Strictly legal

Saint Mark is to the Gospel as Fr. Joaquin Bernas, SJ is to the 1987 Constitution.  So any constitutional pronouncements made by the good Jesuit priest command judicial respect and bear the mark of legal infallibility. And to take a contrary position against him (especially for an Ateneo alumnus) borders on the sacrilegious (more so since some say he has a striking resemblance to Pope Francis), if not constitutional blasphemy.

In an article entitled “The ‘Discovered’ Section 49,” he wrote:  

“Much is being said of Section 49 of the Administrative Code which gives to the President broad powers to transfer funds. It is even suggested that had the Supreme Court made use of this provision it would have decided the DAP case differently and in favor of President Aquino.

 “I believe it is safe to assume that the Supreme Court is aware of the existence of Section 49. The Supreme Court is also aware that the Code where Section 49 is found is an Executive Order of President Aquino issued while she still had legislative power before Congress became operative. It antedates the 1987 Constitution. Statutory provisions and executive orders antedating the Constitution and incompatible with the Constitution no longer have effect.

 “More importantly the Supreme Court is aware of the constitutional provision on the transfer of funds. It is found in Article VI, Section 25 which says: “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.”

First, I believe Fr. Bernas was referring to Section 39 (not 49) Book VI, Chapter 5, of the 1987 Administrative Code. The pertinent provision states: “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..”

Second, Fr. Bernas posits that the Administrative Code is contained in an Executive Order (292) which President Cory Aquino issued pursuant to legislative power conferred upon her by the Freedom Constitution. It was promulgated “before Congress became operative” and “antedates the 1987 Constitution.” And that statutes and executive orders which antedate and are incompatible with the Constitution are no longer valid.

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What initially caught my eye was the point of antedating. As a teacher of political law, I knew that the Constitution was ratified on Feb. 2, 1987. Hence I was skeptical that the 1987 Administrative Code (“AC”) was promulgated before that date.  I found out that the latter was published in the Official Gazette on July 25, 1987 and took effect one year after.  So it is not factually accurate to say that the AC antedated the Constitution.

It was also stated that the AC was issued pursuant to President Cory Aquino’s legislative powers before Congress became operative.  Actually, the basis is Section 6 of the Transitory Provisions of the 1987 Constitution which expressly provides that “the incumbent President shall continue to exercise legislative power until the First Congress is convened.” The first elections for Congress were held on May 11, 1987.  Their terms of office started on June 30, 1987 but Congress actually convened on July 27, 1987. Hence, technically, Congress was already operative when the AC was promulgated. Coincidentally, the AC was published on a Saturday, two days before Congress convened. Looks like another rush job by a group of jokers.  

I concede that any statute or executive order that goes against the Constitution is invalid — hence the term “unconstitutional.” It does not matter whether it antedates or postdates the fundamental law. I also concede that the “cross border” transfer of funds from one department to another runs afoul of Article VI, Section 25 (5) quoted above. But there first needs to be a declaration of unconstitutionality.  Query if there has been any such ruling? On the contrary, this provision has been used by past administrations as well to justify a similar action.

Finally, Section 3 of the Transitory Provisions of the 1987 Constitution states that “all existing laws, decrees, executive orders, proclamations, letters of instruction and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed or revoked.” The Q&A found in the comprehensive bar-saving reviewer authored by the eminent priest on this provision provides:

Q: Does Section 3 validate laws and executive acts which may have been invalidly passed under the previous Constitution?

A:  No, Section 3 merely asserts the general principle of presumed validity of legislative acts of legislative authority.    

Enough said. Forgive me Father if I have sinned…

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Culinary exports 2:  In reaction to our write up the other week, we received several emails identifying more Filipinos who have made a mark in the global gastronomical world. There is of course No. 1 chef Cristeta Comerford.  She ranks first because she serves the family of current Air Force One passenger and White House occupant Barack Obama. There are several prominent Filipino chefs in Greece — Nelson Llanes who works at the Sofitel Athens Airport Hotel, John Levi Reano at the Athens Ledra Marriott Hotel and Rolando Herico who runs the kitchen of Yum Yum Asian Restaurant. Two chefs in Australia were mentioned: Angelo Velante at Eaton Hill Hotel in Queensland and Jerry Lagudas at the Star Restaurant in Sydney. In the Middle East, Nouel Omamalin works as executive pastry chef at the Fairmont Dubai Hotel while Salve Astrano is the head sushi chef of Le Sushi Bar in Beirut, Lebanon. I am certain there are many more.

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Greetings: Birth anniversary best wishes to Dos for Dos’ Gerry Baja.

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“Just pray for a tough hide and a tender heart.” – Ruth Graham

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