I’m not a lawyer, but this is what I think about the DAP controversy

This is what I’m going to say in today’s public forum on the controversial Disbursement Acceleration program,  held today at the University of the Philippines National College of Public Administration and Governance (UP NCPAG) UP Assembly Hall. 

By Raïssa Robles

I’m not a lawyer. I’m not yellow, nor red, nor peach. I’m a long-time observer and reporter on how our three branches of government work. I base my conclusions on my own findings. And I’m a citizen of this Republic.

My pieces on the Supreme Court ruling on the Disbursement Acceleration Program or DAP have been interpreted by some as a desecration of the 1987 Constitution. A gross misrepresentation of the separation of powers, which is the very essence of our democracy, and a denigration of the congressional power of the purse.

Law students and lawyers, in particular, have been quite virulent in their attacks of me.

Shocked but at the same time curious, I decided to find out why.

Here’s what I learned: Every law student’s head is drummed with the principle of separation of powers as the very essence of our democracy.

You’d probably say, of course it is. Why does she even have to mention it? It’s a given.

Yes, it’s a given – a given that needs to be clarified. And it is not clarified when law students behave as if they alone are custodians of a sacred writ not meant to be discussed by impertinent “ordinary” mortals — non-lawyers.

Let me just quote from the late University of the Philippines President Vicente Sinco in his seminal book, “Philippine Political Law” where he discusses the separation of powers among the executive, legislative and judicial branches of government.

Sinco said: “Each is not lower or higher than the other in the manner of a hierarchical system; it is rather coordinate and coequal with the others.”

Sinco was writing about the 1935 Philippine Constitution but the doctrine still holds for our current constitution.

Sinco said the underlying reason for having such a balance of powers was to prevent the abuse of authority.

Sinco said this: “The separation of powers has been criticized as a stumbling block to efficient government.” He said “the criticism has practical merits.”

He gave as an example how this doctrine hampered the government’s ability to cope with the devastation of a typhoon. He said, “under such circumstances, when prompt action is imperative, the principle of separation of powers becomes a positive deterrent to the protection of public interests for which the government is precisely organized.”

But, he said this “admitted disadvantage…[is] considered a lesser evil than the probability of an autocratic authority.” Meaning, a one-man rule.

“In the impressive words of Justice Brandeis,” Sinco wrote, “the doctrine of separation of powers was adopted by the [American] Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was…to save the people from autocracy.”

No wonder many lawyers and students were mad at me: They’d like to believe I’m backing the establishment of a dictatorship.

I am not. They forgot another aspect of the principle of separation of powers.

Sinco articulated that aspect when he said that:

“There are instances when the Constitution does not furnish a clear guide for determining whether certain powers are legislative, judicial, or executive. The constitutional silence in such cases furnishes an occasion for the courts, as the final interpreter of the basic law, to use their discretion to determine which one may validly exercise the power in question.”

I believe the issue on DAP is one such instance where the court can exercise discretion.

Of course you will ask – The Supreme Court has already exercised its discretion by ruling on DAP. Why can you not accept it?

I would like to preface my answer by quoting Oliver Wendell Holmes, the famous American jurist whose quotation about the business of law is engraved on the very wall of the UP College of Law, where my late father once taught and where I often hung out as a college student.

Justice Holmes said:

“The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other….when we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.”

Referring to the division of powers between the legislative and executive branches, Sinco quoted Justice Holmes as saying:

“It does not seem to need argument to show that however we may disguise it by veiling words, we do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into water-tight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires.”

Ok, now let me talk about Article VI, Section 25 (5) of the Constitution, which begins by stating that “no law shall be passed authorizing any transfer of appropriations.”

The Supreme Court recently interpreted this to mean that the Constitution absolutely prohibits cross-border transfers among the three branches of government because this violates the separation of powers.

My critics have also been quick and furious to point out to me that Aquino’s actions violate Congress’ power of the purse and of course, the separation of powers.

My question to them is this: If it violates Congress’ power of the purse and the separation of powers – which is at the very heart of our democracy – why was Article VI, Section 25 (5) never in our 1935 Constitution which was in operation from 1935 to 1972?

Does this mean that our democracy under the 1935 Constitution was less democratic and a violation of the separation of powers?

Yes, my fellow students – for I consider myself a student of history and politics. The prohibition on cross-border transfers was not in our 1935 Constitution. Here is a book published by the University of the Philippines Law Complex comparing all the provisions of the 1935, 1973 and 1987 Constitutions.

I personally know the law professor who did the comparison – Carmelo Sison, a constitutional law professor. Page 52 shows that Section 25 (5) of the 1987 Constitution is identical with Section 16 (5) of the 1973 Constitution. The third row showing the 1935 Constitution is blank.

As Supreme Court Associate Justice Lucas Bersamin rightly pointed out in his ponencia or ruling on DAP,

“The 1973 Constitution explicitly and categorically prohibited the transfer of funds from one item to another, unless Congress enacted a law authorizing the President, the Prime Minister, the Speaker, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds for the purpose of augmenting any item from savings in another item in the GAA of their respective offices.”

But what Justice Bersamin did not point out was that the prohibition on cross-border transfer under the 1973 Constitution never, never became operational because almost one year before the dictator Ferdinand Marcos allowed Batasang Pambansa to convene, Marcos issued Presidential Decree No. 1177. I have verified the date when Batasang Pambansa convened by using this book personally given to me by Antonio de Guzman, Secretary of the Batasang Pambansa.

PD 1177 – which Marcos issued before Batasang Pambansa convened – contained Section 44 which gave Marcos blanket authority to do cross-border transfers of “appropriations.”

In 1987, after Marcos was kicked out and then President Corazon Aquino had reconstituted the Supreme Court, the new court struck down this cross-border transfer power of the president on “appropriations” found in Section 44 of PD 1177.

But the court did not invalidate the entire PD 1177, which happens to contain Section 31 stipulating the automatic appropriation of foreign debt payments.

And the court did not also invalidate three other sections of PD 1177 which authorized the President to pool and do cross-border transfers of “savings” for any economic activity that would benefit the nation.

So the lawyers who told me that PD 1177 has been repealed had better take a second close look at this law. We still follow the automatic debt appropriation clause to this day.

But let’s just assume, as Father Joaquin Bernas – one of the framers of the 1987 Constitution said – that those sections allowing cross-border transfers on savings had also been repealed by virtue of the ratification of the 1987 Constitution. Here’s an original issuance of the Constitutional Commission that ratified the Constitution.

Father Bernas wrote a primer on the 1987 Constitution. Here’s a copy. On page 201, he posed this question: “To what extent may Congress allow transfer of funds?”

And Father Bernas’ reply was: “See Section 25 (5).”

From this, we may gather that he did not consider the Administrative Code that President Cory Aquino enacted into law on July 25, 1987.

This is understandable because Fr. Bernas wrote his primer in March 1987 – or four months before the Administrative code was unveiled by then Executive Secretary Joker Arroyo through Executive Order No. 292.

Why is this chronology of events important? Simply because the Administrative Code bodily lifted sections of PD 1177 in what we now know as Sections 38, 39 and 49. These collectively granted the President the power to stop projects, pool savings, and use the pooled savings for cross-border transfers in certain economic activities.

Please note that what the Cory-appointed Supreme Court struck down in 1987 was the presidential power to transfer “appropriations”.

The president’s powers over savings in PD 1177 were kept intact and untouched by the Supreme Court. Until this DAP ruling came out.

To my knowledge, there has been no case where the Supreme Court has ruled on Sections 38, 39 and 49 in relation to Section 25 (5) of the Constitution. And it is for this reason that I wish the court would clarify this aspect. Because if there was such a ruling, Bersamin would have pointed this out in his ponencia.

Why do some lawyers not want to define this? Are they embarrassed? Do they feel challenged in their manhood? My reference does not extend of course to UP law professor and constitutionalist Harry Roque, who also wishes the court to make certain clarifications.

In my first piece on DAP I had argued that the president’s powers in the Administrative Code were not incompatible with Section 25 (5) of the Constitution.

I said Section 25 (5) only referred to congressional laws and not to President Cory’s law, the Administrative Code. And that Section 25 (5) in fact allowed Sections 38, 39 and 49 of the Administrative Code to co-exist.

People thought I was idiotic.

But now, having learned that Section 25 (5) was not even in our 1935 Constitution, it doesn’t seem that idiotic to say that cross-border transfers do not necessarily violate the doctrine of separation of powers. Cross-border transfers were allowed from 1935 to 1972.

It took a Constitutional Convention in 1971-’72 to try to cure President Marcos’ abuse of cross-border transfers. The Convention went to the other extreme and barred them altogether.

The 1987 Constitutional Commission – several of whose members were also delegates of the 1971 Constitutional Convention like retired Supreme Court Chief Justice Hilario Davide and Jose Suarez – adopted the 1973 provision barring cross-border transfers of appropriations. I know because I wrote a 14-part investigative series on the 1972 Convention which I learned later on that my father had clipped in their entirety.

My mom gave these to me after my father died. I never knew he kept it.

After the 1987 Constitution was ratified, President Aquino enacted the Administrative Code – using the legislative powers granted to her by the 1987 Constitution’s Transitory Provisions.

And in that Administrative Code, Section 25 (5) of the Constitution was reiterated barring cross-border transfers of “appropriations.” But the same Administrative Code explained that the President had the power to do cross-border transfer on “savings”, not appropriations.

It’s a fine distinction but a distinction, nevertheless, and one that the Supreme Court has to clarify.

My critics have gleefully pointed out to me that cross-border transfers violate Section 29 (1) of Article VI of the Constitution, which states that “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”

My reply is – There are such laws – the Administrative Code and the General Appropriation Acts.

If you look at the recent Motion for Reconsideration of the executive branch of government asking the Supreme Court to reverse its ruling, the MR points out that what Section 25 (5) prohibits is “the transfer of appropriations”, not the transfer of savings.

The word “appropriations” has a very definite meaning in our Constitution. It refers to the General Appropriations Act which contains our national budget.

But the word “savings” is not defined at all in the 1987 Constitution, Melencio Sta. Maria, dean of the FEU Institute of Law, pointed this out to me in a recent interview.

What are savings?

In the court ruling, Justice Bersamin turned to the General Appropriations Act of 2011, 2012 to look at the definition of “savings”.

And he discovered what I thought was a very interesting thing, and which one of the commenters on my blog named @baycas also noted.

Justice Bersamin found out that the provisions of the GAAs of 2011 and 2012 [referring to savings] were textually unfaithful to the Constitution for not carrying the phrase “for their respective offices” contained in Section 25(5).”

Instead, Bersamin said, the provisions carried a different phrase (“to augment any item in this Act”). He then noted the vast implications of these provisions in the two Congressional enactments. He said, “the effect was that the 2011 and 2012 GAAs thereby literally allowed the transfer of funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive.”

In other words, the two GAAs allowed cross-border transfer of savings.

So, not only do you have the Administrative Code, you also have the two GAAs allowing cross-border transfer of savings. And the two GAAs were enacted by the lawmakers, the representatives of the people.

But in the main court ruling, Bersamin concluded that “the 2011 and 2012 GAAs contravene the Constitution. At the very least, the aforequoted provisions cannot be used to claim authority to transfer appropriations from the Executive to another branch, or to a constitutional commission.”

Let’s review again what this means. It means Congress actually gave the President prior authority to do cross-border transfer of savings in the years 2011 and 2012.

But Bersamin said Congress did not have the power to do that.

If that is the case, if Congress also violated the Constitution, why did the court zero in on executive officials for reprimand? Why not Congress officials, too?

That’s what I cannot understand. Please recall what the American Chief Justice Oliver Wendell Holmes said about the power of the legislative and executive branches. Holmes said –

“The great ordinances of the Constitution do not establish and divide fields of black and white. Even the more specific of them are found to terminate in a penumbra shading gradually from one extreme to the other….when we come to the fundamental distinctions it is still more obvious that they must be received with a certain latitude or our government could not go on.”

Remember, UP President Sinco also quoted Justice Holmes as saying:

“We do not and cannot carry out the distinction between legislative and executive action with mathematical precision and divide the branches into water-tight compartments, were it ever so desirable to do so, which I am far from believing that it is, or that the Constitution requires.”

President Benigno Aquino has been villified for “arrogating” the powers of Congress. I’ve also been villified for saying it’s not an arrogation.

Former Senator Joker Arroyo, who to this day has not owned up to his role in the enactment of the Administrative Code – called Aquino an “evil genius” for using such powers. He also branded Congress a willing victim of rape – which is a contradiction because a consensual act extinguishes rape.

The question nobody has answered is – Why did Joker and company write these powers into the Administrative Code? Were they idiots?

The good senator recently said, Cory Aquino never used it. My answer is – So what? It’s still there and it gives the President awesome powers to do good or to do evil.

Surprisingly, Dean Sta Maria told me in the course of my interview with him that Aquino was “just testing the limits (of the Constitution). If you don’t test it, it would always be business as usual.”

I teased the Dean who graduated from and once taught at the Ateneo de Manila University for decades – are you saying that you approve of what President Aquino did? I told him that I recalled reading somewhere about the need to have a living Constitution.

Dean Sta. Maria replied to me, “it doesn’t necessarily mean Aquino is going against the Constitution. But he’s in fact expanding the Constitution to new realities and making it exactly a living constitution that meets day to day challenges.”

The same people, who are now railing against the so-called violation of the Constitution by DAP, have been mightily trying to chuck out the entire 1987 Constitution by fair or foul means.

I think it’s a beautiful Constitution that can accommodate amendments and reinterpretations without mangling its very spirit.

To my mind, even the Supreme Court has been reinterpreting the Constitution to meet the challenges of new realities, effectively amending the Constitution. For instance, it upheld the presidency of Gloria Macapagal-Arroyo by calling Joseph Estrada’s ouster a “constructive resignation.” It upheld the presence of US military forces without the need for a new treaty by saying no facilities were being built to house them, effectively amending Section 25 of the Transitory Provisions.

In the case of DAP, what also sprung to my mind was the comment made by a woman after listening to President Aquino defend DAP. She said on prime time television:

“Ang naiintindihan ko lang ay yang savings. Anong savings? Kami bang mahihirap ay mag-aantay pa ba ng savings niyo kung kailan niyo ilalabas? Unang una sa ospital na lang. Yung savings na sinasabi niya na sobra yan sa DAP na yan, una PDAP, ngayon DAP naman. Ang mga savings sana, unahin ay ang mga may sakit. Pag walang pera, inilalabas ng ospital, at mag-antay na lang ng kamatayan sa bahay.”

What is our Constitution for if not to meet the needs of the poor?

Article II Section 9 of the Declaration of Principles and State Policies says:

“The State shall promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living and an improved quality of life for all.”

The General Appropriations Act is key to helping free Filipinos from poverty.

And yet, 68 years after our Republic was born, one out of every four Filipinos continue to wallow in poverty. Perhaps the middle and upper classes don’t feel this but to the poor, everyday is an emergency.

Many years back, I asked the chief economist of the Asian Development Bank what it would take for the Philippines to uplift the poor. He said the rough formula was that the country needed to attain at least 7% GDP growth for seven years.

I thought that was impossible to do. The last time the Philippines did it, the growth was abruptly cut short by a coup attempt in 1989.

And yet, President Gloria Macapagal-Arroyo and President Aquino were able to do that in recent years. Precisely by juggling government savings – which the Supreme Court has now forbidden.

Recall that the late Vicente Sinco had pointed out “that the separation of powers has been criticized as a stumbling block to efficient government…a positive deterrent to the protection of public interests for which the government is precisely organized.”

Sinco went along with this “admitted disadvantage” because to him, it was “a lesser evil than the probability of an autocratic authority.” Meaning, a one-man rule.

Sinco wrote this long before Marcos imposed his dictatorship with disastrous effect. And long before cycles of boom and bust in the global economy and devastating natural disasters occur with such frightening regularity.

Surely, a mean could be found to curb gross abuse of authority while at the same time giving any Philippine president wide flexibility to meet the challenges of the 21st century.

The ball is in the hands of the Supreme Court, Congress and the presidency working together. From what I have seen with my own eyes, I would describe the relations among the three branches of government as both collaborative and combative.

They work together, then they quarrel, then they work together, and quarrel again, in a never-ending cycle that media men like me gleefully report.

But let’s not also forget the role of the people for this undertaking to work. We need a genuine Freedom of Information Act to keep a tight watch on the entire budget process. Here, the NCPAG will play a watchdog role.

We also need to swiftly jail high government officials, whoever they are, who pocket the people’s money or betray our trust.