July 28, 2014

SONA: The (sorry) State of the Aquino Presidency

The President delivers his State-of-the-Nation address today besieged from all sides.  Benigno S. Aquino III (BSA) is facing the worst political crisis in his career and it appears, from the way he is scrambling to do damage control, he didn’t even see it coming.

The BSA regime has quickly transformed from a so-called Teflon presidency to one with drastically reduced popularity ratings. With the unfavorable High Court decision against the Disbursement Acceleration Program (DAP), BSA is forced to defend not just the DAP but the integrity of his vaunted “daang matuwid” governance.  BSA is also confronted by three impeachment complaints for culpable violation of the Constitution and betrayal of public trust (two grounded on DAP and one on the Enhanced Defense Cooperation Agreement or EDCA) casting further doubt on the legitimacy of his rule.

Successive efforts by Malacanang to justify the DAP only clearly shows that people are not buying each attempt, starting from Aquino's July 14 speech to the recent Senate finance committee hearing. 

Speech after speech, BSA baldly asserts that he and his subalterns did no wrong; rather, they did right by the Constitution and by the people. Unfortunately his political capital is no longer enough to support the line “Trust me, I am clean.”  To his claim that the DAP was spent to alleviate the plight of the poor and the needy, the latter cry with disbelief and scorn: where is it?

BSA summons his entire Cabinet to defend the DAP as well.  Without DAP critical flood control projects in Metro Manila would be left uncompleted. (Why didn’t you sufficiently budget for them?)

Sans DAP, state universities like the University of the Philippines and public hospitals like the Philippine General Hospital would not get additional funds.  (Why did you consistently cut their budgets to the bone in the first place?)

DAP gave soldiers housing and improved their ability to fight the “enemies of the state”. (The defense budget has always been a priority in every General Appropriation Act  so where have the gargantuan funds been going or is the practice of “pabaon” and “conversion” still alive and kicking?)

Failing to rally the public to support him, BSA turns to his fellow Liberal party mates notably Senate President Franklin Drilon and the rest of his administration allies - themselves tainted by the anomalies and scams connected to the use of their pork barrel - to perform in a nationally-televised scripted defense of the DAP that strains credulity.

The SC is so far standing its ground despite BSA’s attacks on the Court and the judiciary as a whole.  There is the threat of impeachment for certain erring members to a constitutional crisis should the SC not change its DAP decision; the threat of legislating the abolition of the Judicial Development Fund, a pork-like kitty intended for court employees’ welfare but also waylaid in the past; the threat of probes into the justices’ tax payments; the accusation that the SC engaged in the same practices they adjudged unconstitutional such as cross-border fund transfers.  All these are intended to badger and bully the SC justices to change their vote or amend the Court decision to give the BSA regime more wiggle room even as it attempts to deny them the moral high ground for their earlier unanimous decision.

In his fifth SONA, BSA has to say something that can extricate himself from his growing political isolation over the DAP fiasco.  But we can anticipate nothing new based on what his administration has so far shown.

BSA will stand by his basic line:  “DAP is good. Our intentions, our processes, and the results were correct.”  To this he will add, DAP is legal because it is an established practice by every Chief Executive post Marcos, a mere exercise of executive flexibility for efficiency and to benefit the public.  No other previous administration had been taken to task over the practice.  So, why me? (The justification sounds eerily like the Jinggoy Estrada defense:  Every senator did it so why pick on me?)

The answer is simple: BSA, you got caught by a highly vigilant public fed up with the corrupt-ridden pork barrel system. 

BSA’s other line is to insist that the SC did not declare DAP as unconstitutional, only specific acts and activities.  The regime’s apologists then peddle the argument that the DAP decision is legally complex and a Motion for Reconsideration is pending so people should not jump to conclusions, much less file  “premature” impeachment cases.  Meanwhile, in accord with the general principle of “innocent until proven guilty”, the BSA administration cannot be held accountable politically, civilly or criminally.

Our answer: the DAP is unconstitutional and illegal acts have been committed involving hundreds of billions of taxpayer’s money.  Only an independent audit can determine where the monies were taken from and where they were brought.  Therefore its authors and implementors must be held accountable or as a protest placard put it “Lahat ng sangkot, DAPat managot”.

Aquino's defiant stance on the SC ruling brings to the fore a disequilibrium in the so-called checks-and-balance in governmental powers. That disequilibrium has in fact long been in the making.

It seems ironic that the pork barrel scandal, that is, the plague of graft and corruption and patronage politics, has brought about this looming constitutional crisis. But in fact, it is simply a case of the institutional mechanism of checks and balance now on the verge of being overwhelmed by the very anomalies it is supposed to prevent or mitigate.

This explains why each and every post-Marcos regime was not spared from graft and corruption scandals of truly scandalous proportions (Cory's Kamag-anak Inc, Ramos' Independent Power Producers (IPP) lopsided deals and Centennial Expo scam, Erap's jueteng racket and Jose Velarde caper, GMA’s NBN-ZTE swindle, payolas, etc.) in which Congressional and Presidential pork barrel, patronage and bribery were key ingredients.

On one hand, this has brought about disillusionment among many of those who had participated actively in forcing the removal of erring rulers (Edsa I and II) with hopes for change in governance gradually fading, if not totally extinguished.  On the other hand, it also drives home the lesson to the less faint-hearted that the sitting President is only a symptom - although a crucial one - and not the totality of the problem. Thus, merely deposing and changing an erring President will not solve the problem entirely. The problem lies in the system, and the solution can only be system change. #

Published in Business World
28 July 2014

July 20, 2014

Point of no return for Mr. ‘Straight Path’

President Benigno S. Aquino III’s bullheaded and combative speech televised nationwide last Monday has turned the tide against Malacanang in its defense of the Disbursement Acceleration Program (DAP).  It revealed Mr. Aquino’s dark side.  Rather than be introspective, if not a bit humbled, by the unanimous Supreme Court decision, the “tuwid-na-daan” president was more self-righteous than ever.

A chorus of voices - from legal experts to pundits to netizens - is thumbing down Mr. Aquino’s barefaced assertion: “DAP is good. Our intentions, our processes, and the results were correct.”

Apart from the established administration critics and oppositionists, there are the legal experts who opine a principle that they say any law school freshman would know:  the Palace cannot anchor its motion for reconsideration on a mere section of the 1987 Administrative Code.  The Constitution trumps the Administrative Code anytime should there be any conflict.

But obviously Mr. Aquino is not banking on legal arguments to make the SC see things his way.  Apart from berating the justices about purportedly deciding without studying the government’s defense of DAP, Mr. Aquino effectively threw down the gauntlet before the SC.  He even warned that he can sic his allies in Congress and his yellow crowd on the High Court, constitutional crisis be hanged!

But the odds are against him.  The SC as an institution must hold their ground or risk losing what remains of their credibility and independence.  Individual justices who are vulnerable to impeachment because of skeletons in their closet also stand to lose whatever high moral and political ground they attained with the DAP and PDAF decisions.  But more important, any flip-flopping by the Court at this point can only add fuel to the fire and damage, perhaps irretrievably, public respect for the judiciary.

Mr. Aquino’s massaged popularity ratings have suffered a steep decline.  And to think that the Social Weather Station survey was conducted even before the DAP ruling. The majority of the people feel betrayed by another elite administration whose populist rhetoric they had desperately clung to.

Mr. Aquino is deluded if he thinks he can muster a spontaneous outpouring of support from the people who may have been earlier hoodwinked into believing his anti-corruption/good governance rant.  Another speech before businessmen added a measure of ludicrousness to Mr. Aquino’s growing predicament.  His plea for people to “tie a yellow ribbon” to show their support for his administration  has fallen on deaf ears so much so that his spokesman has had to tell the public not to take it seriously.

Duh?  Maybe it is time for Social Work Secretary Dinky Soliman to sing “If we hold on together…”

Meanwhile calls for an independent DAP audit grow stronger even after Malacanang released its list of 116 projects that the DAP had supposedly funded “in good faith”.  These are alongside complaints by reported beneficiaries that the DAP funds were misspent or never reached them.  The public is just not taking Malacanang’s word for it anymore.

On July 24, the Senate Finance Committee headed by an Aquino ally will be hearing the Department of Budget and Management’s report on the DAP.  Perhaps this is a signal that the senators who received from fifty to a hundred million additional lump sum, discretionary funds from the DAP are not willing to take the bullet for Mr. Aquino and his now isolated Budget Secretary.

An impeachment complaint by cause-oriented organizations and various anti-pork groups whose members think of themselves as ordinary citizens simply fed up with presidential and congressional pork is due to be filed today.  A significant number of these folk had always stopped short of saying that Mr. Aquino was himself accountable. But last week’s speech infuriated and convinced them that Mr. Aquino is indeed guilty of culpable violations of the Constitution and ergo should be impeached.

Certainly the impeachment complaint against Mr. Aquino faces stiff opposition in the pork-fed, patronage politics-driven Congress. But his hold on Congress can still become unexpectedly loosened as Mr. Aquino’s political fortunes suffer a massive downturn.  Remember that many of Mr. Aquino’s current allies were not so long ago loyalists of his predecessor, Gloria Macapagal-Arroyo.  They are, after all, mostly just politicians in the business of profiting handsomely from public office, and they are not averse to abandoning a sinking ship of state.

At the minimum, the impeachment process means that Mr. Aquino and his DAP will be further subjected to close public scrutiny. He won’t easily get away with his blithe and folksy explanations.  Neither will his amateurish legal opinions wash.

Many people are saying that Mr. Aquino’s real character is becoming unmasked:  his sense of entitlement as scion to cacique overlords reflects on his unwillingness to accept criticism, his penchant for picking a fight, and bullying those who are not in a position to defend themselves -- the peasants in his clan’s hacienda.

Others observe that his high popularity ratings have gone to his head.  He believes his own propaganda that the successful impeachment of Arroyo-appointed Ombudsman Merceditas Gutierrez and the Senate conviction of Chief Justice Renato Corona is proof of his political mettle when these were paid off by presidential pork.

No, Yolanda didn’t teach him anything.  No matter that international media made him out to be an incompetent Chief Executive with a habit for covering up his administration’s gross failings. The  Basic Bangsamoro Law has been mangled by Malacanang even before it can be sent to Congress. It seems his rah-rah people headed by Presidential Peace Adviser Teresita Deles even had the temerity to try to nominate him for the Nobel peace prize.  But that didn’t go very far.

The call for Mr. Aquino to step down, voluntarily or involuntarily, is gaining traction by the day.  Filipinos are not new to the ouster of an incumbent president via an unarmed uprising of masses of outraged people.  The shift in support among power centers dominated by the elite bears watching.

But then there is another peaceable way out for Mr. Aquino.  Resign. #

Published in Business World
21 July 2014

July 18, 2014

Hubris in the Palace

What was President Benigno S. Aquino thinking?  Ten days after the Supreme Court (SC) decision essentially declaring the Disbursement Acceleration Fund (DAP) as unconstitutional or, in plain language illegal, Mr. Aquino finally utters some words. And these are words of defiance.   Mr. Aquino bullheadedly insists that the DAP is perfectly legal, unquestionably beneficial and indubitably correct politically, and even morally.

Ergo, there will be no sacrificial lambs even if one of the most likely candidates, Budget Secretary Butch Abad, is actually the intellectual author and chief implementor of the DAP.  Of course Mr. Abad’s Boss gave his imprimatur, knowingly and willingly, as documents submitted to the Court and Mr. Aquino’s own avowals prove without a doubt.

According to the Palace, the President’s lawyers are still studying his legal options.  Mr. Abad claims that the entire SC overlooked Article VI, Section 25 (5) of the 1987 Charter giving the President the authority to augment appropriations using savings.  Apparently the Budget secretary has not seriously studied the Court decision since he clearly missed out on one of its main parts, i.e. the way the Executive wrongfully categorized certain funds as “savings” when these could not have been so classified and treated, was declared illegal.

Considering the length of time and effort the High Court expended on the DAP before issuing a unanimous decision that the core components of the DAP violate the Constitution, did Mr. Aquino think that he would have a china man’s chance of overturning the Court decision?  Or is this just a way to buy time while Mr. Aquino’s not-so-bright boys scramble to do damage control and reduce the widening political fall-out.

But then again we anticipated that Mr. Aquino would buck the DAP decision what with the graceful exit, if not loopholes, the SC gave Malacaňang: the declaration that only acts and practices under DAP are unconstitutional and not the DAP itself; the gratuitous acceptance that the DAP was what it was intended to be, a budget mechanism to stimulate the economy; the uncritical acceptance that the DAP benefitted the public because of the infrastructure such as school houses, roads and bridges it funded; the blind eye to the Palace admission that the billions of additional funds channeled to the senators who had voted for Corona’s impeachment came from the DAP; and the lack of specificity as to who was responsible for running hoops around the exclusive power of congress to appropriate funds.

SC Justice Marvic Leonen’s separate opinion is a study in legal circumlocution and obfuscation that ends up helping Malacaňang evade responsibility and shirk accountability.  It is quoted by a columnist who is the President’s brother-in-law as the basis for arriving at the conclusion that the DAP, being “complex”, had only its parts declared unconstitutional and not its entirety, that the SC justices were not in unanimity over its decision and that “the presumption of good faith is a universal one.”

Too bad for Mr. Aquino and his DAP cohorts the justices were able to see through the Dap’s obvious violation of the Constitution, adjudged this to be the case and despite separate opinions, and concurred unanimously over the Bersamin-penned decision that “(t)he doctrine of operative fact … cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favour by the proper tribunals determining their criminal, civil, administrative and other liabilities."

Malacanang’s excuses are getting tied up in knots.  From Mr. Aquino’s imperious public declaration on national television that the DAP is legal, innovative, transparent, beneficent and clean and no one can or should question this, he now has to fall back on legal hair splitting to try to escape from the impeachable charge of culpable violation of the Constitution.

With the testimony of Mr. Luy and other whistleblowers in the Napoles pork barrel scam that some of the senators’ DAP funds went to Napoles’ fake NGOs, Presidential Spokesperson Lacierda now belatedly admits that maybe DAP was not spent a hundred percent without anomaly.  Still he thunders that no less than 91% he is sure of since only 9% of DAP were ladled out to the senators who coincidentally all voted to impeach Chief Justice Corona.   

Consequently, Mr. Lacierda challenges these senators to explain where their DAP monies went, to prove that these were not squandered or worse, stolen.  Unintentionally perhaps, this hypocritical stance has caused umbrage among the implicated senators.  Sen. Chiz Escudero, head of the Senate Committee on Finance, has countered with a demand that DBM make a full accounting of the DAP funds before the Senate.

It appears that despite the SC directive to the DBM to provide a complete listing of where the DAP funds were spent, Malacaňang has not done so.  The Executive has been hedging all along.  Even after DAP decision came out, it still refuses to come clean on this matter to the point that even the mass media are raising questions why the DAP list of expenditures is top secret. The lame excuse recently given by Presidential spokesperson Herminio Coloma that the matter is sub judice is laughable.

The fact is the Chief Executive is not authorized to withhold these funds from the “program, activity or project”  (PAP s) to which they were assigned by Congress and use them for PAPs not in the General Appropriations Act (GAA); or spend these for PAPs of other branches of government and other constitutionally independent bodies such as the COA; as well as spend funds earmarked for certain appropriations contingent on windfall or other unexpected revenues of government.  Moreover, there is the entirely different issue about where these monies were spent.

Only a thorough special audit can eventually determine whether the DAP funds were diverted for political patronage, i.e. given to political allies of the President and the ruling Liberal Party as some suspect, and whether these were taken from vital social services like health care only to be lost to non-priority projects, or worse lost to the corruption mill.  Unfortunately, because of the apparently partisan stance of the current Commission on Audit (COA) chair who has already prejudged the issue with her earlier defense of the DAP and refusal to conduct a special audit when asked by anti-pork groups, the demand for an for an independent audit grows louder by the day.

To top it all, here comes Mr. Aquino believing his own propaganda that he is God’s gift to the Filipino people, finally going on air only to say he will not accept the token resignation of Sec. Abad because he “can’t accept doing right by our people is wrong.” 

The message Mr. Aquino is sending is one of undisguised defiance and derision of the Court’s decision on the DAP.  Mr. Aquino is now asserting that he is not bound to follow the highest Court of the land in its ruling because he has a different interpretation of it, because he knows he has done no wrong (and by extension his Cabinet secretaries as his alter egos had also done nothing wrong), and because he is supposedly on the straight and narrow path for which his people love and support him unconditionally. 

In other words he is above reproach and above any accountability.  Methinks if this abusive Chief Executive cannot be shamed to resign nor be impeached, he deserves to be ousted no less. #

Published in Business World
14 July 2014

July 05, 2014

Good faith? Good grief!

The Supreme Court declaration of the unconstitutionality of “acts and practices under the Disbursement Acceleration Program (DAP)”, coming on the heels of the arrest and detention l of three senators charged with plunder for amassing hundreds of millions of public funds from the abuse of their pork barrel, appears to be yet another boost to the clamor for abolishing the entire pork barrel system. 

Some political analysts, however, see the decision to be favorable to Malacanang.  While the main components of the  DAP,  which is basically presidential  “pork”,  have been stricken down as unconstitutional – and therefore presumptively illegal –  the DAP can still be excused as “well-intentioned” and having a “positive impact” on the economy while its authors, proponents and implementors, because they allegedly acted in “good faith”, are therefore not politically, civilly, or worse, criminally liable. 

In contrast,it is said that the legislators, executive officials and private individuals like the notorious Ms. Janet Lim-Napoles indicted for the multi-billion PDAF scam are the ones who must face the full force of the law.  In fact the Yellow Media lauds the Aquino administration for going after Senators Jinggoy Estrada, Bong Revilla and Juan Ponce Enrile notwithstanding the obvious special treatment accorded them.

Unfortunately for respondents President BS Aquino, Budget Secretary Butch Abad and Executive Secretary Paquito Ochoa, the opposite public reaction is gaining ground. 

Many deem the SC decision as basis for holding them criminally liable for illegally taking funds appropriated by Congress for specific national agencies with a corresponding listing of “program, activity or project”  (PAP), declaring these as savings, and spending them on activities that are not even covered by the General Appropriations Act (GAA); illegally transferring the funds pooled into the DAP to other departments of government such as the legislature and the judiciary and to independent constitutional bodies; and illegally using the Unprogrammed Fund despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets as required by the GAA.

Justice Antonio Carpio minced no words in a cogent separate opinion:  “Under the DAP and NBC 541, the President disregards the specific appropriations in the GAA and treats the GAA as the President's self-created all-purpose fund, which the President can spend as he chooses without regard to the specific purposes for which the appropriations are made in theGAA…In short, the President under the DAP and National Budget Circular (NBC) 541 usurps the power of the purse of Congress.”

Let us do a layman’s review of what checks-and-balances means with regard to the national budget. Congress has the power to appropriate funds to the national agencies’ PAPs, upon recommendation of the Budget Department.  With the enactment of the GAA, these PAPs will be implemented by the Executive Department headed by the President who manages and spends public funds according to the GAA.  These two functions are given to separate branches in order to provide safeguards that trillions of pesos of the people’s money are not spent based on the arbitrary, whimsical and biased dictates of patronage politics nor for graft and corruption; moreover, that there is a way of holding the Executive to account given the vast powers and prerogatives of the Presidency.

The full import of the SC decision can thus be appreciated.  The president is not free to withdraw unobligated funds (that is, funds that are not yet bound to be paid out under contract) and pool these funds duly appropriated by Congress for specific purposes into a mechanism that allows the President unlimited power to juggle such funds at his discretion and for his own purposes.

Mr. Aquino’s defenders counter that the DAP funds were not abused, wasted or stolen unlike the PDAF.   The SC decision, and several separate opinions appear  to  concur, giving Malacanang the benefit of the doubt that the DAP was intended to ramp up government spending in light of piddling economic growth rates in the first year of the Aquino administration. 

Was the SC  paying attention to the circumstances of the Sec. Abad’s disclosure of the existence of the DAP after Sen. Estrada in a privilege speech admitted to receiving additional tens of millions of PDAF after voting for the impeachment of former SC Chief Justice Renato Corona?  Sec. Abad revealed that not only Mr. Estrada but almost the entire Senate then received such porcine largesse from the DAP.  Does this not consist of bribery by Malacanang of the members of the Senate to achieve the President’s wish to unseat a SC Chief Justice not to his liking?

The documents submitted to the SC also indicate how the DAP, on its face, appears to have been spent the way the congressional pork was being spent to augment the budgets  of certain local government units and for certain public infrastructure projects such as two billion pesos for President Aquino’s home province Tarlac, thus reeking of patronage politics.  Malacanang’s retort that less than 9% of the DAP went to congressional pork is irrelevant and meant to divert the public mind from the anomaly.

Certainly, the reason anomalies, if not outright graft and corruption of plunderous proportions, has not been discovered is that the Commission on Audit has not conducted a special audit of the DAP, and has refused to do so despite entreaties by several citizens’ groups such as the #abolishporkmovement.  

This patent act of omission by COA (whose outgoing chair is lauded by President Aquino as a hero for bringing the PDAF scam under the previous Arroyo administration to light and who is shortlisted as a nominee for a vacancy in the Supreme Court) cannot go unnoticed because it is highly suspicious.  Especially after Chair Pulido-Tan went out of her way, sans investigation or audit, to try to convince the group that there is nothing illegal or anomalous about the DAP.

Has the SC decision exonerated Malacanang for acting “in good faith”?  The Court has chosen to apply the doctrine of operative fact to the adoption and implementation of the DAP.  Ergo according to the SC, “Unless the doctrine is held to apply, the Executive as the disburserand the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government...”

On the other hand, we note the language of the decision: “The doctrine of operative fact can apply only to the PAPs (programs, activities and projects) 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 favour by the proper tribunals determining their criminal, civil, administrative and other liabilities."

The decision explicitly says that the burden of proving good faith is on the authors, proponents and implementors.  This is a marked departure to the general legal principle/rule that good faith is assumed and bad faith must be proven.

There is thus sufficient ground in the Court DAP decision to make Messrs. Aquino, Abad and Ochoa liable for culpable violation of the Constitution and for technical malversation and other consequent criminal offenses.  At the minimum, these public officials must be called on to resign.  Meanwhile, Mr. Aquino faces impeachment even before he ends up a lame duck president. #

Published in Business World
7 July 2014