Episode 32: Meh

Between new part-time work creating write-ups for U.S. cities and daily tasks, it has been difficult to squeeze in time to do casual writing for this blog. It doesn’t help that much of what I do get to write, I would prefer to write on The Philippine Online Chronicles, as it has an admittedly wider audience base.

But every so often, something personal comes along that convinces me to write here.

Like this.

To be clear: I have no problems with the UP LSG. Some of them are my friends. So in that context, I hope they see this as friendly criticism.

The first thing I have to point out is this: nowhere in the President’s speech was a constitutional crisis implied. At most, there is a reference to needing a third branch to intervene, which at the time was interpreted to mean a threat of impeachment. Even assuming that to be correct, an impeachment is a process well-entrenched in the Constitution, and thus could not have resulted in any crisis. What makes this assertion curious is that we have the benefit of hindsight, as well as a copy of the Motion for Reconsideration filed by the Solicitor General, where it is made clear that the intervention spoken of refers to getting Congress to define the term “savings” in a manner consistent with how the Executive has defined it, under the premise that the interpretation of the word “savings” is Constitutionally mandated upon Congress, and not the Supreme Court. One would think that, given the release of the MR a week ago, the LSG would have had enough time to study it and make a more nuanced position, rather than ignore it completely.

Second, what does the LSG mean when they say they “demand full accountability” of those involved in conceiving and implementing the DAP? Are they referring to criminal liability? Administrative liability? An audit? Project reports? Balance sheets? Itemized receipts? The statement is quite vague in this regard, especially on the part where it is “implored” that those responsible come forward. Voluntarily? We want people whom we brand as guilty as sin to come forward, on their own volition, and “answer for their acts?” M’kay.

I find the fourth paragraph most curious. It seems to confuse the concept of liability – whether criminal, civil, administrative, or otherwise – with the concept that the Supreme Court has the power to declare an act to have been committed with grave abuse of discretion. I believe Justice Leonen said it best in his concurring opinion:

Likewise, to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of administrative or criminal liability even before the proper charges are raised, investigated, and filed.

Ironically, the LSG position paper also cites Justice Leonen’s concurring opinion. I guess they missed this one or didn’t see fit to mention it because it didn’t fit the overall message they wished to convey.

Maybe it has to do with Justice Bernabe’s awkward obiter dictum in relation to “concrete findings of good faith?” And yet it is easy enough to interpret Justice Bernabe’s words in a way that is consistent with law and jurisprudence: for the presumption of good faith and regularity in the performance of one’s duties to arise, the DAP conceivers and implementors need only show that the factual basis for the presumption is present – the “proof” of good faith. If those who allege wrongdoing do not provide proof sufficient to overcome the presumption, then the Court will necessarily rule in favor of the presumption.

Finally, the LSG seems to believe that DAP is being justified solely on having good intentions. Again, the speech clearly made reference to what the Executive claims is the legal basis of transferring savings, particularly Book VI, Chapter 5, Section 39 of the 1987 Administrative Code of the Philippines.  The MR adds even more legal arguments. All things told, I’m not sure where the LSG gets this position from. The only way I can make sense of this is to hypothesize that this position paper was drafted soon after the DAP decision was promulgated, but before the MR was filed, and that it was not updated between the time it was initially drafted and the time it was published.

More than “fervently supporting the Supreme Court,” as students of law and aspiring practitioners, I believe we must strive to support and uphold the Constitution and the law, including the resort to proper legal remedies and the adherence to due process. The MR has been filed, and so the decision has not yet reached finality.  Let us respect the process, and avoid coming to conclusions about this case even before the Supreme Court renders its resolution on the MR. Huwag natin pangunahan ang Korte Suprema.


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