Balancing, not supremacy

The President’s relationships with Congress and the bureaucracy receive considerable public attention. Relationships with the third branch of government are much less frequent and less visible. But occasionally issues like the DAP do bring these relationships into the public eye.

It is important to remember that the three branches are co-equal. It should not surprise anyone that there could also be conflicts between the executive or the legislative and the judiciary. This is especially true when the judicial decisions affect public policy or the economic agenda.

When parts of the RH Law were ruled as unconstitutional, the response was more muted. But the DAP issue has gone from a debate on its constitutionality to the realm of political gamesmanship as opposition groups, ranging on the left and those on the right, attempt to exploit the situation.

There are two main issues that I want to focus on. In his speech on DAP, the President said: “It is not only my conscience that dictates the efficient spending of funds, various provisions of the law, that is our country’s Administrative code clearly allows for the use of savings. For example, let us now read Book VI, Chapter 6, Section 39 of the 1987 Administrative Code of the Philippines:

– 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...”

As you can see, this law openly gives the President the power to transfer savings to other projects. It does not limit the transfer to only one department or branch of government. In other words: We did not transgress the law when we implemented DAP.

In fact we were surprised to find the Supreme Court decision did not take into account our legal basis for the DAP. How can they say that our spending methods are unconstitutional when they did not look into our basis? Even until now, Section 39 of the Administrative Code is in effect, along with other sections.”

Former Supreme Court Justice and foremost constitutional legal expert Adolf Azcuna recently wrote an 8-point summary on the Supreme Court decision on the DAP.  In his last paragraph, he said: “The problem is that the Supreme Court did not declare that the Constitution has invalidated Sections 38 and 49 of President Corazon Aquino’s Administrative Code of 1987. It should perhaps do so in a resolution of an MR {Motion for Reconsideration}...In which case [Butch] Abad and company will fall under the doctrine of operative fact because they relied on those provisions and they are not its authors.”

My understanding is that the “doctrine of operative fact” absolves those who rely on good faith on a law subsequently declared unconstitutional. On this point, Justice Azcuna adds: “There is no 13-0 voting that the authors, proponents and implementers acted in bad faith or are liable. In fact, there is No Ruling at all.”

The other issue is the conflict between the presidency and the Supreme Court – two co-equal branches of government. Political history of working democracies is actually full of such stories. There are more in the United States which has had a longer history of political democracy. The only countries where there were no such conflicts were communist countries and dictatorships like in the Marcos martial law regime.

One of the most interesting was the running battle between President Franklin Delano Roosevelt and the US Supreme Court. Roosevelt won by a landslide in 1932 when the United States was in the midst of the worst economic crisis in its history.

President Roosevelt’s response was to initiate the “New Deal” which was a series of economic measures designed to alleviate the worst effects of the economic Depression, reinvigorate the economy and restore the confidence of the people in their banks and key institutions.

But the Great Depression continued. Unemployment persisted and poverty rate was increasing. In 1935, Roosevelt launched a second and more aggressive series of programs sometimes called the Second New Deal. 

The American Supreme Court decided that these programs represented an unconstitutional extension of presidential authority. The Court invalidated initiatives like the Works Progress Administration and the Agricultural Adjustment Administration.

In order to protect his programs from further meddling, Roosevelt announced a plan to add enough “liberal” justices to neutralize the “obstructionist” majority in the Senate. In 1936, he was re-elected and he sought to enlarge the Supreme Court which had been invalidating the key New Deal measures. Roosevelt lost the Supreme Court battle but he started a revolution in constitutional law wherein the powers of the President and the government to regulate the economy was enlarged.

In his inaugural address, Roosevelt expressed his views: “Our constitution is so simple and practical that it is possible always to meet extraordinary needs by changes in emphasis and arrangement without loss of essential form.

It is to be hoped that the normal balance of executive and legislative authority may be wholly adequate to meet the unprecedented task before us. But it may be that an unprecedented demand and need for undelayed action may call for temporary departure from that normal balance of public procedure.”

The World Bank President has just publicly stated that the Philippines is the next economic miracle. He also praised the Aquino government saying it is “doing frankly better than any government in the world” in tackling corruption.

The three co-equal branches of government serve as checks and balances for each other. No branch is supreme. Therefore, in a democracy we can expect conflicts to happen. Let us hope that our leaders find a way to balance each other that will fulfil the vision of a Philippines where every Filipino will have the opportunity to live a life of human dignity.

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