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