DAP violation graver

Unlike PDAF projects, DAP’s not covered by nat’l budget—Puno

RETIRED Chief Justice Reynato Puno said Wednesday that the constitutional violation under the Disbursement Acceleration Program was more serious than that of the Priority Development Assistance Fund or pork barrel.

In the wake of President Benigno Aquino III’s televised address Monday defending the DAP, Puno said the Supreme Court’s 13-0 decision against the program was expected, and not difficult to understand, contrary to the President’s claim.

The former chief magistrate said after the Supreme Court struck down PDAF allocations of lawmakers last year, a similar ruling on DAP—also a discretionary fund contrary to the Constitution—was no surprise.

“After the PDAF decision, it was easy to anticipate the SC would not have a different ruling on the DAP,” Puno said in a TV interview.

“I would say that the issues raised by the petitioners in the DAP cases were more serious issues of constitutionality,” he added.

He said the Constitution clearly provides that “no public money shall be spent except on the basis of appropriation passed by Congress.”

At least under the pork barrel system, projects of lawmakers are covered by the General Appropriations Act (GAA) - unlike in DAP, Puno said.

Puno also disputed the President’s persistent claim of good faith in justifying the economic stimulus program.

The former chief magistrate said this issue of good faith, as specifically laid down in the Supreme Cout ruling last July 1, was a “difficult subject matter.”

Puno also pointed out that the authors, proponents and implementers of DAP cannot be automatically absolved of any liability merely because the program yielded some positive results on the country’s economy.

The retired chief justice said the Supreme Court rulings on DAP and PDAF provided “starting points” for budgetary reforms--especially

because such funds might be revived in other forms.

“The people should be on the lookout, should be vigilant that the budget that will come from Congress will follow the decisions of the high court,” he said.

Puno earlier proposed a people’s initiate to abolish all forms of pork barrel in government, saying genuine budgetary reforms were needed.

In his address Monday evening, President Aquino insisted the DAP was legal and pressed the Supreme Court to overturn its decision after he filed a motion of reconsideration.

He warned: “We do not want two equal branches of government to go head to head, needing a third branch to step in to intervene.”

The President’s warning came almost simultaneously with the release of a Commission on Audit report questioning the Supreme Court’s P3.19 billion in savings in 2012.

The COA said the Court had declared savings of P3.19 billion in 2012 even when it had several unpaid obligations during the year. The report said the Court used its budget for 2013 to pay for the those expenses.

Ousted Chief Justice Renato Corona earlier called on Aquino-appointed Chief Justice Ma. Lourdes Sereno to answer the attacks made by the President on the judiciary.

Sereno has remained silent, however, and Court spokesman Theodore Te said the justices had “no comment” on the President’s tirade.

An insider attributed this move to the anticipated appeal to be filed by the Palace. Since the ruling is not yet final and the filing of appeal would make it pending again, justices are not allowed to publicly discuss the merits of the case under the sub judice rule.

In a decision penned by Associate Justice Lucas Bersamin, the Supreme Court held that the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations.

Senior Associate Justice Antonio Carpio and Associate Justice Arturo Brion cited possible liabilities of the President and Secretary Florencio Abad in their separate opinions.

In his concurring opinion, Carpio said it was President Aquino who violated the constitutional doctrine of separation of powers of the three equal branches of government in approving the DAP releases that amounted to over P149 billion from October 2011 to September 2013.

He cited the admission of Abad before the high court that the DAP, National Budget Circular No. 541 and related executive issuances were approved by the President.

Brion, for his part, detailed the possible culpabilities of Abad. He cited in his opinion “indicators showing that the DBM secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality.”

Brion said that Abad cannot invoke good faith in justifying the DAP that he created considering his being a lawyer and experiences both in executive and legislative branches.

Also on Wednesday, two legal experts and three opposition lawmakers rejected President Aquino’s defense of the DAP.

Ranhilio Aquino, dean of the San Beda Graduate School of Law and constitutionalist Joaquin Bernas, also said that the President erred in citing Section 49 of the Administrative Code to justify the creation of the DAP.

San Beda’s Aquino even laughed off the President’s statement that the decision was “difficult to understand,” saying the Chief Executive knows well the concept of separation of powers, even though “he was only a ‘C’ student at the Ateneo.”

The law dean made the statement after the President warned the Supreme Court against going head-to-head with the Executive department.

“President Aquino claims that the DAP is authorized by the Administrative Code of 1987. (But) The Supreme Court has ruled that the acts complained about violate the Constitution. For a statesman, that would (have) settled things,” San Beda’s Aquino pointed out.

“The law means what the Supreme Court says it means. If we don’t like this order of things, then amend the Constitution, but until it is amended, that is the way things go, under the rule of law.

“So, why should Aquino challenge the Supreme Court, issuing a not-too-thinly veiled threat against it? Simple. He has always thought of himself as above the law, above criticism and above fault because he has always been able to count on the adulation of the multitudes,” Aquino noted.

The law dean said the President tried to appeal to public sympathy by declaring that the DAP was used for worthwhile projects.

“But even in ‘misappropriation of public funds’ (technical malversation), public monies are expended on public projects – but illegally. This does not make the unauthorized expenditure of funds legal,” he said.

San Beda’s Aquino also rejected the President’s analogy—parking a vehicle at a no-parking zone to rush an emergency case to the hospital—as “limp and crippled.”

“There is no emergency here. DAP is a disbursement allocation —an attempt to increase public spending that had almost ground to a halt because of his own policies. He should not portray himself as savior of an ailing nation, because he got it ailing in the first place! And what emergency can there be in distributing DAP to senators as a reward for voting for the impeachment of the chief justice?” he said.

Bernas, for his part, said the government cannot invoke Section 49 of the Administrative Code to justify the DAP.

“I believe it is safe to assume that the Supreme Court is aware of the existence of Section 49. The Supreme Court is also aware that the Code where Section 49 is found is an Executive Order of the late President Corazon Aquino issued while she still had legislative power before Congress became operative,” said Bernas, a member of the Constitutional Commission that drafted the 1987 Constitution.

“(The Administrative Code) antedates the 1987 Constitution. Statutory provisions and executive orders antedating the Constitution and incompatible with the Constitution no longer have effect.”

Bernas explained that there is no authorization under the Constitution for the “cross border transfer” of funds from one branch of the government to another.

“Thus savings in the President’s budget may not be moved to other departments or offices such as to Congress, to the judiciary, or to a constitutional commission,” he said.

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