• A glorious victory for constitutional government

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    Executive authority is forever hungry; It is its nature to expand and usurp.–Barbara Tuchman, Practicing History

    It was to check  executive excess that America’s founding fathers established the separation of powers of three coequal branches—the legislative, the executive, and the judicial—in the American constitutional  system.

    That system has been our model since 1935, and we have worshipped by the principle of check-and-balance, and repeatedly gone to the Supreme Court on the littlest issue to check executive or legislative abuse of authority.

    The people do not always win every challenge of the executive or the legislative.

    But In the DAP case, there can be no doubt that the people have won a resounding victory for the cause of constitutional government. And President Aquino, in turn, has suffered his biggest defeat in four years at the helm of the nation.

    The feeling of relief and liberation that the nation feels today—in the morrow of the Supreme Court’s decision on the DAP—is the resolution I envisioned and prayed for in one column last May, “Catharsis: Tragicomedy of Philippine democracy.”
    Well, the  catharsis is here. It feels like a new day for our republic.

    Court votes 13-0 vs DAP,one abstains
    In the runup to the SC decision, many expected the Administration to put up a better fight, with Chief Justice Lourdes Sereno serving as its point man.

    But when the votes were tallied, it was a total rout, leaving no doubt that the DAP is unconstitutional. All the justices, save one, agreed with the ponencia (majority opinion) as written by Associate Justice Luke Bersamin. One justice, Justice Teresita de Castro, recused herself from the voting. Even CJ Sereno cast her lot with the majority.

    Bersamin’s opinion for the court grappled with all the issues and was emphatic in its decision.

    First, the court declared that DBM Circular 541, which created the Disbursement Acceleration Program (DAP), is unconstitutional and ordered the issuance of a “prohibitive injunction” to  the Department of Budget and Management.

    The circular, which was issued by Budget Secretary Florencio “Butch” Abad on July 18, 2012, is the whole basis for the DAP, and it allowed the DBM to withdraw and pool the unobligated allotments of agencies “with low levels of obligations for continuing and current allotments.” These funds were then used for other priority programs and projects.

    The second point addressed by the majority opinion concerns the grounds for declaring the DAP unconstitutional.

    Justice Bersamin cites four grounds, or acts and practices under DAP:

    Withdrawal of unobligated allotments from implementing agencies and declaration of withdrawn allotments and unreleased appropriations as savings prior to the end of the fiscal year.

    Cross-border transfers of savings of the executive to augment appropriations of other offices outside of the Executive.

    Funding of projects, activities and programs not covered by any appropriation in the General Appropriations Act (GAA).

    The court also pointed out that projects that are not listed under the General Appropriations Act (GAA) must be declared illegal and unconstitutional. They said the GAA has the force and effect of a law since it is passed by Congress and signed by the President of the Philippines.

    The third point of significance is the Court’s declaration on the “prospectivity” of the judgment, which means that it prohibits similar acts in the future, but the decision cannot serve as basis for action against the erring officials (including the President of the Republic) who used DAP and distributed it in the past.

    PNoy not off the hook   
    On this point, the comment of Fr. Ranhilio Aquino of the San Beda Graduate School of Law, which he graciously shared with us, is most enlightening. He wrote:
    “My personal position is that it was neither necessary nor helpful for the Supreme Court to insert this prospectivity proviso because it only triggers suspicion that the decision was tailored to be kind to the incumbent President and to insulate him from criminal or administrative action as a result of his disbursement of DAP.

    What the Supreme Court could have done would have been simply to pronounce unconstitutionality in respect to the acts assailed.  Should anyone, including the President, be prosecuted subsequently either under the provisions of the Revised Penal Code or special penal laws in respect to the use of DAP, the matter would have ultimately reached the Supreme Court—and that would then have been the proper opportunity to rule on prospectivity.  As such the ‘prospectivity’ and ‘good faith’ clauses of the judgment are ‘obiter dicta’— pronouncements that really do not pass upon any matter that is in issue, and therefore do not constitute binding doctrine.

    “But the President is not yet completely off the hook!  Because the allegation is that he did not only distribute DAP; he also used it to secure the conviction of Chief Justice Corona.  Of course, that is difficult to prove, but not impossible to establish.  And, if after his term in office, the President should be charged with having used government or public funds to corrupt senators sitting in judgment in an impeachment trial, the President may still be found guilty, if sufficient evidence is adduced against him, even if the DAP judgment is prospective, because of the use of public funds or monies to corrupt senators who were exercising a constitutional function.”

    Fr. Aquino (no relation to the president) raises a point that should calm those who are disappointed that President Aquino could get away scotfree, without paying any heavy penalty for the misuse of billions of public funds in an illegal and unconstitutional activity.

    Already, Liberal Party leaders and House leaders are using the prospectivity proviso as a club to dismiss and discourage calls and efforts to mount an impeachment complaint against President Aquino in the House of Representatives.

    They should not delude themselves. If the DAP and PDAF fight has taught us anything, it is the fact that public opinion is all-powerful and relentless, once it is roused to anger and caring.  Issues of this magnitude and importance cannot be fully settled by judicial fiat. The verdict of the people will still be supreme.

    And there are still many issues related to the DAP that need to be resolved.

    Legislators bribed with DAP?
    Sen. Miriam Defensor-Santiago, after praising the Supreme Court decision, renewed her call for the Commission on Audit to probe the alleged bribery of Congress members during the impeachment trial of ex-Chief Justice Renato Corona in connection with the DAP.

    She said: “Both the pork barrel and DAP scandals are equally repulsive, and the Supreme Court declared both funds as unconstitutional. I wholeheartedly welcome the impartial adjudication of these abominable abuses of public funds by the Supreme Court since I cannot obtain relief from the Senate itself, which appeared to have been complicit in bribery.”

    She quoted this provision in the Penal Code: “Direct Bribery—Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift, or present received by such officer.”

    Santiago said that every senator who voted to convict, and every representative who voted to indict, if each one is shown to have received additional pork during and immediately after the impeachment trial, are presumably guilty of bribery, because of the close timing between the two events.

    Aquino mum on DAP ruling
    Understandably, in the face of so big a setback,  President Aquino retreated into silence, and his spokesmen withheld comment on the Supreme Court’s ruling, saying, “We can’t issue a comment since we haven’t seen the decision.”

    Lacierda opted to defend the DAP as being good for the country. He said:

    “We strongly believe that the DAP has benefited the country when we had a quarter where there was a very low GDP (gross domestic product), we implemented the DAP and it contributed to the various programs of the government, the various agencies.”

    Some media organizations, no doubt on the urging of Palace spin doctors, tried to depict the SC decision as having declared only that the DAP is “partially unconstitutional.”

    This spin enraged many and many took to the Internet to dispel it as
    disinformation and propaganda.

    One resourceful Netizen got hold of lawyers to analyze the SC decision. He came back with this well-informed post:

    “The DAP IS 100 percent unconstitutional!

    “The word “partially” only appears because not every prayer the petitioners asked for was granted, but the court nevertheless pronounced DAP as unconstitutional. I haven’t read the Supreme Court decision on DAP, but my guess is, like the PDAF ruling, the Supreme Court denied petitioners’ prayer for a full audit and/or disclosure of public documents (e.g. names of recipients, other projects, etc.). The Supreme Court has written time and again that the proper remedy for petitioning for full public disclosure of documents pursuant to Section 7 of Article III of the Constitution is through the filing of a Writ of Mandamus.”

    For myself, I will just say to my compatriots, let us enjoy this moment of victory of constitutional government in our country. Let’s not worry that the SC decision does not settle or solve all the problems of national life, let us rather be grateful that it has cut off one sick, malignant branch.

    This way, the tree of Philippine democracy can grow again.

    yenmakabenta@yahoo.com

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    13 Comments

    1. Di na nakapagtataka kung bigla na lamang magkaroon ng bakbakan sa kung saan o kaya tataas ng todo ang presyo ng bigas. Mga para-paraan para malingat ang masa sa panahong mas mahalaga ang kaligtasan at kalam ng sikmura.

    2. Gagawa din lang ng tama hindi pa hinusto,para lamang silang nagturo na puedi ka palang magnakaw at hindi managot,kapag ginamit mo ito para sa mabuti,kaya mga tao puedi nakayong magnakaw at ipamudmud sa mga nangangailangang at pueding-pueding hindi kayo makulong, batas galing sa sc,

    3. what of the other senators? haven’t heard a squeak from them lately, notably from those usually “vocal” ones i.e. a. cayetano, drilon, trillanes, etc.

    4. Is there a culpable violation of the constitution in the DAP case? Yes. Sec. 29, Art. of the 1987 Constitution provides:” No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

      The corresponding penal (i.e., culpability) provision in the Revised Penal Code is Art. 220 (Illegal use of public funds or property), thus: Any public officer who shall apply any public funds or property under his administration to any public use other than that for which such funds or property were appropriated by law or ordinance shall suffer the penalty…

      Was there illegal use of funds in this case? On page 69 of the DAP decision, the Supreme Court said: “we conclude that the “savings” pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.” Boom!

    5. “A glorious victory for constitutional government”? I’m calling for caution. I suppose It’ is not yet time to fully celebrate. It could just be a booby trap. Instead, let us be reminded of what the great Winston Churchill once said: “In war, resolution; IN DEFEAT, DEFIANCE; in victory, magnanimity.” With the proclamation of the unconstitutionality of both the PDAP/DAP, those responsible for the greatest loot ever perpetrated in our country, have been DEFEATED, VANQUISHED, so to say. For sure they are now seething with DEFIANCE and most likely, planning to retaliate. So, “Eternal vigilance is the price of liberty” should ever guide us in our every move towards true victory. Meanwhile, let us enjoy this seeming “breather” God has given us and, in gratitude, repeat with the psalmist: “Not to us, Lord, not to us, but to your name give the glory” (Ps 115:1).

    6. SALVACION CAHAYAG on

      Common Lacierda, you have not learn your lesson. After it has been declared
      unconstitutional, you still insist that the DAP is good for the country.Going through
      you crooked reasoning, as if it is okay to steal if you use some of it to feed others.
      In the case of the DAP where it was used to bribe the crocodiles in congress to
      vote for the impeachment of Corona, is that good for you Lacierda. Common,
      better keep your mouth shut rather that defending your boss abnoy The way
      you talk as if you also have benefited from it.

    7. Jose A. Oliveros on

      My personal opinion is that CJ Sereno voted with the majority because she sensed that she would be alone in her dissent and it would reinforce the perception that she is still beholden to PeNoy, her “god” who appointed her Chief Justice over the heads of more senior associate justices.

      As for the “prospectivity effect”, I believe it is a sort of compromise to forestall any suit that may be filed against PeNoy and A BAD within the next two years of PeNoy’s term.

    8. C. Malifier on

      Tama, coreect. Please write more and more incisive columns, Mr. Makabenta.

    9. The “prospectivity” of the decision may excuse the wrongdoers behind the DAP. By the same token, I hope the same “prospectivity” will give future voters, particularly the Netizens, a very negative prospective of the same wrongdoers in the next elections.

      Meanwhile, I join this writer when he said: “Let us enjoy this moment of victory of constitutional government on our country.”

    10. Mr. Makabenta is correct, King PNoy is so far silent as a lamb as of now regarding his DAP defeat. Maybe he is still licking his wounds but let us not be extra-confident about this man. He is a champion of gimmicks. As noticed, the yellow media is now extra busy softening the impact of the SC decision against PNoy, making many kinds of diversion and buck-passing tactics for the public to see and hear. Observe ABS-CBN, PDI and their yellow media allies and correct this blogger if I am wrong. They are now spending time running around the issues to finger others or divert culpability for so many reasons. Many of them are even very funny to listen and see.

      • You are right. in “Manila Standard,” Palace trolls are busy twisting the critics’ opinions of the SC decision declaring DAP unconstitutional. All of them want to absolve Abad and Aquino, who they said were in ‘good faith,’ when they distributed DAP.

        The SC justices probably erred when they included in their decision that the DAP helped the country’s economy. I direct their attention to the column of Rigorberto Tiglao of this paper today.

      • Teofilo Grande on

        Fully agree with your comment, the yellow noytards are so busy right now how to divert attention so as DAP issues may just fade away…. But no sir, we will fight for it, and if possible, put behind bars the guelty persons!!!!!