Dissent and other voices

 

 

Did anyone notice the style of cause in the recent case wherein the Supreme Court has struck down certain provisions of the Aquino government’s controversial Disbursement Acceleration Program (DAP) as unconstitutional? For those who may not be aware, the style of cause refers to the name of the case.

 

High on top of the list of petitioners is Maria Carolina P. Araullo, the chair of the Bagong Alyansang Makabayan, followed by individuals known to be left-leaning and representatives of civil society organizations committed to good governance and empowerment of the people. Who else but these much-maligned groups are the ones indisputably fearless to stand up to government’s abuse of power?

 

Those from the right and many rabid supporters of President Benigno Aquino III have easily dismissed the left as irrelevant and a big disappointment. One, who was presumably affiliated before with the left and now a born-again fervent defender of the faith in the Aquino government, questioned the modes of engagement that the left have continued to embrace—the effigy burning and sloganeering that demanded impeachment of the President.

Students from various universities raise their fists after filing a second verified
impeachment complaint against President Benigno Aquino III in the House of
Representatives over his unconstitutional Disbursement Accelaration Program
(DAP). Photo by Manny Palmero.

Araullo vs. DAP, the more popular short name for the Supreme Court decision, represents the victory of people’s dissent over the arrogance of some of our leaders in government, or even perhaps the triumph of the people’s parliamentary struggle over the smugness and cockiness of the raucous rightwing-mongers.

 

Many have confused parliamentary struggle as being confined only in the halls of Congress, a tactical form of engagement strictly reduced to legislative reforms. But parliamentary struggle is not limited to congressional initiatives. It embraces the whole gamut of expressing dissent through legal means such as protests on the streets, messaging on Facebook and Twitter, confronting government decrees or acts through constitutional challenges, and private petitions or complaints of plunder against government officials. Yes, even burning of effigies. Parliamentary struggle adopts all forms of protests and advocacies so long as they do not involve violence, or taking up arms against the government.

 

Under authoritarian regimes, dissenters are persecuted. Hitler executed them, and Stalin sent them to the gulags. Surely, no one, including President Aquino, likes being ridiculed or chastised by the Supreme Court and the public. But democratic societies tolerate dissent, a proof that freedom of speech truly exists.

 

It is also why Joe America, a former banking executive who lives permanently in the Philippines and blogs relentlessly, can continuously and without fear lavish the current government with praises while he paints the Aquino critics, especially the left, as being possessed with evil motives like destroying the government by any means. Or why other defenders of the Aquino dispensation flourish and are easy to find in major Philippine dailies writing their regular columns defending Malacañang, and those who roam the various forums on the Internet and flood them with their supercilious and pompous opinions about anything that appears critical of the government.

 

There is nothing wrong in the present public conversation between those who believe in the government and those who are critical of it. This is how a free market of ideas is supposed to work. Give a little and sometimes take a quick poke, the battle of ideas is not won by one side when it says that wrong is right because it says so, or simply because it has been allowed or done before.

 

Just like when President Aquino insists that the DAP is right because everything he does is out of good faith and will redound to the benefit of the people.

 

In a recent speech commemorating the 150th birth anniversary of a great Filipino hero Apolinario Mabini, President Aquino said that the implementation of the DAP was reinforced by their belief that the Supreme Court itself agreed with that kind of mechanism. The president was, of course, referring to the high court’s request for a transfer of funds for the construction of the Manila Hall of Justice and the Malolos Hall of Justice.

 

“They requested for the funds to be transferred to be able to construct buildings that will house the courts. We don’t see anything wrong with this because it speeds up the judicial system in the country,” President Aquino said. The high court’s request was eventually withdrawn after petitions were filed questioning the constitutionality of the DAP.

 

There is something wrong in the President’s judgment. Just because the Supreme Court requested the fund transfer doesn’t mean that the executive can do the same for highly dubious purposes, especially after the high court cancelled their request.

 

The President cannot keep justifying the DAP or whatever he does as being good for the people. As public servant, that’s a given presumption, his covenant of good faith. He cannot rationalize his actions only by their results. More so, when there are allegations that the DAP funds were used to bribe members of Congress in impeaching former Chief Justice Renato Corona, and that the funds were also used to compensate the President’s family for Hacienda Luisita and other landowners. Where is good faith if the allegations were proved to be true?

Members of the Bagong Alyansang Makabayan point to a mascot of President
Benigno Aquino III when they declared him king of the Disbursement Acceleration
Program (DAP).

In his ubiquitous blog on the Internet, The Society of Honor by Joe America, Joe America endorses the DAP debate, “as the freedom to do that is what we fought for when we kicked out the Marcos dictatorship.” “We kicked out” is somewhat presumptuous, if not disingenuous. Joe America himself said he arrived in the Philippines in 2005, or eighteen years after the dictator was driven out of the country by the EDSA People Power Revolution. How did he become a part of the “we” who kicked out the Marcos dictatorship? Does Joe America even understand that the left greatly contributed to waking up the consciousness of the Filipino people against the oppressive Marcos regime?

 

Joe America is your typical opportunist who would dismiss the contributions of the left in building a national collective against oppression in the past, and undermine their role in the continuing struggle for people empowerment in governance. He is embraced by Filipino intellectuals, real and imagined, in their jeremiads against today’s left and the progressive movement. He now lives with his Filipino wife and son in a rural rice-growing area in the Visayas. Joe America says he is a retired banking executive with degrees in Mathematics and Radio and Television Arts. His 30-year working career was based in Los Angeles, California and he has traveled on business or personally to 21 countries. Sounds like someone who would fit the resume of an undercover political operative of an American intelligence agency.

 

Meanwhile, someone from a forum I know is already mouthing the same shibboleths as if they’re coming directly from Joe America’s pen. “Is it because parliamentary struggle requires a little more imagination and innovation, and hard work and marching to the streets and shouting to the top of their tonsils is an easier force of habit than innovating and thinking new things?,” she asks.

 

Like Joe America, she describes the left as political dinosaurs which have become obsolescent and alienated from the rest of the people. In the same vein, Joe America would caution others not to be dragged by the left into their agenda because they are wolves in sheep’s clothing.

 

Joe America and those who are like him do not represent the type of public intellectuals we would like to read and listen to. On one hand, they would pretend to encourage a robust debate, yet in truth they try to muzzle the genuine truth from coming out.

 

The voice of dissent, if we want it to be free, should be allowed to flourish without the cumbersome Joe Americas and his converts telling us that right is wrong or wrong is right just because they say so.

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.