Posts Tagged ‘Aquino’

DAP and The Power of the Purse

In the rather recent case of Araullo v. Benigno Simeon Aquino III[1], involving the chronically divisive Disbursement Acceleration Program  (or the DAP), the Supreme Court adopted a strict review of the “savings” definition to determine the President’s power to transfer amounts between programs under the General 2011, 2012 and 2013 Appropriations Act. On the flip side, the Supreme Court refused to consider the DAP as an impoundment measure based on the narrow definition of Impoundment under the same years GAAs:

 “The petitioners assert that no law had authorized the withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations; and that the unbridled withdrawal of unobligated allotments and the retention of appropriated funds were akin to the impoundment of appropriations that could be allowed only in case of “unmanageable national government budget deficit” under the GAAs, thus violating the provisions of the GAAs of 2011, 2012 and 2013 prohibiting the retention or deduction of allotments.

In contrast, the respondents emphasize that NBC No. 541 adopted a spending, not saving, policy as a last-ditch effort of the Executive to push agencies into actually spending their appropriations; that such policy did not amount to an impoundment scheme, because impoundment referred to the decision of the Executive to refuse to spend funds for political or ideological reasons; and that the withdrawal of allotments under NBC No. 541 was made pursuant to Section 38, Chapter 5, Book VI of the Administrative Code, by which the President was granted the authority to suspend or otherwise stop further expenditure of funds allotted to any agency whenever in his judgment the public interest so required.
The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support. Nonetheless, such withdrawal of unobligated allotments and the retention of appropriated funds cannot be considered as impoundment. According to Philippine Constitution Association v. Enriquez (citation omitted): “Impoundment refers to a refusal by the President, for whatever reason, to spend funds made available by Congress. It is the failure to spend or obligate budget authority of any type.” Impoundment under the GAA is understood to mean the retention or deduction of appropriations. The 2011 GAA authorized impoundment only in case of unmanageable National Government budget deficit, to wit:

Section 66. Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded through retention or deduction, unless in accordance with the rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for the purposes, programs, projects and activities authorized under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33 (3),Chapter 5, Book VI of E.O. No. 292.

Section 67. Unmanageable National Government Budget Deficit. Retention or deduction of appropriations authorized in this Act shall be effected only in cases where there is an unmanageable national government budget deficit. Unmanageable national government budget deficit as used in this section shall be construed to mean that (i) the actual national government budget deficit has exceeded the quarterly budget deficit targets consistent with the full-year target deficit as indicated in the FY 2011 Budget of Expenditures and Sources of Financing submitted by the President and approved by Congress pursuant to Section 22, Article VII of the Constitution, or (ii) there are clear economic indications of an impending occurrence of such condition, as determined by the Development Budget Coordinating Committee and approved by the President.

The 2012 and 2013 GAAs contained similar provisions.

The withdrawal of unobligated allotments under the DAP should not be regarded as impoundment because it entailed only the transfer of funds, not the retention or deduction of appropriations.”

This means that while the Court recognized that the power to define savings is primordially legislative, it also allowed wide leeway for the Executive to play around with appropriations in order to create savings. In other words, although the President, if allowed by law (remember that it is not an inherent power), can realign only those funds which are defined as “savings” by Congress, it seems that he can also create a new category of savings altogether by simply “withdrawing unobligated allotments”  and the act of withdrawing itself is not considered an impoundment within the statutory definition.

I for one am still on the fence regarding the DAP issue per se but I think this distinction made by the Supreme Court on the impoundment aspect is too sophisticated for its own good. DAP would allow the executive to  declare an allotment “unobligated” merely by cherry picking which PAPs to obligate. And that precisely is the essence of impoundment — the refusal of the executive to carry out an instruction by Congress.

The items in the appropriations act are permissions for the Executive to incur obligations for the corresponding items. At the same time, the  GAA also theoretically contains a corresponding negative instruction for the President NOT to incur obligations for programs where no appropriations were made by Congress. Thus, to the extent that President acts contrary to these instructions, can it not be said that he also violates his duty to “faithfully execute” the laws of the land?

Finally, I think that obligating items PRIOR to or independent of the GAA amounts to a kind of “executive appropriation” as it would have the unusual effect of forcing the legislature to enact an appropriation to cover the expenditure,  thus:

“While section 8 of article I enumerates the powers of the legislative branch, the appropriations clause in section 9 is not a grant of power.

Rather, the appropriations clause affirmatively obligates Congress to exercise a power already in its possession.

Congress’ power to appropriate originates in article I, section 8. The concept of “necessary and proper” legislation to carry out “all . . . Powers vested by this Constitution in the Government of the United States” includes the power to spend public funds on authorized federal activities

Article I, section 8 also grants Congress the obverse power: the power to prevent the spending of any public funds except as authorized by Congress.

That is, even if there were no appropriations clause in the Constitution, Congress would have the power to enact a statutory “appropriations clause,” worded exactly the same as the clause in article I, section 9, making Congress’ appropriations power exclusive. If Congress could not prohibit the Executive from withdrawing funds from the Treasury, then the constitutional grants of power to the legislature to raise taxes and to borrow money” would be for naught because the Executive could effectively compel such legislation by spending at will.

The `legislative Powers’ referred to in section 8 of article I would then be shared by the President in his executive as well as in his legislative capacity.

Since legislative appropriations power is rooted in article I, section 8, we may infer that a primary significance of the appropriations clause in section 9 lies in what it takes away from Congress: the option not to require legislative appropriations prior to expenditure. If the Constitution thus strictly forbids `executive appropriation’ of public funds, the exercise by Congress of its power of the purse is a structural imperative[2]. “

 

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[1] GR No. 289207

[2] Stith, Kate, “Congress’ Power of the Purse” (1988). Faculty Scholarship Series. Paper 1267. http://digitalcommons.law.yale.edu/fss_papers/1267

 

 

 


The Bangsamoro Pact

To the degree that our Constitution allows “autonomous regions” in Mindanao within areas “sharing common and distinctive historical and cultural heritage, economic and social structures and other relevant characteristics”(Article X, Section 15),  there is little argument on the recognition of a form of regional diversity which gives rise to a political right to a more or less separate government.

The problem is not in the recognition of the right.  There is already an Autonomous Region of Muslim Mindanao (ARMM). The key is figuring out why it did not put an end to hostilities. It can be argued that this is due to the inadequacy of a structure which is attributable to faulty craftsmanship. Beyond that, it also lacked credibility amongst the various muslim factions themselves and the leadership administering the region was challenged from within. The previous exercise was a rush job that failed to account for the sectarian differences and validate the bona fides of the group seeking to represent them.

Yet, for the second time around, the Government of the Republic of the Philippines is on the cusp of realizing another peace accord (a copy of the Framework Agreement on the Bangsamoro can be found here) with the same leadership — a splinter faction of the old and largely discredited face of the muslim resistance.  With due respect, are we sure we want to hand over the reins of government to a group of disgruntled ex-MNLF fighters without proof of their ability to lead the people they purport to represent?  To be more direct, can they control the numerous armed factions within the area and compel them to submit to their authority? As if to demonstrate the infighting (or to use a euphemism: “complex political dynamics”) among them, the Sultanate of Sulu has waged his own little war against Malaysia at the same time that the parties are seeking the kingdom’s intercession in the bargaining process. That the Moro Islamic Liberation Front has no control over the actions of the Sultanate hardly inspires confidence in their ability to police their own backyard.

Of course, peace is an overwhelming ideal. But why not a phased pullout of national government from the region? If its people seek autonomy, it is imperative to require  evidence of the ability to govern and consent of the governed — and these can only be demonstrated over time. By contrast, all the Framework Agreement seems to require is a plebiscite.

Lastly, the Constitution requires that the autonomous region exist within its own parameters. In “Province of North Cotabato vs. Government of the Republic of the Philippines” [GR No. 183591] the Supreme Court refused to give its imprimatur to a like minded document (the Memorandum of Agreement on Ancestral Domain or MOA-AD)  for the reason that it could not exist within the same legal plane as the Constitution. First, the Court noted that the Constitution cannot accomodate an “associative” relationship with the  Bangsamoro Juridical Entity (BJE) because it does not contemplate any other state existing within its sphere other than the Philippine state, to wit —

“No province, city, or municipality, not even the ARMM, is recognized under our laws as having an “associative” relationship with the national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for independence.

xxx

“It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention, namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.”

Although the Framework Agreement uses the word “asymmetric” (or unequal) to describe its relationship with national government, any further reading of the text will not conclusively remove the notion that the relationship between the Bangsamoro Government  and the National Government is also one of association. Judged by the standards of the Montevideo Convention, it seems that the Bangsamoro entity also seems to have the same characteristics of a “state in all but name.” The Framework Agreement makes sure that it has a permanent population, a defined territory and a government. It may be true that the Framework Agreement provides that the Central Government shall have powers on “foreign policy,” neither does it clearly define the power as exclusive.

 

 

 

 

 


Impeachment: How did it come to this?

Americans Reinstate Audencia Territorial: Judges take the Oath

 

Now that the impeachment trial of the Chief Justice is well underway, it is worth some time to examine how we had arrived at this situation.

After EDSA and under the helm of the first President  Aquino, the sovereign Filipino people  overhauled their Constitution for the second time (not counting the provisional Constitution). One of the most significant innovations of the 1987 Constitution was Article VIII, Section 1 which expressly bestows power on the courts not only to decide “actual controversies” but also to correct grave abuses of discretion “on the part any branch or instrumentality of government,” to wit:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of government.

This “power” to review acts of other branches is not exactly new. In Angara vs. Electoral Commission (GR No. L-45081), the Supreme Court was asked to decide a conflict between a Resolution of  the National Assembly (i.e., the legislature) confirming the election of Jose Angara and a resolution of the Electoral Commission allowing his opponent until a certain date to file a protest. One of the issues raised in the case was whether the Supreme Court had jurisdiction to settle the controversy involving as it does a co-equal branch of government (the National Assembly) and a Constitutional body.

In its Decision penned by Justice Laurel, the Supreme Court recognized the supremacy of each branch “within its own sphere” but held, much like in Marbury vs. Madison, that the Constitutionally mandated system of checks and balances requires the Supreme Court to effectively check the other branches of government because of its power to determine constitutional boundaries and if other branches went beyond them. It went further than Marbury vs. Madison however, in that the High Court pronounced itself the “final arbiter” to settle constitutional conflicts in “times of social disquietude or political excitement,” thus:

The separation of powers is a fundamental principle in our system of government. It obtains not through express provision but by actual division in our Constitution. Each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere. But it does not follow from the fact that the three powers are to be kept separate and distinct that the Constitution intended them to be absolutely unrestrained and independent of each other. The Constitution has provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. For example, the Chief Executive under our Constitution is so far made a check on the legislative power that this assent is required in the enactment of laws. This, however, is subject to the further check that a bill may become a law notwithstanding the refusal of the President to approve it, by a vote of two-thirds or three-fourths, as the case may be, of the National Assembly. The President has also the right to convene the Assembly in special session whenever he chooses. On the other hand, the National Assembly operates as a check on the Executive in the sense that its consent through its Commission on Appointments is necessary in the appointments of certain officers; and the concurrence of a majority of all its members is essential to the conclusion of treaties. Furthermore, in its power to determine what courts other than the Supreme Court shall be established, to define their jurisdiction and to appropriate funds for their support, the National Assembly controls the judicial department to a certain extent. The Assembly also exercises the judicial power of trying impeachments. And the judiciary in turn, with the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution.

But in the main, the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where the one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof.

That assertion of judicial supremacy has never been seriously questioned and arguably may even be critical to the orderly functioning of society. To be fair, the Supreme Court has showed self restraint in the exercise of judicial power. Oddly enough therefore, the need to express the authority to exercise judicial review more definitively in the Constitution came as a reaction to the perceived weakness of the Tribunal and its hesitation to correct legal abuses committed by the former President Marcos in cases like Javellana vs. Executive Secretary (GR No. L-4460) .

As it turns out, strengthening the judiciary is all well and good but inadvertently manufactures another logical dilemma: that of a counter-majoritarian court which has the power to strike down acts of the other branches of government. In other words, how is it possible, in a “democratic” government founded on the rule of the majority, for unelected magistrates to veto acts of officials elected by the people and in certain cases even influence policy? To whom are they accountable?

The obvious answer is that Justices of the Supreme Court are accountable to the people directly. Under Article XI, Section 3 of the 1987 Constitution, an impeachment complaint may be initiated by any citizen upon a resolution of endorsement of any member of the House of Representatives, thus:

Section 3.

  1. The House of Representatives shall have the exclusive power to initiate all cases of impeachment.

  2. A verified complaint for impeachment may be filed by any Member of the House of Representatives or by any citizen upon a resolution or endorsement by any Member thereof, which shall be included in the Order of Business within ten session days, and referred to the proper Committee within three session days thereafter. The Committee, after hearing, and by a majority vote of all its Members, shall submit its report to the House within sixty session days from such referral, together with the corresponding resolution. The resolution shall be calendared for consideration by the House within ten session days from receipt thereof.

  3. A vote of at least one-third of all the Members of the House shall be necessary either to affirm a favorable resolution with the Articles of Impeachment of the Committee, or override its contrary resolution. The vote of each Member shall be recorded.

  4. In case the verified complaint or resolution of impeachment is filed by at least one-third of all the Members of the House, the same shall constitute the Articles of Impeachment, and trial by the Senate shall forthwith proceed.

  5. No impeachment proceedings shall be initiated against the same official more than once within a period of one year.

  6. The Senate shall have the sole power to try and decide all cases of impeachment. When sitting for that purpose, the Senators shall be on oath or affirmation. When the President of the Philippines is on trial, the Chief Justice of the Supreme Court shall preside, but shall not vote. No person shall be convicted without the concurrence of two-thirds of all the Members of the Senate.

  7. Judgment in cases of impeachment shall not extend further than removal from office and disqualification to hold any office under the Republic of the Philippines, but the party convicted shall nevertheless be liable and subject to prosecution, trial, and punishment, according to law.

  8. The Congress shall promulgate its rules on impeachment to effectively carry out the purpose of this section.

However, this is true of all officials who can be removed by impeachment.  Thus, the provision is not specifically designed as a check against the abuses of a “rogue” court and may prove to be inadequate for the purpose.

As the impeachment grinds on and more legal issues are raised in the Senate, resort at some point to the Supreme Court almost seems inevitable. To what extent then, if at all, will the Supreme Court assert its role as the “final arbiter” of legal questions as against the exclusive jurisdiction of the Senate over impeachment cases?

 


The First Hundred

The overarching strategy appears to hinge on the promotion of Public-Private Partnerships (or PPPs). Other than the fact that this is by no means an innovation, infrastructure development by itself is not a recipe for bringing the country out of its status as the perennial bridesmaid of Southeast Asia into the club of the sought after. There are tough choices to be made regarding population control, balancing the budget, peace and order plus of course, the manner and degree of aggressiveness in fighting corruption. Hard decisions require deft political handling and large political capital. While there is still hope, the President has to make these choices soon before his coin runs out.


Noynoy, Gibo, Villar and the new EDSA Revo-lections

Critics bemoan the fact that many Filipinos are reduced to electing the “least corrupt” rather than the “most competent” candidate for the highest post in the land. But that argument presupposes that the two concepts are mutually exclusive. On the contrary, we cannot deny that it is precisely the sad state of the country which calls for a comparison not of one’s track record of real and hyperbolic accomplishments but a demonstration of what one has NOT done despite being possessed of power. In this, Noynoy is head and shoulders above all. As it turns out, Noynoy has shown by his previous conduct that he is the most competent to wield the awful powers of the President by showing its grandest manifestation — that of RESTRAINT.