Our father whose DAP ain't heaven

my Trade Tripper column in this weekend issue of BusinessWorld:

Well, one has to write about the Disbursement Acceleration Program (DAP) conundrum. Everybody has done so already and so I might as well give it my 25 centavos worth. And since others have already gone into the nitty-gritty legalities of the issue, I’ll just focus on certain conceptual aspects of the matter.

At the outset, it would be good to have a study of the actual ruling of the Supreme Court, the dispositive portion of which reads in part:

“Wherefore, the Court partially grants the petitions for certiorari and prohibition; and declares the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances unconstitutional for being in violation of Section 25 (5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

“(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

“(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

“(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.”

So there was indeed a declaration of unconstitutionality, and this refers to, among others, “related executive issuances” (of which, in the Constitution, executive power is vested in the President and the President -- it must be considered -- “acts” through orders and issuances). Also, that a department secretary, like the Budget Secretary, is the alter ego of the President. Which means that the acts of the Secretary are essentially the acts of the President.

Having said that, comment has been made by certain quarters regarding the application of the “operative act” doctrine, whereby a government official who relies on a law or rule yet to be declared unconstitutional could have such reliance result in being upheld or even liabilities absolved.

The DAP ruling of the Supreme Court, however, precludes such blanket application of the doctrine: the “doctrine of operative fact can apply only to the PAPs [program, activity or project] that can no longer be undone, and whose beneficiaries relied, in good faith, on the validity of the DAP, but 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.”

Which is the correct view, I believe. In Yap v. Thenamaris (a 2011 case), the Supreme Court held that the “operative fact” doctrine will not be applied when such “would be iniquitous and would send a wrong signal that an act may be justified when based on an unconstitutional provision of law.” This is aside from the fact that the doctrine is an exemption rule and, hence, must be applied strictly.

A thing that bothered me during President Aquino’s Monday night speech was when he referred to himself as “father of the country.” Where did he get that idea? Even as a rhetorical device, it was in poor taste. The fact is, President he may be but he is in our system of government a paid public servant with a specific set of functions (e.g., execute -- not make -- laws), who heads only one of three co-equal branches of government, with powers merely delegated to that office by the people through the Constitution.

But perhaps that is where the problem lies: that he believes himself solely responsible for the State, that he is entitled to go even beyond our laws and our institutional processes to achieve (at least in his mind) rightful ends.

Forgetting for the moment the application of the Pauline Principle (“One should never do evil so that good may come,” from Romans 3:8), he also ignores basic philosophical foundations of our Constitution: the common good (found in the Preamble) and subsidiarity (the theme of which runs through the Constitution, particularly on devolution of authority). These two go hand in hand.

Of common good (and subsidiarity’s role in it), the best definition is in John Finnis’ Natural Law and Natural Rights: “a set of conditions which enables the members of a community to attain for themselves reasonable objectives, or to realize reasonably for themselves the value (s), for the sake of which they have reason to collaborate with each other (positively and/or negatively) in a community.”

Note the repeated mention of the attainment “for themselves” by the people. The President need not do everything, need not be some national patriarch.

Perhaps if this government trusted the people more and the system it set up by way of the Constitution, we wouldn’t be so deep in this mess we’re in right now.