This afternoon, the Supreme Court once again hears a controversial
case, this time on the constitutionality and legality of the
Disbursement Acceleration Program of the Aquino government. A formidable
group of petitioners and their counsels will argue the case against the
DAP. These includes, among others, the Philippine Constitutional
Association, distinguished public finance experts like former Budget
Secretary Benjamin Diokno and former National Treasurer Leonor Briones,
and individuals and groups from the progressive political coalition
Makabayan. The Solicitor General and his team of excellent lawyers will
of course take the cudgels for the administration.
The stakes are higher for the Aquino administration and the country
in this case, much higher, I suspect, than the PDAF case argued a couple
of weeks ago. In that case, what was at stake was simply the funding of
projects of legislators. In that case too, there was a clear legal
basis in the General Appropriations Act in the PDAF disbursements.
In the DAP, we are talking of much larger expenditures and for
projects of much higher priority than the pet projects of the
legislators. In addition, the DAP is not in the GAA or any law, not even
in an executive or other presidential order, and its sole justification
is the constitutional provision that allows the president to augment
from savings other appropriated items.
Turning now to its legality, as I have observed before, the weight of
legal opinion seems to be for its unconstitutionality. Senator Miriam
Defensor Santiago has pointed out that the Constitution “allows fund
transfers, only if there are savings, meaning that the project was
completed, and yet the appropriation was not exhausted; but there are no
savings if a project was merely deferred.” She observed that it
appeared that DAP funds were taken from alleged slow-moving projects.
“If so, no savings were generated, and therefore DAP is illegal.”
Disagreeing with Santiago, Ateneo Law Professor Mel Sta. Maria, in an
opinion piece for the TV5 website, argues that the DAP is nothing else
but the disbursement of funds sourced from savings of a particular item
to fund a deficit in another item for the purpose of immediately
accomplishing a priority activity. This makes the DAP legal and
constitutional. In his words: “The only transfer that cannot be made in
this process is a transfer of saved-funds from one great government
department to another. Hence, the President cannot transfer executive
funds to the judiciary, the judiciary to the executive, the judiciary to
the legislature, the legislature to the executive, the executive to the
legislature. To do so would be unconstitutional. But within the
executive branch, which is composed of so many departments, the
President may do so pursuant to the Constitution and the Administrative
Code. In fact, the Constitution also explicitly grants the Chief
Justice, the Senate President, the Speaker of the House, the head of
Constitutional bodies the same powers within their departments.”
Fr. Joaquin Bernas SJ, in an interview with ANC, seems to agree with
Santiago asserting that savings should only be spent to augment existing
line items in the budget. Bernas also identified the enabling
conditions for realigning savings. “One, you have to have savings. Two,
if these savings are to be transferred, they have to be transferred in
the same department.” Later, in his column in the Philippine Daily
Inquirer, Fr. Bernas observed that “the outcome of the controversy on
the DAP will depend on the answer to factual questions: Did he transfer
‘savings’ and where did he put them?”
I think Fr. Bernas asks the right questions that must be answered in the
affirmative if the DAP is to survive constitutional scrutiny. More
concretely, I would ask: Are funds transferred in the middle of the year
“savings” because of slow-moving projects constitute savings? And, were
the projects augmented funded by and already identifies the GAA?
As for me, in the case of DAP disbursement decisions made purely by the
executive branch, there is a color of legality precisely because the
President has the power to realign savings. I think however that it
would have been more prudent if the President issued an executive order
or other presidential issuance that established the DAP. Without that,
the administration has been able to communicate its message clearly and
effectively, leaving even its supporters confused about the DAP. In
fact if the administration intends to continue with this approach in
disbursement, particularly in response to the recent disaster in
Zamboanga and Bohol, then they should issue such an executive order.
However, I would counsel that it completely abandon the term “DAP” as it
has become so tainted and controversial that it cannot be
rehabilitated. All political analysts and communicators know that the
best way to end a controversy is to change the conversation.
As to DAP disbursements that were made upon recommendation by
senators and other legislators, I believe that these were illegal and in
the case of the senators clearly improper.
In the case of the PDAF, there is a presumption of constitutionality
because of the GAA and the prior Supreme Court decisions. But in the
case of the DAP, there is no legal basis at all for allowing the
legislators to identify projects. Corruption also tainted DAP
disbursements because, as in the case of the PDAF, the legislators were
allowed to cross the line with respect to implementation.
As for the Senators, from an ethical point of view, given the context
of the Corona conviction, allowing the senators to identify even more
projects than they already did with their PDAF reeks of quid pro quo. It
may not be criminal or impeachable bribery but it definitely does not
look or smell right.
Can the DAP be saved? The better question I think is – should it be?
Facebook: Dean Tony La VinaTwitter: tonylavs
source: Manila Standard Column of
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