In good faith

With Malacañang setting the example, expect an explosion of avowals of “good faith” on the part of government officials accused of high crimes and lesser acts of impropriety.

“Good faith” is as gray as the area that was tapped by the daang matuwid administration – much as President Aquino’s predecessor Gloria Macapagal Arroyo did – to impound “savings” from executive offices and use the funds at the discretion of the chief executive.

Defenders of GMA have said she did what she could, considering Pinoy realpolitik and in the face of perpetual destabilization attempts, to pursue her governance agenda. Forcing all agencies to set aside “savings” and impounding these allowed her to set up a formidable war chest that she could draw upon to dangle offers that couldn’t be refused by the typical selfish, greedy, navel-gazing and dynasty-building Pinoy politician.

That same selfish, greedy, navel-gazing and dynasty-building bunch is still there, selling support for any legislative proposal to the highest bidder.

Having worked with this bunch for a decade, P-Noy can’t trust Congress to tinker with the Constitution. And having worked with this bunch for over a decade, the main proponent of the straight path surely knew from the start that he would have to take detours along crooked roads if he wanted to reach his destination.

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P-Noy is fully aware that there’s something not quite right with the system of impounding savings, which he has used to set up the Disbursement Acceleration Program (DAP). As a senator in the 14th Congress, he filed Senate Bill No. 3121 on March 4, 2009. Its title is self-explanatory: The Budget Impoundment Control Act.

Here’s the bill’s full explanatory note:

Article VI Section 25 (1) of the 1987 Constitution provides that “Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content and manner of preparation of the budget shall be prescribed by law.” Clearly then, while it is the President who proposes the national budget it is the Congress that prescribes the form, content and manner of budget preparation albeit subject to the limitations found in the Constitution. Hence, as the “power of the sword” belongs to the President, “the power of the purse” resides in Congress.

In practice however, the President still wields considerable control over public spending through the exercise of budget impoundment.

Impoundment refers to the refusal of the President, for whatever reason, to release funds appropriated by Congress. It is the failure to spend or obligate budget authority of any type.

While its constitutional conferment is not expressed, the Administrative Code has given the President specific authority, when in his judgment the pubic interest requires and upon due notice to the head of office concerned, to suspend or otherwise stop further expenditure of funds allotted for any agency.

Of recent times however, this presidential prerogative has been misused and abused, and has emasculated Congress’ authority to check the President’s discretionary power to spend public funds. In effect, the President seems to have a vast and unbridled control over the national budget.

This bill seeks to increase congressional oversight and to limit executive influence over specific appropriations in the General Appropriations Act. This undertaking is urgently needed in the light of the current economic crisis confronting the whole world, the consequences of which are deemed to severely affect our country in the coming years.

For these reasons, the approval of this bill is being earnestly requested.

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The nation has known for years about the congressional pork barrel or Priority Development Assistance Fund (PDAF). But we learned of the creature called the DAP only when Sen. Jinggoy Estrada blabbed about the fund releases that struck him as a reward for senators who voted to convict Renato Corona in the unprecedented impeachment trial of the chief justice.

Malacañang defended the DAP, explaining that P-Noy’s anti-corruption campaign had made public officials risk-averse and slowed down the implementation of vital projects. Implementation needed to be accelerated, the Palace explained. But the defense wasn’t strong enough for the Palace to hold on to the stimulus fund; the DAP was eventually scrapped.

With the Supreme Court (SC) declaring key portions of the DAP unconstitutional, lawyers came up with the defense of good faith, which would save P-Noy from impeachment for culpable violation of the Constitution, and from a criminal indictment and possible detention once he’s no longer president.

Lawyers have told me, however, that good faith will have to be established in a court trial, which means that those behind the DAP must face charges.

Legal minds will have to provide a more precise definition of good faith. If local government officials accused of fund juggling invoke good faith, pointing to roads and classrooms that were built using illegally realigned funds, are they off the hook?

Palace officials, meanwhile, also asked a valid question: can beneficiaries of the DAP impeach the President for approving the fund allocations?

The PDAF and DAP have been scrapped. But no SC ruling can eradicate the typical Pinoy politician’s mercenary mindset, which compels Malacañang to set up special funds that a president can utilize at his discretion to advance his legislative agenda.

Conscience and political party considerations may play a role in the vote of the average lawmaker on a particular issue. But funds for pet projects that shameless epals can claim as their own can have greater persuasive power. And cash on hand (even crudely given in brown paper bags) or discreetly deposited in overseas bank accounts can buy crucial swing votes for Malacañang on controversial legislation or impeachment cases.

Even now, executive and legislative officials must be frantically devising a new system of budgeting that will allow lawmakers and local government officials to continue identifying pet projects for funding, and Malacañang to retain its bargaining chip with politicians – without raising a howl of public protest.

The pork barrel system and the exercise of executive discretion are important particularly as the 2016 elections approach. This is the period when government resources must be mobilized rapidly so candidates can claim credit for projects funded by taxpayers.

Candidates hope gratitude and votes can be secured through these projects. This is now at risk because of the scrapping of the PDAF and DAP.

To compensate for the loss, new schemes are being injected into the budget system. If they are deemed to be new incarnations of the pork barrel, Malacañang and Congress can always invoke good faith.