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.

Openness

 

 

Three years to its six-year presidency, diehard and uncompromising supporters of the current Aquino government are still asking critics to be soft with President Noynoy, to give him the benefit of the doubt and the credit for innovation in governance and interpretation of the law. The latter is the most appalling because it is like allowing the President to continue on even if his interpretation of the law runs counter to the Constitution.

 

President Noynoy Aquino’s Disbursement Acceleration Program (DAP) that gave senators loyal to the administration an extra P50-million on top of their Priority Development Assistance Fund (PDAF) has opened a large can of worms. First, it was given as an incentive to senators who voted for the impeachment of former Supreme Court Chief Justice Renato Corona. Not as a bribe because it was given after the impeachment, Malacañang rationalized as if the timing of the gift really mattered. Then the President’s loyal defenders switched gears arguing that the DAP was a stimulus program designed to bump up government expenditures in light of an economic slowdown. Finally, they argued that the DAP was constitutional and allowed under the provisions of the Administrative Code despite contrary but more weighted opinions.

Photo courtesy of monalisa_5485_ d4i90kn

Then the news from Bloomberg that the country’s investment grade was moved one notch higher to placate all President Noynoy’s staunch critics. But this has nothing to do with real economic growth. All that the investment rating upgrade implies is the ability of the government to repay its medium-term debt, and as an immediate impact, it reduces the cost of borrowing. Credit worthiness doesn’t add up to growth if there are no actual economic activities being generated by the government and the private sector, such as real comprehensive agrarian reform and building local industries. A vibrant stock market doesn’t necessarily push the economy upward; most economists will tell you that. Well, the President’s loyalists say it is at least a positive beginning. For what?

 

Very recently, in his speech before business leaders during the Asia-Pacific Economic Cooperation (APEC) summit in Indonesia, President Aquino boasted that the Philippine economy is on the track of inclusive growth due to sound economic policies and good governance. But inclusive growth should mean that it trickles down to the ordinary people. Any claim of inclusive growth should involve fast-paced distribution of land to farmers, especially in an agricultural country like the Philippines. Inclusive growth is illusory when unemployment is rising despite reported growth in GDP. Growth is not inclusive if this refers to profit generation for the benefit only of the interests of the elite.

 

There is something suspect and wrong with this type of criticism levelled against the Aquino government, so the President’s apologists would say, whether they are in Malacañang’s payroll or among those in the yellow print media and social media. The President’s loyalists will tell you that these criticisms are not fair and balanced because they are coming from the left and are tainted with Marxist or communist bias, like the Ibon Foundation, a research group accused of being cozy with Joma Sison or the National Democratic Front (NDF). This is the first of three reasons why the Aquino government is not open to criticisms, especially from the left – dissent from the left does not matter.

 

It is a very dangerous mindset that the Aquino government and its army of champions are trying to instill in the public consciousness. It reminds of Cold war-era politics and martial law when every criticism of the incumbent government was deemed leftist, subversive and communist-inspired. When criticisms from radical groups are branded as condescending and destructive, and therefore should not be given any credence simply because of where they are coming from, this type of response diminishes the importance of a democratic exchange of ideas and the need for more openness.

 

Those who are awed by the ability of the Aquino government to lead us to a prosperous and inclusive growth are obviously blinded by their faith that those in the right are always right under any circumstances. That those in the left who continuously and consistently advocate for the rights of workers for just wages and working conditions, for farmers to have the right to own the lands they till, for indigenous communities for their rights to self-determination, for women and children to have protection against all forms of oppression and exploitation, for equal access to jobs, housing and social services for all – are all subversive and communists, therefore they deserve our collective indignation.

 

Those who write for the yellow print media and in social media friendly to the Aquino government deserve all our admiration over leftist publications such as Bulatlat.com despite of its honest reportage of violations of human rights and international humanitarian law, which have earned awards and citations from organizations such as the International Red Cross and Amnesty International.

 

There can be no decent dissent from the left as far as the Aquino government is concerned. To the Aquino apologists, it is impossible to sustain a decent, intelligent and morally nuanced political discussion with the left. They are in a state of denial of the concrete contributions of the left in raising public consciousness against tyranny, corruption and oppression even as the left was historically responsible, even partly if not wholly, for rousing the people to rebel against the Marcos martial law regime. They would rather give credit to the Catholic Church under Cardinal Sin and the business sector in leading the revolt against Ferdinand Marcos, not the radical groups because of their affinity with the communist movement.

 

The resentment of the left has not been only episodic during the martial law years but continues to be fueled by successive governments after Marcos. Thus, to the Aquino apologists, any criticism that has the lingering colour of Marxist thinking is irrelevant and irreverent even if it remains the only consistent contradictory view of the reactionary status quo.

 

After the red scare, the next reason why the Aquino administration and its faithful fanatics resent criticism of their own shortcomings is another red herring: that the alternative to President Noynoy Aquino is fraught with danger that brings greater opportunities for plunder and corruption. What if the President dies in office? Would the Aquino people allow a peaceful transition as envisaged in the Constitution or drive them to usurp political power to prevent the dreaded Vice President from assuming the presidency? Should Noynoy die prematurely without completing his term of office, his loyal followers would rather see our country engulfed by a constitutional crisis which they could exploit to preserve their political power.

 

The final reason why those steadfastly loyal to President Aquino don’t like his political sins to be exposed and criticized is their unwavering faith that it is very unlikely that he could be as errant as other politicians beneath him. That someone with the kind of political legacy from his famous parents would be incapable of being corrupted, a message Aquino’s inner circle has been peddling from the very start, despite contrary indications like his family’s intransigence to keep Hacienda Luisita, his KKK inner sanctum of friends who cannot be accused of corruption or abuse of power, or his personal involvement in bribing or stimulating senators to impeach the Chief Justice and abusing his presidential powers to justify the Disbursement Acceleration Program.

 

The leftists or radical groups have no power in the Philippine political system and most of us don’t expect them to exercise power, ever. Most left intellectuals in the Philippine live like internal aliens, the only power or privilege they have is to voice their opinions on the state of affairs of the country but that doesn’t matter to many. Their alienation is also quite radical.

 

There is pathology in society’s unwillingness to listen to opposite points of view. Like it or not, the Philippine left has an honourable history, too, despite sour memories of Stalin-like cleansing of the underground movement. But they have a reason to be proud to be called leftists. After all, all of us have rights, even leftists, if our country truly is a democracy.

 

We need more openness in our political discussions. When the government insists that things have changed but an opposite view expresses that things remain quite the same, let us simply allow the better angels in us to read and listen with openness, appreciating the substance rather than judging the criticism based on where it is coming from. In a free and democratic exchange of ideas, the truth should never be a casualty, no matter who is advocating it.

Breaking bad

 

 

The P10-billion pork barrel scam allegedly masterminded by Janet Napoles is a real huge can of worms. With the likelihood that the scam could cause the downfall of some high-ranking members of the opposition in Congress, who would have known that the current administration is equally complicit in the entire pork barrel mess? Including the pork only the President controls at his discretion, the whole issue of corruption in government is now completely exposed.

Malacañang apologists and targeted members of the opposition are scrambling for their respective good reasons to cover up their involvement in the scandal that could make the anti-corruption crusade of President Noynoy Aquino a big farce. To the incensed public, it is becoming apparent that the President’s straight path is also a crooked road, after all. 

“Development” is a term often abused by those in charge of governance. The congressional pork barrel is euphemistically called Priority Development Assistance Fund (PDAF). The President’s pork consisting of the Presidential Social Fund, the Malampaya Fund, and the Special Purpose Fund, which he can disburse at his discretion without oversight and audit, is supposedly allocated for development purposes. Even the latest exposé about the so-called bribe given to senators who voted for the impeachment of former Supreme Court Chief Justice Renato Corona referred to the said incentive as Disbursement Acceleration Program (DAP), designed to speed up government spending for development projects.

 

According to the Department of Budget and Management (DBM), the allocations from the DAP were government savings or unprogrammed funds that had to be spent because the government was underspending at the time and it was necessary to stimulate the country’s declining GDP. If you believe the DBM, the Philippines must be enjoying a bubbling economy compared to the rest of the world’s larger economies which are imposing austerity measures and reductions in government spending.

 

No matter what newer rationale the DBM or the President’s principal ally in Congress, Senate President Franklin Drilon, spins out to the public, it will not wash away the dirty hands of the administration in the current pork barrel mess. President Aquino’s much-ballyhooed anti-corruption crusade is being visibly reduced into one great deception and hypocrisy.

 

The underlying purpose of development in the Third World is to escape from misery and poverty that have become the bane of suffering for more than a majority of the population in these areas. To improve the lives of these people by giving them access to basic social services and opportunities for employment has always been the ubiquitous undertone to human development. Wars, colonization, natural calamities, and in great part, the lack of moral integrity among the people’s representatives in government, have been generally identified as obstacles to growth.

 

Public corruption in the Philippines, for instance, has been acknowledged as pervasive as early as the American colonial administration. The current pork barrel mess is yet the latest incarnation of government corruption on a national scale. Both the mainstream news media and the bustling social media are exploiting the pork scandal as a fodder for entertainment. Nothing is new about corruption in government. The corruption we detest so much now is as old as the government we have.

 

The social tableau of our country’s underdevelopment is painted with an unimaginable landscape of poverty, inequality, and monopoly of political and economic power in the hands of the oligarchic elite. Despite the good news of rising confidence by foreign investors in our local economy, this has not been translated in job creation and reduction in poverty. Local migration of labour from the rural to the urban areas only exacerbates chronic unemployment in the cities while landless farm labourers continue to wallow in extreme poverty and insecurity. Equal economic opportunities remain inaccessible, thus forcing the migration of skilled labour to other more developed countries where chances of a better life are greater.

 

On the other hand, the promise of democracy continues to linger. Our kind of democracy remains a failed one. Political power is dominated by traditional oligarchic families who also control access to business opportunities.

 

This is the raw background from which our national development must be forged, yet our elected representatives and bureaucrats in government keep a blind eye. Power and fame have consumed them. Even worse, many members of a crucial class of intellectuals and professionals in our country tend to be swayed rather than be critical of government abuse and excess simply because they find the prospect of an alternative leader or system of government more frightening than the status quo.

 

Thus, no matter how vociferously or constructively you criticize the current government for its complicity with corruption, there are those—and they are a legion—who would immediately drown and silence you out. The activists and student radicals of the sixties and seventies have joined the ranks of government apologists while the true and non-partisan social critics remain handcuffed and restricted to the margins of dissent.

 

One may ask with a sinking heart how development can be possible with all this dramatis personae in our society.

 

The pork barrel scam has exposed the rottenness of our entire political system. Our people are deeply disgusted and disenchanted. We are watching corruption in government unfold as our own national morality play where the principal actors— members of Congress, both opposition and those loyal to the President, and the Executive branch battle their wits for days on end. Is the solution to this mess within the reach of these actors? How will this play segue to its dramatic conclusion?

 

If only last Sunday’s final episode of Breaking Bad on TV could be the right formula for an ending to the pork barrel scam, then we could be hoping for almost an uplifting denouement. After all, a relatively happy ending is that crime doesn’t pay, and we hope the characters in our own morality play also lose their ill-gotten wealth and political stature, including their souls.

But this is not going to happen. Who are we kidding? There is no room here for contrition, confession, and conciliation as in Breaking Bad.

 

The pork barrel mess has accumulated so many layers of lies and betrayals that the truth may not be that easy to disentangle. Investigations will bog down the search for a final determination of this scam, with the dreamt trial of the year not commencing before the incumbent President—the one so rabid to catch the corrupt—finishes his term of office. Remember that his predecessor is still languishing in hospital detention for plunder charges not even fully prepared for court trial after more than two years. Judging by the slow wheels of justice in our country, this pork scam may not actually see the end of day.

 

We need a clear ending to this mess created by our elected representatives and by our government. The people therefore must persevere with their public protests, short of running to the hills if nonviolence as a means to a resolution doesn’t work.

 

Briberies, kickbacks and all forms of corruption involving pork barrel funds have been routinely perpetrated in various guises by our elected senators and representatives in Congress and those we entrust the daily running and operation of government. This was long before Janet Napoles surfaced before our eyes. Corruption has become an integral part of our political culture, a way of life not easy to break.