Hasty, tactless move to dispute DAP ruling

By Satur C. Ocampo
At Ground Level | The Philippine Star

It appears that President Aquino acted hastily and tactlessly when he decided to publicly defend the DAP (Disbursement Acceleration Program) and dispute the Supreme Court’s unanimous decision declaring it unconstitutional. He did so in a televised speech on Monday, wherein he warned of a clash between the executive and the judiciary that may require the legislature to mediate.

While saying his administration would file a motion for reconsideration of the verdict, P-Noy directly aired to the public his frontal challenge to the SC and his criticisms against the ruling and the members of the court.

On Tuesday P-Noy sustained his criticisms before an international audience, with this blunt but crude statement:

“I find it difficult to accept their decision when I know that we are right, and more importantly, that doing nothing means depriving so many Filipinos of opportunities to grow and prosper.”

Reproaching the SC allegedly for failing to consider his administration’s legal basis in creating the DAP in 2011 – Section 39 of the Administrative Code of 1987 — P-Noy asserted: “We didn’t violate the law when we implemented the DAP.”

As he urged the public to read the SC decision and the concurring opinions, apparently he himself hadn’t read the documents carefully. This might have prompted Associate Justice Marvic Leonen (P-Noy’s appointee) to post in his Twitter account this crisp statement:

“Supreme Court decisions are published so they can be read and understood carefully.”

Save for Leonen’s personal twit, the SC has judiciously desisted from issuing any comment.

Based on the President’s statements quoted in media and the reactions by certain authoritative personalities, let’s focus on the core dispute. Bear in mind that the issue raised before the SC — on which it made a unanimous ruling — was the unconstitutionality of the DAP. All arguments about “good faith” and “economic benefits” are incidental.

“How come they were able to say that our manner of spending was unconstitutional when they did not even tackle our basis?” P-Noy asked, arguing that Section 39 gives the President “outright power to transfer savings for other projects.”

The SC ruling cites certain sections of the Administrative Code, not specifically Section 39. But Associate Justice Estela Perlas-Bernabe notes in her concurring opinion that the government used Section 38 and 39 in justifying the DAP.

She warns, however, that when doing so the President “must always observe and comply with existing constitutional and statutory limitations,” otherwise “he would be substituting his will over that of Congress and thereby violate the separation of powers principle…”

On this point two lawyer-priests, both acknowledged as constitutional law experts, have been quoted (from their Facebook accounts) as saying that the SC justices “were aware of Section 39.” They are Fr. Joaquin Bernas, SJ, a member of the 1986-87 Constitutional Commission, and Fr. Ranhillo Aquino, dean of San Beda’s graduate school of law.

Echoing Justice Perlas-Bernabe, Fr. Aquino wrote:

“Any freshman student of law will know that when you interpret a statutory provision (referring to Section 39), you always do so in harmony with the Constitution (Article VI, Section 25)… You don’t ever make a statute qualify the Constitution. Whatever the grant of power the Administrative Code may seem to afford the President, such a statutory provision must always be read in consonance with the Constitution, and never against it.”

Thus, when the code says the President can use savings to fund priority projects, Fr. Aquino added, “that should be read with the proviso: Provided constitutional requirements are fulfilled” because the Constitution is the fundamental law. On the DAP issue, the “savings” that the SC has declared unconstitutional, he pointed out, “were not really savings as understood in constitutional law.”

On his part, Fr. Bernas sought to qualify P-Noy’s contention that Section 39 and the code are “still in effect.” He clarified that the code and other statutes or executive orders issued before the enactment of 1987 Constitution must be compatible with the latter to remain valid.

Bernas categorically stated that Section 39 cannot be invoked to justify “the transfer of savings in one office or department to another office or department,” or to “cross-border transfer of savings” from the executive to the legislative, the judiciary, or to the constitutional commissions (COA and Comelec).

Given these views, it looks like P-Noy’s lawyers now have a depleted argument to warrant reconsideration of the SC unanimous ruling.

Oscar Franklin Tan, a constitutional law scholar, noted in a commentary that P-Noy made the mistake of defending the DAP’s legality when no legal scholar has criticized the SC ruling. “He persisted in disputing legality but made no legal arguments,” Tan remarked wryly.

As for tactlessness, P-Noy ought to finesse his statements pertaining to the SC magistrates. Consider the implications of what he said to and about them:

“There was something that you did in the past, which you tried to do again, and there are those who are saying that [the DAP decision] is worse.”

“I still hold the hope that our colleagues in the Supreme Court never forget that, as they display the legal prowess and acumen that has served them well in their long careers, these abilities must also serve their 98 million countrymen.”

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E-mail: satur.ocampo@gmail.com
Published at The Philippine Star
July 19, 2014

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  1. Please initiate steps for the creation of a Commission to investigate, evaluate, or review the DAP program to find out how the funds were impounded, what projects in the GAA were affected, how the funds were spent.

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