“Still water runs deep.”
— Latin proverb
CHICAGO (JGL) – In the run-up of his penultimate State of the Nation Address (SONA) last Monday (July 28), President Aquino had become very voluble like a wounded prey after his transfers of Disbursement Appropriation (DAP) outside his Executive department were declared unconstitutional. P-Noy had publicly challenged the Supreme Court to answer his criticisms over their adverse ruling against him.
But the Supreme Court justices held their own, not because they are intimidated, but because they are bound by their sub-judice rule, which prevents them from making a public comment on a pending case before them.
Like boxers, who let their fists do the talking, or drummers, who let their drums talk the talk, by keeping quiet, the justices only want to let their pens, not their mouths, do the talking.
Mr. Aquino should never mistake the silence of the judiciary as a weakness. If the President has the power of the sword and the Congress has the power of the purse, the Supreme Court has the power of the pen or review, which is mightier than the sword.
If President Aquino and his allies in Congress really want to get even with the Supreme Court, they should ask the Supreme Court why there are cases still languishing in the Supreme Court, like the PALEA v. PAL and PAL Stewardess cases v. PAL. These cases have been pending before the Supreme Court for the last 10 to 15 years when Section 15. (1), Art. VIII of the 1987 Constitution provides that, “All cases or matters filed after the effectivity of this Constitution must be decided or resolved within twenty-four months from date of submission for the Supreme Court, and, unless reduced by the Supreme Court, twelve months for all lower collegiate courts, and three months for all other lower courts.”
CONGRESS SHOULD PASS A LAW DRAGGING THE CASE
If they cannot impeach the justices, Congress should pass a law that penalizes any party (the judge, the prosecution or the defense) in a case responsible for dragging the case for more than two years in violation of the Constitutional mandate that, I believe, is self-executing.
But before they initiate impeachment cases against the judiciary, P-Noy and company should withdraw first his motion for reconsideration filed before the Supreme Court as he implicitly admitted culpability in the DAP scandal crafted by his Budget Secretary Florencio B. Abad when he proposed for the first time during the last three years submitting supplementary budget for the General Appropriation Act of 2015 in his SONA.
The Supreme Court, in a unanimous ruling, stopped cold Mr. Abad from pooling and collecting “savings” from “slow-moving” projects in the Executive department, unless it is at the end of fiscal year and re-allocating these to their own priorities. At the same time, the High Court also stopped Mr. Aquino from transferring money from his office to Congress and other Constitutional bodies, like the Commission on Audit.
In his SONA, Mr. Aquino missed the opportunity to seize the moment by apologizing for the intentional lapses, not good faith, committed by his Secretary Abad.
If Mr. Aquino really wanted to make up for the lapses of Mr. Abad, nearly tearing up to appeal to emotion in order to regain the trust of his Bosses (the Filipino voters) was not part of the solution. Accepting the resignation and instituting criminal charges against Mr. Abad and his Executive Sec. Paquito N. Ochoa for misleading him were the more logical things to do if he wants to appeal to reason.
If Mr. Aquino is proactive, he should anticipate that there is no way the Supreme Court will reverse itself on the DAP issue, unless he can provide new, convincing and compelling arguments to support his cause.
A student of the United States Supreme Court knows very well that it is very hard for the Supreme Court to reverse itself.
PLESSY V. FERGUSON
It will take the different states of the Union to amend the U.S. Constitution itself by requiring three-quarters of the each of the state’s 50 legislatures, which had happened a number of times. And if the Supreme Court is presented a different case, involving the same constitutional issues as an earlier case is reviewed by the court and seen in a new light, typically because of changing social and political situations, maybe the SC will reverse course.
The longer the amount of time between the cases, the more likely the Supreme Court overturns itself based on the doctrine of stare decisis.
This was shown in the case of Plessy v. Ferguson in 1896, when the infamous case asserted that “equal but separate accommodations” for blacks on railroad cars did not violate the “equal protection under the laws” clause of the 14th Amendment. Thus, the Supreme Court gave birth to repressive Jim Crow laws of the South.
But after nearly 60 years in 1954, in the case of Brown v. Board of Education of Topeka, the Supreme Court invalidated racial segregation in schools and led to the unraveling of de jure segregation in all areas of public life. In the unanimous decision spearheaded by Chief Justice Earl Warren, the Court invalidated the Plessy ruling, declaring “in the field of public education, the doctrine of ‘separate but equal’ has no place” and contending that “separate educational facilities are inherently unequal.”
Instead of bowing to the unanimous Philippine Supreme Court ruling, whose members included his own four appointees led by Chief Justice Maria Lourdes P. A. Sereno and Associate Justice Lucas P. Bersamin, who penned the decision, Mr. Aquino went on a state of denial, saying he is going to file a motion for reconsideration because his approval of the DAP was based on Section 39 of the Administrative Code, which says, “Any savings in the regular appropriations 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.”
He also cited a provision in Section 38 of the same Chapter 5, Book VI of the same code, which says, “The President is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any expenditure authorized in the General Appropriations Act.”
“CROSS-BORDER AUGMENTATION” UNCONSTITUTIONAL
Maybe so but President Aquino is not authorized by Sec. 25(5) of the Art. VI of the 1987 Constitution to transfer funds thru “cross-border augmentation from savings” to agencies outside Executive branch.
For instance, instead of including the P43-M (US$1-M) budget in a supplementary budget for the next GAA, Mr. Aquino granted the request of the House of Representatives, President Aquino authorizing the transfer of funds from the Executive to the Legislative. Sec. 25(5) only allows transfer of funds “within their respective offices,” meaning within the Executive branch offices only or in the case of Legislative or Judiciary branches, within their branches only.
In another instance of cross-border transfer, Mr. Aquino allowed another funding transfer outside the Executive when he authorized the transfer of P143-M (US$3.2-M) funds to a Constitutional body – the Commission on Audit, which made the request to fund needed information technology equipment as well as hire consultants and litigators to help them with their audit work and for that they requested funds from the Executive and was granted.
Not to mention the observation of the Supreme Court that by “making the President’s power to augment operative under the GAA, Congress recognizes the need for flexibility in budget execution. (But i)n so doing, Congress diminishes its own power of the purse, for it delegates a fraction of its power to the Executive.”
The Supreme Court told President Aquino, Executive Sec. Ochoa and Sec. Abad that “savings in the GAAs, particularly for 2011, 2012 and 2013, are only “operational” when “balances of any programmed appropriation in this Act (are) free from any obligation or encumbrance, which are still available (only) after completion or final discontinuance or abandonment of the work, activity or purpose for which appropriation is authorized,” not during the quarter or within the fiscal year. (lariosa_jos@sbcglobal.net)
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