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Thou Shall Bow to the Majesty of the Constitution

By: Ronald C. Lara, II Teehankee

Introduction
In modern societies, the Constitution is considered the Social Contract
which serves as the very basis in constituting a State. It provides the
philosophical and ideological framework, as well as the fundamental
branches, structures and processes, with which a country is to be
organized and governed. It is considered as the paramount law of the
land and provides the blueprint not just of how the government
should look like but including of what is just, equitable, proper, evil
and justiciable.
Like most countries patterned after the American government system,
the Philippine Government system is divided into three (3) great
branches, namely: the Executive which is given the power to carry out
laws, the Legislative which is assigned to enact laws and the Judiciary
which is endowed with the power of judicial review. While the
assignment of powers to these great branches seemed clear-cut and
rigid, the Constitution in fact put in place mechanisms to insure their
interdependence in order to effectively regulate the relationships and
dynamics between them, maintain their being co-equals and prevent
abuse and circumvention by any of the branches. Among these
mechanisms are the principle of separation of powers, the system of
check and balance and judicial independence.
The ongoing controversy on the Disbursement Acceleration Program
(DAP) involving the three branches of our Government with the
Executive and the Legislative apparently, but subtly, conniving against
the Judiciary is a perfect historical juncture to revisit these principles,
mechanisms and systems enshrined by our Constitution.
The Collision: Facts
The issue surrounding the collision of the government branches stems
from the 13-0-1 decision of the Supreme Court last July 1, 2014 ruling
as unconstitutional three (3) Schemes under the DAP, to wit: (1) the
creation of savings prior to the end of the fiscal year and the
withdrawal of these funds for implementing agencies; (2) the crossborder transfers of the savings from one department to another; (3)
and the allotment of funds for projects, activities and programs not
outlined in the General Appropriations Act (GAA) 1.
The High Court primarily based its decision on the letters and spirit of
Section 29 (1) of Article VI of the 1987 Constitution which provides that
[n]o money shall be paid out of the Treasury except in pursuance of
an appropriation made by law. The Court also noted that Section 25(5)
of the Constitution grants the Executive the power to transfer funds as
1

Reynaldo Santos Jr. The Rise and fall of DAP. http://www.rappler.com/newsbreak/62024-timeline-rise-falldisbursement-acceleration-program

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savings to augment the appropriations of offices but only within the

Executive Branch of government, and not to other branches which is
tantamount to a cross-border transfer. It also clarified and reiterated
that as provided for in the GAA, savings could only be generated upon
the completion of the purpose of the appropriation, or when the need
for the appropriation no longer exists; otherwise it would seriously
undercut the legislative power of the purse.
The Executive through the President himself explained and defended
the DAP to the people in a national telecast last July 14, 2014. He said
that the DAP is an efficient way of spending the budget which follows
the laws and adheres to the mandate granted to the Executive
Branch2. He further added that the DAP was designed in order to
properly allocate funds, and by so doing maximize the benefits that
the people may receive3. The President also took the occasion of
clarifying the meaning of savings in government, which he said are
funds for certain programs that are not spent, as they should have
been.
The President emphasized that unspent funds hurt the economy and
deprives the people of its benefits. It is therefore incumbent upon a
good and conscientious leader to find a strategy that would accelerate
spending and pump-up the economy so as not to prolong the agony of
the people his bosses. Hence the DAP. He then enumerated the
various tangible outcomes of the Program, especially in addressing the
shortage of classrooms, providing electricity to remote areas and sitios,
relocating informal settlers, upgrading the equipments of the weather
bureau, boosting governments capacity in responding to national
calamities and improving irrigation canals, among others.
To legally qualify the Executives position, the President cited Book VI,
Chapter 5, Section 39 of the 1987 Administrative Code of the
Philippines, which states that Except as otherwise provided in the
General Appropriations Act, any savings in the regular appropriations
authorized in the General Appropriations Act for programs and projects
of any department, office or agency, may, with the approval of the
President, be used to cover a deficit in any other item of the regular
appropriations. With this, the President contends that his power to
transfer savings is not limited to only one department of government.
In other words, he did not transgress any law when he implemented
DAP.
In concluding his speech, the President made a veiled threat to the
Judiciary, saying that he do not want the Executive to go in a head to
head collision with the later, needing the third branch to intervene. He
reasserted that DAP is for the common good. The programs intentions,
processes and results were correct and substantially beneficial to
many. Further, he added that the program is of utmost necessity and
done in good faith. Moreover, he asked the Honorable Justices of the
2

National Address of His Excellency Benigno S. Aquino III. On the filing of a Motion for Reconsideration on the
Supreme Courts decision on Disbursement Acceleration Program (DAP), Malacaan Palace, July 14, 2014.
3
Ibid.

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Court to aid the government - rather than hinder it - in helping our

countrymen by granting the Executives Motion for Reconsideration.
For its part, the Legislative styled its position leaning towards that of
the Executives. In fact, after the Presidents televised address, his
allies in Congress have since moved to investigate the Judicial
Development Fund (JDF). On August 5, 2014, the House of
Representatives commenced the hearing on the proposed amendment
or abolition of the JDF, despite the Supreme Courts refusal to attend.
Congressman Tupas, an administration lawmaker, has already filled
House Bill 4690 which seeks to amend PD 1949 transferring the
administration of the JDF from the Supreme Court to the Bureau of
Treasury. Under the later, the Chief Justice has the sole exclusive
power to allocate the JDF and authorize its disbursements and
expenditures. This discretion of the Chief Justice over the JDF now
becomes the bases of some administration congressmen to entertain
the idea of filing an impeachment case against the former on the
grounds of betrayal of public trust and/or culpable violation of the
Constitution for allegedly usurping the power of the Congress purse 4.
The JDF is a fund collected by courts nationwide from the docket and
other court fees.
The Legislatives position regarding the controversy is expected by
many political commentators, as both Houses are controlled by the
administrations stalwarts. Further, it was not too long ago that the
High Court ruled as unconstitutional the Development Assistance Fund
(PDAF) a lump sum distributed to lawmakers to fund projects at their
discretion. In the Senate Hearing on DAP last July 24, 2014,
administration senators, including the Senate President, were criticized
for asking questions to the Budget Secretary that apparently served to
strengthen the Executives position on the DAP5.
It is important to note that before the controversy surrounding the DAP
reached the High Court, it was the now detained Senator Estrada who
first exposed the Program into the limelight. In a privileged speech last
September 2013, he revealed that 20 Senators received at least 50
million each in additional lump-sum allocation from the DAP allegedly
as an incentive to impeach then Chief Justice Renato Corona. From the
records of the program, it was revealed that the then Senate President
Enrile received 92 million pesos while the incumbent Senate President
Drilon received up to 100 million pesos worth of allocations.
After the State of the Nation Address (SONA) of the President last July
28, 2014, administration lawmakers announced that they will file a bill
seeking to, once and for all, clarify the definition of Savings in the
budget.
Meanwhile, employees of the Judiciary, members of the legal
profession as well as students of law from various Law Schools in the
4

Sereno May Face Impeachment Raps. August 6, 2014. http://newsinfo.inquirer.net/626991/sereno-may-faceimpeachment

5
As It Happens: Senate Hearing on DAP. July 24, 2014. http://www.rappler.com/video/specials/64129-senatehearing-on-disbursement-acceleration-program-july-24

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country criticized and denounced the apparent defiance shown by the

President. As a sign of protest and indignation to what they called as
utter disrespect and veil threats to the Judiciary, some court
employees and lawyers all over the country wore red or black, while
some put on black armbands. In a statement, the Ateneo de Manila
Law School Student Council called for the upholding of the Rule of Law
and the defense on the integrity of the Judiciary 6. The University of the
Philippines Law Student Government (UP LSG) defended the Courts
ruling and condemned the Presidents implied threat of a constitutional
crisis in the event that the Supreme Court does not reconsider its
decision7.
What is on the Table?
With the recent unfolding of events, the issue now goes beyond which
branch of government should prevail over the others. Rather, it puts
into question certain fundamental and institutional principles and
constitutional values amidst the perceived needs of the time. Thus it is
important to ponder: Is the Doctrine of Separation of Powers, which is
the focus of the High Courts ruling, comparable in transcendental
importance to the value of common good and public welfare?
The utility of the Doctrine of separation of powers is not only due to the
assigning to the co-equal branches certain sets of governmental
powers to avoid power concentration and abuse. Rather and more
importantly - on the corollary principle of interdependence and
coordination among the three great branches. In the case of Angara vs
Electoral Commission (1936)8, the Supreme Court said that the
Constitution do not intend that the three powers are to be kept
separate and distinct and absolutely unrestrained and independent
from each other. In fact, the Constitution has provided for an elaborate
system of checks and balances to secure coordination in the workings
of the various departments of government.
The essence of the Doctrine is to establish political equilibrium in order
to forbid the branches from subjugating the other and assert
supremacy to the detriment of the common good and public welfare.
-

Discuss Judicial Independence

When a government is preoccupied with locking horns with other

branches, it is always the citizens welfare that is the collateral
damage.
The constitution is founded on the values of human rights, common
good and public welfare. To ensure its promotion, fulfillment, protection
and perpetuation, it outlined a government system
6

Upholding the Rule of Law: The ALS SC Official Statement on the Disbursement Acceleration Program. July 19,
2014.
7
UP, Ateneo Law School Govt hits Aquino on DAP. July 27, 2014. http://www.rappler.com/nation/64488-up-lawstudent-govt-dap
8
G.R. No. L-45081

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that would insure its promotion and fulfillment. And to fulfill this noble
task, it assigned the powers to the branches with mechanisms for them
to work with each other.
- In doing this, it proclaimed itself the expression of the sovereign
will
- The spring cannot rise beyond its source no branch can exceed
the powers given to it by the Constitution, no matter how noble
the intention .
- decision of the Court puts into order the distorted practices. Reminds
the branches of their proper place in the promotion of the common
good.
- it is a reassertion of the Judiciary of its strength the constitutionally
guaranteed judicial independence. No person can be seen to defy the
orders of the judiciary perceived by the people as the guardian of the
constitutional values that binds the nation.
- Common good and public welfare will be in peril, when delianation in
the assignement of powers are blurred or when power is concentrated
to a single branch or Official.
Is public welfare enough reason to subvert the paramount law
and the legal processes? Should good intentions save one from
liability?
Are we now in the Historical Epoch where we should allow the
president more power to answer the call of the times? Quo Vadis?

The end justifies the means?

Introduction
Facts/Chronology of events
Issue and obiter issues
Discussions/arguments
Uphold the rule of Law, constitution. Peoples vigilance.
Statesmanship/pressure
Conclusion
Quid Pro Quo

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In a statement, Diokno said: Senator Franklin Drilon and Budget

Secretary Butch Abad are misleading the people by saying that past
presidents also had DAP.
He said the use of savings in the past was for impoundment of funds
for fear of unmanageable fiscal deficit.
He said the savings then were never used for funding new programs
and projects that were not prescribed in the General Appropriations Act
(GAA).
"The road to hell is paved with good intentions," intoned the senator.
Abad, he said, is trying to justify technical malversation. They could
have passed an appropriation measure from Congress to cover these
supposedly crucial projects, but ignored the co-equal branch of
government. "That's the intent of passage of the law against technical
malversation - to tell people like him that one cannot juggle funds, no
matter how good the intention."
Another neophyte senator who shone was Grace Poe, who, despite
running under the administration slate, left the guests from the
Executive squirming with her questions. She wanted them to explain
why billions from DAP were given to the Customs Bureau for its
obligations to the SGS. Given that the obligation must be honored, the
question is: How did this fit into "priority" and "urgent" criteria for DAP?