On why the Supreme Court didn’t overlook the Administrative Code

In Raissa’s latest post, she laments that some lawyers have had one of three reactions to her earlier post where she argues that the 1987 Administrative Code qualifies the President’s Constitutional power to augment: (1) the Constitution is clear; (2) the SC decision is unanimous; or (3) she’s not a lawyer.

Alarmed by the condescension I note in the tone of my brothers, I wrote this, not because I’m a lawyer, and she’s not, but because I came to the same conclusion until I looked at the provisions of law the DBM used as basis for the DAP.

I, too, share the same admiration that Senator Saguisag has for Raissa’s analysis, not because she took a second look at that DBM site page and read it in light of the DAP rulings, but because she took those arguments and attempted to make it into a coherent argument.

That being said, I still maintain that a contrary interpretation violates the separation of powers, and that the term “savings” is cross-defined in the GAA.

Two things may have been overlooked, which sit right on the DBM page explaining the legal bases for the DAP.

First, the power to augment on the part of the President is embodied in the provisions that Raissa cites in the Administrative Code of 1987, and in the other provisions that surround it. However, that the Administrative Code of 1987 was passed days before the 1987 Constitution does not necessarily mean that it is constitutional as well. The Administrative Code is a political law that must be interpreted below the Constitution, that is to say that the interpretation of the Administrative Code that is most in line with the Constitution will govern, if it means that by that interpretation the Administrative Code survives. A statute cannot be used to determine whether another law meets the requirements of the Constitution, because that starts a circular argument.

Raissa does note that a friend of hers has chided her on that view, and while she has taken it in stride, it is not critical to determine the Constitutionality of the provisions on the power to augment in determining the validity of DAP. The Supreme Court will refrain as much as possible from ruling on issues of constitutionality, especially when these are collateral issues.

Second, as Raissa notes, the definition of savings in a law that determines the power to augment may be the subject of a statute. We may be put on notice that this is what Congress has done, in fact. So keen is Congress to implement the long-standing rule of government contracts: an appropriation is required for every contract entered into by government, that the power to augment for other branches of government (only seven other people share the power to augment) is always defined further in the General Appropriations Act.

To support the legality of the DAP, the DBM points to Sections 59 and 60 of RA No. 10147, Sections 53 and 54 of RA No. 10155, and Sections 52 and 53 of RA No. 10352. These laws are the General Appropriations Acts (GAAs) for 2011, 2012, and 2013, respectively, and these sections are identically worded. Might I break it down, to use a term from the street. Savings are defined in the GAAs:

Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are: (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.

In plainspeak, you book savings only when:

1. A government project is finally stopped, discontinued, or abandoned.
2. There are people who quit.
3. You ran the government good enough to spend less than what the guys on the ground gave as an estimate of just how much is needed.

Obviously, items two and three do not apply, so let’s not go there.

You may then argue that an impounded project is a project that is finally stopped, discontinued, or abandoned, but then that’s a bit wrong.

The words, “stopped”, “discontinued”, and “abandoned” do not have plain and technical meanings. However, these words are qualified by the word, “finally”, and that’s where the rub lies.

The biggest problem with DAP is that it used money sourced from impounded public projects to fund other public projects that may or may not have been approved at the time of the passage of the national budget.

The power to impound traces its roots to Thomas Jefferson in 1801 and is part of the Executive Power (according to the Court in Marcos v. Manglapus, quite large in scope indeed, especially when compared to the US President – the US President has a very limited power to impound, and has no line item veto power). Under that meaning, the President holds the money instead of spending it. It does not mean that the President will spend it elsewhere; that is the power to augment.

By and large the power to impound is restricted only by the discretion of the President. However, the impoundment of an act does not mean that it has been stopped. It only means that the President will not cause funds to flow to the project. By all means, Congress can restore funding to the project the following year. Moreover, the President can realign funds to later cause funding to flow to that particular project should savings arise. The limitation there is that the President cannot realign funds to a project that does not already exist within the framework of the GAA at the time the funds are realigned. In other words, the President cannot stop with finality an act mandated by Congress. He can only hold the implementation of the law in abeyance.

On now, to the power to augment. It means what it means: to add to what already exists. In other words, even if we were to assume that the President could in fact consider impounded budgets as savings, the President cannot just transfer the funds to just any project or program. The project or program must be one contemplated by Congress at the time of the passage of the GAA. This keeps with the principle that every disbursement of public funds must be able to trace itself to an act of Congress.

Hard cases make bad law, so said Oliver Wendell Holmes. These DAP rulings, though they may seem unjust in that they may force a good man to give up his post, has made good law, because it is necessary to keep intact the separation of powers at its most fundamental.

Consider: President Z decides to impound every single line item in the 2017 national budget. He then declares the entire national budget as “savings” and then proceeds to realign them as he sees fit. This is the case had DAP been found constitutional. In this scenario, however, Congress is emasculated. Congress is left to passing a large number at the end of budget deliberations, and for not putting each and every single department through hell, each member of Congress is reduced to a mendicant to make sure their projects are not impounded, in the manner of Richard Nixon. It is to PNoy and Abad’s credit that this has not been the case.

To open the keys to this kingdom will be to open even more unfettered reign over government to just one of the branches. Congress cannot be an effective counterbalance to the enormous weight of the Presidency if it cannot do its function to safeguard the people’s money.

I hope that wasn’t condescending. I’m looking forward to that article on savings.

Forty years ago, more or less.

Address of then President Ferdinand Edralin Marcos on 23 September 1972, at 9:00 p.m. announcing that the Philippines has been placed under Martial Law (unofficial transcript of video from ABS-CBN archives).

My countrymen, as of the 21st of this month, I signed Proclamation №. 1081 placing the entire Philippines under Martial Law. This proclamation was to be implemented upon my clearance, and clearance was granted at nine o’clock of the evening, of the same setting, last night.

I have proclaimed Martial Law in accordance with the powers vested in the President by the Constitution of the Philippines. The proclamation of Martial Law is not a military takeover. I, as your duly elected President of the Republic, use this power, which may be implemented by the military authorities, but still is a power embodied in the Constitution to protect the Republic of the Philippines and our democracy.

A republican, a democratic form of government is not a helpless government. When it is imperilled by the danger of a violent overthrow, an insurrection, or a rebellion, it is inherent in sweeping powers wisely provided for in the Constitution. Such a danger confronts the Republic of the Philippines.

Article VII, Section 10, Paragraph 2 of the Constitution provides, and I quote:

The President shall be commander-in-chief of all [the] armed forces of the Philippines, and, whenever it becomes necessary, he may call out such armed forces to prevent or suppress…


Official receipts were recovered from the area. These rockets can pierce steel 18 inches thick and the breach(?) reinforced a width of 36 inches thickness, as well as four sandbags stitched together. Also captured by our government troops in the Palanan landing were two Browning automatic rifles which were originally looted by defector Victor Corpus from the arsenal of the Philippine Military Academy, five Garand or M1 rifles, one telephone switchboard, seven telephone sets, some magazines for rifles, and many revealing, subversive documents.

The L___(?) who led this landing of military armaments and equipment in Palanan, Isabela, indicated: (1) that the claim of the New People’s Army that they are well-funded and have plenty of money has basis in fact; (2) that they now have sources of funds and equipment not only from inside the Philippines but also from outside our country; (3) that the Communist Party and the New People’s Army are capable of landing armaments, military equipment, and even personnel in the many points unguarded in the long seacoast of the Philippines, which seacoast is twice that of the United States.

The defense establishment has submitted that there have been attempts to infiltrate the military organizations as well as the Office of the Secretary of National Defense. There have been various incidents and attempts to sabotage not only the operations not only of the Armed Forces of the Philippines, but the operations of the national government.

It has been reported that the communications system of the Philippine Constabulary is being utilized by the subversives. The subversives have organized urban partisans in the greater Manila area and they have been and still are very active. They have succeeded in some of their objectives. The violence that is going on in Mindanao in Cebu, that has, to date, resulted in the killing of over 1,000 civilians and about 2,000 armed Muslims and Christians, not to mention the more than 500,000 of injured, displaced, and homeless persons, as well as a great number of casualties among our government troops. At the same time, the economy of Mindanao and Cebu is almost completely paralyzed.

I assure you that I am utilizing this power for the proclamation of Martial Law vested in me by the Constitution for one purpose alone: that is to save the Republic and reform our society. I must emphasize these two objectives. We will eliminate the threat of a violent overthrow of our Republic, but at the same time, we must now reform the social, the economic, and political institutions in our country.

The plan, the order, is for reform in the removal of the inequities in that society, the cleanup of government of its corrupt and shady elements, the elimination of criminal syndicates, the systematic development of our economy, a general program for a new and better Philippines will be explained to you.

But we must start out with the elimination of anarchy and the maintenance of peace and order. I have had to use this constitutional power that we may not completely lose the civil rights and freedoms which we cherish. I assure you that this is not a precipitate decision, that I have weighed all the factors. If there were any other solution at our disposal, and which could solve these problems, we would utilize such a solution, and I would use it. But there is none.

I have used the other two alternatives of first calling out the troops to quell the rebellion and I have suspended the privilege of the writ of habeas corpus, but the rebellion has not been stopped. I repeat. It worsened. Thus, it was discovered that when the suspension of the privilege of the writ of habeas corpus was lifted on January 11, 1972, the organization of the Communist Party had expanded their area of operations as well as increased their membership.

So, these two remedies, calling out of the troops and suspension of the privilege of the writ of habeas corpus are unavailing. You are all witnesses to this. You have witnessed the events of the last year. We have fallen and we are falling on our last line of defense. You are also witnesses to the patience that we have shown in the face of provocation. In the face of abuse and license we have used or attempted to use persuasion. Now, the limit has been reached, for we are against the wall.

We must now defend the Republic of the Philippines with this stronger power granted by the Constitution. To those guilty of treason, insurrection, rebellion, it may pose a grave danger. But to the ordinary citizenry, almost all of you, whose primary concern is merely to be left alone to pursue your lawful activities, this is the guarantee of the freedom that you seek.

All that I do and we in government must do is for the Republic and for you. Rest assured that we will continue to be fair. And I have prayed to God for guidance. Let us all continue to pray to him. I am confident that with God’s help, we will attain our dream of a reformed society and a new and brighter world. Thank you.

By joining, I agree.

I hope this is short. Longer reads are for more important things, other than worrying about the little fiefdoms of social influence in Philippine cyberspace. Certainly, a national association of social media users doesn’t deserve as much attention as… say… the situation of nuclear reactors in Fukushima, or of nuclear energy as a whole.

So, here’s the short of it.

I’ve given some thought to joining a nascent group of bloggers based in the Philippines, the idea of which was again brought to my attention when the online equivalent of fisticuffs erupted over a certain manifesto that went around via email. The manifesto can be seen at the websites of Janette Toral at digitalfilipino.com and of Tonyo Cruz at tonyocruz.com. (No hyperlinks necessary; they should already be on your RSS feed).

While I have some reservations about some of the specific ideas in the draft, such as creating and enforcing a unified code of ethics (a can of worms too lengthy to discuss for the purposes of this post), or a claim of representation on behalf of all social media users (who died and made Me king?), there can be no doubt that the authors of the manifesto only had the best interest of the anonymous poster in mind when drafting those articles. Good is supposed to come out of it, and only insofar as the intentions of those joining this nascent group are as pure as their manifesto purports to be.

I understand that there were attempts several years ago to create something similar, but the project fell apart at the end when things became a little too personal between key personalities within the group. I figure that if we advocate for stronger institutions that veer away from personality cults in our day to day lives, we would be hypocrites if we let strong personalities put color in social institutions of our own making – one that web writers, social media users, and other similar stakeholders are trying to create.

The manifesto isn’t, by any means, precise. Not by a long shot. However, as the intentions are pure, I figure they’re going to need help along the way. Maybe I can be of some assistance. After all, I do make my living out of making words fit the idea in a precise, tailored manner, out of making the ideas march in single file, ready to attack and destory the contrary meme.

So, at this very moment, I hereby declare I am part of what may be known as the National Bloggers’ Association of the Philippines.I am part of it now so that later I do not complain that it does not represent me. I am part of it because now I have the opportunity to do so. Some things just cannot be done from the outside.

As with all things in social media, it’s a work in progress. The going may be slow for a few months, but that’s okay. One must have patience in building social institutions, especially after the institutional wreckage of the past few years.

God (or whatever deity you believe in) help us.

To Anna and Zeke, on the occasion of their wedding

On Interstate 5 the other day, I saw a billboard for that new Paul Rudd-Reese Witherspoon-Owen Wilson movie, “How Do You Know”.

If you haven’t seen it, it features headshots of Reese, Paul, Owen, and Jack Nicholson, and the words “HOW DO YOU KNOW” in large type, with the word “KNOW” in boldface.

I think the copy is genius. With only four words, you get the point of the whole movie. Everyone just KNOWS the question. The answer, from what I know of it, is just as cryptic. As my me and my wife or any old married couple will tell you, sometimes, you just know. Continue reading “To Anna and Zeke, on the occasion of their wedding”

Quiet, I’m praying.

The Jesuits believe that it’s only when you’re alone and in absolute silence that God speaks to you. So once a year, they talk to God. To do that, they stay absolutely silent for forty days. Their eyes only read the Bible, and their ears only hear the sounds of the passing day. They do not talk or communicate with another soul. No touching other people. No eye contact. Nothing.

Maybe they’re right. Vows of silence are known across other religions: Hinduism, Jainism, Buddhism, and Islam. They all have their own followers of silence.

So it was that I found myself somewhere in Tagaytay, contemplating silence one summer in a three-day retreat, Jesuit style. Read: in absolute silence. Continue reading “Quiet, I’m praying.”

How to Cook Chicken

Cooking is simple. I should know; Mom taught me how to cook when I was around ten. Or twelve. I’m not really sure. Before she got sick.

Rub one whole chicken with a mixture of chopped ginger and sesame oil.

Before, the world revolved around the kitchen. The dirty kitchen, to be precise. Some chicken had been culled earlier in the day, and Mom was collecting the coagulating blood for later. Mom had seen them at the wet market and thought it would be good to demonstrate how an entire animal becomes dinner. I was transfixed by the cooking process; nothing went to waste. Continue reading “How to Cook Chicken”

Culture Shock

For Father’s Day, I enrolled in a writing workshop-cum-tour of Writer’s Block Philippines featuring the irrepressible Carlos Celdran. We walked from Plaza de España (Roma) in front of Manila Cathedral, to the crypts behind San Agustin Church. Along the way, Celdran talked about Manila’s bloody past and how it helped shape our national identity. In so doing, he extolled Manila’s charms with a passion rare in Manileños. Most would rather talk about how decrepit Manila has become, or how it’s just a shell of its former self, but not Celdran. “I may not change Manila, but I can change the way you look at Manila,” says Celdran at the end of each tour, and I believe him. After earning his degree from the Rhode Island School of Design, Celdran now makes his home in Ermita’s fabled North Syquia Apartments, where on occasion his pad also hosts other interesting events. Continue reading “Culture Shock”

Long Stories

1. When I was in private practice, the boutique firm where I worked rarely took walk-in clients. This was not because we were snooty lawyers who turned down work we deemed to be beneath our level (although I admit there was a certain pride to be had working for my firm), but because it took some effort to reach our office. The office was (and still is) on the eighth floor of what was designed in the sixties as a seven story building in the heart of Makati. Sometimes, when both elevators servicing the building would conk out, ours was an office on the top floor of an eight-story walkup with some of the worst parking in the country. As Randy Pausch would later explain, this was, in its own way, a filter to ensure that only those who really wanted us got us. Continue reading “Long Stories”

The Betrayal of the Proletariat

If you can’t take the heat, malamang mahina ang aircon mo.


Communism in the Philippines has had a long history, existing before the establishment of the present-day Communist Party of the Philippines. As a meme, the dream of absolute equality among individuals can be traced as far back as 1930 with the founding of the Partido Komunista ng Pilipinas (PKP-1930) in November seven of that year. It survived several attempts of being outlawed during the American period, the Japanese occupation, and during the massive repression by the privileged classes at the beginning of the Second Philippine Republic, mainly through armed struggle that officially ended in 1954. Continue reading “The Betrayal of the Proletariat”