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Saguisag fully backs me on DAP and shares a startling suspicion

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

Exclusive by 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?

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.

_______________________________________

Here is a link to my previous story:

President Aquino’s dead mom, President Cory, may yet save her son from jail over DAP

Below is the Decision penned by Justice Lucas Bersamin:

Below is the concurring and dissenting opinion of  Justice Mariano del Castillo:

Below is the separate opinion of Justice Antonio Carpio:

Below is the separate opinion of Justice Arturo Brion:

Below is the concurring opinion of Justice Marvic Leonen:

Below is the separate concurring opinion of Justice Estela Perlas-Bernabe:

Comments

  1. Ms. Raissa,

    Thanks to our City Councilor (Irene, CSJD, BULACAN) for sharing this very interesting argument concerning DAP on her FB page. It doesn’t enlightened me but it made me understand more.

    Should you are correct, it must be intriguing why the SC has ruled DAP unconstitutional as they misinterpreted the Constitution and the Administrative Code of 1987, right?

    Should I agree with your article, I must conclude that the SC decision was motivated by something because it is quite impossible that none of these law experts (I supposed) came to their right senses. Perhaps, the Chief Justice itself has used her own version of DAP to influence the rest of the justices to arrive with unanimous decision declaring DAP as contrary to the 1987 constitutional provisions.

    Should your arguments be a good case to file a motion for reconsideration? As Saguisag said, “it’s respectable” but for me, the palace should think carefully in filing a motion for reconsideration . Not because it is impossible to change the stands of the Justices but it will not bear good fruits to both branches. What if the motion failed to succeed (with most certainty)? Then, what is next for the palace? What if the motioned managed to succeed (possibly)? Would it mean SC has been bullied by PNOY (as Joker quipped, “hurrah, supreme president”)? It would only make people think that the SC has lost its independence.

    I believe, however, that we need this SC ruling be upheld or be reversed by the next seating justices. After all, you might be right.

    • let’s wait.

      things are still unfolding.

      but thanks for reading.

      and do come back again.

  2. I commend you for your articles… You have raised interesting points. Just want to share my thoughts as a law student.

    1. The prohibition against cross-border transfer of funds is very clear. I don’t think it’s necessary to consider whether the provision refers to existing or new laws, or whether such law is made by Congress or by the President (when Cory had law-making powers). The intention of the law is to maintain respect for the separation powers of co-equal branches. If one branch is allowed to transfer funds to another, it may undermine the independence that each branch should enjoy. So it does not make sense if cross-border transfers may be allowed on the basis of some other law made by some other author at some other time. The Admin Code enjoys a presumpion of validity unless otherwise declared unconstitutional. Its provisions must be read in accordance with the Constitution and as such, the allowable transfers may only refer to “inter-branch” transfers. Also, if I may, the Admin Code is for the executive branch so it is safe to assume that the use of ‘agency’ can only refer to admin agencies, excluding Congress and the Judiciary. It does not authorize the president to exercise discretion on funds that are exclusively under the control of another branch. It will be absurd that any type of cross-border transfer is allowed because the very evil that the law sought to prevent can still exist. So I think cross-border tranfers are truly unconstitutional. Your interpretation may however be used as a basis for claiming good faith (wrong interpretation of the law).
    2. The issue on the possibility that the Judiciary is using this cross-border transfer should be threshed out in a different case. Such possibility does not render validity to the acts in question as such “practice” is not a source of law. If found guilty, then SC should be held responsible for their actions.

    Thank you.

    • Excerpt from Raissa’s blog is pretty self explanatory;

      The Constitution was ratified on Feb 2 1987. Cory Aquino’s Administrative Code came into effect on July 25 1987, two days before the first post-Martial Law Congress convened.

      Now here’s the rub: the 1987 Constitution explicitly states that the Administrative Code is CONSTITUTIONAL.
      It’s right there in Section 6, of Article XVIII, Transitory Provisions.

      “The incumbent President shall continue to exercise legislative powers until the first Congress is convened.”
      In short, it was a mind-boggling one-off deal. Section 6 of the Transitory Provisions of the 1987 Constitution allowed Pres. Cory to write herself any bunch of laws BEFORE the very first (ever) Congress convened.
      To state once again: the 1987 Constitution says the Administrative Code is constitutional.

      And in addition to that, the Admin Code in not just an executive order…. “It is a LAW” created by Pres. Cory to exercise her Legislative Power.
      Most probably the Supreme Court disregarded the events happened after the People Power Revolution, that our country has no functioning government that time, that we have to start again crafting our own Constitution.
      Supreme Court maybe supreme in terms of interpreting the Law but also they are prone to commit mistakes as well, perhaps it is one of the characteristics of each human being in able grow and learn from our past.

  3. I have been wondering for many days now asking WHY J. Bersamin ‘inserted’ this J. Brion’s idea –

    “Nonetheless, as Justice Brion has pointed out during the deliberations,
    the doctrine of operative fact does not always apply, and is not always the
    consequence of every declaration of constitutional invalidity. It can be
    invoked only in situations where the nullification of the effects of what used
    to be a valid law would result in inequity and injustice; 212 but where no such
    result would ensue, the general rule that an unconstitutional law is totally
    ineffective should apply.

    In that context, as Justice Brion has clarified, the doctrine of operative
    fact can apply only to the 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 implementors of the DAP, unless there
    are concrete findings of good faith in their favor by the proper tribunals
    determining their criminal, civil, administrative and other liabilities. ”

    Just BEFORE the dispositive PORTION of the Decision?

    Was there some tips or hints that the ‘acts and practices’ on the DAP were criminally or civilly involving a crime or unjust enrichment by some people? I do not recall having read such tips or hints.

    That two PRIOR PARAGRAPHS before the DISPOSITIVE portion, is not a V-for Vengeance? What was the real and honest reason or reasons of the two Justices putting it there?

    A WARNING? It just doesn’t FIT to me to put that ‘warning’ up there before ending the Decision. Can this be elaborated the true reason or reasons WHY?

  4. Attorney Robles,

    Hahahahaha, i guess the lawyers are fuming mad and frothing in the mouth and that’s because you have exposed a long time myth “that only lawyers understand the law”. My father use to tell me that the reason why the law is written in a way that is almost impossible to decipher is because if everybody can understand it they would be jobless.

    This comment is not about DAP. I have concluded long ago that this is about “who is doing what?” . Do you honestly believe that PNOY’s critic, UNA and Tiangco’s group would fare better? No i don’t think so ERAP was impeached, Enrile is now accused and BINAY can’t explain his families wealth. At most they are just using this issue to dilute the issues hurled into them.

    Carry on …Attorney

  5. PNoy an “evil genius” coming out from Joker Arroyo’s frothy mouth? No wonder he is called and named Joker, he really is a joker. Or is it he who is “evil genius” by co-signing the Administrative Code?

  6. Hi Raissa,

    Thanks for your very nice article… this should be published to all tabloids to educate the Public about DAP… much better if it can be translated in Tagalog so the masa will understand it much..

  7. Raissa,

    I hope you never let anyone tell you that only lawyers have the right to venture an opinion on what the constitution and related laws mean. The constitution is intended for the general population and future generations, a foundational document in simple words that is supposed to enshrine our most deeply held values. A high school student’s opinion is just as valid as a Supreme Court justice’s in this context. The constitution is too important to be left to the lawyers, you might say.

    • Yep,  that’s  why  I  also  am  trying  to  protect  the  Constitution.

      1/3

      I  will  understand  @raissa  even  if  she  quoted  Sec.  25  (5)  of  Art.  VI  of  the  1987  Constitution  wrongly  twice  in  the  blog  post  http://raissarobles.com/2014/07/14/saguisag-‐fully-‐backs-‐me-‐on-‐dap-‐and-‐shares-a-‐startling-‐suspicion/  :

      “(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.”

      She  probably  inadvertently  left  out  the  “President”  or  the  Chief  Executive  in  the  EXCEPTION  to  the  Constitutional  provision  for  the  Legislature.

      • 1b/3

        HOWEVER,  it  is  unfathomable  (and  apparently,  now  unforgivable  to  some  including  me)  that  the  ‘executor’  DBM  Secretary  (Abad)  did  not  fully  quote  the  Constitutional  provision  (with  respect  to  the  Executive  branch)  THRICE  in  his  memorandums  to  the  President:

        Section  25  (5),  Article  VI  of  the  1987  Constitution-‐  The  President  may,  by  law,  be  authorized  to  augment  any  item  in  the  general  appropriations  law  from  savings  in  other  items  of  appropriations;  and

        Alongside  Section  39  which  Abad  quoted:

        Section  25  (5),  Article  VI  of  the  1987  Constitution-‐  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.

        reinforces  the  idea  of  “cross-‐border  transfer  of  funds”.  This  was  recently  struck  down  by  the  SC  as,  of  course,  UNCONSTITUTIONAL.

        The  President  though  still  believes  that,  taken  alone,  Section  39  of  the  Administrative  Code  authorizes  him  to  juggle  funds  to  a  co-‐equal  branch  (Congress)  and  to  an  independent  Commission  (COA).  This  is  a  very  dangerous  belief.  

  8. Hi! Very nice article, coming from a a NON-LAWYER citizen. Ikaw na lang kaya pumalit sa SC? Galing mo ehh.

      • Aba dapat lang. Kapal din ng mukha mo pag nag “yes” ka pa. ‘Di ka nga abogado eh.

    • marami kang natutuhan na maipagyayabang mo sa ibang tao na para bang ikaw ang nakaisip. tapos, manlalait ka pa? in your own words – kapal din ng mukha mo!

    • Hi Judge AMR,

      I will post your comment after I come out with my article because I’m quoting a part of your comment in that article.

      Raissa

  10. Is there PROOF admitted in and BY the SEC decision that the DAP did WORKED as envisioned and implemented under such DAP program and under the Rev. Admin. Code EO 294? On PAGE 36 of the SC decision such PROOF is admitted –

    ” Did the stimulus package work? On Page 36, Decision –

    The March 2012 report of the World Bank,109 released after the initial
    implementation of the DAP, revealed that the DAP was partially successful.
    The disbursements under the DAP contributed 1.3 percentage points to GDP
    growth by the fourth quarter of 2011.110 The continued implementation of the
    DAP strengthened growth by 11.8% year on year while infrastructure
    spending rebounded from a 29% contraction to a 34% growth as of
    September 2013.111

    The DAP thus proved to be a demonstration that expenditure was a
    policy instrument that the Government could use to direct the economies
    towards growth and development.112 The Government, by spending on
    public infrastructure, would signify its commitment of ensuring profitability
    for prospective investors.113 The PAPs funded under the DAP were chosen
    for this reason based on their: (1) multiplier impact on the economy and
    infrastructure development; (2) beneficial effect on the poor; and (3)
    translation into disbursements.”

    J. Bersamin said and asked: Did the stimulus package worked? He said –

    ” The DAP thus proved to be a demonstration that expenditure was a
    policy instrument that the Government could use to direct the economies
    towards growth and development.”

    Proved! A demonstration of the DAP expenditure PROVED as a policy instrument that the Government could use to DIRECT the economies TOWARDS GROWTH and DEVELOPMENT.”

    Admitted by the SC that it DID PROVED DAP did worked. Then PNoy asks: We cannot understand the decision! Why DAP practices and implementation was declared unconstitutional! Why really?

    On Page 48 of the Decision, the SC agreed with the OSG saying –

    “The OSG posits, however, that no law was necessary for the adoption
    and implementation of the DAP because of its being neither a fund nor an
    appropriation, but a program or an administrative system of prioritizing
    spending; and that the adoption of the DAP was by virtue of the authority of
    the President as the Chief Executive to ensure that laws were faithfully
    executed.

    We agree with the OSG’s position.”

    Congress did not need to legislate on DAP. The Court said on this point –

    ” The DAP was a government policy or strategy designed to stimulate
    the economy through accelerated spending. In the context of the DAP’s
    adoption and implementation being a function pertaining to the Executive as
    the main actor during the Budget Execution Stage under its constitutional
    mandate to faithfully execute the laws, including the GAAs, Congress did
    not need to legislate to adopt or to implement the DAP. Congress could
    appropriate but would have nothing more to do during the Budget
    Execution Stage. ” Page 49, Decision.

    PNoy says: We cannot understand the decision why the DAP practices and implementation was declared unconstitutional.

    The DECISION showed APPRECIATION on the DAP saying:

    “Notwithstanding our appreciation of the DAP as a plan or strategy
    validly adopted by the Executive to ramp up spending to accelerate
    economic growth, the challenges posed by the petitioners constrain us to
    dissect the mechanics of the actual execution of the DAP.” Page 49, Decision.

    Appreciated despite the CHALLENGES posed by the PETITIONERS, constrained the Court to DISSECT the MECHANICS of the “actual execution of the DAP.”

    Thus when the Court ‘went’ into the MECHANICS, this is where It found DAP practices and implementation faltered. From Page 49 up to Page 72 of the Decision, citing the reasons why DAP practices and its implementation became the basis for unconstitutionality.

    Violation here violation there violation so many points everywhere in the adopted practices on DAP. To cite:

    1.) On Page 71…”Although the OSG rightly contends that the Executive was authorized
    to spend in line with its mandate to faithfully execute the laws (which
    included the GAAs), such authority did not translate to unfettered discretion
    that allowed the President to substitute his own will for that of Congress.” Decision.

    2.) On Page 70…”It is worth stressing in this connection that the failure of the GAAs to
    set aside any amounts for an expense category sufficiently indicated that
    Congress purposely did not see fit to fund, much less implement, the PAP
    concerned. This indication becomes clearer when even the President himself
    did not recommend in the NEP to fund the PAP. The consequence was that
    any PAP requiring expenditure that did not receive any appropriation under
    the GAAs could only be a new PAP, any funding for which would go
    beyond the authority laid down by Congress in enacting the GAAs. That
    happened in some instances under the DAP. ” Decision.

    3.) On Page 69…”Upon careful review of the documents contained in the seven
    evidence packets, we conclude that the “savings” pooled under the DAP
    were allocated to PAPs that were not covered by any appropriations in the
    pertinent GAAs. ” Decision.

    4.) On Page 68…”In other words, an appropriation for any PAP must first be determined
    to be deficient before it could be augmented from savings. Note is taken of
    the fact that the 2013 GAA already made this quite clear, thus:
    Section 52. Use of Savings. The President of the Philippines, the
    Senate President, the Speaker of the House of Representatives, the Chief
    Justice of the Supreme Court, the Heads of Constitutional Commissions
    enjoying fiscal autonomy, and the Ombudsman are hereby authorized to
    use savings in their respective appropriations to augment actual
    deficiencies incurred for the current year in any item of their respective
    appropriations.” Decision.

    5.) On Page 67…”The Executive could not circumvent this provision by declaring
    unreleased appropriations and unobligated allotments as savings prior to the
    end of the fiscal year.” Decision.

    This defective mechanic refers to Sec. 28 – Chap. IV Book VI Rev. Adm. Code –
    “Section 28. Reversion of Unexpended Balances of Appropriations,
    Continuing Appropriations. – Unexpended balances of appropriations
    authorized in the General Appropriation Act shall revert to the
    unappropriated surplus of the General Fund at the end of the fiscal year
    and shall not thereafter be available for expenditure except by subsequent
    legislative enactment: Provided, that appropriations for capital outlays
    shall remain valid until fully spent or reverted: provided, further, that
    continuing appropriations for current operating expenditures may be
    specifically recommended and approved as such in support of projects
    whose effective implementation calls for multi-year expenditure
    commitments: provided, finally, that the President may authorize the use
    of savings realized by an agency during given year to meet non-recurring
    expenditures in a subsequent year.

    The balances of continuing appropriations shall be reviewed as part
    of the annual budget preparation process and the preparation process and
    the President may approve upon recommendation of the Secretary, the
    reversion of funds no longer needed in connection with the activities
    funded by said continuing appropriations. ”

    Thus, having the DEFECTIVE MECHANICS of DAP, the Court said On Page 72 of the Decision –

    “To conform with the governing principles, the Executive
    cannot circumvent the prohibition by Congress of an expenditure for a PAP
    by resorting to either public or private funds.182 Nor could the Executive
    transfer appropriated funds resulting in an increase in the budget for one
    PAP, for by so doing the appropriation for another PAP is necessarily
    decreased. The terms of both appropriations will thereby be violated. ”

    Executive cannot circumvent the PROHIBITION by Congress of an expenditure.

    On Page 73 finding – “Section
    25(5), supra, has delineated borders between their offices, such that funds
    appropriated for one office are prohibited from crossing over to another
    office even in the guise of augmentation of a deficient item or items. Thus,
    we call such transfers of funds cross-border transfers or cross-border
    augmentations. ”

    Thus the above are some of the MECHANICS found defective or unconstitutional.

    The Decision then informs everybody such as this on Page 84 –

    “Finally, the petitioners insist that the DAP was repugnant to the
    principle of public accountability enshrined in the Constitution,204 because
    the legislators relinquished the power of appropriation to the Executive, and
    exhibited a reluctance to inquire into the legality of the DAP. ”

    And countered by the OSG that – “the challenges, stating that the supposed
    discrimination in the release of funds under the DAP could be raised only by
    the affected Members of Congress themselves, and if the challenge based on
    the violation of the Equal Protection Clause was really against the
    constitutionality of the DAP, the arguments of the petitioners should be
    directed to the entitlement of the legislators to the funds, not to the
    proposition that all of the legislators should have been given such
    entitlement. ”

    The Decision ANSWERED the Petitioners this wise –

    “The denial of equal protection of any law
    should be an issue to be raised only by parties who supposedly suffer it, and,
    in these cases, such parties would be the few legislators claimed to have
    been discriminated against in the releases of funds under the DAP. The
    reason for the requirement is that only such affected legislators could
    properly and fully bring to the fore when and how the denial of equal
    protection occurred, and explain why there was a denial in their situation.
    The requirement was not met here. Consequently, the Court was not put in
    the position to determine if there was a denial of equal protection. To have
    the Court do so despite the inadequacy of the showing of factual and legal
    support would be to compel it to speculate, and the outcome would not do
    justice to those for whose supposed benefit the claim of denial of equal
    protection has been made.”

    Petitioner failed to show FACTUAL and LEGAL SUPPORT. Inadequate allegations. Speculative. No justice would be rendered for whose supposed benefit the claim of denial of equal protection.

    PNoy says: We cannot understand the decision. The Court appreciated our PRACTICES and IMPLEMENTATION of the DAP on Page 49! We PROVED that the DAP as practiced and implemented was WORKING and DID WORKED which the Court admitted on Page 36!

    Yet, DAP was still partially declared unconstitutional. The mechanics applied on DAP violated PRINCIPLES. But the mechanics worked and is a success. Principles are theories. Successes are facts.

    It is asked therefore by everyone: Is the DAP unconstitutional or constitutional?

  11. Straightforward. Unbiased. Enlightening. Truly a classy investigative journalist you are, Ms Robles. Cheers!

  12. Hi Raissa. First, let me say that you have raised some interesting and well-reasoned arguments. I’m a judge by profession. Here’s my two cents. The 1987 Constitution was ratified on Feb. 2, 1987. While Admin Code took effect ONE YEAR AFTER its publication in the Official Gazette on July 25, 1987. In other words, the Admin Code does NOT antedate the Constitution. Therefore, pertinent sections in Admin Code are still good law since it was never declared unconstitutional by the SC. Every law enjoys the strong presumption of constitutionality. While it is the SC which is the final arbiter of the constitutionality of laws, the executive and the legislature get a first crack at constitutional interpretation.

    Having said that, I think that Pnoy’s speech last night attacking the SC is needless and unwarranted especially in light of the assertion of the executive that DAP has already been terminated. In fact, it was one of their lines of defense before the High Court that the case has been mooted. So why insist and defend it to high heavens? Can we not just move on and refocus our efforts to the admin’s anti-corruption drive and other pressing matters? Methinks that the President has lost a lot of moral high ground on this one. Such a crass attitude is not good for the rule of law. I’m just a little concerned about the President’s cavalier treatment of the SC. What did he expect? That his appointees will toe the administration’s line?

    As regards the SC receiving cross-border transfers, it is common practice for judges and some CA Justices to receive allowances and office budget allocations from the LGUs. That, certainly, is a cross-border transfer. No one has raised it before the Court, so that practice enjoys presumption of regularity as well.

    Lastly, I pray that something good will come out of this. I believe that most of us love this country. Goodluck to your blog.

    • Er, Judge, you just contradicted yourself about cross-border transfers and following the rule of law.

      Is the judiciary exempt from what you say is the law against cross-border transfers?

      • Raissa, I’m for abolishing ALL forms of cross-border transfers. The judiciary certainly should not be exempt from this. I said that because I believe that the judiciary should engage in introspection in light of recent developments. But I am also for higher budget for the judiciary, strengthening its fiscal autonomy, etc. precisely to maintain its independence and shield it from a strong executive branch.

  13. United States Chief Justice John Marshall in Marbury: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or conformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.”

    • And so the SC must rule on the constitutionality of Sections 38, 39 and 49 of the Admin Code of 1987.

      • my point exactly… once and for fall, the SC should tackle ALL 3 sections not onlly because and for DAP but also for other administrations who may use these specific provisions of the Administrative Code… the SC flip-flops as they did with PDAF… shouldn’t our laws be specific as to what they allow and prohibit so that there won’t be any loopholes?

      • Is Section 3. of Article XVIII Transitory Provision relevant to this discussion:

        “All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked.”

        the constituion runs supreme.
        Retroactive effect:
        existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances inconsistent with this Constitution shall become inoperative.
        Prospective effect:
        No laws shall be passed xxx…:

  14. Hi Raissa, in the analysis of this legal concern, we must not overlook a transitory provision in the 1987 Constitution, to wit:

    Section 3. All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. (Art XVIII)

    The question then is this: Does the said section 49 of the Admin Code remain consistent and adhere to Section 25 (5) of the Constitution? Therein, I humbly submit, lies the answer to the DAP issue. Of course, it goes without saying that there are numerous provisions of the Admin Code that are consistent with the Constitution. In addition, the Admin Code also has a separability clause. Happy debate!

      • What do you mean by yes, Raissa? Please check also Sec 1 (6) of Book VI of the Admin Code itself:

        (6) 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 laws for their respective offices from savings in other items of their respective appropriations.

        Given this, would DAP be still legally defensible?

        • Wala na palagay ko kasi ,if two or three section of the Admin. Law are contradictory with one another then the BEST remedy and the Lawyers knew this much more to our JUSTICE’s of SC to consult and harmonize with the Constitution …

  15. 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.

    — the above statement is not correct. Just because it happened in the past and nobody questioned its constitunality does not mean it is automatically constitutional. It will only be constitutional/unconstitutional if the Supreme Court says it is.