FROM BLOG COLUMNISTS

ELLEN TORDESILLAS: AQUINO'S DAP, LETHAL MIX OF IGNORANCE AND ARROGANCE   

President Aquino’s belligerent stand against the Supreme Court’s decision declaring his pet initiative, the Disbursement Acceleration Program, unconstitutional was not at all surprising considering his defense of Budget Secretary Florencio Abad, Jr. last Friday. Reading and listening to his speech was not only appalling.
It was disturbing.

It showed the lethal combination of ignorance and arrogance. The issue is his usurpation of Congress’ power of the purse which is a violation of the Constitution and he talked about parking zones! The President cited provisions the 1987 Administrative Code as legal basis of DAP. He said, “..we were surprised to find that the Supreme Court decision did not take into account our legal basis for DAP. How can they say that our spending methods are unconstitutional when they did not look into our basis? Even until now, Section 39 of the Administrative Code is in effect, along with its other sections.”

What he was referring to was Book VI, Chapter 5, Section 39 of the 1987 Administrative Code of the Philippines which states, “Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations…” Did he read the part, “be used to cover a deficit …”.

I dare Malacanang to show a certification of deficit from the agencies it gave DAP funding to. In what is an indication that Malacañang is hard put scrambling for justification for DAP, Aquino cited Sec. 39 of the 1987 Administrative Code while the Solicitor General Francis Jardeleza invoked Sec. 38 in his defense of DAP before the High Court. * READ MORE...

JOE RIVERA: Good faith or arrogance?  

So much has been said about good faith as a valid defence to President Aquino’s illegal redistribution of government funds under the Disbursement Acceleration Program (DAP) which was recently declared unconstitutional by the Philippine Supreme Court. This promises a long and continuing government intramural between the executive and judicial branches, for as long as the Aquino administration insists that the DAP was conceived with good intentions and that it benefited those for which the impounded savings were spent. Will Budget Secretary Florencio Abad resign or stay? Aquino tells him to stay put.

The main problem with good faith as an excuse is that it was never intended to be a defence for illegal behaviour. Where it was borrowed, primarily from the law of contracts and obligations, good faith is meant to be a precondition or an implied term in any contract between parties, such as the sale of goods or in negotiations of commercial transactions. It is the general presumption in contract law that parties to a contract deal with each other in good faith, honestly and fairly to temper inequalities in their relationship – the end in view is to preserve the right of the parties to receive the benefits of the contract. The principle of good faith or the duty to act in good faith is frowned upon in most common law jurisdictions, unlike in civil law regimes where it is generally accepted although its application in contract determinations has also created certain legal uncertainties.

But that is not the subject of this blog, however. How the covenant of good faith in contract law can easily be transposed to the affairs of government is therefore a challenging conundrum. It could be the rationale for the Supreme Court in avoiding this issue. Instead, the high court looked at previous precedents and invoked the doctrine of operative fact, that the consequences of a declared unconstitutional law or executive act cannot always be erased or disregarded.

In other words, while a law could be nullified on constitutional grounds, it effects however may be sustained. Why? Because it would pose a big burden for the government to undo what has been done, and equity alleviates this burden. Imagine if the President and his entire cabinet can seek refuge every time under the cloak of good faith for all their actions, it would be like bestowing papal infallibility to this cabal. They would be emboldened to do whatever they wish for they could never do wrong. It’s also like imposing a Machiavellian sense of justice, that the end justifies the means, which is not the sort of moral standard government officials must observe. * READ MORE...

MEL STA.MARIA: The President within Constitutional Bounds In Criticizing the Supreme Court    

The Integrated Bar of the Philippines (IBP) was reported to be studying the possibility of filing a motion to declare the President in contempt of court for criticizing the Supreme Court in declaring some DAP acts and practices unconstitutional. In effect, the IBP contends that the President should not talk about the DAP while the case is pending with the Supreme Court. This "shutting up" is what we call the sub judice rule in court litigation. But is the sub-judice rule applicable in this particular case where the powers of a great branch of government is questioned in and will be decided by another branch of government? I do not think so.

We must look at this issue from the more fundamental context of our constitutional system of checks-and-balances and not merely from the perspective of ordinary litigation. For, after all, the question of DAP is not merely a private issue but a matter of public policy. We must remember that our Constitution demarcates three separate great branches of government: the Executive, the Legislature and the Judiciary. Each one is supreme in its own sphere. No branch can encroach on the prerogatives of another. More importantly, this constitutional separation highlights that the powers of each branch are not limitless. And, to assure that no branch exceeds its respective boundaries, each branch is empowered to check the other so that the balance of power is maintained. As a consequence, it becomes the duty of each branch, if necessary, to remind the other branches of not only an actual encroachment but also a possible intrusion. This is part of what we know as the system of checks-and-balances. * READ MORE...

Dr. Ben Diokno: Can’t President Aquino Do Good Things Without Violating the Constitution? 

The Filipino people, through its Supreme Court, have spoken: the core of the Disbursement Acceleration Program (DAP) is unconstitutional. They are also telling President Aquino III, being the final author, and Budget Secretary Abad, the chief architect and implementor of DAP, that they are not off the hook “unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

The Supreme Court ruled that “the doctrine of operative fact can apply only to the [programs, activities and projects] PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementers 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.”

President-Aquino-Do-Good --President Aquino III argued that the DAP was a fiscal stimulus program, a way of boosting economic growth. But citizens ask: Can’t the President and his economic team support economic growth without violating the Constitution? Since when is violating the constitution good for the people? Didn’t the President take a solemn oath to “preserve and defend the Constitution”? It is the constitutional responsibility of the President to prepare a national budget. His budget could be growth-oriented or one focused on lowering fiscal deficits. That’s his choice.

As a far as I can remember, Congress has approved Mr. Aquino’s last three budgets with minimal alteration. What Mr. Aquino wants, he gets. So it came as a surprise to the Filipino people, and the justices of the Supreme Court, when Mr. Aquino and Mr. Abad sequestered some P72.1 billion of the Congress-authorized appropriations towards the end of 2011, and called the same “overall savings.”

The SC ruled this act as unconstitutional. Mr. Aquino and Mr. Abad then used the “savings’ to finance programs and projects, some of which were not even mentioned in the general appropriations act (GAA) of 2011. In effect, they prepared a ‘budget’ within the GAA and called it a fiscal stimulus program. This, too, is unconstitutional, the Supreme Court ruled. PARTLY QUICK DISBURSING, BUT NOT FISCALLY STIMULATING  --The DAP was being trumpeted as quick disbursing—a major boost to economic growth. This was an economic argument, not legal, and a flawed one at that. But is DAP truly a fiscal stimulus? The short answer is NO. * READ MORE...

Raisa Robles: Saguisag fully backs me on DAP and shares a startling suspicion 

Boy, who would have thought such an esoteric, abstract article would stir up so much commotion and interest? It’s not about a sex scandal. Not a bomb blast or a natural disaster. There’s no video, no sound, no music. And yet my story, “President Aquino’s dead mom, President Cory, may yet save her son from jail over DAP”, seems to have kicked an anthill. No, several anthills. Which is strange, because it has nothing but ideas in it – no lurid pictures, even. The article raised questions about the Supreme Court recent ruling on the Disbursement Acceleration Program. The reason it caused an uproar is that a lot of political and personal things are tied up with the court ruling. The story validated or invalidated a person’s support or non-support of Aquino. Many people wanted to believe in him and his Matuwid na Daan. But the DAP ruling messed up that belief. Also, let’s face it, Filipinos are legalistic and love any argument on laws. Let’s briefly go over that story, shall we?

The heart of the Supreme Court ruling was that Aquino’s Disbursement Acceleration Program (DAP) was partly unconstitutional because it violated Section 25 (5) Article VI of the Constitution which states that: “(5) No law shall be passed authorizing any transfer of appropriations; however, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings to other items of the respective appropriations.” The SC said the word “respective” in this section bars “cross-border transfers” of funds. “Cross-border” means from one branch to another, for instance from the Executive to the Legislative, or the Judiciary.
According to the High Court, the Executive branch headed by PNoy violated this ban because it transferred appropriations beyond its executive border to at least two independent bodies – Congress (a co-equal and independent branch) and to the Commission on Audit (an independent constitutional commission).

In my story , I raised the possibility that perhaps the Supreme Court could review its ruling on DAP because DAP is based on two sections of the Administrative Code, which by themselves have not been declared unconstitutional. Section 38, Chapter V of Book VI of the Admin Code allows the President to stop or suspend expenditures on projects; Section 49 of the same chapter allows him to redirect the money from these projects into other economic activities. Specifically, I noted that the finding of unconstitutionality rested mainly on Section 25 (5), Article VI of the Constitution. And I wrote:
But what if there already existed a law authorizing the President to go beyond the limits set by Section 25 (5), Article VI of the Constitution? If you look at the wording of Section 25 (5) – “No law shall be passed” – the ban is prospective, not retrospective. What if the existing law happens to be the Administrative Code of 1987? * READ FULL STORY... [ROBLES ENDED THE STORY WITH: I am posting below the Supreme Court decision on the DAP, along with the concurring and dissenting opinions. To all those who think I’m always on the side of President Aquino, they’ve chosen to ignore that to this day I am against, and have written extensively about two of the laws PNoy has signed and which are now in effect:
The Cybercrime Prevention Law, The amendments to the Intellectual Property Code. I believe both laws diminish the rights of ordinary Filipinos and I will continue to fight against both laws. I am also FOR a law he has yet to fully back, namely the Freedom of Information Act. This I believe will empower ordinary Filipinos.] PLEASE READ THE VERY COMPREHENSIVE FULL STORY BELOW.


READ FULL REPORTS HERE:

Aquino’s DAP: lethal mix of ignorance and arrogance


ELLEN TORDESILLAS

MANILA, JULY 28, 2014 (ELLEN TORDESILLAS BLOG) President Aquino’s belligerent stand against the Supreme Court’s decision declaring his pet initiative, the Disbursement Acceleration Program, unconstitutional was not at all surprising considering his defense of Budget Secretary Florencio Abad, Jr. last Friday.

Reading and listening to his speech was not only appalling. It was disturbing.

It showed the lethal combination of ignorance and arrogance.

The issue is his usurpation of Congress’ power of the purse which is a violation of the Constitution and he talked about parking zones!

The President cited provisions the 1987 Administrative Code as legal basis of DAP. He said, “..we were surprised to find that the Supreme Court decision did not take into account our legal basis for DAP. How can they say that our spending methods are unconstitutional when they did not look into our basis? Even until now, Section 39 of the Administrative Code is in effect, along with its other sections.”

What he was referring to was Book VI, Chapter 5, Section 39 of the 1987 Administrative Code of the Philippines which states, “Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations…”

Did he read the part, “be used to cover a deficit …”. I dare Malacanang to show a certification of deficit from the agencies it gave DAP funding to.

In what is an indication that Malacañang is hard put scrambling for justification for DAP, Aquino cited Sec. 39 of the 1987 Administrative Code while the Solicitor General Francis Jardeleza invoked Sec. 38 in his defense of DAP before the High Court.

* Section 38 on suspension of Expenditure of Appropriations states:”Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.”

The main decision penned by Justice Lucas Bersamin said, “The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support.
Justice Antonio T. Carpio, in his concurring decision, lengthily explained why DAP cannot be legal based on the 1987 Administrative Code issued by President Corazon Aquino, which her son now is clinging to to save his presidency.

Carpio’s explanation: “Section 38, Chapter V, Book VI of the Administrative Code of 1987 allows the President ‘ to suspend or otherwise stop further expenditure ‘ of appropriated funds but this must be for a legitimate purpose, like when there are anomalies in the implementation of a project or in the disbursement of funds.

“Section 38 cannot be read to authorize the President to permanently stop so as to cancel the implementation of a project in the GAA because the President has no power to amend the law, and the GAA is a law.

“ Section 38 cannot also be read to authorize the President to impound the disbursement of funds for projects approved in the GAA because the President has no power to impound funds approved by Congress.

“The President can suspend or stop further expenditure of appropriated funds only after the appropriated funds have become obligated , that is, a contract has been signed for the implementation of the project. The reason for the suspension or stoppage must be legitimate, as when there are anomalies. The President has the Executive power to see to it that the GAA is faithfully implemented, without anomalies. However, despite the order to suspend or stop further expenditure of funds the appropriated funds remain obligated until the contract is rescinded. As long as the appropriated funds are still obligated, the funds cannot constitute savings because ‘savings’ as defined in the GAA, must come from appropriations that are ‘free from any obligation or encumbrance.’

“Section 38 cannot be used by the President to stop permanently the expenditure of unobligated appropriated funds because that would amount to a Presidential power to impound funds appropriated in the GAA.

“The President has no power to impound unobligated funds in the GAA for two reasons: first, the GAA once it becomes law cannot be amended by the President and an impoundment of unobligated funds is an amendment of the GAA since it reverses the will of Congress;second , the Constitution gives the President the power to prevent unsound appropriations by Congress only through his line item veto power, which he can exercise only when the GAA is submitted to him by Congress for approval.

“Once the President approves the GAA or allows it to lapse into law, he himself is bound by it.
“There is no presidential power of impoundment in the Constitution and this Court cannot create one . Any ordinary legislation giving the President the power to impound unobligated appropriations is unconstitutional.
“The power to impound unobligated appropriations in the GAA, coupled with the power to realign such funds to any project, whether existing or not in the GAA, is not only a usurpation of the power of the purse of Congress and a violation of the constitutional separation of powers, but also a substantial re-writing of the 1987 Constitution….

“Section 38 cannot be invoked by the President to create ‘savings’ by ordering the permanent stoppage of disbursement of appropriated funds, whether obligated or not. If the appropriated funds are already obligated,then the stoppage of disbursements of funds does not create any savings because the funds remain obligated until the contract is rescinded. If the appropriated funds are unobligated , such permanent stoppage amounts to an impoundment of appropriated funds which is unconstitutional.

“The authority of the President to suspend or stop the disbursement of appropriated funds under Section 38 can refer only to obligated funds;otherwise, Section 38 will be patently unconstitutional because it will constitute a power by the President to impound appropriated funds…

“Therefore, it is grave error to construe that the DAP is an exercise of the President’s power to impound under Section 38, Chapter VI, Book VI of the Administrative Code of 1987.

“The OSG and DBM do not interpret Section 38 as granting the President the power to impound. The essence of impoundment is not to spend. The essence of DAP is to ‘spend, spend,spend,’ in the words of the Solicitor General.”

Harry Roque, one of the petitioners representing the Concerned Citizens Movement, said, it is elementary: “Administrative Code cannot prevail over the Constitution.”

Is that too much for President Aquino to understand?

FROM 'UNCOMPLICATED MIND

Good faith or arrogance? By Joe Rivera  Wednesday, July 16, 2014


JOE RIVERA

So much has been said about good faith as a valid defence to President Aquino’s illegal redistribution of government funds under the Disbursement Acceleration Program (DAP) which was recently declared unconstitutional by the Philippine Supreme Court.

This promises a long and continuing government intramural between the executive and judicial branches, for as long as the Aquino administration insists that the DAP was conceived with good intentions and that it benefited those for which the impounded savings were spent.

Will Budget Secretary Florencio Abad resign or stay? Aquino tells him to stay put.

The main problem with good faith as an excuse is that it was never intended to be a defence for illegal behaviour. Where it was borrowed, primarily from the law of contracts and obligations, good faith is meant to be a precondition or an implied term in any contract between parties, such as the sale of goods or in negotiations of commercial transactions.

It is the general presumption in contract law that parties to a contract deal with each other in good faith, honestly and fairly to temper inequalities in their relationship – the end in view is to preserve the right of the parties to receive the benefits of the contract.

The principle of good faith or the duty to act in good faith is frowned upon in most common law jurisdictions, unlike in civil law regimes where it is generally accepted although its application in contract determinations has also created certain legal uncertainties. But that is not the subject of this blog, however.

How the covenant of good faith in contract law can easily be transposed to the affairs of government is therefore a challenging conundrum. It could be the rationale for the Supreme Court in avoiding this issue. Instead, the high court looked at previous precedents and invoked the doctrine of operative fact, that the consequences of a declared unconstitutional law or executive act cannot always be erased or disregarded.

In other words, while a law could be nullified on constitutional grounds, it effects however may be sustained. Why? Because it would pose a big burden for the government to undo what has been done, and equity alleviates this burden.

Imagine if the President and his entire cabinet can seek refuge every time under the cloak of good faith for all their actions, it would be like bestowing papal infallibility to this cabal.

They would be emboldened to do whatever they wish for they could never do wrong. It’s also like imposing a Machiavellian sense of justice, that the end justifies the means, which is not the sort of moral standard government officials must observe.

* Having said that, it is however clear that the President cannot use good faith as defence for his or his staff’s mistakes in the execution of laws or government programs. Perhaps, the President should revisit his oath of office. In taking his oath he has sworn to preserve and defend the Constitution and revisiting it might have a calming effect on his feelings of vindictiveness and resentment toward the Supreme Court’s decision in striking down the DAP.

In defending the Constitution, the President must also recognize that all laws or decrees like the Administrative Code he has been dangling, although not inconsistent with the fundamental law of the land, have only secondary importance.

The President’s allies in Congress are now contemplating scrapping the Judiciary Development Fund (JDF), apparently in response to the high court’s rebuke. Arguing that the JDF is a form of judicial pork barrel, the President’s allies are also insinuating a lack of transparency in the accounting and reporting of the said fund by the Supreme Court Chief Justice.

If the true motivation was to diminish the integrity of the Supreme Court, perhaps the President’s allies should take a step back and consider the constitutional ramifications of their counter threat. The Constitution guarantees fiscal autonomy for the judiciary and any attempts to dilute it will again be struck down as unconstitutional, if not an infantile response to the Supreme Court’s reproach of the President.

In striking down the DAP, the Supreme Court did not find the President guilty of a criminal act. There was therefore no need for childish tantrum. The Supreme Court merely nullifies the DAP, which, by the way, the President’s Solicitor General has argued is moot since it was no longer being implemented.

Why would then the President decide to speak on nationwide television to unleash his attack against the Supreme Court under the guise that he was merely reporting to his “bosses,” the Filipino people?

Time to show your true colours, President Aquino asks supporters to wear yellow ribbons to show their support for his administration.

President Aquino’s latest public behaviour betrays the vindictiveness and ignorance of a child in the body of a grown man.

As leader of his country, the President should realize that ours is a representative democracy where the people have agreed to delegate their power to the institutions of government as envisaged by the fundamental law of the land. While it is true that the people are the real “bosses,” the President is not supposed to run to them for help whenever another co-equal branch of government chastises his illegal actions.

Unless the President is invoking the constitutional right of the people to initiate legislation by initiative or referendum. Or perhaps, if he is mobilizing the people to a nationwide revolution or another people power to abolish the government and install a better one. But that certainly is not the case, not for this President who is simply hanging on to the legacy of his more popular parents in restoring democracy in the country after twenty years of political repression and dictatorship.

His argument that the DAP was good for the people, albeit being unconstitutional, is also a false message because reality does not support it. The DAP was supposed to perk up government spending to stimulate a laggard economy. Whether it was accomplished could probably mitigate the finding of illegality by the Supreme Court – the doctrine of operative fact.

But reality bites and it is scathing and harsh.

President Aquino and his officials claimed that the DAP stimulated the economy in 2011, with DAP spending contributing to 1.3 percentage points in the growth of the gross domestic product in the last quarter of 2011. The World Bank however disputed the GDP growth, pointing that the 1.3 percentage gain in government consumption and public construction was not due to DAP alone.

Another Philippine think-tank organization estimated the real contribution of DAP-related spending to economic growth to likely one-fourth of a percentage point in the fourth quarter of 2011 and less than a tenth of a percentage point for the whole year.

In defending the controversial implementation of the DAP, President Aquino told businessmen and the World Bank that the Philippine economy grew under his watch and warned that the Supreme Court rebuke of the DAP may reverse this progress.

Truth be told, the Aquino government failed to install significant structural reforms in the real economy to spur any improvement. This is no different from the earlier hype over the Philippines’ credit rating upgrade which was used by the current administration to distract from the country’s real economic woes like rising inequality and unemployment.

In grossly exaggerating the true impact of the DAP on the economy, the President is now resorting to making the Supreme Court’s decision a scapegoat to explain the current economic slowdown.

And if there is truth to the allegations that portions of the DAP were lost to corruption, such as the alleged payment of bribes to members of Congress in return for the impeachment of former Supreme Court Chief Justice Renato Corona, this would further undermine the President’s argument that the DAP was a good program because it benefited the economy and improved the general welfare of Filipinos.

Seemingly lost in the controversy surrounding the Supreme Court’s decision to invalidate the DAP, and previously, the Priority Development Assistance Fund (PDAF) or the pork barrel for members of Congress, is the Malampaya Fund which is commonly referred to as the Presidential Social Fund.

The Malampaya Fund, which consists of royalties paid to the government by the operators of the Malampaya Gas Project in Palawan, is not subject to congressional oversight and could be the mother of all pork barrels, much bigger than the PDAF and DAP combined. Since 2001, the government has received a whopping US$1 billion annually in royalties.

President Aquino must be worried by now about his legacy, if any, which is slowly being eroded by his failure and inability to accept responsibility for the shortcomings of his administration.

If there’s any consolation, he still has two more years to salvage his sinking presidency. But if the President continues to stubbornly defend the debunked DAP only to heighten an unnecessary confrontation with the judiciary, he would just be validating a Filipino psychic’s prediction that he will be ousted from power amid growing public discontent, with the possibility of spending jail time for charges of corruption.

Such a comical twist to the President’s mantra of daang matuwid.

INTERAKSYON.COM COMMENTARY

MEL STA.MARIA | The President within Constitutional Bounds In Criticizing the Supreme Court By: Atty. Mel Sta. Maria July 26, 2014 2:29 PM InterAksyon.com The online news portal of TV5


Atty. Mel Sta. Maria is the resident legal analyst of TV5. He is Dean of the FEU Institute of Law. He also teaches at the Ateneo School of Law and daily co-hosts the program 'Relasyon' on Radyo Singko 92.3 News FM.

The Integrated Bar of the Philippines (IBP) was reported to be studying the possibility of filing a motion to declare the President in contempt of court for criticizing the Supreme Court in declaring some DAP acts and practices unconstitutional.

In effect, the IBP contends that the President should not talk about the DAP while the case is pending with the Supreme Court. This "shutting up" is what we call the sub judice rule in court litigation.

But is the sub-judice rule applicable in this particular case where the powers of a great branch of government is questioned in and will be decided by another branch of government?

I do not think so.

We must look at this issue from the more fundamental context of our constitutional system of checks-and-balances and not merely from the perspective of ordinary litigation. For, after all, the question of DAP is not merely a private issue but a matter of public policy.

We must remember that our Constitution demarcates three separate great branches of government: the Executive, the Legislature and the Judiciary. Each one is supreme in its own sphere. No branch can encroach on the prerogatives of another.

More importantly, this constitutional separation highlights that the powers of each branch are not limitless. And, to assure that no branch exceeds its respective boundaries, each branch is empowered to check the other so that the balance of power is maintained. As a consequence, it becomes the duty of each branch, if necessary, to remind the other branches of not only an actual encroachment but also a possible intrusion. This is part of what we know as the system of checks-and-balances.

* Thus, the Supreme Court can check the Legislature. For instance, it can declare a law passed by Congress as unconstitutional and therefore not implementable. This happened to some parts of the RH Law and the CyberCrime Law. It is the duty of the Legislature to obey the declaration of the Judiciary.

The Supreme Court can likewise check the Executive. The DAP case is a clear example. In its original decision, it declared as unconstitutional "acts and practices" of the Executive Department in the implementation of the DAP. At the moment, the said decision is subject of a motion for reconsideration. But if it is not reconsidered, the President said that he will abide by it.

How about the judiciary? Which branch checks the Supreme Court in its decisions in matters involving issues of departmental prerogatives? The answer is none. The legislature and the executive departments cannot immediately do anything regarding any final decision promulgated by the Supreme Court on these matters.

Whether right or wrong, final decisions of the Supreme Court must be obeyed.

This is the legal reality. But history taught us that the Supreme Court, constituted by fallible and imperfect men and women like all of us, was not always right. In fact, our most dreadful historical experience during the second half of the 20th century -- the period of Martial Rule under the Marcos Regime -- was also brought about largely by the perceived legitimation given to it by the Supreme Court.

This terrible period led to "summary execution, torture, enforced or involuntary disappearance and other gross human rights violations committed during the regime of former President Ferdinand E. Marcos covering the period from September 21, 1972 to February 25, 1986" as recognized by Republic Act No. 103688, otherwise known as the "Human Rights Victims Reparation and Recognition Act of 2013".

Since no great branch can check the decisions of the Supreme Court, only the justices' self-restraint is the assurance against their own possible abuses, if such self-restraint is at all existing and assuring. The words of former United States Supreme Court Justice Felix Frankfurter becomes very relevant:

"All power is ... of an encroaching nature. Judicial power is not immune against this human weakness. It must be on guard on going beyond its proper bounds, not the less so since the only restraint upon it is self-restraint. The Court must observe a fastidious regard about limitation of its own power, and this precludes the Court’s giving effect to its own notions of what is wise and politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what the legislative and executive branch may do."

What if there is no self-restraint leading the Supreme Court to make a fundamental far-reaching error? That is always a possibility. Who will tell the Justices that they are wrong or about to commit a wrong?

It is in this light that the constitutional system of checks-and-balances becomes very important. It is also in this context that we must view and understand the acts of the President in going out and strongly explaining to the people what the DAP is all about and informing them of the possible negative economic consequences which he sincerely believes might happen if the Supreme Court DAP decision is not overturned.

If a President at any given time honestly believes that the Supreme Court, another branch of government, might encroach on executive prerogatives or has effectively already encroached on the same, it is the President's or the Legislature's duty to put the Supreme Court on notice. This is true regardless of whether a case concerning an involved issue has been decided or is still on-going.

It is the President's obligation to speak up and say that the Supreme Court has over-reached and has dangerously gone beyond its limits. It is his obligation to tell the people that the Supreme Court is wrong. Supreme Court decisions should not be beyond debate.

For example, when the US Supreme Court ruled that US corporations, like ordinary natural individuals, can also donate limitless amount of money for election campaign purposes, President Obama openly and sharply criticized the US Supreme Court, not merely in an ordinary interview, but in no less than his 2010 State of the Union address in the presence of not only the legislators but the members of the court in their full regalia and the whole world. He said the decision of the US Supreme Court “reversed a century of law to open the floodgates for special interests -- including foreign companies -- to spend without limit in our elections.”

It was a critical indictment of the failure of the highest court of the land to consider history and the sentiment of the American people.

This must likewise be so in the Philippines if we are to faithfully adhere to our democratic system of checks-and-balances. The acts of President Benigno Aquino III may appear to be strong and ostensibly combative but they cannot be considered as gestures of disrespect to or contempt for the Supreme Court.

They are fundamentally an exercise of his bounden duty to try to stop what he honestly believes is an encroachment on executive prerogative. This becomes so important when we realize that, in doing so, the President is not even violating any statute but merely expressing his point as President.

In our Constitutional setup where even the Justices are not special government officials but also public servants, they must be told, if necessary, of their errors and they must be open to criticisms. As Justice Brewer, former US Supreme Court Justice, said

justices should be the objects of constant watchfulness by all, and their judgments subject to the freest criticism. The time is past in the history of the world when any living man or body of men can be set on a pedestal and decorated with a halo. True, many criticisms may be, like their authors, devoid of good taste, but better all sorts of criticism than no criticism at all.

The moving waters are full of life and health; only in the still waters is stagnation and death.

Warning another branch of a possible intrusion is legitimate. That much we have to give to the President for, after all , when the 15 justices of the Supreme Court finally decide on the case, we will just have to accept that decision whether we like it or not. But this does not mean that the decision is beyond legitimate and critical debate.

I would say that, being a lawyer myself, the filing of contempt charges against the President would be a wrong move. But if the IBP does so, I expect nothing less from the Supreme Court than to rise to the occasion, to treat this as an opportune moment to show that rightly or wrongly, the President's act of criticizing them no longer should be examined through the miniscule lens of sub-judice but within the broader concept of the system of checks and balances. I trust that the Supreme Court has the wisdom to make this distinction.

FROM MANILA SPEAKS

Can’t President Aquino Do Good Things Without Violating the Constitution?


Dr. Ben Diokno
http://www.manilaspeak.com/

The Filipino people, through its Supreme Court, have spoken: the core of the Disbursement Acceleration Program (DAP) is unconstitutional. They are also telling President Aquino III, being the final author, and Budget Secretary Abad, the chief architect and implementor of DAP, that they are not off the hook “unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

The Supreme Court ruled that “the doctrine of operative fact can apply only to the [programs, activities and projects] PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementers 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.”

President-Aquino-Do-Good

President Aquino III argued that the DAP was a fiscal stimulus program, a way of boosting economic growth. But citizens ask: Can’t the President and his economic team support economic growth without violating the Constitution? Since when is violating the constitution good for the people? Didn’t the President take a solemn oath to “preserve and defend the Constitution”?

It is the constitutional responsibility of the President to prepare a national budget. His budget could be growth-oriented or one focused on lowering fiscal deficits. That’s his choice. As a far as I can remember, Congress has approved Mr. Aquino’s last three budgets with minimal alteration. What Mr. Aquino wants, he gets.

So it came as a surprise to the Filipino people, and the justices of the Supreme Court, when Mr. Aquino and Mr. Abad sequestered some P72.1 billion of the Congress-authorized appropriations towards the end of 2011, and called the same “overall savings.” The SC ruled this act as unconstitutional.

Mr. Aquino and Mr. Abad then used the “savings’ to finance programs and projects, some of which were not even mentioned in the general appropriations act (GAA) of 2011. In effect, they prepared a ‘budget’ within the GAA and called it a fiscal stimulus program. This, too, is unconstitutional, the Supreme Court ruled.

PARTLY QUICK DISBURSING, BUT NOT FISCALLY STIMULATING

The DAP was being trumpeted as quick disbursing—a major boost to economic growth. This was an economic argument, not legal, and a flawed one at that.

But is DAP truly a fiscal stimulus? The short answer is NO.

* When is fiscal stimulus truly effective? When, through higher government spending, or major tax cuts, aggregate demand is stimulated, preferably through higher consumer spending and temporary job creation.

The important thing is there has to be new, additional spending. When funds are siphoned off from slow-moving projects into fast moving projects, but there is no significant increase in spending, then there would be no perking up effect.

If the President Aquino truly and seriously wanted to stimulate the economy, he could have submitted a supplemental budget consisting of labor-intensive, ready-to-implement infrastructure projects. That was not done.

Assume a P2.0-trillion budget, with roughly P250 for infrastructure projects. If only one half of the infrastructure budget (P125-billion) were sequestered, declared as ‘savings’ then released for new expenditure items, what would be its impact on the economy?

It depends, of course. If spent as grants to the poorest of the poor, or as a helicopter drop of billions of pesos in poor communities, it would have maximum impact. Consumer spending could have a multiplier of roughly 5.

The perking-up effect of public works projects would depend on whether the projects are small-scale rather than large-scale, labor-intensive rather than capital intensive, and whether the projects are implementation-ready or not.

As part of the DAP, P5.5 billion was released to DPWH. The amount is supposed to be spent for the construction and rehabilitation of roads, bridges, flood control, and other projects that have been damaged in the recent typhoons. These projects are supposed to have a completed program of work, and many are quick-disbursing projects below PHP40 million. Yet, by the end of 2011, there was zero disbursement, hence no impact of economic growth. What’s its impact on job creation? Nada.

As part of the DAP, P1.1 billion was released to the Technical Education and Skills Development Authority (TESDA). As of end 2011, only P72,000 had been spent. What’s its impact on job creation? Nil.

As part of the DAP, P10.4-billion was allocated for peace and development. As of end 2011, P9.48 billion remained unspent. What’s its impact on job creation? Nil.

A large number of the DAP releases went to quick-disbursing but not job creating activities, such as those that went to the Bangko Sentral ng Pilipines (BSP), National Housing Authority (NHA), the Metro Rail Transit (MRT), and Quezon Province. SAROs released to government corporations and local governments are considered disbursed but they do not necessarily translate into higher outputs until new projects get off the ground.

As part of the DAP, P750 million was released to the province of Quezon which in turn was used to settle the tax liabilities of the National Power Corporation (Napocor). It was quick-disbursing but not fiscally stimulating. It’s pure window-dressing, as it improved the financial picture of Napocor while giving the public the illusion that its government is spending well to improve the common good. But how many new jobs were created? Nada.

As part of DAP 2011, P10 billion was released to the BSP as equity contribution of the national government. As a result of the transaction, the bottom line of BSP improved. Another window dressing. Worse, as part of DAP 2012, another P20 billion was released to the BSP, for a total of P30 billion. But how many new jobs were created? Nada.

In the light of the Supreme Court decision, applying the operative fact doctrine, these transactions could easily be undone. BSP should return the P30 billion to the National Treasury. If the additional equity is absolutely necessary, then the P30 billion could be included in the 2015 budget. This move is consistent with the Constitutional provision that no money shall be paid out of the Treasury, except in pursuance of an appropriation, made by law.

As part of DAP, P11.05 billion was released to the National Housing Authority, broken down as follows: resettlement of North Triange residents (P450 million); housing for BFP/BJMP personnel (P500 million); on-site development for families living along dangerous areas (P10,000) and relocation sites for informal settlers along lloilo river and its tributaries (P100 million).

This P11-billion, parked with NHA, gives an illusion of a fast-disbursing government. The reality is that a big chunk of the P11 billion has remained unspent. Again, in the light of the operative fact doctrine, how much of the P11.0 billion has been spent to pay for completed projects? And how much may be returned to the Treasury.

As part of DAP 2011, P4.5 billion was released to DOTC- MRT for the purchase of MRT train cars. Since these cars will be imported, the economy of the country where the cars will be manufactured will prosper, not the Philippines. Jobs will be created abroad, not at home. So how can the deal stimulate the economy? Worse, the train cars have yet to be purchased. And the administration calls the P147-billion DAP as fiscal stimulus!

All the above examples plus more (hopefully to be discovered as Secretary Abad appears before the Senate finance committee) support the view that the “fiscal stimulus” argument used by the Aquino administration to justify DAP was an extremely lame excuse. The harsh reality is that the economy grew by a measly 3.7% in the fourth quarter of 2011, and 3.7% for the entire year.

SILVER LINING

The silver lining in this combined PDAF-DAP episode is that Supreme Court has given Filipinos a reason for rejoicing and being hopeful once more. The Supreme Court’s twin rulings are game changers for the better. Henceforth, Filipino leaders and politicians will be operating under a better-defined Code of Fiscal Behavior.

The Supreme Court has done more for good governance and improved public accountability than what the Aquino III administration has done in the last four years.

If President Aquino III wants to abide by his oath to “preserve and defend the Constitution, execute its laws,” then he should embrace, not fight, the Supreme Court decision on the DAP.

FROM RAISA ROBLES.COM

Saguisag fully backs me on DAP and shares a startling suspicion Exclusive by Raïssa Robles  July 14, 2014 · 263 Comments

And an SC Justice agrees with my interpretation of Section 25 (5) of the Constitution


INVESTIGATIVE JOURNALIST Raïssa Robles

Boy, who would have thought such an esoteric, abstract article would stir up so much commotion and interest? It’s not about a sex scandal. Not a bomb blast or a natural disaster. There’s no video, no sound, no music.

And yet my story, “President Aquino’s dead mom, President Cory, may yet save her son from jail over DAP”, seems to have kicked an anthill. No, several anthills. Which is strange, because it has nothing but ideas in it – no lurid pictures, even.

The article raised questions about the Supreme Court recent ruling on the Disbursement Acceleration Program.

The reason it caused an uproar is that a lot of political and personal things are tied up with the court ruling. The story validated or invalidated a person’s support or non-support of Aquino. Many people wanted to believe in him and his Matuwid na Daan. But the DAP ruling messed up that belief.

Also, let’s face it, Filipinos are legalistic and love any argument on laws.

Let’s briefly go over that story, shall we?

The heart of the Supreme Court ruling was that Aquino’s Disbursement Acceleration Program (DAP) was partly unconstitutional because it violated Section 25 (5) Article VI of the Constitution which states that:

“(5) No law shall be passed authorizing any transfer of appropriations; however, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings to other items of the respective appropriations.”

The SC said the word “respective” in this section bars “cross-border transfers” of funds. “Cross-border” means from one branch to another, for instance from the Executive to the Legislative, or the Judiciary.

According to the High Court, the Executive branch headed by PNoy violated this ban because it transferred appropriations beyond its executive border to at least two independent bodies – Congress (a co-equal and independent branch) and to the Commission on Audit (an independent constitutional commission).

In my story , I raised the possibility that perhaps the Supreme Court could review its ruling on DAP because DAP is based on two sections of the Administrative Code, which by themselves have not been declared unconstitutional. Section 38, Chapter V of Book VI of the Admin Code allows the President to stop or suspend expenditures on projects; Section 49 of the same chapter allows him to redirect the money from these projects into other economic activities.

Specifically, I noted that the finding of unconstitutionality rested mainly on Section 25 (5), Article VI of the Constitution.

And I wrote:

But what if there already existed a law authorizing the President to go beyond the limits set by Section 25 (5), Article VI of the Constitution? If you look at the wording of Section 25 (5) – “No law shall be passed” – the ban is prospective, not retrospective.
What if the existing law happens to be the Administrative Code of 1987?

* The SC was aware of the existence of the Administrative Code of 1987 which President Corazon Aquino had legislated into law two days before the first post-Martial Law Congress convened. In its ruling on DAP, the court said Chapter 5, Section 38 of the Administrative Code of 1987 – which Budget Secretary Butch Abad had cited as one of the legal bases for DAP – did not give the President the power to pool funds into what they called the DAP.

I then posed the following argument:

The DAP is unconstitutional if you only look at the 1987 Constitution and Chapter 5, Section 38 of the         Administrative Code of 1987 – which is what the justices did.
       
The DAP becomes constitutional if you look at the 1987 Constitution AND Sections 38 and 49 of Chapter 5 of the Administrative Code of 1987. Because Section 38 gives the President the power to create savings and Section 49 gives the President the power to pool those savings into a fund like DAP.

You need both Section 38 and Section 49, Chapter 5 of the Administrative Code to make DAP LEGAL AND CONSTITUTIONAL.

Without Section 49, DAP becomes illegal and unconstitutional.


Again, boy did I get it.

People I knew — and didn’t know — were lining up, scrambling over each other to tell me about the inadequacy of my knowledge of law and (by implication) the lofty superiority of their mastery of said subject.

Someone who called himself “killem_01” posted this remark on my website:

“The fatal error of the independent journalist is that she assumed that the Sec. 25 of the Constitution will not apply to admin code and further, assumed that sec.38 and 49 authorized gross boarder transfer. That assumption is clearly erroneous and misleading. But what will you expect from a independent journalist…”

Ouch. Tell me, oh anonymous commenter killem01, what DO you expect?

A former classmate in college who went on to become a brilliant lawyer gently lectured me on Facebook, saying:

“It’s understandable for a non-lawyer to think that the words “no law shall be passed…” impact or affect only laws enacted after 1987 when the Constitution was ratified. In fact, those words have both retroactive and prospective effect.They impose an absolute prohibition, qualified only by the express exceptions that follow those words. To say that the Administrative Code of 1987 qualifies the Constitution makes our whole normative system stand on its head. The Constitution, as your father taught generations of law students in UP Law, trumps all Congressional enactments or executive fiats.”

In case people are wondering, he was referring to my late father, Prof. Jose F. Espinosa, who was once Dean of the evening law of the University of the Philippines College of Law. He was a renowned terror professor.

Anyway, the negative reactions to my story can be broken down into three points:

(1) The Constitution is clear.
(2) The SC decision is unanimous.
(3) I’m not a lawyer. Who am I to talk and how dare I PRESUME to question the Supreme Court?

There’s actually a fourth point, how do you define “savings” – which I’ll leave for another story (it’s complicated and as long as this and I need to post illustrations).

Anyway, what can I say to the three points? This: at least they got one thing right – I’m not a lawyer.

As for the other two? Let’s get the ball rolling, shall we?

I should say first off that in the course of the week I also happen to have gotten opinions from quite a few lawyers who SUPPORT my position or find them legally tenable..

So, seeing as how I’m not a lawyer, or, even married to one, why don’t we listen to a couple of people who happen to be lawyers?

In fact pretty serious ones. Why don’t we listen to former senator Rene Saguisag and a sitting member of the Supreme Court?


PHOTO COURTESY OF THE RAPPLER.COM-- CONSCIENCE VOTE. Former Sen Rene Saguisag says self-interest is the prevailing rule in the Senate but the challenge is to make a conscience vote. File photo by Senate PRIB/Puti Calvelo

Let’s start with Supreme Court Associate Justice Mariano del Castillo, who submitted a “concurring and dissenting” opinion on DAP.

I nearly fell off my seat when I reread del Castillo’s explanation of his vote finding DAP partly unconstitutional.

Recall that Section 25 (5) states [with my emphasis added]:

“(5) No law shall be passed authorizing any transfer of appropriations; however, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings to other items of the respective appropriations.”

Recall that my critics have said the phrase “no law shall be passed” INCLUDES the Administrative Code that came into effect two days before Congress convened. Therefore, they said, Section 49 of the Administrative Code that allows cross-border transfer can be considered revoked or voided by Section 25 (5) of the Constitution. Or reinterpreted in the light of Section 25 (5).

My critics’ interpretation of the phrase “no law shall be passed” turned out to be wrong — at least, that’s what Justice del Castillo said in his opinion on what Section 25 (5) of the Constitution means.

He wrote on page 4 of his 56-page opinion [with my emphasis added]:

“The subject constitutional provision prohibits the transfer of appropriations. Congress cannot pass a law authorizing such transfer. However, it is allowed to enact a law to authorize the heads of offices to transfer savings from one item to another provided that the items fall within the appropriations of the same office: the President relative to the Executive Department, the Senate President with respect to the Senate, the Speaker relative to the House of Representatives, the Chief Justice with respect to the Judicial Department, and the heads of the constitutional bodies relative to their respective offices.”

Notice that Del Castillo used the word “Congress”. In other words, Del Castillo limits the constitutional prohibition only to all laws passed by Congress.

What does this mean? As even my lawyer-critics would concede, under the rules of statutory construction (which simply means the manner of making laws and interpreting them), if you negate only one specific instance, then all other things of a similar nature are allowed. A crude example: if a security guard tells you “you cannot enter through this door” that does not mean he’s banning you from entering through other doors, just not this door.

In short, while Congress cannot pass a law; President Corazon Aquino could and did, using her legislative powers that were recognized by the 1987 Constitution. And her law is exempt from the ban imposed on Section 25 (5) of the Constitution.

After all, it was her who directed the framing of a new Constitution using her powers under the Freedom Constitution. It would have been absurd if the 1987 Constitution had duly restricted her powers to legislate in the interim period between the constitution’s ratification and the convening of Congress. That would have left a dangerous vacuum.

The critics might then say – but Del Castillo did not mention President Aquino.

And I would answer them this way. Del Castillo was the lone justice who bothered to explain the relation between the Constitution, the General Appropriations Acts (or yearly national budgets passed by Congress), and the Administrative Code of 1987.

He described the GAA as “the implementing legislation of the constitutional provisions” pertaining to the budget. Then he said the GAA is at the same time “governed by the Administrative Code.”

Here is what Justice del Castillo wrote on page 10 of his “concurring and dissenting” opinion:

Consequently, considering that the GAA (1) is the implementing legislation of the constitutional provisions on the enactment of the national budget under Article VI, and (2) is governed by Book VI (“National Government Budgeting”) of the Administrative Code…”

Note that Book VI contains Sections 38 and 49, which I alluded to.

Like the other justices, Del Castillo discussed the powers of the President on the budget under Sec. 38, but not under Section 49 of the Administrative Code. I don’t know why.

Section 38 gives the President the broad powers to suspend or stop all “expenditures” except for salaries of permanent personnel:

Section 38. Suspension of Expenditure of Appropriations. – Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.

But Section 49 extends the power of the President to use savings generated by the stoppage of projects for a wide range of activities.

Here are the pertinent portions of Section 49:

SECTION 49. Authority to Use Savings for Certain Purposes. — Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President: (9) Priority activities that will promote the economic well-being of the nation, including food production, agrarian reform, energy development, disaster relief, and rehabilitation. (10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities;

I know, Justice Del Castillo is highly controversial for his ruling on the comfort women and the allegations of plagiarism against him.

But 10 of his colleagues dismissed the charge in 2010. Which means they trusted him and his judgment.

Another argument I would raise – to show that the “no law should be passed” phrase pertains to Congress alone – came from @Baycas, one of the regular commenters on my site. Baycas pointed out that Section 25 (5) appears under Article VI of the Constitution which deals with the “Legislative Department.”

Again, using statutory construction, we should expect that all sections under Article VI would refer only to the powers of the Legislative Department in relation to the other branches of government.

Now things get interesting. Some sources pointed out to me that Apparently, I had missed another important section in the Administrative Code that Secretary Abad had used as one of his legal bases to justify DAP.

This is Section 39.


I counter-checked by reading again the 92-page DAP ruling penned by Justice Lucas Bersamin. The sources were right. On pages 43-47, Bersamin reprinted the entire National Budget Circular No. 541 dated July 18, 2012 signed by Abad, and which the solicitor general had submitted as part of the evidence.

The first two paragraphs of Abad’s National Budget Circular No. 541 states the legal bases for withdrawing funds and pooling these into a DAP [my emphasis added]:

The DBM, as mandated by Executive Order (EO) No. 292 (Administrative Code of 1987), periodically reviews and evaluates the departments/agencies’ efficiency and effectiveness in utilizing budgeted funds for the delivery of services and production of goods, consistent with the government priorities. In the event that a measure is necessary to further improve the operational efficiency of the government, the President is authorized to suspend or stop further use of funds allotted for any agency or expenditure authorized in the General Appropriations Act. Withdrawal and pooling of unutilized allotment releases can be effected by DBM based on authority of the President, as mandated under Sections 38 and 39, Chapter 5, Book VI of EO 292.

I missed Section 39 earlier because I had looked at another legal document that Justice Bersamin had alluded to as part of the submitted evidence on DAP.

Section 39 is important for the following reason.
The court ruled that the action by the executive department to undertake cross-border transfers in order, for instance, to enable Congress to complete its e-library was unconstitutional because this violated Section 25 (5) of Article VI of the Constitution. No transfer of appropriations between independent branches of government.

But in the 2012 circular I cited, Abad justified such cross-border transfers using Section 39, Chapter 5, Book VI of the Administration Code (also known as Executive Order 292).

I had earlier glanced at Section 39 but dismissed it because I thought it only had to do with deficit-spending by the national government.

It turns out that Section 39 gives a very narrow and plain meaning of “deficit”. It simply means when funds run short to complete a project or kung nagkulang.

Here is Section 39 which Abad pointed to as the section that enabled him to pool funds [my emphasis added]:

SECTION 39. Authority to Use Savings in Appropriations to Cover Deficits.—Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations: Provided, that the creation of new positions or increase of salaries shall not be allowed to be funded from budgetary savings except when specifically authorized by law: Provided, further, that whenever authorized positions are transferred from one program or project to another within the same department, office or agency, the corresponding amounts appropriated for personal services are also deemed transferred, without, however increasing the total outlay for personal services of the department, office or agency concerned.

This is the section of the Admin Code that justified Abad’s giving Congress P43 million to complete its e-library.

But apparently, even Abad forgot to stress this point when he was closely questioned on cross-border transfers by Justice Bersamin.

Bersamin enclosed in the main ruling a portion where he had questioned Abad on cross-border transfer:

JUSTICE BERSAMIN: Alright, the whole time that you have been Secretary of Department of Budget and Management, did the Executive Department ever redirect any part of savings of the National Government under your control cross border to another department?

SECRETARY ABAD: Well, in the Memos that we submitted to you, such an instance, Your Honor

JUSTICE BERSAMIN: Can you tell me two instances? I don’t recall having read your material.

SECRETARY ABAD: Well, the first instance had to do with a request from the House of Representatives. They started building their e-library in 2010 and they had a budget for about 207 Million but they lack about 43 Million to complete its 250 Million requirements. Prior to that, the COA, in an audit observation informed the Speaker that they had to continue with that construction otherwise the whole building, as well as the equipments therein may suffer from serious deterioration. And at that time, since the budget of the House of Representatives was not enough to complete 250 Million, they wrote to the President requesting for an augmentation of that particular item, which was granted, Your Honor. The second instance in the Memos is a request from the Commission on Audit. At the time they were pushing very strongly the good governance programs of the government and therefore, part of that is a requirement to conduct audits as well as review financial reports of many agencies. And in the performance of that function, the Commission on Audit needed information technology equipment as well as hire consultants and litigators to help them with their audit work and for that they requested funds from the Executive and the President saw that it was important for the Commission to be provided with those IT equipments and litigators and consultants and the request was granted, Your Honor.

JUSTICE BERSAMIN: These cross border examples, cross border augmentations were not supported by appropriations…

SECRETARY ABAD: They were, we were augmenting existing items within their…
(interrupted)

JUSTICE BERSAMIN: No, appropriations before you augmented because this is a cross border and the tenor or text of the Constitution is quite clear as far as I am concerned. It says here, “The power to augment may only be made to increase any item in the General Appropriations Law for their respective offices.” Did you not feel constricted by this provision?

SECRETARY ABAD: Well, as the Constitution provides, the prohibition we felt was on the transfer of appropriations, Your Honor. What we thought we did was to transfer savings which was needed by the Commission to address deficiency in an existing item in both the Commission as well as in the House of Representatives; that’s how we saw…(interrupted)

JUSTICE BERSAMIN: So your position as Secretary of Budget is that you could do that?

SECRETARY ABAD: In an extreme instances because…(interrupted)

JUSTICE BERSAMIN: No, no, in all instances, extreme or not extreme, you could do that, that’s your feeling.

SECRETARY ABAD: Well, in that particular situation when the request was made by the Commission and the House of Representatives, we felt that we needed to respond because we felt…(interrupted).

In other words, Abad forgot that in his National Budget Circular No. 541 dated July 18, 2012 – and signed by him – he had cited Sections 38 and 39 of the Administrative Code as the legal bases for such cross-border transfers.

Reading the 92-page Decision penned by Bersamin, I got the impression that he did not think much of the presidential powers given by the Administrative Code of 1987.

Because on pages 51 to 54, Bersamin gave a history of the president’s power to transfer funds starting with the year 1902. But he stopped with 1977 when then President Ferdinand Marcos issued Presidential Decree No 1177, entitled “Revising the budget process in order to institutionalize the budgetary innovations of the New Society.” Bersamin made no mention at all of the Administration Code of 1987.

I had wondered why former Senator Joker Arroyo had called PNoy an “evil genius” for using the Admin Code.


Joker Arroyo told DZBB recently:

“Cory signed it (the Admin Code) in 1987 and yet up to the end of her term in 1992, she never used it. The question now lies, why P-Noy used it 25 years after it was signed?”

“It seems that P-Noy and Marcos thought alike. Cory did not use it. I am astounded why that admin code was used.”

I am puzzled why Arroyo has never mentioned his role in the passage of the Admin Code, through Executive Order No. 292 which he co-signed with Pres. Cory.

Out of curiosity, I decided to compare Marcos’ PD 1177 (issued on July 30, 1977) with Chapter 5 of the Admin Code.
It turns out, PD 1177 was almost bodily inserted into the Admin Code as its Chapter 5.

In short, Sections 38, 39 and 49 of the Admin Code, which Abad used as legal bases, came from PD 1177.

When Ex-Sen. Joker Arroyo called PNoy an “evil genius”, he did not explain why PD 1177 ended up inside the Admin Code.

The provisions of PD 1177 are all there in Chapter V of the Admin Code except for one section. Section 44 of PD 1177 is missing in the Admin Code. Section 44 authorizes the President “to transfer any fund” to anywhere for any reason. Here it is below:

Section 44.Authority to Approve Fund Transfers. The President shall have the authority to transfer any fund appropriated for the different departments, bureaus, offices and agencies of the Executive Department which are included in the General Appropriations Act, to any program, project, or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment.

The President shall, likewise, have the authority to augment any appropriation of the Executive Department in the General Appropriations Act, from savings in the appropriations of another department, bureau, office or agency within the Executive Branch, pursuant to the provisions of Article VIII, Section 16 (5) of the Constitution.

Bersamin’s ruling on DAP indicated why Section 44 was not inserted into the Admin Code. Bersamin said in 1987 the Supreme Court had struck down the first paragraph of Section 44 for contravening Section 16(5) of the 1973 Constitution. Bersamin said, quoting the Supreme Court ruling in the case of Demetria vs. Alba:

Paragraph 1 of Section 44 of P.D. No. 1177 unduly over-extends the privilege granted under said Section 16. It empowers the President to indiscriminately transfer funds from one department, bureau, office or agency of the Executive Department to any program, project or activity of any department, bureau or office included in the General Appropriations Act or approved after its enactment, without regard as to whether or not the funds to be transferred are actually savings in the item from which the same are to be taken, or whether or not the transfer is for the purpose of augmenting the item to which said transfer is to be made. It does not only completely disregard the standards set in the fundamental law, thereby amounting to an undue delegation of legislative powers, but likewise goes beyond the tenor thereof. Indeed, such constitutional infirmities render the provision in question null and void.

It is significant that Demetria was promulgated 25 days after the ratification by the people of the 1987 Constitution, whose Section 25(5) of Article VI is identical to Section 16(5), Article VIII of the 1973 Constitution, to wit:

Section 25. x x x
x x x x
5) No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.

Does this mean then that all the rest of PD 1177 which were inserted into the Admin Code of 1987 remain in effect and are part of the laws of the land? And therefore, when Abad and PNoy used Sections 38, 29 and 49 of the Code to justify DAP, they were acting in a lawful manner?

It is for this reason that I hope the Supreme Court would revisit its decision on DAP.

Not just on the constitutionality of Sections 38, 39, and 49 of Chapter 5, Book VI of the Administrative Code. But also on how these sections affect the very definition of what constitutes “savings” and can these savings be pooled into a new fund for projects that were not even mentioned in the General Appropriations Act.

In addition, the justices could perhaps revisit their comments on whether Abad and PNoy acted on good faith when they used the Admin Code.

Now let’s go to Saguisag

I would not have been able to write my first piece if I did not have the opinion of a prominent lawyer to back me up – that my arguments were “legally defensible.”

A couple of those who read my piece suggested that perhaps, Saguisag told that to me because he was just being polite.

“Polite” is the last thing I associate with the maverick ex-senator.

After my piece had come out, Saguisag sent me an email he had circulated to a group with whom he discusses political happenings:

Raissa is not a lawyer as far as I can tell but had a a very good lawyer for a father. She and hubby are makulit journalists, fact-checkers, and have a passion for precision in expression. Persnickety. Ang kulit!

The kind we need in what is otherwise a Wild Wild Press validating that media is the plural of mediocre. – Rocky Bridges.

Not the type who would see something he does not understand and proceed to explain it. Arthur Hoppe

He also told his e-mail group:

I know Raissa’s father, Joe Espinosa, who shared my passion for Scholastic Philosophy. He was with us in defending Joe Burgos & Co. in the We Forum trial (where I was cited for contempt twice, first fined and then imprisoned).
When I wrote “Who’s Afraid of Mary Jane?” in Mr. & Ms. in August, 1983, Joe told me his wife was upset that I would espouse legalizing marijuana. (I could not tell whether he was Super-Takusa like me.)
I doubt that legal amazon Raissa is a lawyer but she speaks below far better than attorneys (and certain Senators, I just heard one on TV whose subjects and predicates quarrelled)(Is hubby Alan also a Takusa?)
Her presentation is what I expect of my studes: grammatically correct, legally tenable, intellectually respectable and psychologically satisfying. The Supreme Court may shoot it down but here we see why no one should prejudge. Some Justices should be told, wait a minute, instead of prejudging and condemning Butch.
When Bobby Tanada and I were in the Palace last July 1, for Edca, part of the material given us was precisely what Raissa discussed below, which I look at now more carefully, rather than casually as I did then, because of some Fire!-Aim!-Ready! prejudgments and complaints.
Raissa has clearly discussed why a bona-fides assertion on tough legal issues will fly-high-blue-eagle-fly.

When I wrote my piece, I was not aware that the presidential palace was following the same legal track. I interviewed no one from there because I wanted to maintain my independence as a journalist.

I am elated and humbled by what Saguisag has written about me and my DAP story.

But in the end, I would like to ask readers to judge my DAP stories on the basis of my arguments.

Before I close this piece, let me share with you what Saguisag and I also talked about when I asked him about the DAP.
When I asked him, “Do you think my reading is correct or incorrect?

He said, “it’s legally defensible.”

I said, “Can this be a ground for a motion for reconsideration?”

Saguisag said, “To me, it’s a respectable basis. But you cannot make 15 men and women change their minds.”

I asked him again just to make sure, “So what I told you is defensible, about cross-border transfers being legal under the Admin Code?”

And Saguisag replied, “That’s what the Supreme Court does with their Judiciary Development Fund through the chief justice. Pag sinabing gagamitin lang yan for local personnel benefits, pag ginamit mo sa kurtina at biyahe, that’s another border crossing.”

Yep, he raises the possibility that the Supreme Court may have done exactly what it declared to be unconstitutional.

Saguisag expressed suspicion that the Court might have engaged in cross-border transfers in the past, but he conceded there was no proof.

It was only this weekend that I realized what could possibly, really change the mind of the Supreme Court justices – if someone comes up with proof that the Supreme Court had done what the justices said in the ruling that the executive department cannot do. If the court has even once accepted any cross-border funding from the executive branch at any time in the last 27 years.

It would not be the fault of the sitting justices if this had happened before their time. It would simply show that cross-border transfers are constitutional.


But then again, even without this, I’m hoping that public opinion may persuade the court to at least conduct a review of the constitutionality of Sections 38, 39 and 49 of the Admin Code as the legal bases for the DAP. So that future presidents can be guided.

I am posting below the Supreme Court decision on the DAP, along with the concurring and dissenting opinions.

To all those who think I’m always on the side of President Aquino, they’ve chosen to ignore that to this day I am against, and have written extensively about two of the laws PNoy has signed and which are now in effect:

The Cybercrime Prevention Law
The amendments to the Intellectual Property Code

I believe both laws diminish the rights of ordinary Filipinos and I will continue to fight against both laws.
I am also FOR a law he has yet to fully back, namely the Freedom of Information Act. This I believe will empower ordinary Filipinos.


Chief News Editor: Sol Jose Vanzi

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