Obiter Dictum and the Impeachment Motions against President Aquino
PRESIDENT AQUINO delivered his fifth State of the Nation Address (SONA) to members of the three branches of government. He was welcomed to the august hall of the legislature with extended applause, and 85 times hand clapping cheered him as he spoke. Outside, militant activist groups protested in greater numbers it seems than had been seen in recent years, including the years of Gloria M. Arroyo; and with more obvious logistical support.
I am not sure we can actually explain what is happening. I can only see parts that are clear. It seems that the ten-day life span of even the hottest political issues is at work, along perhaps with the sub judice limits on commentary that arise from the filing of the motion for reconsideration by the Executive now in the Supreme Court. The PDI (Philippine Daily Inquirer) seemed quite willing to let go of the political battlefield to report on the highs and lows on the SONA red carpet.
But it helps I think to review the original document of the SC decision.
Some lawyers, thinking mainly as lawyers, dismissed the words simply for what they were — an obiter dictum — words that are non-binding. Former Chief Justice Artemio Panganiban used the descriptive term in quotes — “alien” — which I have taken to mean as external to the principal findings. He also explained the phrase as, in parenthesis a (side comment). It should not be understood as an integral part of the ruling. In other words, we should probably just ignore it.
A quick review may help:
“In that context, as Justice Brion has clarified, 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 (Disbursement Acceleration Program), 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.”
The passage above seemed tacked on by the ponente at the end of the document, placing it there for stylistic flourish. This followed words which had pointed out the obvious good that had come out of the DAP, its effect on the economy, the accelerated pace of infrastructure building, the many forms of public welfare that it had supported. Abruptly, the ponente’s accommodation of Justice Arturo D. Brion did away with the acknowledged good.
The seeming afterthought in the main decision, cut and pasted toward the ending where the decision states its dispositive findings, would have been difficult to ignore.
In the public forum, these words had the force of political dynamite, quoted in news accounts (PDI first edition 4 July page A20) and supporting the judgment of liability in oppositionist commentary (same as previous but separate article). I suspect that it has also fueled the vehemence of the protest action. The fervor of it all serves to authenticate public pressure for two of the three impeachment motions against the President now filed in Congress.
Reading quickly through the two motions for impeachment related to the issues of the DAP, I find a cast of mind at work, more than just the adversarial stance, a fault-finding outlook has focused particularly on this administration. Having made up their minds that no good can come out of an Aquino presidency, they have not done the fair thing which is to hear other views about DAP apart from those in agreement with their own.
In his second Q & A column on DAP, Panganiban said that the exemption to the application of the operative fact doctrine, the words that cast such a shadow of doubt on the “authors, proponents and implementors of DAP…” “should be deleted from the decision or clarified to assure that it is not a pre-judgment of liability. . .”
To go back to ways of moving forward: We should welcome attempts to treat the craft of budgeting as a central policy tool for development and that innovations in the budgetary approach be taken up in more public discussions. I think it is necessary for the press to invest in training reporters so they can understand the process. If there were enough of this knowledge, I think, the serial re-enactment of budgets, which was done in the past, would have been held up for more critical analysis than it got. Such efforts to engage stakeholders will prevent the public forum from being overtaken by the clash of partisan views nor by the painting of issues in black and white, where more subtle gray hues dominate.
I also think like others (Mel Sta Maria, Dean of the FEU Institute of Law and  former SGV chair Dave Balangue, among other opinion writers) that greater understanding of terms, “savings,” “ appropriation,” “augmentation,” as applied to budget implementation be recognized in the laws. Amendments to the laws or resolutions to define these terms for budgetary purposes, as the president in the SONA said he would ask from Congress, should follow.
The PDI editorial (Thursday July 24 ) scored the impeachment motions for, among other things and in paraphrase, premature premises and strained logic. But it noted certain signatories without mentioning the names — who are not among the usual suspects for these kinds of actions. The editorial asks the president to heed, as these may have signed on because of their legitimate concerns and doubts about where indeed the presidency is headed.
Perhaps, the press community should take on the same introspection prescribed. How much more quickly, did media give certain critics of DAP more time and space to set the terms of the debate; without giving the same to the differing views.
The immediate and instant negative, no, utterly damning feedback takes hold in a way that is difficult to shake down. The measures to report with fairness and balance should be applied from the very first cut, the initial reports.
At this point, continuing attempts to clarify the issues involved in DAP are seen only as the defensive resort of the guilty.
There was an obvious malice in the decision, that of torpedoing the principle that performance of government duties/function was done in good faith and declaring an act unconstitutional is prospective in application. Previous acts prior to the pronouncement of those who sat in their ivory towers cannot undo what has been done by those on the field because of the presumption of regularity. From my perspective, financial management is a policy issue not a judicial issue hence off limits to the court. And Congress, the power which was allegedly usurped by the President was not a party to the action, hence, the petition is dismissible for lack of standing/harm.