Raissa Robles defends DAP for Aquino?

Oscar Franklin Tan

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‘Why did so many people repeat the visibly weak theory, including countless lawyers?’

Traditional media has not acknowledged that the most popular legal opinion on the Disbursement Acceleration Program (DAP) was from non-lawyer, journalist and blogger Raissa Robles. She enthusiastically pushed an obscure legal provision as an overlooked DAP defense. The amazing story of a dogged online pundit supposedly stumping top lawyers and jurists was repeated throughout the Internet in the days after the President’s controversial July 14 speech defending DAP. The theory was clearly wrong, but we must reflect on how it so readily captured public attention in the DAP’s untold side story.

“Could the Supreme Court be wrong?” opened the July 8 post on raissarobles.com. She proposed that the High Court had unanimously declared DAP unconstitutional but considered only Sec. 38 of the Administrative Code, which allows the President to suspend any expenditure except salaries when required by “the public interest.” It failed to consider Sec. 49, an enumeration of where savings from the budget may be redirected.

“Cleverly buried” in the enumeration, she wrote, are two very broad items: priority activities that “promote the well-being of the nation” ranging from food production to disaster relief, and repair of government infrastructure.

Later, Robles added that Sec. 39 of the same law allows transfers of savings to any branch. This is the same section highlighted by the President in his July 14 speech. Robles argues that although Sec. 39 seems to contradict the Constitution, the Administrative Code had a unique history as it was enacted by then President Corazon Aquino who was exercising legislative powers during the transition to the 1987 Constitution, and the Constitution explicitly recognized laws passed this way during the transition.

The allegedly overlooked theory spread like wildfire. I judged an ANC Square Off debate with Laguna Judge Princess Ongkeko last July 11, and a contestant cited Sec. 49 to argue good faith in implementing DAP. Two administration officials who are lawyers separately asked me to read Robles’s blog after I opined that Aquino’s July 14 speech posed extremely weak legal arguments. Administration senators cited what seemed to be parts of Robles’ argument during hearings with Budget Secretary Butch Abad. The theory was alluded to in online comments to various op-eds on DAP.

Later, prominent law deans Fr Joaquin Bernas, SJ and Fr Ranhilio Aquino (actually responding to Bernas) posted on Facebook to debunk the theory, without acknowledging Robles by name. Robles pluckily posted a rebuttal to Bernas on July 15, and her preceding spirited post on July 14 opened: “Boy, who would have thought such an esoteric, abstract article would stir up so much commotion and interest? It’s not about a sex scandal.There’s no video, no sound, no music.” References to the theory stopped only when sympathetic commentators and the President himself dropped legal argument to take the line that one must beyond legalities.

Unfortunately, Robles’s theory was flawed. First, the High Court questioned how DAP aggressively recognized certain amounts as savings, and Sec. 49 on the transfer of savings is irrelevant to this. Second, the Constitution always wins if it conflicts with a law, and no unique history lets the Administrative Code upend our most basic rule.

This is readily seen from the motion for reconsideration of the DAP decision. It argues certain long-standing budget practices in recognizing savings and adds that had the President truly wanted to create savings abusively, he could have simply refused to submit a budget, automatically re-enacting the previous budget and turning funds for completed projects into savings he could realign. It also invokes Sec. 39 in a different way, arguing it allows the transfer of savings to other branches of government because the Constitution only prohibits the transfer of appropriations to other branches. These are far more nuanced arguments by the dream pairing of Solicitor General Francis Jardeleza and his legendary constitutional law professor, retired Justice Vicente V. Mendoza, who deserve credit for making the motion look more respectable than anyone expected.

Nevertheless, why did so many people repeat the visibly weak theory, including countless lawyers? It was not simply because it was the only theory defending DAP at the time. Robles’ posts were inviting and accessible, written in a straight to the point, jargon-free and upbeat style, though the posts were hardly brief. Legal commentators and perhaps even our justices must reflect on how brutally effective her writing was. Her posts even appeared extremely legalistic, something Filipinos and Filipino lawyers are overly fond of and impressed by, with numerous chronologies and excerpts from laws.

Most striking, however, is the condescension Robles reported over her not being a lawyer, even as people quietly forwarded her arguments. We must never forget that a constitution is a layman’s document intended to, in simple and general language, enshrine a people’s values and aspirations for future generations. In this sense, the fullness of our democracy will only be realized when we see high school students feel empowered to debate a High Court justice. Lawyers cannot style themselves as high priests of a secular religion, but must make law inclusive and integrate it with other disciplines.

Robles deserves credit for validly contributing to the DAP debate, engaging countless citizens and making them feel that their opinion on a key legal issue matters. Indeed, some of the most important contributors to legal debates are not lawyers—such as the President—and I am proud to consider as mentors Sociology Professor Randy David and Rappler editor and doyenne of investigative journalism Marites Vitug. – Rappler.com

Oscar Franklin Tan explored how a president may counter the judiciary’s broad powers (Guarding the Guardians: Addressing the Post-1987 Imbalance of Presidential Power and Judicial Review, 86 Phil. L.J. 523 [2012]).

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