The DAP and the realms of constitutionality, legality, and morality

The much-ballyhooed Disbursement Acceleration Program (DAP) provided fresh fodder to the chronic misunderstanding between the Aquino administration and the judiciary. This stemmed from the Supreme Court’s landmark decision on the matter, Araullo v. Aquino (July 1, 2014), which declared unconstitutional three specific acts and practices under the government’s economic stimulus program.

In the days following the promulgation of the decision, PNoy was agitated, naturally. On three different occasions, he hurled a series of tirades against the Court, for once again going against the tide of reforms he has initiated. On the other side of the political fence are the legalists who came to the defense of the Court, and some extremists who exploited the President’s bungle as a way of calling for his impeachment.

The crux of the issue lies on the definition of “savings” under the national budget: what constitutes such; when and how should it be declared. Naturally, the legal team of the administration opted for a wide coverage—something flexible that will allow the President to respond to the daily constraints of running the country. With some reservations, I fully support the thrust of the Executive’s defense.

However as a student of the law, I do not intend to go against the Court by arguing for the DAP’s constitutionality. The Court has already spoken and deference must be accorded to its words, no matter how much I disagree with it, especially with the ruling’s implications. Granted that the DAP is partly unconstitutional, does the Court’s ratiocination merit an accusation that the DAP is tainted with illegality, much more with immorality?

I don’t think so.

Before proceeding, it must be noted that a distinction between these three concepts is highly necessary, especially given that the public’s perception rests on a presumption that an unconstitutional act is evil in itself. The confusion is aggravated when even lawyers and legal scholars, who are supposedly astute with the law, resort to these constricted interpretations because of their disgust with the administration, or by reason of plain self-interest.

An unconstitutional act does not automatically entail its illegality. For one, construing constitutionality pertains to the exercise of a government’s powers under the fundamental charter.  A governmental action may be said to transgress the scope of its actual power under the constitution, but it cannot be deemed to be illegal per se. And this is exactly why it is understandable that the President seems to be stubborn to accept the Court’s decision.

The last few paragraphs of Araullo applied the doctrine of operative fact to the DAP, but not to its authors, proponents, and implementers. Bad faith was automatically ascribed to the architects of this scheme, without first properly ascertaining whether an illegal act was committed. Hints of a proper determination of their criminal, civil and administrative liabilities are inconsequential, since a presumption was already crafted by the decision. Damage has already been done. Tell me, of the numerous acts of previous administrations declared as unconstitutional, were these also coupled with a judicial overtone of illegality?

This brings me to my final point. No matter how much controversy the DAP has generated for PNoy’s administration, I do not subscribe to the belief that it paves the way for his downfall. Whether his critics agree or not, the President is clearly standing on the moral high ground when he came to the defense of the DAP. It is hard to impute liability to him or his men, considering the reforms he and Budget Secretary Florencio Abad introduced to the entire budgetary process. Stricter disbursement procedures and no reenacted budgets resulted to lesser leakages and more efficiency in making sure that taxpayers’ money goes to where they rightfully belong.

And this is another aspect that the Court failed to recognize. The President utilized the DAP in the course of his reform agenda. Going by the demands of modern governance, he must be accorded the flexibility to respond to the urgencies of running the country. Indeed, waiting for yearend before he is allowed to declare unspent allotments as “savings” would jeopardize the spending power of the Executive, and will just idle money which would have been better spent in stimulating the economy.

But personal opinions and political biases aside, good things still resulted from this entire DAP debacle. If it is any indication, the President’s conciliatory tone during his latest State of the Nation Address may be a welcome sign that he has accepted the Court’s decision, notwithstanding the filing of a motion for reconsideration. His instruction to Congress to issue a resolution providing a definite meaning of “savings,” bodes well in ensuring continued stability. Ultimately, this chapter in our political history augurs the fortification and maturity of our democratic institutions. P


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