President Aquino’s Troubles: Unconstitutional PDAP and DAP, Less Public Approval, Proposed Impeachment

A Boholano’s View by Jose “Pepe” Abueva
The Bohol Chronicle
July 27, 2014

End pork barrel. Remembering “PEOPLE Power” that ended the long corrupt dictatorship of  Ferdinand Marcos in 1986, a hundred thousand protestors massed at Rizal Park on August 26, 2013 demanding  an end to pork-barrel politics. I was there myself with a poster advocating  shifts to a federal republic and a parliamentary government.

COA had revealed that senators and representatives had channeled  over six billion pesos into 82 NGOs through Janet Napoles and gotten their enormous kickbacks. The continued rule of family dynasties who depend on their patronage makes the Philippines one of the most corrupt in South-East Asia.

In the sudden death of her iconic mother, President Cory, P-Noy Aquino III became president in  the 2010 election with his neat election slogan, “Kung walang korupt, walang mahirap! But for three years his success centered on the arrest, prosecution and detention of his predecessor, Gloria Arroyo, for allegedly plundering millions in the state lottery funds. And the impeachment and removal of Chief Justice Reynato Corona and his replacement by P-Noy’s protégée; and somehow this might have been facilitated by his enormous presidential pork barrel.

So P-Noy advanced his daang matuwid against the humongous pork-barrel money that was disbursed during President Arroyo’s term. But P-Noy initially defended the pork-barrel scheme because he is at the top of the pyramid of political patronage. He decides which legislators get their pork and how much—in our ineffective and unaccountable political party system.

The Priority Development Assistance Fund (PDAF) has institutionalized pork barrel in the Philippines. Each of the 24 senators used to receive P200 million and each of some 300 congressmen could receive P70 million.  Pork barrel funds can finance public works, scholarships, health service. But legislators may also enrich themselves through kickbacks from contractors.

On August 23, just before the anti-pork barrel rally, President Aquino, flanked by Senate Drilon and Speaker Belmonte, pledged to abolish the PDAF. But the public was skeptical.

Pork barrel unconstitutional. The Supreme Court ruled in November 2013 that the widely misused pork barrel funds (Priority Development Assistance Program) for legislators’ pet projects, some of which were nonexistent, was unconstitutional and ordered the money be returned to the Treasury. This became “the biggest crisis of Aquino’s three-year rule, tainting his image as a corruption fighter and undermining his ability to push economic reforms.”

Analysts say pork barrel funds have been used by every sitting president to buy loyalties of lawmakers as well as influence their vote on crucial legislative and political measures.

Senators Juan Ponce Enrile, Jinggoy Ejercito, and Bong Revilla are under trial for plunder before the Sandiganbayan; and several former congressmen are facing corruption charges for the misuse of pork barrel funds from 2007 to 2009. In a Senate public inquiry a whistle blower said about 50 percent of pork barrel funds were routed back to lawmakers in a scheme allegedly ran by businesswoman Janet Napoles at the centre of the controversy.

Why did the Supreme Court declare the pork barrel  unconstitutional. U.P. Professor of Law HarryRoque explained. “The reality … every single member of Congress who partook of the funds participated in a systematic and unconstitutional expenditure of public funds: (1) The Court said that because of the principle of separation of powers, legislators, as soon as they pass the annual budget law, should no longer have any participation in the implementation of the law; (2) The Court said that the power to provide the annual appropriations law cannot be delegated to the individual members of Congress; (3) The Court said that the pork barrel violates the system of check and balances since it deprives the President the power to veto line items in the annual appropriation law. The Court also said that as a tool to level the playing field for politicians, the pork barrel system violates the constitutional principle of granting local autonomy to local governments. (4) But on closer scrutiny, perhaps it was public indignation that emboldened the Court to assert its judicial power against the more powerful political branches of government. In the final analysis, it was the people, through the million people march and their outrage in social media- that emboldened the Court to defend the Constitution against the stronger branches of government.  (Manila Standard Today, Nov. 28,2013).

Supreme Court declares unconstitutional the Disbursement Acceleration Program of President Aquino III. On July 1, 2014, the Supreme Court ruled against the controversial Disbursement Acceleration Program (DAP), voting 13-0-1. Following is from the exposition of Chay F. Hofileña of Rapplers. July 17, 2014.

“The High Tribunal ruled as unconstitutional the following: (1) the creation of savings prior to the end of the fiscal year and the withdrawal of these funds for implementing agencies; (2) the cross-border transfers of the savings from one branch of government to another; and (3) the allotment of funds for projects, activities, and programs not outlined in the General Appropriations Act.

“Here are highlights of the 92-page ruling in Question and Answer format:

“What is the issue that the Supreme Court addressed in its resolution pertaining to the Disbursement Acceleration Program (DAP)?

“Petitioners challenged the constitutionality of DAP, which was intended by the Aquino administration to accelerate government spending. They also questioned National Budget Circular 541 which, in effect, characterized unreleased appropriations and unobligated or unused allotments as savings. The question brought to the Court was whether the Executive exceeded his powers to augment items in the budget within the executive branch of government.

“When exactly did the DAP start? The closest indication is a memorandum dated October 12, 2011 from Budget Secretary Butch Abad seeking approval from the President to implement DAP. The memo listed funding sources that amounted to P72.11 billion (about $1.7 billion) which could be used for other proposed priority projects – among them, National Housing Authority programs, capitalization of the Bangko Sentral, and peace and development interventions in the Autonomous Region in Muslim Mindanao.

“How was DAP supposed to be implemented and funded? Three ways: (1) by declaring savings from various departments and agencies derived from pooling unobligated allotments and withdrawing unreleased appropriations; (2) by releasing un-programmed funds; (3) by applying the “savings” and un-programmed funds to augment existing programs, activities or projects (PAPs) or to support other priority PAPs.

“Can the President transfer funds? With limits. While the power to transfer funds from one item to another within the executive branch existed since 1909, during the time of American Governors-General, this power was reduced to merely augmenting items from savings. The 1987 Constitution put limits on the President’s discretion over appropriations during the budget execution phase (when the budget law is being implemented).

“The Constitution authorizes the President, the Senate President, the Speaker, the Chief Justice, and heads of Constitutional Commissions to transfer funds “within their respective offices”; when these funds involve savings generated from appropriations also for their respective offices; and when the purpose of the transfer is to augment items in the Appropriations Law again for their respective offices.

“How is “savings” defined? How did this issue make DAP problematic? The Court defined savings as funds that remain unspent after the completion or discontinuance of a project. Congress provided that appropriated funds are available for a period of one fiscal year. But in a May 20, 2013 memo, Budget Secretary Butch Abad sought omnibus authority to consolidate savings and unused funds to finance the DAP on a quarterly basis. This shortened the period that funds were supposed to be available for, giving rise to questions about the budget department’s own definition of savings.

“How were funds under DAP spent? What are related issues? According to the Department of Budget and Management (DBM), as of 2013, P144.4 billion (about $3.3 billion) was released to implement programs, activities, projects (PAPs). In 2011, P82.5 billion (about $1.8) was released, while P54.8 billion (about $1.2 billion) was released in 2012. About 9% of the total DAP applied to PAPs were identified by lawmakers.

“The DBM also said that 116 PAPs were financed by DAP, each of which had existing appropriations in the budget. The Office of the Solicitor-General submitted 7 evidence packets in support of this claim, but the Court found that there were projects not covered by an existing appropriation – for example, items under the P1.6-billion DREAM project under the Department of Science and Technology. DREAM refers to Disaster Risk, Exposure, Assessment and Mitigation.

“Are “cross-border” transfers or augmentations of the budget allowed? No. Cross-border transfers refer to the movement of funds from one branch of government to another. These are allowed only within respective offices – thus the use of DAP funds to augment funds of the Commission on Audit (for its IT infrastructure program and the hiring of litigation experts in the amount of P143.7 million, or about $3.2 million) and the House of Representatives (for a legislative library and archives building/e-library in the amount of P250 million, or about $5.6 million) violate the Constitution.

“What is the operative fact doctrine and why is it relevant to DAP? In effect, it says let it be, because the consequences resulting from DAP could no longer be undone. For instance, the positive results of DAP funding could include roads, bridges, homes for the homeless, hospitals, classrooms. Not applying the operative fact doctrine would require the physical undoing and destruction of these infrastructure – a considerable waste. The application of the doctrine, however, does not exonerate the proponents and implementors of the DAP – unless it is established that they acted in good faith. Rappler.com.”

President P-Noy asks the Supreme Court’s reconsideration of its decision against DAP, but he also argues against the decision in his televised speech and media publicity. The Administration even hints at a constitutional crisis as a consequence of the divergence of positions between the executive and judicial departments.

Proposed impeachment of the President is most unlikely to succeed. The public opinion surveys of Social Weather Stations and Pulse Asia indicate that the President has suffered a notable decline in the people’s trust in him. Mass media and social media also reflect adversely against him.  Three initiatives for his impeachment have been submitted in Congress, although the House of Representatives is most unlikely to approve any of them so that the Senate can sit in judgment of his impeachment.

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