MANILA, Philippines -(UPDATE 3:45PM) Two Supreme Court Associate Justices pinned the blame squarely on Budget Secretary Florencio Abad for the controversial Disbursement Acceleration Program (DAP), saying he knowingly drafted a legally and constitutionally questionable policy.
In their separate opinions, Senior Supreme Court Associate Justice J. Antonio Carpio and Justice Arturo Brion likewise stressed the argument of “good faith” cannot be used to defend the DAP.
In his 27-page opinion, Associate Justice Carpio cited The Aquino Administration’s policy mantra on the DAP was that it had a noble end – “to fast- track public spending and push economic growth.”
“The DAP would fund high-impact budgetary programs and projects,” Justice Carpio said, but wryly noted: “However, the road to unconstitutionality is often paved with ostensibly good intentions.”
He pointed out the argument that the Aquino Administration wanted to pool funds from slow-moving projects and programs and to realign this to other projects, as provided for under National Budget Circular (NBC) 541, is “clearly unconstitutional.”
The Constitution clearly stated that the General Appropriations Act is a law enacted by Congress, “the most important legislation that Congress enacts every year.”
“The power of the purse is a constitutional power lodged solely in Congress, and is a vital part of the checks and balances enshrined in the Constitution,” Justice Carpio said, stressing that “Under the DAP and NBC 541, the President disregards the specific appropriations in the GAA and treats the GAA as the President’s self-created all-purpose fund, which the President can spend as he chooses without regard to the specific purposes for which the appropriations are made in the GAA.”
Incredulous about Abad's claims
Justice Brion, in his own 60-page opinion, found it incredulous that Secretary Abad considers the DAP legally and constitutionally valid. He cited Abad’s statements before the High Tribunal on the DAP – “there are indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality.”
“As a lawyer and with at least 12 years of experience behind him as a congressmen who was even the Chairman of the House Appropriations Committee, it is inconceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” Justice Brion said.
“Armed with all this knowledge, it is not hard to believe that he can run circles around the budget and its processes, and did, in fact, purposely use this knowledge for the administration’s objective of gathering the very sizeable funds collected under the DAP.”
Justice Carpio also found it surprising that Congress did not raise a howl over DAP and NBC 541, considering that the DAP castrated Congress and made lawmakers inutile.
He found it “surprising that the majority in the Senate and the House of Representatives support the DAP and NBC 541 when these Executive acts actually castrate the power of the purse of Congress,” adding that DAP and NBC 541 “usurps the power of the purse of Congress, making Congress inutile and a surplusage.”
Even if lawmakers supported the DAP, Justice Carpio said the High Tribunal “cannot allow a castration of a vital part of the checks and balances enshrined in the Constitution – even if the branch adversely affected suicidally consents to it.”
Kabataan party-list: filing of raps must follow
Justices of the Supreme Court are actually pointing towards the filing of civil, administrative, and criminal charges against President Benigno Aquino III and Budget Secretary Abad, the “authors, proponents, and implementors” of the Disbursement Acceleration Program (DAP), a party-list lawmaker said Thursday.
Kabataan party-list: filing of raps must follow
Justices of the Supreme Court are actually pointing towards the filing of civil, administrative, and criminal charges against President Benigno Aquino III and Budget Secretary Abad, the “authors, proponents, and implementors” of the Disbursement Acceleration Program (DAP), a party-list lawmaker said Thursday.
Kabataan party-list Rep. Terry Ridon, reviewing the full text of the 92-page decision on DAP penned by Associate Justice Lucas Bersamin and uploaded Wednesday night at the Supreme Court web site, pointed to this part of the ponencia: “The doctrine of operative fact can apply only to the PAPs (projects, activities, and programs) that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”
“Operative fact” is a judicial doctrine that “nullifies the void law or executive act but sustains its effects.” In the case of DAP, only PAPs are covered by the doctrine of operative fact, and not the officials that created it, Ridon stressed, quoting the SC ruling.
“By leaving the ‘authors, proponents, and implementors’ of the DAP open for investigation for their criminal, civil, and administrative liabilities, the justices of the Supreme Court are in fact telling the Filipino people that Aquino and Abad should be held liable over the DAP,” Ridon said.
“Indeed, crimes have been committed by Aquino and Abad in creating and implementing DAP. To go after the President, who is immune from suit, an impeachment proceeding must be done first. As for Sec. Abad, he can be readily charged with several civil, administrative, and criminal raps,” the lawmaker added.
DAP is Abad’s brainchild – Justice Brion
Ridon noted that Abad’s liability for implementing DAP has been more thoroughly discussed in Associate Justice Arturo Brion’s 62-page separate opinion.
While concurring in the ponencia on the coverage of the doctrine of operative doctrine, Brion also explained in length why he believed Abad committed several crimes through DAP.
Clearly then, according to Ridon, “Malacañang has erred greatly when it said that Aquino and Abad do not have any liability for creating and implementing DAP. The Palace failed to see that at the very least, Aquino and Abad violated Article 220 of the Revised Penal Code (RPC).”
Article 220 of the RPC pertains to “illegal use of public funds or property." It states: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-half to the total of the sum misapplied, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification. If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 per cent of the sum misapplied.”
Ridon found it “surprising that until now, Abad is still the budget secretary. He should have resigned readily after DAP was deemed unconstitutional.”
The Kabataan party list, along with YOUTH ACT NOW!, is now preparing to file malversation charges against Abad and an impeachment complaint against Aquino.
DAP augmented PDAF, Justice Carpio confirms
Associate Justice Antonio Carpio issued a 27-page separate opinion on the DAP, where he confirmed, said Ridon, that DAP funds were used to augment the Priority Development Assistance Fund (PDAF).
In February 2014, Ridon had questioned the allotment of P6.5 billion from the pooled DAP funds in 2011 for the “augmentation” of the Priority Development Assistance Fund (PDAF) of the said fiscal year.
Ridon drew attention to the paper trail pertaining to DAP, which the militant alliance Bagong Alyansang Makabayan also dwelt on at length last Wednesday. In a Memorandum for the President dated October 12, 2011, Sec. Abad detailed the source of funds and projects for the first year of implementation of DAP. In that year, DBM identified P72.11 billion in DAP funds, of which P70.895 billion were allotted for 34 projects.
Item No. 33 in the table titled “Projects in the Disbursement Acceleration Program” indicated P6.5 billion for “various other local projects.” In the annex affixed to the said memorandum, the item was further elaborated as constituting funds for “PDAF augmentation.”
Ridon recalled that Abad earlier dismissed this fact as merely being a “clerical error.” “If [Ridon] is not too trigger-happy and asked us, we could’ve told him that that was a clerical error,” Abad had said in a statement last February.
However, Ridon pointed out that Justice Carpio had also noticed the P6.5-billion anomaly. "Clearly, the transfer of DAP funds, in the amount of P6.5 billion, to augment the unconstitutional PDAF is also unconstitutional because it is an augmentation of an unconstitutional appropriation,” Carpio wrote in his separate opinion.
“The lies of Sec. Abad and President Aquino are now surfacing at great speed. No less than the justices of the Supreme Court are urging us to file charges against them and hold them liable for inventing and abusing PDAF. Despite all odds, we will push through with the impeachment complaint against Aquino and the filing of civil, criminal, and administrative charges against Abad,” Ridon said.
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