Tuesday, July 22, 2014

DAP and the Enabling Law (Part II)

In Part I of my series on the DAP case, I described my views on the doctrine of Separation of Powers.  I argued that PNoy’s DAP could not have usurped the Congressional Power of the Purse because the latter is really a MYTH. That such power is really tilted more to the President as provided for in the budgetary process per the Constitution, the Administrative Code, and the General Appropriation Acts.  How could he usurp a power that he already possesses?  At worst, he shares it jointly with Congress.  So, to declare that certain PNoy’s acts and practices violated the doctrine of Separation Powers seems to me, legally and judicially, unsound.

The Supreme Court also ruled that certain acts and practices under the DAP violated Section 25(5), Article VI of the 1987 Constitution which states,
 “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.”

This provision requires enabling law/s. There are two parts in this section:

First part: No law shall be passed authorizing any transfer of appropriations.

Second part: May, by law, augment any item in the general appropriations law for the respective offices of the President, Senate President, Speaker, Chief Justice, heads of Constitutional bodies from savings in other items of their respective appropriations.

Meaning of First part: From now on, no more law authorizing any transfer of appropriations. Existing laws that authorize such transfers and are not declared unconstitutional shall remain valid and enforceable. The prohibition regarding transfers refers only to appropriations, not savings.

The Administrative Code of 1987 is still valid, and has been cited and recognized by the Supreme Court.  The following sections refer to the use of savings:

SECTION 39. Authority to Use Savings in Appropriations to Cover Deficits. 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: Provided, that the creation of new positions or increase of salaries shall not be allowed to be funded from budgetary savings except when specifically authorized by law: Provided, further, that whenever authorized positions are transferred from one program or project to another within the same department, office or agency, the corresponding amounts appropriated for personal services are also deemed transferred, without, however increasing the total outlay for personal services of the department, office or agency concerned.

SECTION 49. Authority to Use Savings for Certain Purposes. Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President...

Meaning of Second Part: “May, by law” – meaning requires an enabling or implementing law. Law means legislative fiat that involves the actions of Congress and the President, the political departments of the government.

From the law, the definition of savings, the pooling of savings, use of savings, augmentation, transfers and other terms should be derived. The enabling law is usually the General Appropriations Act for a given fiscal year and/or existing laws that are still in effect that may allow transfer and augmentation from one department, office, agency to another.  Such laws are Sections 38, 39 and 49, Chapter 5, Administrative Code.

SECTION 38. Suspension of Expenditure of Appropriations.—Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.

There is nothing in the Supreme Court decision that declared Sections 38, 39, and 49, Chapter 5 of the Administrative Code of 1987 as unconstitutional.

The Supreme Court should consider the legislative intent in interpreting the law.  It should consider the President's executive powers as responsible for running the government as well as in managing the economy. And for that, the President is correspondingly empowered to use the savings, as he deems proper. Both Congress and the President are one in their definition of savings and the use of savings. This is consistent with their joint Power of the Purse.  

The Commission on Audit (COA), which measures the accountability of public officials, recognizes this when it requested the transfer of savings from the Executive so COA could augment its digital infrastructure and improve its auditing capabilities.

In fact, the Supreme Court also recognized it when en banc presided by Acting Chief Justice Antonio Carpio passed a resolution authorizing the transfer of savings to another department – the Executive.

The Supreme Court in the exercise of Judicial Review should not be indulging in Judicial Legislation that encroaches upon the prerogatives of the two political departments of the government.

I will not be surprised if the Supreme Court does a clarification amounting to modification of its decision.  Pride would probably prevent a complete reversal but who knows, the Supreme Court composed of almost the same Justices just did it only a few months ago.

No comments:

Post a Comment