CAN THE DAP BE SAVED? By Dean Tony La Viña Manila Standard Today Posted on October 22, 2013 at 12:01am [] This afternoon, the Supreme Court once again hears a controversial case, this time on the constitutionality and legality of the Disbursement Acceleration Program of the Aquino government. A formidable group of petitioners and their counsels will argue the case against the DAP. These includes, among others, the Philippine Constitutional Association, distinguished public finance experts like former Budget Secretary Benjamin Diokno and former National Treasurer Leonor Briones, and individuals and groups from the progressive political coalition Makabayan. The Solicitor General and his team of excellent lawyers will of course take the cudgels for the administration. The stakes are higher for the Aquino administration and the country in this case, much higher, I suspect, than the PDAF case argued a couple of weeks ago. In that case, what was at stake was simply the funding of projects of legislators. In that case too, there was a clear legal basis in the General Appropriations Act in the PDAF disbursements. In the DAP, we are talking of much larger expenditures and for projects of much higher priority than the pet projects of the legislators. In addition, the DAP is not in the GAA or any law, not even in an executive or other presidential order, and its sole justification is the constitutional provision that allows the president to augment from savings other appropriated items. Turning now to its legality, as I have observed before, the weight of legal opinion seems to be for its unconstitutionality. Senator Miriam Defensor Santiago has pointed out that the Constitution “allows fund transfers, only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted; but there are no savings if a project was merely deferred.” She observed that it appeared that DAP funds were taken from alleged slow-moving projects. “If so, no savings were generated, and therefore DAP is illegal.” Disagreeing with Santiago, Ateneo Law Professor Mel Sta. Maria, in an opinion piece for the TV5 website, argues that the DAP is nothing else but the disbursement of funds sourced from savings of a particular item to fund a deficit in another item for the purpose of immediately accomplishing a priority activity. This makes the DAP legal and constitutional. In his words: “The only transfer that cannot be made in this process is a transfer of saved-funds from one great government department to another. Hence, the President cannot transfer executive funds to the judiciary, the judiciary to the executive, the judiciary to the legislature, the legislature to the executive, the executive to the legislature. To do so would be unconstitutional. But within the executive branch, which is composed of so many departments, the President may do so pursuant to the Constitution and the Administrative Code. In fact, the Constitution also explicitly grants the Chief Justice, the Senate President, the Speaker of the House, the head of Constitutional bodies the same powers within their departments.” Fr. Joaquin Bernas SJ, in an interview with ANC, seems to agree with Santiago asserting that savings should only be spent to augment existing line items in the budget. Bernas also identified the enabling conditions for realigning savings. “One, you have to have savings. Two, if these savings are to be transferred, they have to be transferred in the same department.” Later, in his column in the Philippine Daily Inquirer, Fr. Bernas observed that “the outcome of the controversy on the DAP will depend on the answer to factual questions: Did he transfer ‘savings’ and where did he put them?” I think Fr. Bernas asks the right questions that must be answered in the affirmative if the DAP is to survive constitutional scrutiny. More concretely, I would ask: Are funds transferred in the middle of the year “savings” because of slow-moving projects constitute savings? And, were the projects augmented funded by and already identifies the GAA? As for me, in the case of DAP disbursement decisions made purely by the executive branch, there is a color of legality precisely because the President has the power to realign savings. I think however that it would have been more prudent if the President issued an executive order or other presidential issuance that established the DAP. Without that, the administration has been able to communicate its message clearly and effectively, leaving even its supporters confused about the DAP. In fact if the administration intends to continue with this approach in disbursement, particularly in response to the recent disaster in Zamboanga and Bohol, then they should issue such an executive order. However, I would counsel that it completely abandon the term “DAP” as it has become so tainted and controversial that it cannot be rehabilitated. All political analysts and communicators know that the best way to end a controversy is to change the conversation. As to DAP disbursements that were made upon recommendation by senators and other legislators, I believe that these were illegal and in the case of the senators clearly improper. In the case of the PDAF, there is a presumption of constitutionality because of the GAA and the prior Supreme Court decisions. But in the case of the DAP, there is no legal basis at all for allowing the legislators to identify projects. Corruption also tainted DAP disbursements because, as in the case of the PDAF, the legislators were allowed to cross the line with respect to implementation. As for the Senators, from an ethical point of view, given the context of the Corona conviction, allowing the senators to identify even more projects than they already did with their PDAF reeks of quid pro quo. It may not be criminal or impeachable bribery but it definitely does not look or smell right. Can the DAP be saved? The better question I think is – should it be? Facebook: Dean Tony La VinaTwitter: tonylavs ~
Posted on: Thu, 24 Oct 2013 10:57:00 +0000
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