Column: 7 theses in the wake of Aquino’s outburst

Published on July 22, 2014.

The law is too important to be left to lawyers alone. Every citizen has the right to join a discussion involving legal issues, especially if the Constitution is at the heart of it. I am certain Fr. Ranhilio Aquino, dean of the San Beda Graduate School of Law and a constant critic of his namesake President, would agree. Like me, the columnist erroneously described as a priest-lawyer is not in fact a member of the Bar.

To be sure, as anyone can see from his biography posted on the Central Books website, he has at least two doctorates, including one in jurisprudence from a school in California.  But even if he didn’t (and this is the point), his commentaries would still be welcome. So perhaps that should be our first thesis, if we make a concerted attempt to understand President Aquino’s intemperate reaction to the Supreme Court’s adverse ruling on the Disbursement Acceleration Program (DAP): The law is too important to be left to lawyers alone.

Second thesis: The Aquino administration was right to file a motion for reconsideration, even though the possibility of reversal is small. I did not think it was worth it the week I read the ruling, but have since come to understand that the administration was bound to file the motion, for political reasons. The idea as I understand it is not simply to exhaust all legal remedies, but for the administration to rally the demoralized with a vigorous defense. The President’s speeches on July 14 and 15, however, were too aggressive, and rightly seen as threatening.

Third: The majority decision written by Associate Justice Lucas Bersamin was, as I had described it before, a “well-tempered” piece—until the last two paragraphs inserted right before the ruling’s dispositive section. I agree with the view that the inclusion of these two paragraphs must have incensed Mr. Aquino. It has now been well established that the paragraphs are obiter dicta, and have no actual bearing on the ruling. But that like other obiter they can have a persuasive effect was immediately proven on social media, when critics and other concerned citizens began quoting from them (and from Associate Justice Arturo Brion’s separate opinion, which—in my view—prompted the insertion in the first place).

The paragraphs were placed at the tail end of a (largely favorable) discussion of the “operative fact” doctrine (favorable to the administration, that is). Thus, the change in tone and import must have come as a shock, especially with this passage: “In that context, as Justice Brion has clarified, the doctrine of operative fact… cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.” Guilty, until proven innocent.

Fourth: The Aquino administration considers budget reform its cornerstone achievement, on which every other policy initiative depends. As I have shown in previous columns, the President’s recounting of the work of his administration almost always begins with what he did with the budget.

There’s more proof. The motion for reconsideration Solicitor General Francis Jardeleza has just filed, for example, is a powerfully argued brief. It also contains a reminder of the reckless budget-making that marked the Arroyo years, and which is the real context of budget reform. (Please read paragraphs 15 to 17.) If the Supreme Court wanted an example of a chief executive who wanted to create savings merely to augment available funds, all it had to do was look at Gloria Arroyo’s practice of reenacting budgets.

Fifth: President Aquino saw the overwhelmingly adverse ruling as a sign of unfavorable decisions to come. The peace agreement with the Moro Islamic Liberation Front, with the Bangsamoro Basic Law at the heart of it, is certain to draw a constitutional challenge; the Reproductive Health Law, while sustained by the Supreme Court, may yet face new legal hurdles. The DAP ruling was an unnerving omen.

Sixth. By design and by tradition, the Supreme Court is the final arbiter of constitutional questions. (An Inquirer editorial written in the midst of the Davide impeachment crisis in 2003 put it this way: “if the Supreme Court did not exist, it would be necessary to invent it.”) But a decision can be challenged by the political branches of government when their very mandate is at stake. The most famous example of such a challenge is from American history: President Franklin Roosevelt tried to “pack the Court” (add more seats to the US Supreme Court, to dilute the influence of a “conservative” majority) and protect his so-called New Deal. He failed to actually increase the size of the Court, but the justices learned the lesson he had intended.

Seventh. The question we should ask ourselves, then, is: Does the DAP ruling undermine President Aquino’s very mandate? Does it rise to the level of a possible repudiation of a presidency’s defining legacies? I am not certain whether the answer in fact is yes, but it seems to me important to recognize it as Malacañang’s position.

* * *

I had the privilege of moderating one of two panel discussions at a forum on the prospects of the Freedom of Information (FOI) bills pending in Congress, organized by the Friedrich Naumann Foundation in cooperation with Rappler. Sen. Grace Poe’s keynote address drew an interesting lesson from James Surowiecki’s “The Wisdom of Crowds,” to make the case that “FOI makes perfect political sense.” Also, Rep. Leni Robredo’s clear and cogent responses (they were candid, too) left me deeply impressed—and hopeful that FOI will, finally, become law.

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