Among the legal innovations that we must urgently do is to take steps to depoliticize the law. While absolute separation is not possible, given that law and politics intersect in the relationship between power and authority, we have in our country allowed politics to invade the legal realm in such a way that the rule of law is increasingly endangered of being subverted.
We see this again in the persecution of former Budget Secretary Butch Abad by both the Ombudsman on the Disbursement Acceleration Program controversy and now the Secretary of Justice on the Priority Development Assistance Fund scam.
I usually support Ombudsman Morales’ decisions but, like in the PCSO case against former President Gloria Macapagal Arroyo, she is wrong on this. There is no usurpation of legislative powers, the crime that Abad is being charged with, in the case of the DAP. Abad did not define savings contrary to the statutory definition. What he did was to elaborate on that definition, using authority he has under the Administrative Code to issue rules and regulations to implement laws. That his definition of savings was constitutionally flawed is irrelevant; that’s a finding by the Supreme Court after the fact. Good faith is of course a defense here, as it was for GMA in the PCSO case. Abad followed all the requisites and due diligence necessary in issuing the budget circular in question. There is nothing unusual at all in what he did.
I must also say that usurpation of legislative powers is a weak crime to charge an executive official of. When I taught criminal law, I used to tell my students that we should decriminalize many offenses under the Revised Penal Code. This is one of those crimes where conviction is impossible to obtain. For executive officials, whose duty it is to exercise quasi-legislative powers, usurpation of legislative powers is an impossible crime. Abad and other secretaries, with the president, exercised rule-making power. As an administrative law professor, I emphasize that what is needed to exercise that power is authority from the constitution and laws and that the exercise must be based on standards laid down by the law which must be complete.
This is the case here. Abad was just doing his duty. That he made a mistake in appreciating what was constitutional and what was not is immaterial. If you are going to require executive officials to issue regulations that implement a law, you must give them leeway in interpreting that law. The reason for the grant of rule-making power to executive officials is that Congress is not expected to provide detailed instructions; it leaves it to executive officials to do that and the latter must be given some discretion.
Finally, this case is another example of the need to raise the bar on probable cause in this country. As I have said in the GMA PCSO case and the drug trafficking charges in the De Lima case (by the way, the latter, at best, should be charged with bribery, a bailable crime, as there is nothing in the charges that can be interpreted as accusing her of trafficking on drugs), it is wrong to file criminal charges when the prosecutor does not have the evidence to support a conviction. It is a disservice to the country (a waste of money and a case of disillusionment when the people charged are acquitted), it is unjust to the accused.
Probable cause should not be based on any evidence but must be based on evidence robust and strong enough to obtain a conviction. Such a higher bar will be a disincentive to using criminal prosecution as a political tool as was used against GMA and now being used against De Lima. While I cannot imagine the Ombudsman prosecuting the Abad case for political reasons, the effect is the same. Abad will not be convicted of this impossible crime, his haters would be disappointed, and Abad would have to go through an unjust process. Likewise, I would say the same for any prosecution of President Noynoy Aquino for his approval of DAP.
As for being implicated in the PDAF scandal, as the supposed “mentor” of Janet Napoles, it does not take rocket science that such a case will not pass what I call the laugh test. It is so laughable that the prosecutors who will attempt to put up such a case will lose their reputations and become a laughing stock of their colleagues. This is already happening in the case of the prosecutors and the solicitors defending the De Lima case. It will just be repeated here.
For the record, Butch Abad and I have differed politically in recent years but that does not prevent me from saying what I have consistently said of him: a man of integrity, a patriot of the highest order, a committed social reformer, the quintessential public servant. It is my duty to stand by him.
On another issue, an example of politics again invading the legal realm is the recent statement of President Duterte warning courts not to interfere and issue Temporary Restraining Orders on infrastructure projects. First, the President is focusing on a non-existent problem. Lower courts are barred from issuing such TROs, with only the Supreme Court allowed to with its expanded power of judicial review. However, even the latter has refrained from doing so and in the last five years, as far as I know, only one TRO—on the MRT/LRT common station in Edsa—has been issued. In any case, while the TRO might have been initially justified, the fact that no decision was rendered for years, shows why the Court was clearly wrong in this case, it illustrates why TROs are not a good way to deal with contractual legal issues on infrastructure. That case was finally resolved last year through an agreement of the parties brokered by the Department of Transportation.
In any case, it is wrong for the President to call for defiance of courts because that means every powerful person —politicians or wealthy people —would do the same. Without the Rule of Law, as imperfect as it is, there will be chaos and endless conflict.
From the perspective of the police, sheriffs, government officials and even private persons that can benefit from judicial defiance, they should take note that they will later be held accountable for such defiance. President Duterte will not be there forever and surely they know that they cannot use an unlawful order of the President as an excuse for their own unlawful acts.
Law and politics are naturally enmeshed with each other. But a healthy distance is also good for society. Let’s respect that.
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