DAP key provisions declared unconstitutional

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Tuesday, July 1, 2014


MANILA (3rd Update) -- Supreme Court justices on Tuesday voted to strike down as unconstitutional salient provisions in the controversial Disbursement Acceleration Program (DAP), setting off a possible impeachment case against President Benigno Aquino III for allegedly violating the Constitution.

In a press briefing, SC spokesperson Theodore Te said the following acts under the DAP (National Budget Circular 541) are illegal for violating Section 25(5) of the Constitution regarding the use of appropriations and separation of powers:

- withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and for not complying with the definition of savings under the national budget law;

- cross-border transfers of the savings of the Executive department to augment the appropriations of other offices outside the Executive;

- funding of projects, activities and programs that were not covered by any appropriation in the national budget;

- use of unprogrammed funds (standby allocation coming from windfall revenue collections) despite the absence of a certification by the National Treasurer that revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the national budget.

Te declined to say if the decision will be prospective or retroactive in application and if it stipulated liabilities for government officials involved in the implementation of the DAP.

(Video by Virgil B. Lopez/Sunnex)

Thirteen magistrates sided with the decision while Associate Justice Teresita de Castro inhibited from the case because a lawyer of one of the parties is her friend.

Senator Miriam Defensor-Santiago said she had anticipated the ruling months ago, even before the issue reached the SC in October last year.

"It's basically a no-brainer. The DAP is illegal because it was not contained in the 2011 or 2012 budgets, and because the alleged savings were used to augment new budget items which was not previously authorized by Congress," she said.

The senator said that the Constitution allows fund transfers only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted. She added that there are no savings if a project was merely deferred.

Militant labor center Kilusang Mayo Uno (KMU) called for a thorough investigation into how Aquino used the DAP funds, noting that the President should be held accountable for creating the DAP and for spending it as his "personal pork barrel."

Kabataan party-list Representative Terry Ridon said the DAP could bolster the filing of an impeachment case against Aquino on the ground of culpable violation of the Constitution and betrayal of public trust.

Under the Constitution, a vote of one third of the House of Representatives is needed to impeach the President and hold trial in the Senate, which will determine if he deserves to be ousted or not. Aquino allies control both the Senate and the House of Representatives.

But Ridon said his group, along with other youth organizations, is unfazed by the dominant support for Aquino in Congress.

"It is a daunting task, but we are prepared to fight," Ridon said.

Ridon also wants Budget Secretary Florencio Abad charged with malversation of public funds in connection with the DAP.

"Abad clearly committed malversation in crafting and implementing the multi-billion peso DAP. We will file the appropriate charges against him at the soonest," the party-list lawmaker said.

But an administration ally defended Abad, saying the Budget chief cannot be held liable for any wrongdoing as the policy of DAP is founded on legal basis and was done in good faith.

House ways and means committee chairperson Marikina City Representative Romero Quimbo said that Abad "only becomes liable for willful and culpable violations of clear and indubitable rules."

Quimbo also defended Aquino, saying the impeachment complaint to be filed on the basis of the decision has no basis in law.

"According to the constitution, an offense may only be considered impeachable, if the violation of the constitution is culpable. It is culpable according to jurisprudence if the violation is so blatant and clear that it smacks of an intentional violation of clear and unequivocal Laws," the lawmaker said.

Eastern Samar Representative Ben Evardone supported Quimbo's statement, saying the planned impeachment case against the President in the wake of the SC ruling on the DAP is "premature, baseless and will not hold water."

House Speaker Feliciano Belmonte, for his part, said President Aquino cannot be impeached since DAP was "used in good faith and sincere intentions."

The nine petitioners claimed that DAP is unconstitutional since no law was passed by Congress that sanctions its appropriation and disbursement, the so-called "savings" were allegedly taken from slow-moving projects, which were not yet completed or performed and it was and is being used to augment new budget allocations not approved by the legislature.

But the government said the President has the power to re-align savings under the Constitution.

The DAP came to light when Senator Jose "Jinggoy" Estrada said in a privilege speech in September last year that senators who voted for the ouster of then Chief Justice Renato Corona in 2012 received amounts ranging from P50 million to P100 million for their projects.

Those who were not given any additional appropriations from the DAP were senators Santiago, Ferdinand "Bongbong" Marcos Jr., and Joker Arroyo. All three senators voted against the impeachment of Corona.

Malacanang denied that it was an incentive for kicking Corona out of the judiciary.

On Tuesday, Palace officials refused to make any statement yet on the decision of the SC declaring as unconstitutional certain provisions of the DAP.

Presidential spokespersons Edwin Lacierda and Abigail Valte, in separate text messages, said that the Palace was yet to read the ruling of the high court.

"We will defer comment until we've read the full text of the decision," Valte said.

On the threat by a youth group to file an impeachment complaint against Aquino, Lacierda said, "we haven't seen the decision in full yet."

The Aquino administration started to implement DAP in late 2011 until last year by re-aligning unused budget by certain departments to other projects without the approval of Congress.

The government said the money went to projects to stimulate the economy from late 2011 until September of last year.

It was also used for improvements in disaster preparedness such as the purchase of Doppler radars in weather forecasting and 3D maps in flood forecasting, payment of Government Service Insurance System (GSIS) benefits for 93,500 public school teachers, electrification of 2,245 sitios and construction of nearly 40,000 classrooms.

A total of P149.25 billion was released under the DAP mechanism from October 12, 2011 to September 26, 2013, data from the Department of Budget and Management (DBM) showed.

Estrada who is facing plunder and graft charges over alleged misuse of Priority Development Assistance Fund (PDAF) thanked the SC for "respecting and upholding the Congress’ exclusive power of the purse."

"Now that the highest court of the land said that the DAP mechanism is unconstitutional and illegal, heads must roll and budget officials must be held accountable," Estrada said.

Santiago, on the other hand, renewed her call for the Commission on Audit to probe into the alleged bribery of Congress members during the impeachment trial of Corona in connection with the DAP.

She said that every senator who voted to convict, and every representative who voted to indict, if each one is shown to have received additional pork during and immediately after the impeachment trial, are presumably guilty of bribery, because of the close timing between the two events.

She said that under the Penal Code, each senator or representative was guilty of the crime of "knowingly rendering unjust judgment." (With Camille P. Balagtas/John Carlo Cahinhinan/SDR/Sunnex)

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