SC won’t suspend DAP

MANILA, Philippines - The Supreme Court (SC) ordered Malacañang and the Senate yesterday to explain the legality of the Disbursement Acceleration Program (DAP), but did not suspend the release of the funds.

In a resolution, the high court gave the executive branch and the Senate 10 days to answer the consolidated petitions of former Iloilo congressman and former Technical Education and Skills Development Authority (TESDA) chief Augusto Syjuco Jr. and lawyers Jose Malvar Villegas Jr. and Manuelito Luna.

A fourth petition questioning the legality of DAP was filed yesterday by the Philippine Constitution Association (Philconsa).

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The justices, after deliberations, opted not to immediately act on petitions for a temporary restraining order (TRO) on the release of DAP funds.

The SC set the case for oral arguments on Oct. 22.

Petitioners are asking the High Tribunal to declare DAP unconstitutional, arguing that the Charter prohibits the transfer of funds from one branch of government to another in the absence of a law.

Respondents in the petitions are Executive Secretary Paquito Ochoa Jr., Budget Secretary Florencio Abad and and Senate President Franklin Drilon.

The petitioners cited Article XXV Section 24 and Article VI Section 25 of the Constitution in questioning the legality of DAP.

The first provision gives Congress exclusive “power of the purse” while the second requires a law for transferring appropriations from one government branch to another.

The petitioners also argued that the Constitution prohibits the offices of the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of constitutional commissions from raising their budgets using their respective savings.

4th petition

In its petition contesting the legality of DAP, Philconsa – through its vice-chairman Froilan Bacungan – also asked the SC to order the National Bureau of Investigation (NBI), the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) to seize all properties, assets and funds acquired through the use of DAP.

Philconsa said it also wants those responsible for the creation and use of DAP slapped with appropriate charges.

Former budget secretary Benjamin Diokno and former national treasurer Leonor Briones accompanied Philconsa officials during the filing.

In its petition, Philconsa said DAP is illegal because it is funded by the DBM from “unspecified or tainted sources” not approved by Congress.

“Until and unless the respondent and its functionaries and agents/instrumentalities are immediately restrained/enjoined from continuing to implement the DAP, grave irreparable injury will be caused to the Filipino people, and decent public functionaries and the people will remain restive and agitated,” Philconsa said.

It added that DAP is not included in the General Appropriations Acts of 2011, 2012 and 2013.

“Since the DAP was covertly established in and by the DBM, it is not a law. Even if the same was established through an executive or administrative order, it cannot have the force and effect of a law,” Philconsa said.

“It is legally nonexistent. Its implementation is illegal. Neither the issuances of the DBM nor the Office of the President may amend the GAAs,” it pointed out.

“The DBM and the Office of the President have no authority to appropriate funds from unspecified or polluted sources and to disburse/fund programs, activities or projects not in the GAA, and determined by DBM with the conscious or unconscious cooperation of some member of Congress,” it added.

Of the 137.7-billion DAP disbursements as of Oct. 1 made public by the government, the petitioner noted that P72.5 billion was disbursed in 2011 and another P54.8 billion in 2012 or a total or 127.3 billion for programs, activities, projects and items not included and funded in the GAAs.

A mistake, by whatever name

For administration ally and former senator Panfilo Lacson, DAP or whatever Malacañang wants to call it is a mistake and legally questionable.

In a press briefing held at the Senate, Lacson said that DAP, as described by the DBM, was not consistent with the provisions of the Constitution regarding the realignment of public funds.

“Based on the Constitution, the President, Senate President, Speaker of the House, Chief Justice and heads of constitutional commissions are allowed to augment items that already exist in the budget, but only within their respective offices,” Lacson said.

“This cannot cross over to other branches of government just like the P50 million and P100 million range that the DBM supposedly provided to the senators under the DAP,” he added.

Lacson showed up at the Senate to provide his statement on the DAP and on Science Secretary Mario Montejo’s pronouncement on Monday of his receipt of P30 million from Lacson for a nutrition program coursed through the DAP.

Montejo said that the Department of Science and Technology’s budget for 2011 got P2 billion more from the executive department and P40 million from senators Lacson and Pia Cayetano.

Lacson said Montejo’s statement infuriated him since he had never known DAP. He also stressed it was against his principle to receive pork barrel or similar funds.

Lacson said that based on his recollection, the P30 million was an amendment in the 2012 national budget that he introduced in plenary when the measure was still being deliberated in the Senate.

Citing the November 2011 journal of the Senate to support his claim, Lacson said that the P30 million was taken from other agencies and realigned to the DOST for its nutrition program, which was accepted without any objections.

He said the realignment he had introduced should have been reflected in the 2012 GAA.

Abad to blame

He accused Abad of muddling the issue and said the budget chief had a lot of explaining to do as it was he who created the controversy.

“All of this should be treated as a lesson learned. This is very timely because the budget deliberations are ongoing and they can correct all of this,” Lacson said.

He also said the President’s Cabinet officials appeared to be always putting him on the spot and exposing him to criticism.

He said aside from Abad, presidential spokespersons Edwin Lacierda and Ricky Carandang were making it more difficult for the President to defend his position.

“The moment I saw Secretary Lacierda and Carandang explaining on behalf of Secretary Abad, I already saw a problem. Why is it that the spokesman of the President is doing the explaining for one department?” Lacson said.

“The President is being left out to dry. In all countries of the world, the chief executive is always insulated as much as possible from any crisis. But what is happening here is that they are pushing the President to the frontline because they know that he is very popular,” he added.

Don’t scrap it yet

A Liberal Party lawmaker, meanwhile, said there is legal justification for the President to continue DAP-funded projects until the SC finally decides on petitions questioning the scheme’s legality.

“It is the SC that can say whether DAP is illegal or unconstitutional. Until then, there is no reason for the government to suspend its implementation,” Iloilo City Rep. Jerry Treñas said.

He said Abad was right when he said that DAP was part of “unprogrammed appropriations” in the national budget.

“Programmed appropriations have a definite source of financing like revenues and borrowings, while unprogrammed items do not have funding and are in the nature of standby appropriations,” Treñas said.

He said the unfunded items become funded when revenue collections exceed target or when Congress taps new revenue sources or accumulate savings.

“For example, if the SC decides with finality this year that coco levy funds belong to coconut farmers, these could be considered as new revenues and used to finance unprogrammed appropriations for the benefit of the coconut industry,” he said.

Agencies have to use their funds effectively and efficiently or risk losing them to DAP, he said. Such unspent funds are then given to other offices that have a better system of implementing projects, he added.

Marikina City Rep. Romero Quimbo also maintained that realignment or reallocation of savings in government by Malacañang was legitimate and constitutional.

“The DAP is an old practice. It has been there since the 1987 Constitution was established,” Quimbo told reporters. “The only thing new there is the name.”

“I’m just surprised that some of those previously with the previous administration are saying the DAP is illegal when it’s not new. That wasn’t created just now, they’re doing it for the longest time,” he said.

Some P72 million in DAP funds were disbursed late last year. Part of the funds went to certain senators and members of the House of Representatives.

The DBM said four of the senators who requested for funds were Jinggoy Estrada, Ramon Revilla Jr., Vicente Sotto III, and Ferdinand Marcos Jr.

Some P100 million was made available to each of the four for their projects. The four initially identified the Department of Agrarian Reform as their implementing agency but later requested that their funds be given instead to the National Livelihood Development Corp. (NLDC).

PNoy’s own worries

But even President Aquino, while defending DAP, admitted yesterday spotting questionable releases, including P5 million for an “anti-dengue medication” endorsed by a lawmaker.

“In dengue, there is no such thing as anti-dengue medication,” Aquino said in an interview at the Nusa Dua Beach Hotel and Spa in Bali, Indonesia.

He said the initial request from the DBM was for “medicines.” He said he consulted a doctor and was told a vaccine is still being developed.

He did not identify the lawmaker.

“I was just curious, I said: Is there such a thing that you take one or two shots, (that) you are cured of dengue? I don’t think that it is the way I understand the disease dengue, that’s why I asked,” he said.

“But it’s not as if I have a headache, I take aspirin. Or an antibiotic if I have a bacterial infection,” he said. With Jess Diaz, Marvin Sy, Delon Porcalla, Paolo Romero