Not between the devil and the deep blue sea

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By Mags Z. Maglana

The Point Being

Saturday, July 19, 2014

THOSE of us who appreciate the music of the 1980s would remember the song “Between You and Me” by the English new wave band ABC.  

Among its lines are these: “It’s not between the devil and the deep blue sea/ It’s not between the truth and hypocrisy/ It’s not between freedom and democracy/ But between you, between you and me.”

The developments arising out of the July 1, 2014 ruling of the Supreme Court declaring acts under the Disbursement Acceleration Program (DAP) illegal are rapidly turning into one of those devil and the deep blue sea scenarios, it would seem, if by that is meant being caught between two bad and thus unacceptable situations. 


The Supreme Court ruled 13-0-1 striking down as unconstitutional these aspects of the DAP:  a) the creation of savings prior to the end of the fiscal year and the withdrawal of these funds for implementing agencies; b) the cross-border transfers of the savings from one branch of government to another; c) the allotment of funds for projects, activities, and programs not outlined in the General Appropriations Act.

Malacañang asserted that Section 49 of the 1987 Administrative Code, which supported the application of savings to priority activities in the promotion of economic well-being, provided basis for the DAP.  

Constitutional experts like Fr. Ranhilio C. Aquino and Fr. Joaquin Bernas, SJ countered that the cited provision of the Administrative Code needs to be interpreted in consonance with the Constitution, and questioned the manner and timing with which Malacañang declared savings. 

The annual General Appropriations Act makes public funds available for one fiscal year. But as early as May 20, 2013 for instance – not even midway into the year -- Budget Secretary Butch Abad moved to consolidate savings and unused funds under the DAP, which in effect truncated the period of funds availability. 

President Benigno Simeon Aquino III came back swinging with warnings of a clash between the executive and judicial branches of government that might require the intervention of the third branch; and that the country’s development could be put under a state of paralysis and even lead to the reversal of progress. 

Prominent voices like those of Joker Arroyo, former senator, cautioned against the stance of PNoy, arguing for the importance of respecting the balance of power under the Constitution. No sooner had PNoy delivered his July 14 address on the DAP that the House of Representatives, perceived as largely allied with the administration, initiated moves to scrutinize the Judiciary Development Fund, labeling it as the “judicial pork barrel”.

So it would appear that the devil and the deep blue sea conundrum could be manifest as on the one hand giving premium to the legality of the DAP and the check and balance system that is a hallmark of our government; and on the other hand actively utilizing public spending for development and progress.  

The other dilemma is on the matter of the culpability and liability of those involved in the DAP. The furor over good faith – or the lack thereof -- in the implementation of the DAP has triggered another schism between mainstream civil society, which has moved to affirm support for President Aquino and his administration; and the militant mass movement, which has made stronger calls for the ouster of PNoy and those linked to the DAP.  

The war of the ribbons is on; only it is not a two-sided fight like the Aquino yellow ribbon versus the Marcosian blue of yore. There is the yellow ribbon that PNoy requested supporters wear to indicate continuing support for his administration, the orange ribbon that is being associated with the oust Aquino line, and those who are opting to wear the quattro-colors of the Philippine flag signifying loyalty to the country.   

Interestingly enough, the devil and the deep blue sea expression apparently has two origins: the first, a straightforward depiction of the devil as an evil entity; and the second one that has a nautical origin – a devil being the “seam between the deck planking and the topmost plank of the ship's side" (Sailor's Word-Book: An Alphabetical Digest of Nautical Terms). In any case, both indicate unpalatable options. 

But the two interpretations do allow for a tongue-in-cheek comment about better the devil you know, than the one you don’t, which apparently is one of the reasons being invoked by those wary of a Binay leadership in a post-Aquino government even before 2016.  

My own views on the matter are that it is not as simple as choosing between two situations – it rarely is. That there ought to be fundamentals that can be relied on in our legal and political systems is important; as is, the ability to effectively mobilize significant resources to support initiatives that are for the public good. These things are – at the same time – vital to society and governance. 

These are serious matters that we will have to problematize as a people. And by problematize I mean, think through, argue over, get confused about, be agitated over – but all the time moving towards reasoned, reasonable and hopefully shared views, albeit not necessarily homogenous ones.  

I have not wavered in my belief in the imperative of thoroughgoing system change. But I am not convinced that it will be served adequately by a political change a mere 24 months away from the next elections. Not when other equally important national projects, like the Bangsamoro peace process is ongoing and also deserves attention. 

So rather than deal in politicking at this point, it would seem that the more compelling undertaking is engaging in governance. The UNDP defines governances as “the exercise of political, economic and administrative authority to manage a nation’s affairs at all levels. It comprises the mechanisms, processes and institutions through which citizens and groups articulate their interests, exercise their legal rights, meet their obligations and mediate their differences.” 

Madame Louise Frechette, former UN Deputy Secretary-General nuanced it further by saying that governance is “…not something that the State does to society, but the way society itself and the individuals who compose it, regulate all the different aspects of their collective life.” 

This period in our history is another opportunity for us to grow more in governance and the attendant systems of politics and law so that they are better attuned to the needs of the times. 

For instance, instead of getting buttonholed into simplistic positions of supporting or rejecting DAP and PNoy, perhaps we can pick up on the point of retired Chief Justice Reynato Puno that the Supreme Court rulings on DAP and PDAF are “starting points” for budgetary reforms. Also, let us not forget that the DAP is just one of the many heads of the Hydra that is systematic irregularities in government, also referred to as bureaucrat capitalism; the other (arguably more lethal) heads being the Priority Development Assistance Fund (PDAF) and Congressional Insertions. And these are only the ones we have collectively named so far of the Hydra’s many fanged and venomous heads.

Sometimes, in the mad rush to put our point across and  establish ascendancy, we are tempted to reduce the discourse to absolute dualisms: of truth and hypocrisy, or of freedom (of, say a branch of government) and democracy (as will of the people). 

But they can backfire on us when they do not cultivate our peoples’ ability to critically discern amid complex and competing claims, and to make principled decisions for which they are willing to fight the good and long fight. 

In the end, it is between the inclusive you and me to figure out what to do when trouble comes strolling through society’s door; before we – forgetting what love is for – engage in fisticuffs and full-scale war.

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Published in the Sun.Star Davao newspaper on July 19, 2014.


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