SC told: Think again

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Tuesday, July 15, 2014


MANILA—President Benigno Aquino III yesterday asked the Supreme Court (SC) to rethink its rejection of a spending program, a few days after he rejected the resignation of the top adviser who implemented it.

The President challenged the SC’s justices to identify the Disbursement Acceleration Program’s (DAP) negative effects on the country, and said that justices had failed to consider the government’s arguments that he can realign funds to speed up economic growth and social services.

“There are also those who say that DAP and PDAF are the same thing. Excuse me. DAP is different from PDAF,” Aquino said in his televised addressing, referring to the controversy surround the Priority Development Assistance Funds (PDAF) for lawmakers, which the SC has also declared unconstitutional.

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“With PDAF, the corrupt funneled government funds into fake nongovernment organizations (NGOs), money then allegedly divided among themselves,” Aquino said.

“It’s clear that with DAP the people’s money was never stolen—the funds were used for the benefit of Filipinos. And not for later, not soon, but now.”

Ratings drop

Aquino delivered his message two weeks before his annual State of the Nation Address, amid double-digit declines in his approval ratings from March to June this year.

One of his political allies, Budget Secretary Florencio Abad, has offered to resign because of the DAP controversy, but the President has declined to accept it.

It was Abad who revealed the existence of the DAP in September last year, after Sen.

Jinggoy Estrada claimed in a privilege speech that some senators were offered P50 million each—on top of their pork barrel shares—to vote for the impeachment of then Chief Justice Renato Corona.

Estrada and two other senators, Juan Ponce-Enrile and Bong Revilla—are now detained after being charged with graft and plunder in the use of their PDAF.

The DAP was made public in the midst of allegations that around P10 billion in the PDAF had gone to fake NGOs organized by Janet Lim-Napoles, and that lawmakers who conspired with her had pocketed millions as their share.

Will appeal

President Aquino yesterday said the executive department will appeal the SC’s decision, handed down earlier this month, which will allow the justices “to more fully and more conscientiously examine the law.”

The court had voted 13-0 against the DAP, with one abstention.

Aquino said it seemed the justices failed to consider the executive’s position, that Section 39 of the Administrative Code of 1987 allows the President to use savings to cover for any deficit in the appropriations authorized by the national budget.

That section states, “Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations.”

The Supreme Court, in its ruling early this month, said it agreed that Congress “did not need to legislate to adopt or to implement the DAP” because it was not an appropriation measure, but “an administrative system of prioritizing spending.”

However, it agreed with the petitioners that it was unconstitutional to withdraw and transfer unobligated allotments and pool unreleased appropriations because there was no legal support to do so.

‘Savings’

The justices also pointed out cross-border transfers from “savings” were prohibited by the Constitution. These included the P143.7 million that got transferred under DAP to the Commission on Audit in 2011 (for an IT program and the hiring of “litigation experts”) and the P250 million that went to the House of Representatives in 2012 to complete its library and archives building.

President Aquino explained that while his administration tried to fix flaws in the budgeting process, this led to under-spending by the public sector, which slowed down growth in the gross domestic product.

Minutes after his speech, the Official Gazette uploaded on its website a list of projects funded under DAP, including P5.5 billion for “various infrastructure projects” under the public works department and P1.88 billion for “various local projects” by government-owned and controlled corporations.

(It also provided the official translation to English of the President’s speech, which he delivered in Tagalog.)

The SC, in its ruling, also pointed out it could not undo some uses of the DAP. It said the doctrine of operative fact was applicable to the implementation of the DAP; the doctrine “nullifies the void law or executive act but sustains its effect.”

“The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country,” the justices said.

‘Far graver’

“To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness.”

President Aquino, however, said the doctrine also means that those who implemented DAP projects “do not have to be held accountable as long as the edict was carried out in good faith.”

The President said: “But in their decision, the judges immediately presume the absence of good faith, which would then have to be proven through trial. What happened to the principle of ‘innocent until proven guilty’?”

“My message to the Supreme Court: We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene. We find it difficult to understand your decision. You had done something similar in the past, and you tried to do it again; there are even those of the opinion that what you attempted to commit was far graver,” Aquino said.

His televised speech lasted 23 minutes.

Aquino said the SC’s view—that savings can only be declared at the end of each year—would delay urgent projects by almost two years, considering the bidding and other procurement requirements.

“We have programs for the relocation of informal settlers to safer places,” Aquino said. “In the system the Supreme Court is ordering us to bring back, it might take two more rainy seasons before we are able to relocate our countrymen.” (From a report by Virgil B. Lopez/Sunnex)

Published in the Sun.Star Cebu newspaper on July 15, 2014.

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