DAP from the perspective of martial law

President Marcos placed the entire Philippines under martial law with Proclamation 1081, and forthwith followed it up with the arrest and detention without warrants of journalists, senators, and others. Simultaneously, both Houses of Congress were padlocked and newspaper and broadcast facilities were closed down, guarded by soldiers. Mr. Marcos carried this out with General Orders 2, 2-A, 3, and 3-A under the Commander-in-Chief clause.

Despite the General Order banning any challenge to the martial law proclamation, a petition for Habeas Corpus on behalf of the detained journalists was filed promptly with the Supreme Court. The Supreme Court, presided by Chief Justice Roberto Concepcion and supported by retiring Justice Calixto Zaldivar, immediately responded with precipitate speed by issuing the habeas corpus writ in less than an hour after the filing, setting the case for hearing three days after, and requiring the military custodians to produce the detained journalists at the hearing.

The defiant action of the Supreme Court opened a window, however small, for the open and peaceful campaign and continued resistance against the autocracy, which culminated in EDSA, rather than the bloody armed struggle of the NPAs and the Muslim secessionist rebellion in Mindanao which sadly continues to the present.

This is not to say that the martial law record of the Supreme Court was praiseworthy. On the contrary, we lost practically all the cases before it despite legal titans Lorenzo Tanada, Jose W. Diokno, Jovito Salonga, and Soc Rodrigo leading the team of barristers.

They were aware that we could not hope to win with the barrel of the gun pointed at the justices, but they insisted that for the record and as a matter of duty, we should keep on the fight, challenging acts of wrong doing by the dictatorship however uphill and tiring the fight.

Now what is the relevance of all these to the DAP cases which reportedly will soon be decided by the Supreme Court.

The empirical history of the extra-legal use of savings cannot be ignored. It has its origins during the martial law period when then President Marcos exercised law-making powers. He used savings as he saw fit without restrictions for 14 years of his dictatorial rule.

Contrariwise, there was no such thing as DAP for 25 years, after EDSA, 1986-2011. This was exhumed only by this administration’s DBM in 2011.

Back to EDSA. President Cory Aquino under the Freedom Constitution exercised law-making powers like Mr. Marcos. But Pres. Cory did not resurrect Pres. Marcos’ unbridled use of savings; neither did she devise any version of the DAP.

The government cites innocuous sections of the Administrative Code of 1987 as authority for DAP. But President Cory, who signed the Code into law never utilized it. She just did not touch it throughout her term, 1986-1992.

In 1992, President Fidel Ramos was elected. Likewise, he did not start any kind of DAP.

In 1998, President Joseph Estrada was elected President. He too did not launch his own DAP.

In 2001, President Gloria Macapagal Arroyo succeeded to the Presidency. She did not embark on any DAP.

DAP, as it is now known, assuming arguendo that it is legal, has lapsed into a dead letter law because of non-use by four Presidents for a quarter of a century. Only President Marcos and Aquino III, with 25 years and four Presidents between them, used it.

The government urges the Supreme Court to dismiss the Petitions on the reasoning that the DBM has already stopped the use of DAP; thus rendering further deliberation moot and a decision therein academic.

The Senate and the House of Representatives have been impleaded in the case. Strangely, both Houses took the side of the Executive branch and joined in the defense of DAP, an implausible stand because it benefits the Executive and prejudices Congress.

Congress in effect abdicates its duty to legislate the manner of the disposition of savings and leave that power exclusively to the Executive.

Providentially, that is the position only of the leadership of both houses. Absent a formal resolution adopted by each House on their plenary position on the subject, the stand of their officers are not binding.

The questions involved in the DAP case cannot be swept under the rug because they inevitably lead to the transcendental issue of public accountability. There is a compelling need for the Court to formulate controlling principles on the legal authority of the Executive to disburse savings. The Supreme Court should rule decisively on the legality of the DAP to guide succeeding administrations and provide the constitutional parameters on the disbursements of savings. DAP is worst than PDAF.

With no barrel of the gun pointed at the justices, the people are assured of a just judgment of the case.