Business World, 26 August 2014


Has President Aquino III  gone mad? Through the Disbursement Acceleration Program (DAP), Mr. Aquino has usurped the congressional power of the purse, effectively making Congress an adjunct of the Office of the President. Not contented with his capture of Congress, Mr. Aquino would now want to clip the powers of the Supreme Court.

Instead of strengthening political institutions — Congress, the Judiciary, the budget process, political parties, the electoral process, public’s access to information — in order to make the country’s budding democracy stronger and enduring, Mr. Aquino has chosen to undermine them.

If Mr. Aquino was truly committed to a system of government that is different from the authoritarian regime that the 1987 Constitution sought to replace, he should embrace, not fight, the Supreme Court decision that ruled his Disbursement Acceleration Program (DAP) unconstitutional.

The Philippine Constitutional Association (PHILCONSA) was right when it described as “seditious or treasonous” President Aquino’s motion for the Supreme Court to reconsider its unanimous ruling that the DAP is unconstitutional.

“To initiate or encourage any measure to subvert or undermine or spoil the enforcement of the unanimous decision of the Court applying and interpreting the Constitution is seditious or treasonous. It is a mutiny against the Constitution,” PHILCONSA warned.

Why should Mr. Aquino seek to weaken the Judiciary, and as a by-product strengthen the Presidency, when the Philippine President is unquestionably already very powerful? What does he gain by clipping the powers of the Supreme Court?

In a tripartite system of government — the Executive, the Legislature, and the Judiciary — the President, representing the Executive Department, is primus inter pares (a first among equals).

The President is numero uno. Within the executive department, he is a virtual dictator. He wears many powerful hats.

First, he is the Commander-in-Chief of the 129,780-strong Armed Forces of the Philippines.

Second, he is the peace and order czar. He commands 196,245 police officers and men of the Philippine National Police. In most countries in the world, peace and order is a local concern and thus implemented by local authorities. In the Philippines, the police is national in scope, and hence under the direct command and supervision of the President.

Third, he supervises all local government units. The President exercises supervision over all local government units — the 81 provinces, 144 cities, 1,490 municipalities, and 42,028 barangays.

Fourth, he is the chief executive officer (CEO) of Philippines Inc. He is the “boss” of some 1.2 million national government civil servants. Compare that with Congress’ 6,084 workers (one half of 1% of the entire bureaucracy), and with the Judiciary’s 25,247 justices and court employees (about 2.1% of the entire bureaucracy).

Fifth, he is the chief foreign relations officer. He represents the country in all meetings of heads of states; he signs executive agreements and treaties (the latter with the approval of the Senate); and he is the face of the country in the international community.

Sixth, he controls more than 90% of total government resources.

Imagine one individual exercising all these awesome powers. And because he exercises executive powers all by himself, he can decide quickly and implement decisions promptly.

By contrast, the other co-equal branches of government are collegial bodies. By its nature, decision-making is slow, often tedious. Note, for example, how long it took Congress to approve the Reproduction Health law, and the Supreme Court to decide on the DAP issue.

The power of Congress is to pass laws, including the annual General Appropriations Act. But once a law is passed, Congress has no way of compelling the President to implement it; hence, the existence of many unfunded and unimplemented laws. Unless some concerned individuals or groups bring the case to the Supreme Court, there is no way such unimplemented laws may be enforced. Remember: Congress has no army of its own.

And even if the Supreme Court rules against the President, the Court has no way of compelling the President to implement its decision. The Supreme Court, too, has no army of its own.

That is why honoring and respecting the rule of law is expected of all public officials. In a well-functioning democracy, where public officials are guided by the rule of law, all laws of the land are implemented with “malice toward none.” That’s why no less than the President of the Republic has sworn to “uphold and defend” the Constitution of the Philippines.

Relative to the President, Congress is weaker because of its bicameral structure. In order to control Congress, the President simply has to control one of the two houses of Congress, and that would render Congress ineffective. Mr. Aquino controls both houses.

All the foregoing discussions point to one indisputable fact: the powers of the Philippine President vis-à-vis Congress and the Judiciary are, right now, quite awesome.

On budget making and implementation, the Philippine President is without doubt more powerful than the US President. First, the Philippine President has line-item veto power. Through it, he may line out specific items in the General Appropriations Bill and then sign the modified bill into law.

By comparison, the US President does not have line-item veto power. US presidents have been asking for line-item veto power for a long time. It was in 1876, during President Grant’s term of office, that the line-item veto power was first raised before Congress. In 1996, the US Congress passed the Line Item Veto Act, which then-President Clinton signed into law.

Several senators challenged it and raised the issue before the US Supreme Court, which found the law unconstitutional. The High Court ruled that the law violates the Presentment and Bicameral Clauses of the Constitution (Article I, Section 7, Clauses 2 and 3) that vests Congress with “all legislative powers.” Moreover, the Non-delegation Doctrine holds that one branch can’t transfer its constitutional powers to another branch or entity.

Second, in implementing the budget, the Philippine President is not constrained by an Impoundment Control Act (ICA 1974), which the US President has to face. The ICA 1974 restricts the President’s power to impound appropriations.

The ICA 1974 gave the US President the power to both delay the expenditure of funds (deferral authority) and to cancel funds (rescission authority). But, to rescind funds, the President needed congressional concurrence within 45 days. In practice, Congress has ignored most Presidential requests to cancel funds.

Third, under existing Philippine budget rules, the budget of the previous year is automatically reenacted should Congress fail to approve the ensuing budget before the start of the fiscal year. Hence, there does not exist any threat that government operations will come to a halt should Congress delay the passage of a new General Appropriations Act.

It is a fact that Congress cannot hold the Philippine President hostage by threatening to stall budget approval. In the US, the threat of delaying the approval of the budget or budgets (since the US Congress approves several disparate budgets), and hence closing down part of government, is all too real. It has happened before and it could happen again in the future.

The US President is susceptible to political “blackmail” by an uncooperative Congress. By contrast, the Philippine President is not, since the Constitution provides for the automatic reenactment of the previous year’s budget pending approval of a new one.

Given the awesome powers of the presidency, Mr. Aquino’s obsession to weaken the Supreme Court, to rearrange the present power structure, is at best quizzical, and at worst insane.

In his remaining 674 days in office, Mr. Aquino should strive to rebuild and strengthen, rather than destroy and weaken, existing political institutions. He should use his limited time solving the country’s crucial problems, such as hunger, poverty, unemployment, and the crumbling public infrastructure.