The gaps in the Supreme Court’s DAP ruling

“Mahirap pong maintindihan ang desisyon n'yo (It’s hard to understand your decision),” President Noynoy Aquino said in his speech on July 14, referring to the Supreme Court (SC) decision on the DAP. What makes the SC ruling hard to understand?

Below are 4 gaps that left critical questions hanging and issues unresolved on the DAP controversy. This is how the decision could be wanting for non-lawyers.

1. It did not particularly rule the legal basis of the DAP unconstitutional.

The President used parking as an analogy to drive this point. You parked and was given a ticket for illegal parking, though the parking lot has yet to be declared a no-parking zone.

Chapter 5 Book 6 Section 39 (and Sections 38 and 49) of the Administrative Code that served as the main legal basis of DAP has yet to be ruled unconstitutional by the SC (a no-parking zone in the analogy of the president). Yet, the DAP (the car) has already been deemed unconstitutional (reprimanded for illegal parking).

Father Joaquin Bernas, in his opinion, said a law does not supersede the Constitution. He said that “it is safe to assume” that the Supreme Court is aware of the Administrative Code.

Do we really have to assume? Also, isn't it logical to deal with the legal basis first before looking into the actions taken following such legal basis?

If the principle is obvious and known to lawyers, does it hurt if the SC decision contains that point too? Better yet, is it too much to ask for the SC to declare Chapter 5, Book 6, Sections 38, 39 and 49 of the Administrative Code unconstitutional once and for all, so it will not create any more confusion in the future?

2. It did not clarify that the Constitution supersedes even laws created during extraordinary times, like that period between the ratification of the 1987 Constitution and the convening of the first Congress.

When we say extraordinary, common principles and rules do not apply, right?

The period between the ratification of the 1987 Constitution and the convening of the first Congress can be considered as extraordinary because the president exercised legislative powers then. As Raissa Robles recalled in her article, during this period, as per the transitory provision of the 1987 Constitution, all issuances of then President Corazon Aquino were upheld as regular laws.

The Executive Order that created Admin Code Chapter 5 Book 6 Sections 38, 39 and 49 was passed during that period.

Again, the principle is that no law supersedes the Constitution.

But how about if the law is passed during extraordinary times when regularity is suspended?

Could the transitory provision be taken as a blanket provision that extends not only legality, but constitutionality to all executive issuances passed during that extraordinary period in our history?

Institutions evolve and develop within a historical context that is dynamic and confusing. We can't blame if people keen about history ask about the applicability of laws given the context they were created. It is a valid question to ask.

3. It did not take into account the inherent possibility of imbalance of powers or conflict in a presidential system.

I already discussed this in my earlier article on the DAP. Tug-of-war is the nature of presidential system. It lies on the premise of potential abuse of power, hence the need to make the 3 branches co-equal and separate for checks and balances.

Of course, the potential abuse is managed by having rules and laws, like terms of engagement among the 3 branches. But there are times when the three branches are not unanimous on how to interpret their terms of engagement. There will be times that one will attempt to encroach upon the others' territory and institutionalize its claim through a law, which is how I would explain what happened to the Admin Code.

This dimension is important in the SC decision because it provides an explanation for the actions of the executive that is consistent with the nature of our present institutional-legal framework. Stretching the logic of that, the implication is, you can't be sanctioned for actions that are within your nature.

It also puts the entire DAP saga into a framework of a dynamic and active accountability system where the use (and potential further accumulation) of power is a given, but is checked through the system. The SC decision itself is a check to the attempt of the executive to expand its powers to perform its mandate, which is again, a given.

4. It did not dig deep into the root problem that made the DAP necessary.

The Supreme Court is perhaps not the proper venue to discuss pressing issues of governance. This time, though, it is being challenged to do so.

Can the Supreme Court be more pro-active and dig deeper since it is already at it? At the very least, recommend possible legal recourse to address the core problem at hand, instead of simply saying what is not allowed.

What is the core problem addressed by the DAP? Inefficiency in the bureaucracy. There are many ways to address this, mostly long-term. But in 2011, there was a need to urgently respond to the situation of large unspent resources best used to propel the economy.

In situations such as this, where time is of the essence, is there a way to provide the needed flexibility that will be made accountable through other available means?

A more grounded decision

I am sure a lot of lawyers and law students are finding these demands from the Supreme Court absurd. Answering these questions is not in the nature of the Supreme Court and keeping such nature provides stability in the rule of law.

That is understandable. However, the Supreme Court, likewise, in this case, should understand the executive. It is not in in the nature of the executive to be unresponsive to people's needs. If its ability to respond is curtailed by legal impediments, it will find a way to respond. For the executive is not only accountable to the laws and institutions, more importantly, it is accountable to the people.

The Supreme Court must see that unlike most decisions, there are more non-lawyers curious about this case and want to understand it on their own. This is a good thing. It builds ownership of laws by the people.

These gaps that make the SC decision "mahirap maintindihan (hard to understand)” are some of the reasons why there are calls for the SC to revisit its decision on the DAP. This is not arrogant. Neither does it mean undermining the authority of the SC. The SC is being asked to reconsider its decision. Its authority over this is acknowledged.

A motion for reconsideration on the DAP ruling can improve the SC decision in a way that will strengthen and reform our institutions to be responsive to the needs of the people. That is a mandate not only of the executive, but of the entire government, including the Supreme Court. –

Joy Aceron is program director at Ateneo School of Government, the graduate school for leadership and public service of the Ateneo de Manila University. This article was first published in