Whoah!
THE SUPREME Court decision on the Disbursement Acceleration Program (DAP) had some quarters ready to march to press for the President’s impeachment. I suspect those who felt that Nora Aunor was unfairly excluded by PNoy from this year’s list of National Artists would have joined them promptly. Both news threads have rendered the Administration in the worst possible light, and the treatment of both issues in the media has stoked the fires of hostile criticism. Even those who are not completely down on this Administration can’t see much good in these recent actions.
The DAP broke into public consciousness with Jinggoy Estrada’s statement saying it was through DAP that those who voted for the impeachment of then Chief Justice Corona were given more than the usual allocation for PDAF. This was before PDAF had been struck down by the Court.
Actually, the strategy to accelerate fund releases for government projects was instituted in as early as 2011 — to address the economic slowdown caused by the slow fund releases in the first year of Aquino’s term. It was praised by the World Bank, which noted the success of the mechanism in pumping up the economy. But it did not merit much media attention.
Only this year, as he responded to the investigation of his links to Janet Napoles did Senator Estrada set the public mind to liken DAP to PDAF, judging the former as criminal abuse of power. It did not take long for individuals and organized groups to join in the presumption of wrongdoing, filing petitions to the Supreme Court to seek clarification as well as prohibition of the practice.
There may be a need to understand the decision in its entirety. It means slogging through the legal language and feeling doubtful about whether one actually understood what one read. Some of the laws cited should have been written in stronger grammatical structures and used purposeful punctuation. But the decision is quite clear that the Court did not decide against DAP in its entirety.
I think this is a crucial point. The decision acknowledges that much good has come out of DAP. The justices signing on to the decision also declined to deny the Chief Executive the inherent power to manage the problems related to budget practice and grants to the President as Chief Executive “discretionary authority” to address evolving challenges in budgetary matters, as Congress cannot predict what can happen after the annual budget law is passed.
How intriguing to find that most of the petitioners actually thought the DAP was a measure appropriating funds for something outside of the General Appropriations Act (GAA). Perhaps, in their haste to cast Abad and Aquino in a bad light, some of these parties did not even bother to check what DAP was really about.
The decision penned by Associate Justice Lucas Bersamin corrects the mistaken idea, which unfortunately is also shared by many more, thanks to the media’s failure to inform. Despite its name, the DAP is not a program requiring budgetary appropriation or funds. It was a policy or strategy to accelerate government expenditure, thus stimulating the economy, the slowdown of which had been blamed on PNoy. As a budgetary system, said the Court, there was no need to go to Congress for appropriation, as DAP was designed to work within the GAA.
What then did the Justices find unconstitutional? When Supreme Court Spokesperson Atty. Theodore Te read the announcement on television, it was clear that DAP was found infirm only in three of its activities—
“WHEREFORE, the Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
a) The 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 without complying with the statutory definition of savings contained in the General Appropriation Acts;
b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and
c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.The Court further DECLARES VOID 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 the conditions provided in the relevant General Appropriations Acts.
SO ORDERED.”
The resulting infirmity may be seen as intentional, as suggested by one of the justices; with the aim to contravene or circumvent legal requirements; or done in good faith, with the concerned officials acting on their interpretation of the law. Yes, even lawyers disagree. The decision records how respondents understood “savings,” and how they saw the requirements for legal compliance. There would be no need for trials if lawyers could not see legal applications differently.
Dissenting opinions and other qualifications supplied in separate decisions are instructive. Justice del Castillo points out how even the GAAs and Administrative Code leave much of the budgetary practice to ambiguity. How to construe the meaning of the terms “suspend”, “stop,” even “savings,” becomes the executive’s problem.
My non-legal mind notes the greatest weakness in the defense of DAP when respondents justified the transfer of executive funds to the Commission on Elections and the Commission on Audit, which involve cross-border transfers from the executive branch to two independent agencies. The wisdom in the prohibition of budget moving across branches is obvious — to preserve the autonomy of the separate branches and the constitutional commissions from executive power. The other issues blur into legal technicalities that are more difficult to appreciate.
Days following the announcement, the Philippine Daily Inquirer (PDI) headline in its first edition said: “Justices nail Abad, PNoy”. This was changed in the second edition to “Palace extra cash: P352.7B”. To read the stories then would have had anyone believe that the Supreme Court decision saw the DAP as inherently infirm, and beyond the issue of the constitutionality, judged it to have had only one purpose, to source more funds for PNoy’s own pork barrel.
Actually, the Supreme Court is not the forum for “nailing” down culprits. That is left to other government venues, the Commission on Audit to start. And the declaration of unconstitutionality of official decisions and actions may or may not involve further examination of wrong-doing. When it declared the PDAF as unconstitutional, the Court simply said, it violated the separation of powers in government. And the filing of charges and consequent trials are for plunder in the form of kickbacks for the assignment of allocated development funds to bogus NGOs. Arrests of implicated officials have not been for the enactment of the unconstitutional legislation.
To report on the decision, journalists are required to review the decision in its full judgment and report its central and critical points. To fail to do so is to mislead, perhaps, not entirely in good faith.
Others may not think it important. But to be fair, the decision has seen the DAP as a creative effort to speed up the bureaucratic process and has achieved much good, with lessons for how the budget can be a dynamic policy instrument. There are public officials whose strategy is not to try anything new, or undertake any risks, even if they end up doing little good except to push papers.
If there is evidence of graft and lining up of pockets in the conduct of DAP, then surely an investigation or audit must confirm this. But the Supreme Court decision that had so many gleefully contemplating “impeachment” and “resignation” would not serve as adequate basis.
“DAP did not stimulate economy; public spending slowdown noted since DAP” httpss://ibon.org/ibon_articles.php?id=415