7/22/14 CONSTITUTIONAL CATHARSIS, CHECKS AND IMBALANCES AND THE SUPREMACY OF THE LAW(YER). The nostalgic 70s had a singing group at the UST Central Seminary named “Acts and Potencies”, led by Toti Fuentes, but because the members were supposed to be celibates they were also referred to as the “Acts and Impotencies”. Toti’s tu es (as in Jawo’s this is you) fused the boy’s different voices to produce euphonies that were not only in beat with the fav four’s, but also evoked the emotions that letters mean. Toti has long been orchestrating choirs of angels. Acts and potencies are to philosophy and theology what matter and energy are to physics. They are at the core of both world and words. Other dualities make up and spice the drudgery of living: night and day, hot or cold, good or bad, for better or for worse, the beauties and the beasts. The principles of “separation of powers” and “checks and balances” are the centripetal and centrifugal forces that rein in the three branches of government within their respective spheres and prevent one from intruding into another’s. But, like other generalizations, application of these principles to specific situations may result in so much confusion and suspicion. As the DAP controversy shows. The preparation and implementation of the budget, which includes the amounts segregated under the DAP, pertain to the executive. Its enactment as a law is a function of the legislative. The two must do as the constitution ordains. Whether or not they do so is a function of the judiciary with its power of judicial review. Under the 1987 constitution, judicial power includes the authority of courts to settle actual controversies and to determine whether or not an act of any branch of the government has been committed with grave abuse of discretion. This was not found in 1935 constitution or the US constitution along which the 1935 charter was charted. The term “grave abuse of discretion” is a legal fiction. While there have been attempts to define it, its actual application would be as many as the men invoking it. Thus, the executive or the legislative may act under a firm conviction that there is no grave abuse of discretion on their part. But, the judiciary may think otherwise. .But, even with the judiciary there would still be no certainty because if the issue reaches the Supreme Court, there would be as many opinions as the number of the justices. And, even if the justices were unanimous in determining one way or the other, this would not still be a definitive ruling because this could still vary with a turn-around in the thinking of the justices or turn-overs in their membership. In other words, whether or not an act is tainted with grave abuse of discretion is only temporary, true only until further notice. Prior to the 1987 constitution, the Philippine Supreme Court, like the American Supreme Court, has been referred to as the weakest of the three branches, since it only had the power of persuasion as against the power of the sword of the executive and the power of the purse of the legislative. But, with the innovation on judicial power under the 1987 constitution, the Philippine Supreme Court has become more powerful than the US Supreme Court. Where the US Supreme Court would not dare tread on paths traditionally exclusive to the legislative, such as the enactment of the budget, or the executive, such as the implementation of the budget, the Philippine Supreme Court may now intrude, without trespassing, into the backyards of its supposedly co-equal neighbors. As the DAP controversy shows. It is often said that a lawyer, like a teacher can be, a teacher, a doctor, an engineer, etc. But, while a doctor or engineer can be a teacher in teaching his field of expertise, not every teacher, doctor or engineer can be a lawyer unless he passed the bar. On the other hand, when cases involving teachers, doctors and engineers are handled by lawyers or tried by judges, the latter have to know these various fields of study and think like their practitioners. But, even as lawyers and judges are supposed to know all the arts and sciences, human limitations do not allow them to be omniscient. And, for whatever deficiencies or errors there may be in a decision of the Supreme Court and despite criticism on it, such decision is the law, unless amended. As the DAP controversy should show. In her Inquirer column, Professor Solita Monsod, one of the more truly objective columnists along with Jarius Bondoc and Randy David, digested the banes and boons of the DAP and dissected to the bone the basic issues raised in the various cases filed before the Supreme Court. A more lengthy exposition was made by another objective journalist Malou Mangahas, posted in facebook and pasted in this writer’s wall. Relative to the Supreme Court decision declaring the DAP unconstitutional, Monsod asks: Since when did the members of the Supreme Court become experts on the budget? Pnoy has filed a motion for the reconsideration of the decision declaring certain aspects of the DAP unconstitutional. Earlier, he had rhetorically stated in his televised address that he could not understand the decision. He was forthwith lambasted for defying the Supreme Court even as it is his admitted right, as President and in behalf of the Filipino people, to openly ask the question and file the motion. Later, certain members of the legislative manifested intentions regarding the law creating the Judiciary Development Fund. Hardly had the reports been read, when the left hands of the perennial protesters joined the right hands of the previously silent protestants, like the court employees, in howling “Blackmail!” But, who is blackmailing whom? The fear which sparked the protests is report that certain members of congress, particularly, Niel Tupaz, are minded on amending the JDF law and provide for a more transparent manner of its disposition. But, this is still to pass. The emanation from Ben Evardone is not for the total abolition of the fund but to replace it with a similar appropriation with strict control measures, or reform its administration. But, this is not yet a done deal. The declarations of certain members of congress are not decrees of congress. These are apparently more for show than for go. Until a bill is filed for the amendment of the law, everything is speculative. If judicial power is to be exercised only on actual controversies, similarly, judicial people power should be flexed only when, to use certain other legal principles, there is already a clear and present danger or an imminent danger that the JDF would be abolished. But, assuming that Congress would do, would this not be a valid exercise of its power of the purse? If its exercise would undermine the independence of the judiciary would a restraint from the other branches on this legislative prerogative not also undermine the independence of the legislative? (During martial law, there was no conflict because there was no actual separation of power but consolidation of power in one who could sing, without fear of contradiction, this land is mine.) If such would be an act of the legislative, why should pnoy be blamed for it? He should not precisely because they are independent of each other. And, even if congress would kowtow to pnoy, still this would be an act of independence on its part, which should be respected by the judiciary since the majority prevails in a democracy. In one of his columns, Jarius Bondoc pointed out that when pnoy was still a senator he filed a bill which would limit the fiscal discretions of the president, but his proposal remained proposals. Bondoc then argues that pnoy is fully aware of the invalidity of the DAP. But, this could be seen from another angle or through another colored eyeglasses. If pnoy was fully aware of his position then that presidential discretion should be further legislated to prevent possible abuses, then, concomitantly, the senate’s rejection of his proposals meant that it opted to maintain the status quo. And, if pnoy as president came up with the DAP as part of the bureaucratic status quo, then this would only be in recognition and in deference to the will of the senate or congress as an independent body. For this, why should he be faulted? In response to demands for transparency in the DAP funds, the executive posted the recipients thereof. But, this did not satiate the scorners. When an audit of JDF funds was proposed in the name of transparency, a listing of its projects or end-uses was released. But, when a demand was made for a more detailed accounting, cries for judicial independence and separation of powers barred further inquiry. Federico Pascual’s Postcript column today makes the distinction that JDF is not the same as DAP because the former is provided for under Presidential Decree No. 1949, while DAP has no law to show. Apparently he does not read even his own newspaper (which should be another reason why it should not be bought, except that Jarius Bondoc, Spiderman, Rip Kirby, and the Phantom are in it), otherwise he could not have failed reading about Joker Arroyo’s reported riling regarding cory’s signing of the Revised Administrative Code of 1987 (which Joker also signed as her Executive Secretary) and pnoy’s using it as basis for the DAP. Apparently, Pascual still reasons with martial law legislations lurking behind his mind. If there be any taint of constitutional infirmity, it should be in the law creating the JDF. Because the budget of a public office is within the domain of the executive and legislative branches. Also, the Commission on Audit is constitutionally mandated to audit all government offices. But, if anyone raises this issue, how will the SC decide?. In the same column, Pascual pens: “In an orchestrated blackmail fashion, Executive agencies are suspending high profile projects and services while telling those affected that it is the fault of the SC for trashing as unconstitutional cross-border expenditures under the Disbursement Acceleration Program of Malacanang.” Earlier, Malacanang has suspended projects funded by DAP. Anak ng……! Anong klasing pag-iisip ito? Pag tinuloy naman ang projects, lalo lang bibitayin si pnoy for defying the SC decision. Kaya nga nagfile ng motion for reconsideration at sinuspendi muna ang mga projects kasi ginagalang ni pnoy ang SC. Kung nagrereklamo si Pascual sa pagsususpendi ng projects, dapat bulyawan niya ang korte suprema na mag-reconsider para ituloy ang mga ito. Para kay Pascual, Pnoy is damned if he does, more damned if he does not. Pascuals’ leftist (i.e. at the left side of the page) neighbor similarly bawls blackmail. Defending the mass action of the court personnel, Alex Magno writes: “The salaries of our judges and justices are pitifully low. Considering everything, including the hazards that go with doing their jobs, it is a wonder anyone wants to serve at the bench.” If his premise were true, then why is it that there are so many applicants for the bench? In fact, it is reported that despite his rejection by the Judicial and Bar Council, one aspirant for the Supreme Court is still pursuing steps to let himself in. Magno, unlike Pacual, may be reading his papers, but it seems that he does not believe the reports about the salaries of the justices as among the highest in government service. Magno points out that getting a fair share of the budget is a political play and that magistrates are not cut out for that sort of political play. He may have missed the reported on the elections in the Philippine Judges Association, which have become as highly politicized as elections among the various professional organizations. Judges have formed numerous associations on the local, regional and national levels. Even retired justices of the Court of Appeals and Supreme Court have their own associations. A lot have become parts of the other branches of government, either by appointment or election. Hence, it cannot be said that judges and justices are incapable of political ploys. More than this, as explained above, the judiciary has become so powerful that it can invalidate, if it is so minded, any measure to repeal or revise the JDF law. But, what should really be a common cause for concern and sympathy is the plaint of the court employee that the amounts they receive under the JDF are minimal so that it would be inequitable if these would still be taken from them. If so, then the more reason that they should support a re-examination of the law so that its benefits can be more equitably distributed among its beneficiaries so that those who have less in salaries should have more in JDF. Jojo Guerrero, the President of the Supreme Court Employees Association, called on Pnoy to respect the high courts’ ruling as well as the constitutional separation of powers. He was living up to his name as he was reportedly saying: “This is a rape of the blindfolded woman. It is a good thing she has a sword that she’s fighting with.” But, for the reasons given above, there is no showing that pnoy has crossed the constitutional commandments, more so raped lady justice. To use a trite analogy, this is barking down the wrong twig. Directing his diatribes at Pnoy, he says: “Just follow the law, brother. You’re sitting (in Malacanang) because of the Constitution.” So is Mr. Guerrero sitting at his office because of the Constitution. There should be no reason why he should be exempted from following it by respecting the constitutional prerogatives of the other branches of the government. Or the least he could do is wait. Wait for the Supreme Court to finally rule on the executive’s motion for reconsideration, Wait for the legislative to propose or pass any amendatory legislation. Also on posted on fb today is a tv interview with long retired Sandiganbayan Justice Rodolfo Palattao. Maybe it is because of his daily jog around the Quezon Memorial Circle that he has a cherry disposition (never failing to greet that other regular stroller behind Kobe with “Ang ganda ng aso mo”) and an open mind. He says that the odds between the executive and the judiciary over DAP is good for the country as it would even strengthen the constitutional processes. Instead of criticizing Pnoy, everybody owes everybody the courtesy of letting him lead the government. Despite the separation of powers, he, being the highest elected official, has pre-eminence over the agencies of the government in much the same way that the Chief Justice is primus inter pares among the justices of the Supreme Court. Amidst the various vochiferous voices insisting to be heard, someone has to orchestrate just like Toti Fuentes. But, unlike Toti, Pnoy opted to remain celibate for this. Kaya pagbigyan na natin.
Posted on: Tue, 22 Jul 2014 08:17:00 +0000
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