Fr. Bernas probably forgot the Admin Code came AFTER the 1987 Constitution

By Raïssa Robles

Posted at Jul 15 2014 10:06 PM | Updated as of Jul 16 2014 06:06 AM

Father Joaquin Bernas, a constitutionalist and Jesuit priest whom I deeply respect, has posted a short note on his Facebook page presumably commenting about my legal arguments on DAP.

Here’s what Fr. Bernas wrote about Section 49 [underlining is mine]:

 "The 'Discovered' Section 49.

 "Much is being said of Section 49 of the Administrative Code which gives to the President broad powers to transfer funds. It is even suggested that had the Supreme Court made use of this provision it would have decided the DAP case differently and in favor of President Aquino.

 "I believe it is safe to assume that the Supreme Court is aware of the existence of Section 49. The Supreme Court is also aware that the Code where Section 49 is found is an Executive Order of President Aquino issued while she still had legislative power before Congress became operative. It antedates the 1987 Constitution. Statutory provisions and executive orders antedating the Constitution and incompatible with the Constitution no longer have effect.

 "More importantly the Supreme Court is aware of the constitutional provision on the transfer of funds. It is found in 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.”

 "The law authorizing augmentation transfers is usually found in the current Appropriation Law. 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.

 "The law cites three instances which give rise to savings. They are balances “(i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) 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.

 "The 'discovered' Section 49 cannot fit into this constitutional limitation."

I think Fr. Bernas made a slight mistake in his chronology of events.

It’s easy to do that because these events took place 27 years ago. I also had a hard time determining the dates of the events.

Fr. Bernas concluded that since the Administrative Code of 1987 “antedates” or came before the 1987 Constitution took effect, therefore “statutory provisions and executive orders antedating the Constitution and incompatible with the Constitution no longer have effect.”

However, the reality is that the Administration Code post-dated or came AFTER the 1987 Constitution.

The mistake in the dates might, perhaps, change the complexion of Fr. Bernas’ legal opinion.

Because of this, I would like to ask him to reconsider and take a look at the constitutionality of Sections 38, 39 and 49 of Chapter 5, Book VI of the Administration Code of 1987 – TOGETHER.

 Do these three sections, if taken altogether, give the President the power to pool funds into a Disbursement Acceleration Program or DAP?
 At the time the DAP was operational, were Sections 38, 39 and 49 still in effect?
 Or were Sections 38, 39 and 49 void ab initio or from the beginning and needed no Supreme Court ruling to void it?
 If these were void ab initio, are President Aquino and Budget Sec Abad criminally liable for using these powers?

Fr. Bernas concluded that since the Administrative Code of 1987 “antedates” or came before the 1987 Constitution took effect, therefore “statutory provisions and executive orders antedating the Constitution and incompatible with the Constitution no longer have effect.”

However, the reality is that the Administration Code post-dated or came AFTER the 1987 Constitution.

A commenter on my site who said he was a judge and goes by the handle AMR wrote the following as his first paragraph [again the underlining is mine]:

 “Hi Raissa. First, let me say that you have raised some interesting and well-reasoned arguments. I’m a judge by profession. Here’s my two cents. The 1987 Constitution was ratified on Feb. 2, 1987. While Admin Code took effect ONE YEAR AFTER its publication in the Official Gazette on July 25, 1987. In other words, the Admin Code does NOT antedate the Constitution. Therefore, pertinent sections in Admin Code are still good law since it was never declared unconstitutional by the SC. Every law enjoys the strong presumption of constitutionality. While it is the SC which is the final arbiter of the constitutionality of laws, the executive and the legislature get a first crack at constitutional interpretation.”

I counter-checked the dates. Here’s what I found:

 July 30, 1977 – Dictator Ferdinand Marcos issues Presidential Decree No. 1177, called “Revising the Budget Process in order to Institutionalize the Budgetary Innovations of the New Society.” PD 1177 gives vast powers to the President over the government budget.

 September 19, 1985 -The Supreme Court issues a resolution compelling the Solicitor General (Estelito Mendoza) to comment on a petition filed by opposition lawmakers in Batasang Pambansa who had asked the court to void Section 44 of PD 1177 because this violated the 1973 Constitution.

 February 25, 1986 – Marcos flees the Philippines. Then Corazon Aquino declares a revolutionary government, throws out the 1973 Constitution and issues a Freedom Constitution. Most members of the Supreme Court are replaced with her appointees.

 February 2, 1987 – a new Constitution is ratified in a referendum, replacing Mrs Aquino’s Freedom Constitution.

 February 27, 1987 – The new Supreme Court issues a decision on Section 44. It voids paragraph 1 of Section 44 of PD 1177 “for being unconstitutional”. Here’s the link to the SC decision.

 Here’s what the court voided:

 The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which are included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment.

Fr. Bernas is correct in saying that the 1987 Constitution voided all other sections of PD 1177 “inconsistent” with the charter because of the Transitory Provisions which said:

“Sec.3 – All existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked.”

But our train of events does not end there.

 July 25, 1987 – Executive Order No. 292 (Administrative Code of 1987), bearing this date, was signed by President Corazon Aquino and co-signed by her Executive Secretary Joker Arroyo. It contains the following date of effectivity: “This Code shall take effect one year after its publication in the Official Gazette.”

 July 27, 1987 – The first post-Martial Law Congress convened.

What’s so significant about the Admin Code being enacted into law by President Aquino AFTER the 1987 Constitution took effect?

Here is my answer.

Those who drafted EO 292 – and I believe they were law professors from the University of the Philippines Law Center – bodily lifted the provisions of PD 1177 and inserted them into the Admin Code. Yes, they resurrected some of Marcos’ dictatorial powers in the shape of sections in the Administrative Code produced by the Cory government.

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