Big holes in the Philippines-US defense treaty

Quick: Under the Mutual Defense Treaty, what would the United States do if China surrounds and threatens Philippine marines in Ayungin shoal? Will America . . .

a) Confront Chinese vessels encircling marines holed up in the grounded shipwreck?
b) Escort Philippine Navy ships through the blockade?

c) Denounce Chinese aggression and promise more aid to the Philippines?
Answer: Ask the lawyers.

The fact is, even if China attacks Recto Avenue along with Recto Bank, as President Benigno Aquino 3rd once said, the Mutual Defense Treaty (MDT) between the Philippines and the United States merely stipulates that the US “would act to meet the common dangers in accordance with its constitutional processes.”

That includes getting Congress’ nod for military action. Under the US Constitution and the War Powers Resolution of 1973, without congressional approval, the Commander-in-Chief may order military action only in “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

None of the disputed islets, shoals and waters in the South China Sea are American territories or possessions covered by the above exception. So even if China takes over Ayungin, Panatag, or Pag-asa Island, President Barack Obama would need the okay of his Congress to commit forces in defense of Philippine territorial claims.

Are the Spratlys in the Pacific?
There’s more. The treaty spells out the areas of conflict covered by the MDT: “… an armed attack on either of the Parties is deemed to include an armed attack on the metropolitan territory of either of the Parties, or on the island territories under its jurisdiction in the Pacific Ocean, its armed forces, public vessels or aircraft in the Pacific.”

Big question: If the island attack is not in the Pacific, is Uncle Sam obliged to fight?

Unless maps are mistaken, Philippine-claimed islands, shoals and waters, including Pag-asa, are in the South China Sea, not the Pacific Ocean. Perhaps that explains why the US has done nothing but talk when China took over Recto Bank and Panatag Shoal, and now threatens Ayungin.
So unless the South China Sea is considered by the MDT as the westernmost extension of the Pacific, if the PLA targets Philippine troops and vessels in the Spratlys, the treaty won’t apply. We’re on our own.

Besides constitutional processes, the pact provides another action in case of hostilities:
“Any such armed attack and all measures taken as a result thereof shall be immediately reported to the Security Council of the United Nations. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.”
Since China, like America, is a veto-wielding Permanent Member of the UN Security Council, don’t expect any help from the United Nations in a war with the Chinese.

A better deal for Japan
Japan’s Treaty of Mutual Cooperation and Security with the US has the same blather about constitutional processes and referral to the Security Council. With one big difference: a separate treaty provides that security arrangements between the countries shall be governed by “administrative agreement.”

Therefore, if the Japanese Prime Minister and the American President agree to immediately deploy forces in the event of attack, that becomes part of the legally binding commitments under the pact. And having been ratified by the US Senate, the treaty has the force of law and constitutes “statutory authorization” allowing military action not requiring explicit congressional approval under the War Powers Resolution.

Just in case this fine print isn’t clear, the US Senate approved in November 2012 the Webb Amendment to the National Defense Authorization Act for Fiscal Year 2013. It reaffirmed America’s security commitment to Japan, and specifically “acknowledges the administration of Japan over the Senkaku Islands.”

That brings the disputed territory explicitly under the Japan-US defense pact. And that’s why American B-52 bombers challenged China’s air defense identification zone over the Senkakus last November.
One more thing: The treaty covers only areas administered by Japan, so if the US gets involved in hostilities outside Tokyo-administered territory, such as a Taiwan conflict, the Japanese Self-Defense Forices are not obliged to respond. Reason: Japan’s pacifist charter written by the Allied occupation regime under General Douglas MacArthur bars military action overseas.

By comparison, if there is a US conflict anywhere in the vast Pacific, the MDT may oblige Filipinos to fight. On the other hand, we don’t have a statute like the Webb Amendment specifically including Philippines-administered territories like Pag-asa under the treaty, and stating that hostilities in the South China Sea are covered by it.

The real deal for Europe
Even better than the defense pact with Tokyo, however, is that of the North Atlantic Treaty Organization safeguarding Europe. It has no fuzzy language about “constitutional processes” or “administrative agreement.” Instead, the NATO commitment is clear and simple. If any member is attacked, the rest will respond:

“The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.”
Before we sign and ratify anything about increasing rotations of US forces or providing access to Philippine military bases, Palace and Senate must ensure that the agreement has explicit and unequivocal language committing America to respond if Philippine security, sovereignty or territory is threatened. No ifs, buts, and maybes.

The new pact will provoke even more hostility from China by escalating the presence of US forces capable of nuking its cities and sinking its shipping from within our territory.

Since they are stirring Beijing’s ire against us, let’s make sure nuclear-armed American ships, subs, and planes rotating in the country are legally bound to immediately come to our aid when we face threats — as we have in Recto Bank, Panatag, and now Ayungin.

The United States provides that ironclad commitment to former adversaries Japan and Germany, and most of Europe. It must do the same for its longtime ally the Philippines.

source:  Manila Times by RICARDO SALUDO

Cudia a leper? Bar passers

Recently, Pope Francis accidentally uttered an Italian swear word (the F-word kuno) during his weekly blessing ceremony in St. Peter’s Square.

Mistakes and accident happen. A very human mistake, one said, and the world moved on.
The Philippine Military Academy (PMA) should give dismissed cadet Jeff Aldrin Cudia his diploma and transcript of records so he could start a new life in the civilian world, according to Muntinlupa Rep. Rodolfo Biazon, a former AFP chief of staff who headed the PMA at one time. But, would-have-been salutatorian Cudia should forget about serving in the military given the circumstances, Pong Biazon said. Cudia had been dismissed from the PMA after an honor committee found him guilty of violating the academy’s Honor Code.

“I would agree to him being given the diploma so that he can start anew, but I would advise he should not anymore stay in the service, complete his resignation, because he will be a leper out there, Biazon told a press briefing yesterday.” (PDI, Mar. 19, 2014, p. A9, col. 1). Why not let him graduate and then assign him to Scarborough or Ayungin. I believe in Second Chances even for potential Dirty Dozen types. And in the Cudia case, was there really proportionality in degrading and destroying him in his youth?

Now, what may (Pong Biazon and) BIR Chief Kim Henares be in violation of in our own Constitution in her scare and shame campaign? Sec. 11 of Art. II of the Constitution says: “The state values the dignity of every human person and guarantees full respect for human rights.” The Bill of Rights has language against “degrading punishment.” The Universal Declaration of Human Rights stresses respect for “human dignity,” in its Preamble and elsewhere.

In the Court of Appeals (CA) Spray Paint case decision of January 26, 2000, in CA G.R. No. SP No. 47946, the 25-page decision in ringing tones found against Hizzoner in spray-painting the homes of suspected substance abusers. Narohomsalic v. Lim did not get to the Supreme Court which refused to review it on a flimsy technicality (his lawyer did not give a copy of the petition to the CA, which probably would not have read it with all it had to do; anyway, respondents’ lawyers would be there. Maybe the erring lawyer could have been chided, fined or suspended, but take on the case).
MABINI was one of the 15 petitioners-appellants in Marohomsalic.

Cong. Pong, I see nothing wrong with being a leper. In our youth, in Pasig, we had Bertong Ketong, living in the kabukiran. He made for our barkada exquisite bamboo swords. He had a wife and daughter, who did not contract leprosy. When in the Senate, a constituent called my attention to my thoughtless use of “like a leper.” I considered myself told and vowed not to degrade sick people again.
But now, I have another headache. US accessing our military bases. I voted NO on September 16, 1991, removing foreign troops from our soil after more than 400 years. But, this is a 9/11 world and before commenting on it in light of our contemporary national interests I’d like to see the text of the agreement but better to involve sana some of the twelve Malevolent/Magnificent Senators who voted NO on September 16, 1991. Certainly, Pong Biazon should be consulted, along with Senator Miriam, among others.

I note that hundreds of South Korean soldiers have been here for some time and will stay up to the end of the year, to help deal with the damage Yolanda has wrought in Eastern Visayas. No static at all.
And, given 9/11, I no longer look before sleeping under the bed for Americans, who may be busy looking for Osama Bin Laden Jrs.

The Executive should not stop with Pong. Never mind Paos and Laos me with my HurryCane but nariyan po sina Butz Aquino, Manong JPE, Hizzoner Erap, Tito Guingona, Manong Ernie, Orly Mercado, Nene Pimentel, Bobby Tañada and Vic Ziga, nabubuhay. Kuya Teroy Laurel is gone. The ancient fire may be gone but there could be occasional old sparks even from smoldering embers. Last I saw Erap he sounded like his hormones are still raging, like those of the new bar passers.
Kudos to all of them but while this is a free country, I hope some of them will remain true to the driving dream that sent them to law school in the first place, to help give our people a better life.
It may well be that a lawyer’s first need is to make a living. “Of course,” as Judge Wyzanski noted, “when Dr. Johnson was told that a man must live, he replied that he did not see the necessity.” In any case, “because a man must live, of course it does not follow that he must, or indeed should be permitted, to do everything which will enhance his economic standard of living.” The new lawyers may note and take to heart this exhortation of Judge Wyzanski.

The cynics may however prefer Justice Brown: “It is the desire to earn money which lies at the bottom of the greatest effort of genius. The man who writes books, paints picture, moulds statues, builds houses, pleads causes, preaches sermons, or heals the sick, does it for the money there is in it; and if, in so doing, he acquires a reputation as an author, painter, sculptor, architect, jurist or physician, it is only an incident to his success as a money-getter. The motive which prompted Angelo to plan the dome of St. Peter, or paint the frescoes of the Sistine Chapel, was essentially the same as that which induces a common laborer to lay brick or dig sewers.”

The new lawyers must however do themselves the justice to try to recall the hopes and dreams that inspired them to train in the law in the first place. Some of the new lawyers may wonder about the things they will now learn in the profession that they never learned in law school. They may ask why. Some of them may wonder if the situation and atmosphere must be accepted and lived with or if these can be improved, if not removed and replaced with something better. They may ask why not.

As the Shavian epigram puts it, some men see things that are and ask – WHY? – while others see things that never were and ask – WHY NOT?

WHY NOT, INDEED?

source:  Manila Times by RENE SAGUISAG

US bases: Aquino’s gift to Obama

THIS APRIL, during the much-awaited visit of US President Barack Obama, Philippine President BS Aquino will be serving nothing less than our national sovereignty and dignity on a silver platter via the new "access agreement" negotiated in secret by the two governments.

All that remains to be worked out, according to the Philippine negotiator, is the "language," meaning the legal formulations that will shield the agreement from any Supreme Court challenge that it violates the foreign-troops and bases-free as well as nuclear-free provisions of the Philippine Constitution. The Executive Department meanwhile is busy rehashing and honing the arguments to bolster its insistence that the "access agreement" is not a treaty but a mere "executive agreement" that does not require Senate ratification.

Because neither the public, nor the treaty-making body, the Philippine Senate, is privy to the discussions and official drafts being exchanged and presumably being quibbled over by the negotiating panels, all we have to go by for now are the press releases of the Philippine side. The trickle of information is at the very least disturbing, if not alarming, and leads us to suspect that "a de facto basing agreement disguised as an access pact" is in the works.

Not content with the 1999 Visiting Forces Agreement (VFA) and 2001 Mutual Logistics Support Arrangement (MLSA), the US, with the willful compliance of the BS Aquino regime, aims to attain the following through the new "access agreement": (1.) increase the number (now at a minimum of 600 at any given time) of troops stationed or forward-deployed in the Philippines; (2.) allow US troops access to all Armed Forces of the Philippines (AFP) facilities; and (3.) increase the pre-stationing or storage of US war materiel or munitions (weapons, ammunition, aircraft, sea craft, land transport and all sorts of logistical supplies).

According to reports, the US will gain not only access but also the ability to set up their own facilities within AFP facilities. To counter criticisms that there will be US-controlled areas that will be hands-off to Philippine authorities, negotiators say that while the agreement allows US facilities to be set up, Philippine authorities will nonetheless be given "access" to them albeit subject to "operational safety and security considerations" imposed by the US.

Now, if this is not tantamount to extraterritorial rights attendant to basing rights we welcome further illumination from the Aquino government.

It is crystal clear that the last 12 years of the VFA have served to fine-tune a system wherein US troops and war materiel are actually stationed on Philippine territory, theoretically on a temporary basis, but in reality on a long-term, if not essentially permanent, basis (barring military exigencies and operational shifts that require redeployment).

But it also evident that the US is not satisfied with the present set up and is aiming to station a far greater number of its military forces and equipment in an ever-expanding area of Philippine territory and thus gaining greater flexibility and wider room for maneuver than ever before. Such requirements are concomitant to its military "pivot" to the Asia- Pacific region.

In the past the trick has been to pass off this boot presence as "rotating" and to limit visibility by relegating the US troops to far off Zamboanga and to lesser known and more low-key facilities in Cebu, Camp Aguinaldo, and even reported secret facilities in Clark Field, Pampanga.

Under the current setup, the US must also continue to put up the faéade of "joint military training exercises" as the occasion for the influx of hundreds, if not thousands, more US soldiers than usual. Even their soldiers’ requirements for periodic R&R have to be dovetailed to purported training exercises.

As to their war armada -- including nuclear-powered and likely nuclear-armed carriers, destroyers, submarines, manned and unmanned aircraft (the latter including armed drones used to carry out assassination missions in Pakistan, Sudan, Afghanistan and the like) -- these have been arriving, berthing and undergoing repairs and resupply in Philippine ports and airfields in greater number and with increasing frequency in the last couple of years. But it is obvious the US wants to maximize Subic Bay and is looking to a new facility that the will be built in Oyster Bay, Palawan for stationing its warships. In fact, in an archipelagic country such as the Philippines, the vast coastline’s potential for providing safe harbor for US warships is immeasurable.

In effect, the "expanded access" to be granted to the US armed forces under the new "access agreement" will be a convenient and effective legal cover for unlimited, unqualified, and virtually uncontrolled (by Philippine authorities, that is) presence and on and off-duty activities of US military personnel in the country along with their pre-positioned military equipment.

The US and Philippine governments expect public approval of the new agreement by riding on one big myth: that US military forces are in the Philippines to protect it from both external and internal enemies, while providing humanitarian aid such as disaster relief and rescue. Corollary to this is that the US makes sure, through the VFA, MLSA and now the so-called "Enhanced Defense Capabilities Agreement," that its presence and activities are all consistent with the Philippine Constitution and its legal processes.

Unfortunately this myth has been recently bolstered -- no thanks to China’s inordinate big-nation posturing and bullying -- by Philippine fears that it cannot, on its own, protect its backyard, especially its western coastline and territorial waters, and can survive only behind the protective cover of the US.

What is not being mentioned or recalled is the grim truth, the bitter lesson we had learned firsthand from our history but perhaps are wont to quickly forget: the presence of a foreign military power can serve not as a protective cover, but more a magnet for a military attack from that foreign power’s enemies, not necessarily ours. Spain was attacked by the US at the turn of the 20th century; the US was attacked by Japan in World War II. Neither the Americans nor the Japanese were enemies of the Filipino people when they invaded and occupied the Philippines in 1898 and 1941, wreaking death, destruction, havoc and untold suffering.

Although the US is admittedly and incontestibly the current sole Superpower, it is also evidently in decline, its economy, political and cultural fiber afflicted by profound malaise. This is why it is scrambling to control global strategic resources and prevent the rise of a potential "peer competitor" (i.e. China), banking on its might and trampling on other nations and peoples’ rights in the process.

But as history shows, no empire is too mighty that does not inevitably create, by its very might(read: oppressiveness) the same forces that contribute to, and all together bring about, its decline and fall.
 
source:  Businessworld

Rush Deal

It looks like the PNoy government is entering into another constitutionally questionable move with the impending approval and signing of the Agreement on the Enhanced Defense Cooperation with the United States of America (USA). Negotiations are reportedly in its final stages already so that the deal can be signed during the forthcoming visit of US President Barack Obama next month. Immediately noticeable here is this government’s eagerness to invariably accommodate and please Obama who has previously intervened in our purely internal affairs like in the management of our population through methods that eventually lead to abortion and moral decay in our society.

This Agreement would basically allow the United States forces access to Philippine military bases and joint use of the facilities therein, more specifically in Manila, Clark, Palawan, Cebu, Nueva Ecija and La Union for purposes of boosting the bilateral security cooperation between the two countries. The deal was conceived amid mounting concerns over China’s bullying in the disputed waters of the Western Philippine Sea which it is claiming to be part of its territory because it is within the so called South China Sea. The US military presence in the Philippine military bases will supposedly deter China to further stake its claim in the West Philippine Sea. Secondarily it will also enable the US forces to help in providing humanitarian assistance and services during natural disasters.

While members of the Philippine negotiating panel have repeatedly assured that the agreement will not violate our constitution and that we will not be giving up sovereignty over Philippine territory in the sense that there will be no US bases within our own bases, the deal remains to be constitutionally questionable.

The issue that may immediately arise here is not exactly about the violation of our sovereignty over Philippine territory. It concerns primarily Article VII Section 21 of the Constitution which provides that: “No Treaty or International Agreement shall be valid and effective unless concurred in by at least two-thirds of all the members of the Senate.” The deal in this case will reportedly be signed only by PNoy and will not be approved by the Senate. For all legal intents and purposes the deal is a Treaty or an “International Agreement” as it is actually an agreement between two nations. So the concurrence of two-thirds of all the members of the Senate is still required to be constitutionally valid.

In this connection the Philippine panel pointed out that the agreement on enhanced defense cooperation is merely an implementation of the Mutual Defense Treaty (MDT) and the Visiting Forces Agreement (VFA) both of which have been legally ratified by the Senate. Hence the panel argued that it is merely an Executive Agreement that no longer needs concurrence by the Senate. But, as correctly pointed out by Senator Miriam Defensor Santiago, allowing foreign troops and equipment on Philippine soil is a “major subject in itself” and not “a minor case of detail.” So she said that “it cannot be classified as an executive agreement but as a treaty to which the Philippine Senate must give its concurrence.” In any case, the question of which of the conflicting viewpoints is correct, whether it is that of the Philippine panel or that of Senator Santiago, is an issue that can be authoritatively decided only by the Supreme Court. So eventually the issue will also reach the Supreme Court. There is therefore no need to rush this deal just to please Obama.

 Furthermore, it must be remembered that barely eight years after the Senate voted to close the US bases in 1991, the Philippines once again ratified the Visiting Forces Agreement (VFA) allowing joint drills between Philippine and US soldiers. And history tells us that said VFA had also encountered a constitutional problem when one of the visiting US soldier raped a Filipina in Olongapo. In that case, the jurisdiction of the Philippine courts to try the soldier has also been challenged when he sought asylum in the US embassy. This must also be carefully studied and considered before forging a deal with the Americans.

It must also be pointed out in this connection that while the agreement is aimed at boosting bilateral security cooperation, there is no assurance that the US government will be true to its commitment especially because it is only in the form of an Executive Agreement and not a Treaty concurred in by the Senate. Under International Law, a treaty is definitely more binding. Besides there is no assurance at all that the US will really comply with its commitment if its own national interest is endangered. This is basic.

So instead of entering into this agreement that may possibly lead to a dangerous confrontation, the better alternative is to just pursue the peaceful way by bringing the issue to the International Court of Justice. It is very clear under the United Nations Convention on the Law of the Sea that Philippines own the territorial waters within 120 nautical miles from its coast. So all those areas now being claimed by China is within the Philippine territory. We have definitely a stronger position under the existing international laws. It is more advisable to pursue this alternative.

Indeed there is even no assurance at all that if we allow the US forces access to our bases, China will be scared and will abandon its belligerent moves. PNoy should therefore not rush this deal. If at all he should get the concurrence of two-thirds of all the members of the Senate.
E-mail: attyjosesison@gmail.com

source: 
A LAW EACH DAY (KEEPS TROUBLE AWAY) By Jose C. Sison (The Philippine Star)

Basic Law for Mindanao peace needed ASAP -- report

Speed in creating its Basic Law and better public information on the peace agreement are needed said a monitoring team in its report. This as the parties to the Bangsamoro framework agreement remain committed to achieving peace in Mindanao, although the stakeholders raised issues in the process, it said.

In its first public report, the Third-party monitoring team (TPMT) to the Bangsamoro framework agreement cited the “need for speed” to complete the Basic Law “as soon as possible.”

Also, the TPMT said “stakeholders underlined the need for deeper public information” about the framework agreement and its implications.

“It was also suggested that it would be important for the parties to strengthen their outreach and public messaging to a wider audience, including for example local government units, the ulama and the Catholic Bishops’ Conference of the Philippines, civil society... and the private sector and chambers of commerce,” the TPMT noted.

The monitoring team also said stakeholders raised the “inclusiveness of the process”: how it would affect the 1996 peace deal with the Moro National Liberation Front, and the “likely tenor of the future Bangsamoro assembly and government.”

The TMPT was set up by the Philippine government and the Moro Islamic liberation Front (MILF) to monitor the implementation of the peace deal between the two parties.

With the last of the four annexes completed only in January, “there is not a great deal that can be said at this stage about the implementation of the agreements,” TPMT said. -- Mikhail Franz E. Flores

source:  Businessworld

Did the President usurp Congress’ power?

TWENTY-EIGHT years after EDSA 1, our national leaders have yet to learn to uphold and protect the 1987 Constitution. Many do so only when it is convenient, but boldly ignore it when inconvenient.

That was my concluding remark in my presentation to the 11th Ambassador Alfonso T. Yuchengco Policy Conference held at Mandarin Oriental Hotel at Makati City on Feb. 10.

I talked on the topic "Pork Barrel, PDAF, and DAP: What’s the Real Score?"

The core issues on the topic are: separation of powers and encroachment and/or usurpation of powers by either Congress or the President. On the separation of powers, the President prepares and executes the budget, Congress authorizes it, and the Supreme Court interprets the law in the event of disagreement between the two branches of government.

On the Priority Development Assistance Fund (PDAF), the issue is whether Congress has exercised the presidential power of budget implementation. On other funds (the Malampaya Fund, the Pagcor Fund) and the Disbursement Acceleration Program (DAP), the issue is whether the President has usurped the power of Congress to authorize appropriations and whether he has abused the power to augment items in the general appropriations act (GAA).

On PDAF, the Supreme Court ruled that it is unconstitutional because "it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of budget execution."

The Malampaya Fund was declared unconstitutional "insofar as it has conferred to the President the power to appropriate funds intended by law for energy-related purposes only to other purpose he may deem fit."

The Pagcor Fund was declared unconstitutional because it has expanded in its use the broad classification of "priority infrastructure development project." This violated the principle of "non-delegability," the Supreme Court ruled. Congress cannot delegate to the President its power to authorize appropriations.

In sum, the Supreme Court ruled unanimously that PDAF and aspects of the Malampaya Fund and Pagcor Fund are unconstitutional.

THE PRESIDENT HAS USURPED THE CONGRESSIONAL POWER OF THE PURSE
The Supreme Court ruled that PDAF is unconstitutional because it allowed legislators to exercise post-enactment authority in budget execution. By contrast, the DAP has allowed the President to usurp the congressional power of the purse. The President, halfway through the implementation of the budget, has declared savings on slow-moving projects, "confiscated and reassembled" them and used the same to finance projects that were non-existent in the GAA.

The core issues in the DAP are the following:

• Was there transfer of appropriations?

• Was there real saving(s)?

• Was the augmentation process appropriately done? Specifically, were the conditions for augmentation specified in the Constitution and other laws strictly observed and complied with?

The 1987 Constitution prohibits any law authorizing any transfer of appropriations. Article VI, Section (5) provides: 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, 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.

Yes, Angelina, the word "realignment" was never used in the Constitution; instead, the term "augment" was used. And the augmentation has to come "from savings in other items of their respective appropriations" for application to items in the GAA "for their respective offices."

From the above provisions of the Constitution and other laws, the following conditions for augmentation should hold:

• There are actual savings declared as defined in the GAA to be transferred.

• The item(s) to be augmented by the saving(s) exist in the GAA are "determined deficient."

• The source(s) of savings and the item(s) to be augmented must be within the appropriations of the authorized official.

• "In no case shall a non-existent program, activity or project, be funded by augmentation from savings or by the use of appropriations authorized in this Act."

‘CROSS-BORDER’ AUGMENTATION IS UNCONSTITUTIONAL
With the above test of augmentation, the following "cross-border" -- a term used by some Supreme Court justices -- augmentation is unconstitutional:

From the national government (NG) to the Commission on Audit (COA). The Department of Budget and Management (DBM), through the DAP, augmented out the budget of the COA. On Nov. 16, 2013, in a Senate Hearing, the COA Chairman admitted that in 2012, the COA received P140 million for the funding of computers, hiring of consultants and purchase of vehicles for Commissioners/Directors. Source of funding: DAP 2012.

From the NG to the House of Representatives (HOR). DBM, through the DAP, augmented the budget of the House of Representatives.

From the NG to the Commission on Elections. Using "overall" savings, the DBM augmented the budget of the Commission on Elections.

These three examples of "cross-border" augmentation of the budget are patently unconstitutional. During the oral argument before the Supreme Court, Budget Secretary Abad did not deny these three transactions.

All told, DAP financed 119 separate budget activities costing P149 billion. The releases took place from the fourth quarter of 2011 to the second quarter of 2013.

THE DAP IS DEAD. SERIOUSLY?
The DAP is dead, according to Budget Secretary Abad and Solicitor General Jardeleza. No harm, no foul. The issue is moot and academic.

False, false, and false. The DAP maybe resurrected anytime by the sitting President or by his successors. The harm has been done. The President has usurped the legislative power of the purse. He and his Budget Secretary have disrespected the members of Congress, the people’s representatives.

The DAP has significantly altered the balance of power envisioned in the 1987 Constitution. The allocation of power is a zero-sum game: when one branch of the government is strengthened, another branch is weakened.

Funds, using fuzzy savings, were disbursed for programs, projects and activities that were not even authorized by Congress. Put differently, public funds were used without congressional authorization. Yet, the Constitution is very clear: no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

The DAP issue is neither moot nor academic, as government authorities would like all Filipinos to accept. Quite frankly, I find their position insulting. Their lack of remorse is despicable. After squandering billions of taxpayers’ money, these public officials, our servants, would like us, their bosses, to forget the whole mess.

Just like PDAF, DAP can rise again from the dead, many times over. Hence, the Supreme Court should put a permanent stop to it and its many variants.

The case against the DAP is for posterity. It is not about the sitting President alone; it is for future Presidents too. If the DAP were allowed to hibernate, rather than be totally exterminated, the future of this country will be very bleak indeed.

(The author is Professor of Economics at the UP School of Economics and former Secretary of Budget and Management. )

source:  Businessworld

When is HRET Jurisdiction begins and COMELEC's ends?

Reyes v. COMELEC, June 25, 2013, G.R. No. 207264 

 

In Vinzons-Chato v. COMELEC, citing Aggabao v. COMELEC and Guerrero v. COMELEC, the Court ruled that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC’s jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET’s own jurisdiction begins. (Emphasis supplied.)

This pronouncement was reiterated in the case of Limkaichong v. COMELEC, wherein the Court, referring to the jurisdiction of the COMELEC vis-a-vis the HRET, held that:

The Court has invariably held that once a winning candidate has been proclaimed, taken his oath, and assumed office as a Member of the House of Representatives, the COMELEC's jurisdiction over election contests relating to his election, returns, and qualifications ends, and the HRET's own jurisdiction begins. (Emphasis supplied.)

This was again affirmed in Gonzalez v. COMELEC, to wit:

After proclamation, taking of oath and assumption of office by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the conduct of election and contested returns – were transferred to the HRET as the constitutional body created to pass upon the same. (Emphasis supplied.)

From the foregoing, it is then clear that to be considered a Member of the House of Representatives, there must be a concurrence of the following requisites: (1) a valid proclamation, (2) a proper oath, and (3) assumption of office.

xxx

Here, the petitioner cannot be considered a Member of the House of Representatives because, primarily, she has not yet assumed office. To repeat what has earlier been said, the term of office of a Member of the House of Representatives begins only “at noon on the thirtieth day of June next following their election.” Thus, until such time, the COMELEC retains jurisdiction.