‘Damn the Constitution?’ 2 PRIEST-LAWYERS REFUTE PNOY’S ARGUMENTS ON DAP

By Jerome Aning, Philippine Daily Inquirer

Malacañang’s claims that President Benigno Aquino is empowered by Section 49 of the 1987 Administrative Code to use savings on priority activities that promote economic well-being have drawn criticism from the country’s foremost experts on constitutional law.

“Any freshman student of law will know that when you interpret a statutory provision, you always do so in harmony with the Constitution,” Fr. Ranhilio C. Aquino, dean of the San Beda Graduate School of Law, said in reference to the legal basis the Palace had invoked for its Disbursement Acceleration Program (DAP), which the Supreme Court has declared unconstitutional.

“And therefore, any construal of this particular provision of the Administrative Code must be consistent with Article VI, Section 25 of the Constitution and other relevant provisions of the fundamental law. You don’t ever make a statute qualify the Constitution,” Aquino said on his Facebook account.

“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. That is a fundamental rule of legal hermeneutics. So the code says that the President can use savings to fund priority projects, that should be read with the proviso: Provided constitutional requirements are fulfilled, owing to the simple and ineluctable fact that the Constitution is the fundamental law.”

Aquino explained that while Section 49 referred to savings what the Supreme Court’s decision on the DAP “precisely declares [was] that what [the President] classified as ‘savings’ were not really savings as understood in constitutional law.”

“No matter how enlightened—or benighted—one’s reading of the law is, under our scheme of appropriation of powers, legal consistency is a judicial function! Isn’t that rather simple?” he said.

Bernas view

Also on his Facebook account, Fr. Joaquin Bernas said the Administrative Code and other statutes and executive orders crafted before the enactment of the 1987 Constitution must be compatible with the Charter in order to remain in effect.

Bernas, like Aquino, cited Article VI, Section 25 which says: “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.”

“To understand the constitutional provision one must know that the budget for the various offices consists of ‘items.’ An item is an amount of money to be used for a specific purpose. When the purpose of the item has been achieved and some money is still left over, such leftover is the “saving” which may be transferred to augment other items in the budget for the same office,” said Bernas, a member of the commission that drafted the 1987 Constitution.

He added that under the General Appropriations Act, three instances may give rise to savings. These are balances “still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.”

“There is no authorization for what is called ‘cross border transfer,’ that is, the transfer of savings in one office or department to another office or department. Thus savings in the President’s budget may not be moved to other departments or offices, e.g., to Congress, to the judiciary, or to a constitutional commission. Section 49 cannot fit into this constitutional limitation,” Bernas argued.

Both Bernas and Aquino said the Supreme Court justices who declared the DAP unconstitutional were aware of Section 49.

Yellow cheerleaders

Aquino also criticized supporters of the President, whom he called the “Yellow Cheerleaders,” for citing Aquino’s accomplishments, the corruption of his predecessors and the jailing of opposition senators in the administration’s arguments supporting the DAP.

“But that is not the point, dearies! The point is whether or not the DAP is consistent with the Constitution. Now, if you are willing to say, ‘Damn, the Constitution,’ then I ask: Are you willing to accept the consequences of sweeping aside the Constitution? No Bill of Rights, no recourse against the strong hand of the State, no checks and balances, and what [Mr. Aquino] says is the law?” he said.