Saguisag fully backs me on DAP and shares a startling suspicion

Posted at 07/14/2014 5:04 PM

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

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 (DAP).

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?