By: ATTY. MEL STA. MARIA
InterAksyon.com
The online news portal of TV5
One of my favorite jurists, former United States Associate Justice William J. Brennan, Jr. said: “The genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs.”
That is the reason why it is very important to always test the limits of the Constitution in a democracy. Its meaning, significance, application and relevance cannot be frozen in time. They must be able to respond adequately to the changing times and new situations resulting from both human-made and natural causes. It cannot always be the same paradigm all the time. As Justice Brenan said the “great principles” of the Constitution must “cope with the current problems and current needs.”
And testing the limits of the Constitution to answer the challenges of the times rests mostly on the executive department for it is this great branch that deals with the country’s daily concerns. It is duty-bound to constantly search for solutions to skyrocketing prices of food, gasoline, transportation, and education, to problems of peace and order and even foreign aggression on our soil. In times of calamities, it must act with celerity to save lives and properties and, eventually, to rebuild what has been destroyed. In this fast-paced and modern world, decisions, if not made immediately, may prove irrevocably damaging to the lives and properties of our fellow citizens -- like looking for immediate and available resources to be spent to evacuate our OFWs whose lives are in danger in war-torn Middle East.
No other branch of government faces greater urgency and responsibility. Both the Judiciary and Congress’ mandates require thorough deliberations and therefore necessitate a reasonable degree of time spent before coming up with a decision or legislation. It is the Executive which has to grapple with the daily challenges of the phrase “time is of the essence.” It does not have the luxury of delays.
But, even in the face of the enormous problems of our country, the desire of any President, including President Benigno Aquino III, to remedy them will not always be proportionate to what is achievable. As I have said in my previous articles, the country’s problems are extremely difficult, the responsibilities so great and yet when we examine the president’s powers, they are not limitless.
As Theodore C. Sorensen, the special adviser to the late President John F. Kennedy, observed, a president “is free to choose only 1.) within the limits of permissibility; 2.) within the limits of available resources; 3.) within the limits of available time; 4.) within the limits of previous commitments; 5.) within the limits of available information.”
Sorensen further adds: "The President of our democracy must contend with powerful pressures of public opinion, with co-equal branches of the government, and with a free and critical press.”
It is in this light that I understand the disappointment and frustration of the President when the Supreme Court declared unconstitutional certain acts and practices of the Disbursement Acceleration Program (DAP). His flexibility has been effectively clipped. His quick-reaction time to remedy problems, especially the unexpected ones needing necessary funding, all but disappeared. He has been legally crippled by another branch of government in certain respects. For example, a desire to immediately subsidize the rising cost of gasoline so that jeepney drivers need not ask for a fare increase which will ultimately benefit the commuters cannot now be achieved by the President by getting money in a department, no matter how idle and incipiently unused those millions of pesos may be. Said money is not “savings” as jurisprudentially determined.
Moreover, some sectors have questioned the President and the DAP implementers on their intentions -- were they in good faith or bad faith? Good faith is simply the absence of malice. In law, this can arise from two situations: the first is from a “mistake of fact” and the second from “difficult questions of law.” For example, a woman honestly believed that she married a single man who turned out to be married -- that is a mistake of fact for which the woman cannot be guilty of bigamy. But then again, after incriminating evidence has been shown, honest belief must be subject to proof.
On “difficult questions of law”, the question on the DAP is a good example. The issue reached the Supreme Court. The petitioners and the Office of the Solicitor General put forth very good and plausible arguments. There was no easy answer considering the seemingly conflicting laws and relevant provisions of the Constitution involved. It was a difficult issue but a decision had to be made. And when the Supreme Court decided, one party turned out to be in error and the other correct. It does not necessarily mean though that the one in error committed the acts with malevolent intent. Bad faith must always be proven by convincing independent evidence. And even now, still a good point of discussion that highlights the complexity of the problem is whether certain sections of the Revised Administrative Code relied upon by the executive are still effective or not.
Then, you have the call for impeachment of the President on the ground of “culpable violation” of the Constitution. I believe that this call is tenuous at best. The law mandates that not only should there be a “violation”, but it must also be “culpable”. Again, constitutional culpability connotes a malicious intent and a pre-meditated conduct to injure the people. Arrayed in the Constitution along other very serious ground such as treason, high crimes, bribery, graft and corruption, betrayal of public trust, “culpable violation” cannot have any other import.
At this point, I do not think that the violation of the President, if any, has reached that level unless convincing evidence is shown. Indeed, certain sectors, especially the opposition, suspect that the money given to the senators were bribes to oust Chief Justice Corona. The thought may be plausible but accusations and suspicions are, still, not evidence. As I recall, between the former Chief Justice’s admitted dollar accounts, then his “walk out” and the Senators’ reaction to such behavior, few doubted then that an impeachment vote could not be reached.
As to the president’s advisers, the defense of good faith may not make them criminals, but, considering their positions, the enormity of the problem and the magnitude of the mistake, public interest must always outweigh any claim of good faith, even if it were true. And public interest dictates that the people must always feel secure that, in their government, correct advice on significant aspect of governance is always forthcoming and that their tax money is well spent. A costly mistake in advice, even in the presence of clear convincing proof of good faith, may be enough to tell the adviser “good luck in your future endeavor, thank you for your loyalty and service to the country, but it is time to go.” A hard, nay painful, decision for the President but a decision, nevertheless, that comes with the great responsibilities of the office. But in the end, it’s the President call, which again can open up serious debate.
Lastly, what about the President’s strong remarks directed against the Supreme Court in his July 14, 2014 speech? I stated earlier that I can understand his frustration with the decision. However, as I listened to the President’s speech, my initial reaction was why should it be so blunt and so combative? A President’s demeanor in expressing displeasure on a co-equal body should be more circumspect and “stately”. Although we can take comfort in the President’s mention of due process and the filing of a motion for reconsideration, challenges, not only to jurisprudence, but to the rule of law itself, though merely perceived, are always a concern.
But as I continue processing the event and the speech in my mind, I thought that, in our constitutional system of checks-and-balances, there is also wisdom to sternly warn another branch of an actual or possible intrusion that is believed to be against legitimate policies. Tasked with solving the daily concerns of the nation, any President, as Theodore Sorensen said, need not be modest for, in the end, “no one else sits where he sits or knows all that he knows.”
Sorensen adds: “Consequently, self-confidence and self-esteem are more important than modesty. The nation selects its President, at least in part, for his philosophy and his judgment and his conscientious conviction of what is right -- and he need not hesitate to apply them. He must believe in his objectives. He must assert his own priorities. And he must strive always to preserve the power and prestige of his office, the availability of his options, and the long-range interest of the nation.”
Some Justices of the Supreme Court, on the other hand, are not at all blameless. It will also do well for some of them to show respect to the President and his cabinet by exercising more restraint in their use of words, preventing any insinuation of executive bad faith prior to any actual and concrete findings based on credible evidence as to the same. Wittingly or unwittingly, sufficient provocation might have been made by their language prompting the President to respond with snarky remarks to bring home his point.
Ultimately, President Aquino alone, more than the Supreme Court or the Legislature, will be accountable for the fortunes or misfortunes of the Filipino people during this period. The burden is heavy. And if he is checked by the Supreme Court, the “checking” might not be necessarily correct, but, in our system of government, it will be institutionally final.
President Aquino has to take it on the chin, move on, and search continually for other novel and legal ways to respond to the nation’s problems. This setback should not deter him from again legitimately testing the boundaries of the Constitution in this fast-changing and fast-moving world. And the President should do so again and again and again. Otherwise, the nation will be stuck in a condition of stagnancy more damaging to the country.
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