A fearful DAP legal angle
OFF TANGENT - Aven Piramide (The Freeman) - October 12, 2014 - 12:00am

There is a provision in our constitution that reads "no law shall be passed authorizing any transfer of appropriations". This proviso generally prohibits transfers of funds. But, in the same section of the constitution, the president of our republic, the senate president, the speaker of the house, the chief justice of the Supreme Court and the heads of constitutional commissions may be authorized to augment any item in the general appropriations law for their respective offices. Such augmentation fund should come from savings in other items of the respective appropriations. There is a further constitutional requirement that the augmentation shall be supported by law.

Not long ago there was a perceived conflict between the president of our republic and the Supreme Court when the latter declared as unconstitutional the use of funds denominated as Disbursement Acceleration Program.  It appeared that the president, with his mindset of hastening some of his pet programs, used from diverse sources that, to him, were funds at his disposal. Portions of such moneys found their way to senators and congressmen for unimaginable number of projects.

The ruling by the supreme court of the unconstitutionality of the DAP must have triggered some fears among favored senators and congressmen. Many of them must have asked, in their lonesome, what serious repercussions lay ahead. It must have occurred to them that if the expenditures were against the fundamental law, they could be held accountable.

It would therefore be acceptable to us that the beneficiaries of the DAP would concoct anticipatory measures that could somehow free them from whatever burdensome ramifications would come their way. 

That was how I read the move of a former Cebu City congressman. First he boldly admitted that he received DAP funds. He did this after the national papers prominently mentioned his name among few others as the men who got the biggest amounts from the DAP. In a matter of speaking he grabbed the bull by its horns. It was a good move to make such an admission because after all he could not avoid what was unraveling to be a fact. In his mind probably the admission he made was a most effective form of transparency.

The next step taken by this Cebuano congressman was to announce that some of the funds he received from the president, via the DAP, were not spent as they were intended. He was careful to blame the administration of the city government for refusing the project intended by the DAP. He did not say that the former congressman wanted us to believe it was his political difference with the mayor. That was the cause of the latter's refusal of the DAP-funded project.

The second move of the former congressman was ill-advised. No legal mind must have briefed him of the parameters why the Supreme Court declared the DAP unconstitutional. He should have been informed that the major legal hitch of the president's DAP was grounded on the philosophy on that it was capable of misuse. For augmentation funds to be valid, they should be used within the agency, meaning the president should have availed of it from savings within the executive department and only for that department.

The philosophical angle of misuse can be averted if the appropriation is based upon a law. The amounts apparently allocated from the DAP for the congressman needed an enabling law to make certain what project it was to be applied for. The high court invalidated the DAP because there was no law, or there were no laws, that appropriated the funds for the projects they were apparently intended for. The availment by this Cebuano congressman of such funds for still other purposes further complicated the situation.  He should have been educated by well-meaning friends not to treat the funds as his own personal money where he could use it for any purpose in his mind.

Frankly, I was apprehensive of myriad legal consequences the unconstitutionality of the DAP drew on the horizon. I still am for, to me, no one can just go scot-free from the misapplication of public funds. I fear that the "good faith" which the president mentioned many times in the recent past, may not really protect him and those men and women for whom he channeled the funds. Such fear is compounded many times in the case of our former congressman because his public admissions could be considered against him.


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