‘Noy, Abad could be blamed for DAP’

MANILA, Philippines - President Aquino and Budget Secretary Florencio Abad could be blamed for the Disbursement Acceleration Program (DAP), according to two senior justices of the Supreme Court (SC).

In separate opinions on the unconstitutionality of DAP, Senior Associate Justice Antonio Carpio and Associate Justice Arturo Brion cited possible liabilities of Aquino and Abad, even as they said that the ruling on this particular issue is beyond the power of the high court.

In his 27-page concurring opinion, Carpio said the President violated the constitutional doctrine on the separation of powers of the three branches of government when he approved DAP releases amounting to over P149 billion from October 2011 to September 2013.

Carpio cited the admission of Abad before the high court that the DAP, the National Budget Circular No. 541 and other related executive issuances were approved by the President.

“The President under the DAP and the NBC 541 usurps the power of the purse of Congress, making Congress inutile and a surplusage,” Carpio said, short of suggesting a ground for impeachment.

Carpio, the most senior by appointment among the 14 members of the high tribunal, explained that the Chief Executive disregarded the General Appropriations Act (GAA) when he declared the unobligated allotments from implementing agencies as savings and realigned them to other projects.

He said under the DAP and the NBC 541, the President treated the GAA as his self-created all-purpose fund, which he can spend as he chooses without regard to the specific purposes for which the appropriations are made in the GAA.

“The power to impound unobligated appropriations in the GAA, coupled with the power to realign such funds to any project, whether existing or not in the GAA, is not only a usurpation of the power of the purse of Congress and a violation of the constitutional separation of powers, but also a substantial rewriting of the 1987 Constitution,” Carpio added.

The magistrate admitted that what was more puzzling is that “a majority in the Senate and in the House of Representatives support DAP and the NBC 541 when these Executive acts actually castrate the power of the purse of Congress.”

“This Court cannot allow a castration of a vital part of the checks-and-balances enshrined in the Constitution, even if the branch adversely affected suicidally consents to it,” he said in explaining his agreement to the decision penned by Associate Justice Lucas Bersamin.

For his part, Brion detailed Abad’s possible culpabilities.

“There are indicators showing that the DBM secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality,” Brion said in a 62-page opinion released Wednesday night.

 He clarified that the high court has no power to rule on the issue of liability since its mandate is merely to resolve constitutional questions, as such the determination of criminal, civil or administrative liability of Abad is inevitable.

“When transgressions such as these occur, the possibility for liability for the transgressions committed inevitably arises. It is a basic rule under the law on public officers that public accountability potentially imposes a three-fold liability - criminal, civil and administrative - against a public officer,” he explained.

Brion said this issue should best be addressed by “a tribunal with direct or original jurisdiction over the issue of liability and where the good or bad faith in the performance of duty is a material issue.”

Still, Brion expressed belief that Abad could not invoke good faith in justifying the creation of DAP.

“Armed with all these knowledge, it is not hard to believe that he can run circles around the budget and its processes, and did, in fact, purposely use this knowledge for the administration’s objective of gathering the very sizeable funds collected under the DAP,” he said. 

Associate Justice Marvic Leonen, an Aquino appointee, disagreed with Brion.

“DAP is a management program that appears to have been impelled with good motives. It generally sought to bring government to the people in the most efficient and effective manner,” Leonen explained in his 29-page opinion.

He said in the desire to meet social goals urgently, processes that similarly congeal fundamental values may have been overlooked.

“After all, daang matuwid is not simply a goal but more importantly, the auspicious way to get to that destination,” he added.

Daang matuwid (straight path) is Aquino’s main platform of government and was his campaign slogan during the 2010 elections.

Leonen however, agreed with Carpio and Brion that the high court is not the proper venue for the determination of possible liabilities.

“Whether the constitutional violation is in good faith or in bad faith, or whether any administrative or criminal liability is forthcoming, is the subject of other proceedings in other forums,” he said. 

He suggested that evidence packets submitted to the SC by the executive department be forwarded to the Commission on Audit for investigation.

But COA Chair Grace Pulido–Tan, who is vying for a post in the SC, admitted in January and February that their agency received P144 million from DAP funds.

In a 92-page decision, the high court ruled that while the recipients could not be held liable for benefiting from programs, activities and projects (PAPs) under DAP, the executive branch could not be instantly cleared of culpability.

The SC cited the doctrine of operative fact, which recognizes the validity of the assailed law or action prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded.

It ruled that the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations.

The high court specifically struck down the withdrawal of unobligated allotments from implementing agencies and their use as savings prior to the end of fiscal year, the cross-border transfers of savings of the executive to augment funds of agencies outside the department and the funding of projects and programs not covered by the GAA.

It also voided the use of unprogrammed funds despite the absence of a certification by the national treasurer that the revenue collections exceeded the revenue targets for non-compliance with conditions in the GAA.

The SC has the same findings on the NBC 541 and its related executive issuances.

It said there is nothing under the GAA 2011 and 2012 that authorizes the transfer of funds under the DAP.

DAP-funded projects suspended

Meanwhile in the Autonomous Region in Muslim Mindanao (ARMM), officials on Wednesday suspended regional projects funded under DAP.

The projects were bankrolled with DAP grants, through the Transition Investment Support Program (TISP), which started in 2011.

ARMM Gov. Mujiv Hataman told journalists that the suspension of all projects under the TISP, also known as “stimulus fund,” is in connection with the SC declaration of DAP as unconstitutional. – With John Unson