There are at least two types of laws found in the Constitution. The first defines the nature and limits of governmental power over the nation’s citizens. The other assigns state power to the various branches of government, demarcating their proper spheres and prescribing their relationship to one another. A constitutional regime is a government bound by such laws.
Violations of the constitution by a government could cause the impeachment of a president, just as they could be a ground for the criminal prosecution of the individuals responsible for the violations. But, unconstitutionality and criminal liability are not the same thing, nor do they necessarily imply one another. Indeed, the word “unconstitutional” is relatively new, appearing only in the 18th century. But it quickly became a legal reference point for declaring other laws, whether new or existing, as illegal.
Not being a lawyer, I could be wrong in my interpretation. But, it is obvious to me that there is a vast difference between pocketing huge sums of public money intended for public use, which is what the crime of plunder is about, and the rearrangement by the executive branch of the budgetary priorities previously approved by Congress, which is what the Disbursement Acceleration Program did. The first is a clear criminal offense. The second has been pronounced by the Supreme Court as a breach of the 1987 Constitution’s principle of separation of powers, but it remains to be seen whether any criminal liability proceeds from its being declared unconstitutional.
The high court did not say or assume that public funds were stolen. In fact, it praised the DAP’s intention of stimulating economic growth. But it emphatically said that this noble end cannot justify abuse of presidential powers, and must not be allowed. The Solicitor General, arguing for the government, maintained that, as a policy measure, the DAP was conceived on the assumption that it was in accord with the Constitution and the Administrative Code.
The Supreme Court ruled otherwise. In the wake of this adverse decision, critics of the P-Noy administration are calling for his impeachment and the criminal prosecution of his budget secretary. It would be interesting to see how far these attempts to undermine the legitimacy of the administration will go. My hunch is that they will not prosper. Still, as political moves, they may have already succeeded in diverting the public’s attention from the plunder cases, and in promoting the cynical view that since everyone’s hands are tainted, it is a delusion to think that this administration is capable of pursuing any enduring reform.
In previous columns on the subject, I have tried to show that, on the contrary, all these recent events tend to show that we are finally—albeit slowly—evolving into a nation that takes the democratic ideals of its Constitution seriously.
Our constitutions have always been historically too far ahead of our people’s capacity to enforce them. The doctrine of separation of powers and the principle of checks and balances, for example, mean little in a society whose political system remains a plaything of a few ruling families. The persistence of mass poverty and the sharp disparities in wealth and power among our people have fostered a culture of dependency and patronage that trumps virtually all attempts to professionalize governance.
But, look at what the Supreme Court has done by its recent rulings on the Priority Development Assistance Fund and the DAP. It has knocked down two of the most important pillars of political patronage—the congressional pork barrel system and the executive power to realign the budget as the president pleases. Before these rulings, hardly anyone considered these practices unconstitutional or criminal, or, least of all, immoral. These are long-standing political practices that have existed in one form or another under every administration.
The PDAF institutionalized the practice of setting aside lump sums in the budget to fund projects and activities to be identified by members of Congress. The DAP systematized and centralized the impounding of so-called government “savings,” and their subsequent use for purposes determined solely by the President. Neither of them is new. What is new is the public awareness of what they mean in the light of our aspirations to political modernity—and how easily they lend themselves to large-scale graft and corruption.
What radically brought the nation to this realization was the shocking exposé of the empire of graft that Janet Lim Napoles managed to build over 10 years from the proceeds of the congressional pork barrel. Overnight, the public saw what a big fiction the control system of government was, and how it crumbled before the power of politicians and the temptations of bribe money. Despite its self-image as an institution standing above public opinion, the Supreme Court could not have been oblivious to the resounding public clamor for government accountability when it struck down the PDAF and DAP.
The administration gains nothing from merely claiming that the PDAF and DAP had good intentions. As things stand, nothing less than a full accounting of these funds can persuade the public that these were not plundered. Of course, there is a risk in detailing how the DAP funds were allocated. It is almost certain that doing so will reveal how much of the vaunted “daang matuwid” has been paved in patronage. But I think that is still a small price to pay in exchange for achieving the Constitution.
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