentage points in the growth of the gross domestic product in the last quarter of 2011. The World Bank however disputed the GDP growth, pointing that the 1.3 percentage gain in government consumption and public construction was not due to DAP alone.

 

Another Philippine think-tank organization estimated the real contribution of DAP-related spending to economic growth to likely one-fourth of a percentage point in the fourth quarter of 2011 and less than a tenth of a percentage point for the whole year.

 

In defending the controversial implementation of the DAP, President Aquino told businessmen and the World Bank that the Philippine economy grew under his watch and warned that the Supreme Court rebuke of the DAP may reverse this progress.

 

Truth be told, the Aquino government failed to install significant structural reforms in the real economy to spur any improvement. This is no different from the earlier hype over the Philippines’ credit rating upgrade which was used by the current administration to distract from the country’s real economic woes like rising inequality and unemployment.

 

In grossly exaggerating the true impact of the DAP on the economy, the President is now resorting to making the Supreme Court’s decision a scapegoat to explain the current economic slowdown. And if there is truth to the allegations that portions of the DAP were lost to corruption, such as the alleged payment of bribes to members of Congress in return for the impeachment of former Supreme Court Chief Justice Renato Corona, this would further undermine the President’s argument that the DAP was a good program because it benefited the economy and improved the general welfare of Filipinos.

Seemingly lost in the controversy surrounding the Supreme Court’s decision to invalidate the DAP, and previously, the Priority Development Assistance Fund (PDAF) or the pork barrel for members of Congress, is the Malampaya Fund  which is commonly referred to as the Presidential Social Fund. The Malampaya Fund, which consists of royalties paid to the government by the operators of the Malampaya Gas Project in Palawan, is not subject to congressional oversight and could be the mother of all pork barrels, much bigger than the PDAF and DAP combined. Since 2001, the government has received a whopping US$1 billion annually in royalties.

President Aquino must be worried by now about his legacy, if any, which is slowly being eroded by his failure and inability to accept responsibility for the shortcomings of his administration. If there’s any consolation, he still has two more years to salvage his sinking presidency. But if the President continues to stubbornly defend the debunked DAP only to heighten an unnecessary confrontation with the judiciary, he would just be validating a Filipino psychic’s prediction that he will be ousted from power amid growing public discontent, with the possibility of spending jail time for charges of corruption.

Such a comical twist to the President’s mantra of daang matuwid.

Looking bad

As if allegations of being the mentor to the pork barrel queen are not enough to make him look bad, news of Budget Secretary Florencio Abad’s total number of 11 family members in government can’t even budge him from his enviable position of the President’s closest and most trusted ally. Now, if you’re counting, that’s about four times the sound of bad resonated in one full sentence.

 

Janet Napoles, the alleged pork barrel queen, has accused Mr. Abad as the one who taught her how to divert funds from the pork barrel allocated to members of Congress. Benhur Luy, the other whistleblower, also implicated Mr. Abad although the latter’s name was erased from his list.

 

But no matter how loud the protestations are, President Aquino appears impervious and obdurate in his belief that there is no probable cause his most trusted cabinet secretary had committed a crime. Even if the whistleblowers Janet Napoles and Benhur Luy also pointed to Mr. Abad’s direct involvement in the 10-billion-peso pork barrel scandal, similar to the allegations that form the basis of the charges against Senators Juan Ponce Enrile, Jinggoy Estrada and Ramon Revilla Jr. The Philippine system of justice looks not just laughable but just as bad and as duplicitous as the moral standards that dictate the President’s convenient set of values.

Three's not a crowd. Senator Bong Revilla hugs Minority Leader Juan Ponce
Enrile and Senator Jinggoy Estrada, his co-respondents in the plunder case
filed by the government. SENATE PHOTO.

“There seems to be a selective justice. We are all aware there are many people involved and yet only three are charged,” according to the Integrated Bar of the Philippines, the official organization of all Philippine lawyers, as it questioned the government’s selective indictment of people linked to the pork barrel scam.

 

If we are to use the allegations of both Napoles and Luy to indict and eventually convict the three senators, shouldn’t Mr. Abad be judged on the same accusation? Why prosecute the three senators but show mercy to Mr. Abad? After all, the allegations have yet to be proved in court and it should be the same principle of presumption of innocence that must be applied to all, including Mr. Abad and all the President’s allies implicated in the scandal. Not presuming Mr. Abad’s innocence and pronouncing the guilt of the others accused because they happen to be outside the President’s circle.

 

Convict the three senators if you will, but don’t spare Mr. Abad because he is the President’s most trusted ally.

 

In shielding Mr. Abad from prosecution, President Aquino is showing he has no “delicadeza” and shame. The President is fiddling with the detrimental side of politics and favouritism. The same can be said about Mr. Abad’s proliferation of his kin in government.

 

According to news reports, there are 11 relatives of Mr. Abad currently holding positions in the government, which include his wife Henedina, currently a representative in Congress for the province of Batanes and vice chair of the powerful House Appropriations Committee; daughter Julia, head of the Presidential Management Staff; son Luis, chief of staff of Finance Secretary Cesar Purisima, as well as four nephews, one niece, and two first cousins occupying various government posts. By all appearances, this is nepotism on a grand scale. It is as if the Abad family now owns a large portion of the government, like it is their own plantation or fiefdom.  

Budget Secretary Florencio Abad and President Benigno Aquino III.

This type of nepotism in public service, however, is not really unusual. The alignment of politics in all levels of government in the Philippines, whether for elective or appointive officials, depends on kinship and family ties. Hence, why we will always have political dynasties that dominate the political landscape. The same favouritism or influence is also wielded by CEOs or top executives in the private sector in the appointments of their children in high positions in the corporate structure.

 

A social science research conducted in the United States, which was published in the Personality and Social Psychology Bulletin, revealed that rich people exhibit narcissistic tendencies and higher levels of entitlement among those of the higher income and social class. The study found a sense of entitlement for children of the rich that they could go through life without feeling guilty about having rich parents and being born with certain environmental advantages.

 

When the respondents were asked to depict themselves as circles, with size indicating relative importance, richer people chose larger circles for themselves and smaller ones for others. Another experiment found that they also looked in the mirror more frequently. The study suggested that wealth may breed narcissistic tendencies—and wealthy people justify their excess by convincing themselves that they are more deserving of it.

 

According to the study, the rich get jobs through family connections. After going to whatever elite university their parents attended, getting a job at whatever firm their parents worked at seems only natural. The culture of hiring in Wall Street, for example, confirms this observation that direct nepotism in the hiring process is prevalent in the hiring of children of rich people by giant financial firms.

 

Nepotism to some extent is probably tolerable in privately-owned corporations since the owners would rather put their trust on their children and close relatives. However, it is generally frowned upon in the public service for it shows an appearance of unfairness when it comes to hiring or appointing relatives in government.

 

Who’s to blame if Mr. Abad has 11 relatives in government? Perhaps, he is more than qualified to be the Budget Secretary, a position that demands the President’s unflinching loyalty and trust. His wife cannot also be pigeon-holed in a group who succeeds in politics because of family connections because she was elected by her constituents. She succeeded Mr. Abad in Congress. Of course, marriage to Mr. Abad also helps her secure the powerful position of vice-chair of the House Appropriations Committee. Their children, Julia and Luis, both occupy high and significant positions in the government’s bureaucracy because of their familial links to Mr. Abad which are their strongest assets, notwithstanding their professional wherewithal to perform the rigorous demands of their jobs.

 

But having so many relatives in government can perpetuate a deeply unjust social order. We have seen in the past how the cronies of Ferdinand Marcos had strengthened a repressive political regime. Mere appearance of nepotism is bad. The Abad family makes it look worse than bad. If our system is one of aristocracy, then Mr. Abad could be excused for ensuring the appointment of his family members to King Benigno’s court.

 

Yet, President Aquino keeps harping on his “matuwid na daan” as his government’s mantra, that if there is no corrupt, none will be poor. That’s fine if the President will apply the same standard to members of his own cabinet. But it is not fine when he spares one or two in his cabinet on one hand, while he prosecutes three or more who happen to be his political enemies, on the other.  

Indignation rally. Protesters massed outside the Supreme Court while the
justices were deliberating on the legality of the Disbursement Acceleration
Program. Photo by Danny Pata.

Filipinos as a whole are tired and fed up with this government’s hypocritical and phony attitude to the prosecution of corrupt officials in government. Except for the impeachment of the former Supreme Court Chief Justice, and he was not even charged of corruption, President Aquino’s government does not have a track record of success in prosecuting corrupt officials. Former President Gloria Macapagal-Arroyo remains in detention for the crime of plunder even if not one single charge brought against her has been proved before the Sandiganbayan. The question this time is whether the government prosecution would be able to prove the guilt of the three senators? Sandiganbayan has already allowed them bail so it does not augur well for the prosecution at this early stage.

 

In my previous blog, Presumed guilty, I wrote about the current President’s distorted understanding of the presumption of innocence afforded all those accused of committing crimes. To him, only his allies and friends should enjoy the presumption of innocence unless proven guilty by a competent court. Those on the other side of the fence, his political enemies, are meant to be prosecuted and presumed guilty as charged. This is plain double standard in applying the law. That’s why the President is so relentless and persistent in sheltering Mr. Abad and others in the cabinet who have also been implicated in the pork barrel scandal. His hands are not clean and he doesn’t want the people to see them.

 

But the people will not be fooled this time, not even by the yellow media that promotes this government as immaculately clean and beyond refute. There is growing consciousness among the people that corruption and nepotism in government mirror the unjust and unfair concentration of power and wealth in the hands of a few elite families.

 

The more this President defends his own allies, the more he looks bad. And the more his vision of a straight path looks crooked. Plus ça change….