Aquino faces ouster over DAP

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IBP head says President can be impeached for technical malversation

President Benigno Aquino 3rd may have had noble intentions when he approved the implementation of the Disbursement Acceleration Program (DAP) but the controversial scheme may yet lead to his downfall, according to the Integrated Bar of the Philippines (IBP).

Vicente Joyas, IBP president, on Tuesday said that if the Supreme Court (SC) declares DAP unconstitutional, the President may be held liable for technical malversation, a solid ground for impeachment.

“That [technical malversation]is a ground for impeachment. They may be prosecuted for technical malversation and COA [Commission on Audit] shall require the return of the funds [released through DAP],” Joyas told The Manila Times.


Last month, the IBP filed the fifth petition against DAP and asked the SC to order COA to conduct an immediate audit of the program and disallow all public money spent through it.

Other petitions were separately filed by former Iloilo representative Augusto Syjuco, Manuelito Luna, Jose Malvar Villegas and the Philippine Constitution Association (Philconsa). Militant groups also filed a similar case before the High Court.

Joyas clarified that the IBP is not one of the proponents of the People’s Initiative campaign for the enactment of a budget reform law being pushed by former chief justice Reynato Puno. He said his group is more inclined at present to try out the judicial route to having DAP scrapped and declared illegal.

A magistrate of the High Court confirmed that criminal charges can be filed against Aquino, Budget Secretary Florencio “Butch” Abad, Executive Secretary Paquito Ochoa and Senate President Franklin Drilon over DAP.

The Justice, who spoke on condition of anonymity, claimed that due to the strength of the arguments in various petitions against DAP, the government officials may face charges of malversation or even plunder.

However, he said that the ruling of the SC en banc will determine the fate of Aquino and his men and whether or not they should be held criminally liable.

The magistrate said that the transfer of funds from one branch of government to another is illegal “per se.”

“The President is empowered under the 1987 Constitution to realign funds. But the big question is can he transfer it from the Executive Department to the Legislative Department?” the justice asked.

He explained that a government official who is accountable for keeping public funds may be found guilty of technical malversation once he or she transfers the funds from one office or one purpose to another.

”An ordinary government official who shall transfer funds from one hand to another is clearly committing technical malversation,” he told The Times.

The SC is set to deliberate on November 11, 2013, whether or not it will issue a temporary restraining order stopping the implementation of DAP.

Malacañang had admitted that it has released nine percent of the total DAP budget to legislators, but maintained that there was no misuse of funds.

In 1977, the High Court nullified a similar budget program introduced by former President Ferdinand Marcos. The tribunal voided a portion of Presidential Decree 1177 that gave Marcos leeway in realigning government funds because it “allows the president to override the safeguards, form and procedures prescribed by the Constitution in approving appropriations.”

“The nation has not recovered from the shock, and worst, the economic destitution brought about by the plundering of the Treasury by the deposed dictator and his cohorts. A provision which allows even the slightest possibility of a repetition of this sad experience cannot remain written in our statute books,” the Court en banc, then led by the late chief justice Claudio Teehankee Sr., said.

But Joyas said that DAP can be nullified even without a precedent case.

“DAP can be voided for being unconstitutional not on the basis of [any]case . . .” he said.

Former Budget secretary Benjamin Diokno described the petition being pushed by the IBP and other groups before the SC as “the first best hope” to win the battle against DAP.

Anti-DAP petitioners argued that funds used for DAP officially contained in National Budget Circular No. 541 of the Department of Budget and Management (DBM) cannot be considered as savings because “there could not be savings in the middle of a fiscal year, especially if the projects or programs for which these funds were allocated by law, have not been completed, discontinued or abandoned.”

“The appropriations law becomes the law of the land, a product of the collective effort of the representatives of the people and the different government agencies. Not even Congress who passed it can alter the same, without undergoing the same tedious process of enacting a law. Such is the wisdom of our Constitution,” the petitioners said.

Records showed that fund releases through DAP also breached the P130 billion mark as of last month.

“These funds that the DAP and the DBM 541 call as ‘savings’—the unreleased appropriations and unobligated allotments—are not actually savings following the strict formulation of the General Appropriation Laws passed by Congress through the years,” the petitioners added.

Besides Aquino, Ochoa and Abad were named as respondents in the petition which also sought a temporary restraining order on the DAP while their petition is being heard.

Malacañang previously said DAP was created in October 2011 to gather “savings” from slow-moving projects and use them for more important ones. Officials said DAP can be likened to the stimulus fund during the previous administrations which were used to spur economic growth.

Election lawyer Romulo Macalintal also said that DAP is unconstitutional because it is not in the General Appropriations Act, unlike the Priority Development Assistance Fund (PDAF).

“Mas illegal ang DAP kasi wala ang DAP sa batas. Kahit na pagbalik-baliktarin mo iyan, wala sa batas iyan. Kaya saan galing ang DAP? Kasi maliwanag naman sa batas na ang distribution ng appropriation from one department to any department ay hindi pwede,” Macalintal said.

“Unlawful ang DAP. What remains questionable is the authorization of the executive branch to transfer the DAP from one branch to another branch.”

Not worried

Malacañang however insisted that DAP is legal and constitutional.

Presidential Communications Secretary Herminio Coloma Jr. said that the use of the DAP is within the bounds of the law and the Constitution.

Coloma said that the government is ready to go to battle and defend the legality of the fund scheme before the Supreme Court.

He added that Aquino is not worried over the growing criticisms and petitions against DAP.

“President Aquino has kept his faith with his sworn duty to be the Chief Executive. He has adhered to the Constitution and the laws of the land in performing his duties,” Coloma said.

“The Office of the Solicitor General is preparing the government’s position pertaining to the petitions that were filed with the Supreme Court on this issue. The ongoing legal review by the OSG takes into account all relevant jurisprudence and pertinent laws,” he added.

Eastern Samar Rep. Ben Evardone, vice chairman of the committee on appropriations, also said that there is nothing wrong with releasing a small portion of the DAP to lawmakers.

“I do not see anything wrong with it because as representatives, we always receive tons of Barangay and Municipal resolutions, asking us to provide funding for water systems, health centers, among others. In fact, a lot of barangay captains who won in the last elections are already sending me text messages, asking if I could fund health centers and the like for their constituents,” Evardone, a former governor of Eastern Samar, said.

“I cannot think of a reason why it should be declared unconstitutional. Why should it be unconstitutional? Under the Constitution, the President can realign the savings of the government agencies under the Executive department in the same vein that the Chief Justice can realign the savings of the Judiciary to the agencies under the Judiciary,” he told reporters during the Ugnayan sa Batasan Forum.

“We [in Liberal Party]are unanimous that DAP is legal, constitutional. DAP is just a brand. It has long been practiced because it is not unconstitutional. During former President [Joseph] Estrada’s time, it was called the stimulus fund,” Evardone pointed out.

WITH REPORTS FROM CATHERINE VALENTE AND ROBERTZON RAMIREZ

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41 Comments

  1. john c. jacinto on

    Patalsikin na si PNOY at iupo si Binay at VP naman si Jinggoy! After a year, patalsikin naman silang dalawa at ilagay si Bongbong-Bong! After a year again, patalsikin din sila at ibalik naman si Pandak at Dick! Patalsikin, patalsikin ad nauseam!

  2. Dysfunctional Pinas on

    The IBP should concentrate more on their DYSFUCTIONAL ELITIST JUDICIAL SYSTEM, were cases are resolved to conspiracy, brokering, lobbying, fixing/cooking of cases for consideration amongst lawyers. To restore the trust, respect and dignity of the judicial system it should be made transparent and democratic. Pluralistic professional/skilled citizens should be participant in management, administration and in judgement (lower court).
    WE are aware of lawyer’s perfection in written laws, but not with justice. Justice is not base only in written laws, it also includes logic, morality, cultural sensitivity, religious/political ideals, professional/skilled experiences and others. “Beyond reasonable doubt” does not come from one bias profession (lawyer), but thru unanimous group of pluralistic professional/skilled citizens. Most progressive develop nations have democratic judicial system.
    It is for the good of IBP to have a DEMOCRATIC FUNCTIONAL JUDICIAL SYSTEM, especially to your new smarts peers without connection or relative in the courts or judicial branch.

  3. Dysfuctional Pilipino on

    What the IBP thinks is just one opinion based on written law, but decision is executed based on fairness and justice. If Pinoy approved the DAP base on recommendation of his trustees in good faith, the accountability is with trustees. They should have look at all factors between risk and outcome. All Pinoy will do is abolish DAP, if found technically illegal by SC or if he feels it is bad decision.
    President, CEO and leaders make mistake in there decision, as long it is not intentional or in bad faith. They can do is rectify and treat it as experience (lesson learned).
    IBP should concentrate in the judicial dysfunction as an ELITIST INSTITUTION, where conspiracy, brokering, fixing/cooking and lobbing of cases for consideration among lawyers. The Judicial System should be made transparent and democratic, were plularlistic professional/skilled citizens are part of the management/administration and judgement (as unanimous group).
    Lawyers maybe perfect in written laws but not with Justice. Justice should not be only base on written laws, but must include logic, morality, religious/political ideas, cultural sensitivity, professional experience and others. To make the judgment “beyond reasonable doubt” it should not be by one bias profession (lawyer), it should be composed of several professional and skilled citizens and be unanimous.
    IBP WORK ON DEMOCRATIC FUNCTION JUDICIAL SYSTEM to give fairness playing field to your new, young, unconnected and smart lawyers of the future.

  4. Ang daming matalino sa Pilipinas kaya nakakapagtaka bakit di pa rin tayo umuunlad , siguro dahil sa ugali nating talangka, benggansa, at iba pa . Siguro panahon na, (once and for all ) magkaisa tayong tumingn sa katuwiran , hindi magtago sa mga batas na tayo rin namang hindi matitino ang gumawa at nagpatupad. Kung ano yung tama gawin at pagtanggol at kung sino yung mga nagkasala parusahan. Wag na nating paguluhin yung napakagulo nang sitwasyon. Nasa punto na tayong pwedeng may mapanagot sa mga nagpasasa sa kabang bayan , wag nating palampasin ito , kung meron pang susunod so be it kahit sino pa sya , pero kelangan muna nating masimulan ang pagpataw ng hustisya. Justice delayed is justice denied.

  5. Criticizing the President using Dap for helping the filipino people is ridiculous…We will wait the SC to decide if the Dad is constitutional or unconstitutional then everybody free to comment….

  6. Binay is more corrupt than PNOY, the only problem for PNOY are the associates in his own Cabinet, The snake are destroying his administration creeping in slowly. The Abads are crook, The Belmonte, are double faced, The Drilons are the leech. The Lacierda are liars, The Ochoa are termites. These company hamper progress are they want to rule Aquino without legal basis. These demons must be exercise if Aquino want to save his face or ass from the public. They should replaced or boot out then changed with new breed of politicians with heart and patriotism. Hail to Singson, Jiminez. Ona, Montejo, Soliman, Mendoza, Pulido Tan, Henares, Biazon, Duque, Morales, De Lima, Roxas, and Petilla. At least there saving grace of their boss sliding rating. We need good and high exemplary public servant in the Executive and Legislative.

  7. DAP in whatever form is still illegal it may accelerate but given the fact that it’s used to give to Senatong and Congressman on what basis or ground the reason just imagine if Aquino put these money in a Medical Hospital, allotted to Housing project. Or even Given to financed OFW distress. Think positive will come out but these money are squandered, embezzled, abuse, misuse and corrupted. So if only the people know where the Pet project will go then surely, they will be satisfied. But it’s look like patronage politics.

  8. Fernando Habito on

    The first thing to be corrected is the Justice System in the Philippines.The Supreme Court is the root of all this chaos of “Graft and Corruptions” and inequalities. For several decades from Marcos regime to the present those justices of the SC did not correct the loopholes of the laws of the land that politicians and the lawmakers/lawbreakers manipulated and created at disadvantage of common citizens and now the easiest they can do is to put all the blame to the president who got good intentions by exposing all those dirty tricks in the politics.Just look what kind of Chief SC Justice the Philippines have produced like Renato Corona who projected the greedy,arrogant and selfish person on the highest justice system of the land.How many justices and lawyers did the country produce who delayed justice to common citizens in favor of the rich citizens using MONEY to avoid the crimes they have created.?

  9. it might be true that this may lead to the impeachment pnoy…however, those who believe and questioning the legality of DAP and filed complaints before the supreme court will promise to apologize and eventually support the agenda and objective of the present government once the high court declares its constitutionality…

  10. Impeachment is not a solution, Why? because Pnoy holds the neck of most the high n low branches of this government. the best solution here is people power.

    From the very start we know how incompetent he is to lead a country but most still voted for him because of his mom/dad. “Hindi ako magnanakaw, Hindi ako corrupt” yes he is pertaining to GMA. Poor GMA, every problem that rises are her fault.

    we’ll if others are being blinded with our PERFECT President and MOST EFFECTIVE president then no wonder our country is falling. we need to fight for our rights.. we are not complaining but we are fighting for our money and for our country..

  11. the middlefingers on

    there is more to this issue than what people are being taken for a ride. people should ask aquino where the DAP funds really came from? the jailed woman and aquino knew the answer to that question.

  12. I believe in what the President is trying to do. In fact, to me, he has done most in a mid-term to the presidency compared to the presidents since President Macapagal. Now, if his DAP is found to be illegal by the Supreme Court, let us afford him the opportunity to resign and not prosecute him. But if he does not resign the presidency voluntarily, that’s when legal action (prosecution or impeachment) must be initiated.
    No one must be above the law.

    But then again for the Philippines, such a scenario would be too perfect to be realistic, so . . .

  13. This “Napoles” case vis-a-vis the PDAF AND THE DAP,has already become the Media’s SMORGASBORD!Enough of its malicious repercussions on the lives and reputations of the innocents.Let us all support the PEOPLES INITIATIVE that our brilliant professor SJ PUNO is spearheading!While we also hopefully wait for the wisdom of our JUDGES and JUSTICES,SECRETARIE’S AND MAGISTRATES in their noble quest for Justice!

  14. Hulihin muna at kasuhan na iyon MANDARAMBONG ng PDAF kasama na ng kakuntiaba ng mga opisyales na BOGUS na NGO or legitimo naman na NGO e peke naman ang proyekto, pati na iyong mga “COMMISSIONERS” ng bayan. KUMUKUHA, TUMATANGGAP ng COMMISSIONS/REBATE sa bawat government funded projects. MaDAmi YAN.. kailangan LANG ng WHISTLE BLOWERS…

    YUNG “DAP” pa audit muna at tignan kung may ANOMALYA… at KUMUHA ng MATALINO, MATUWID, qualificado at TAPAT ng manunungkulan sa bawat SAngay ng PAMAHALAAN – Executive o Judiciary at IHALAL yung MGA MATALINO, MATUWID, qualificado at TAPAT na SENADOR at CONGRESSMAN.

    Mabuhay ANG PINOY! mABUHAY ang PINAS!

  15. hay naku..nalulugaw na naman ang kaso…nilalayo na ang istorya…nakalimutan na nga ang “ampatuan massacre”..gusto pang kalimutan ang kaso sa pdaf…

  16. the end does not justify the means… I still believe Pnoy is an honest person… However, as I have just said, though he meant it for good of the Filipino people, if the use of DAP is illegal, it is still against the law. His advisers should be the one to be blamed for this. they put their boss in a bad situation.

  17. Ang malaking problema dyan sa DAP na yan maliban sa being unconstitutional e ganon ganon na lang mamigay ng pera 50M kay senador, 100 M kay senador, 10 M kay congressman on the flimsy reason to spur the economy. Ang mabuti nyan ipunin lahat ang mga sinasabing savings at mga available funds gaya ng malampaya funds, road users tax. pagcor at pcso funds na pwedeng umabot ng 400 billion at direclty ibigay sa mga tao. Sa 100 million population kahit sa tig isang million bawat pilipino aabot lang ng 100 billion sobra sobra pa ang mga sabing pondo. kung directly ibibigay sa tao sure na ma spur ang economy lalo na ngayong sinasabing investment hub ang pilipinas kesa maubos lang ang mga perang yan sa mga magnanakaw. Halos more than 30 years na rin tayo naghihintay ng ginhawa na hindi dumating dating dahil sa mga nakawan at imcompetent leaders. Its time na tayo naman ang magpasasa

  18. Our legal luminaries are always making threats but have not contributed into making our lives clear and simple. It seems that they thrive on injustice and insecurities. No offence meant but I believe they can do better.

  19. Hehe, talagang pabagsak na ang eroplano ni Pnoy….he thought he could soar to the skies, with his immense (and fabricated) popularity….

    Eh biglang nabuking ang wholesale corruption…nawawala ang P136B Malampaya Fund sa landbank, naubos ang kanyang P625 B Presidential Social Fund, pwera pa mga PAGCOR at PCSO at GOCC incomes….

    …at, worst of all, nakalubog pa tayo sa P5.3T foreign debt….kaya lagi sila masaya tuwing naa-upgrade ang credit rating kuno…..WTF?!!!!!

    God, maawa ka naman sa amin…pave the way out for this THIEF…

  20. If there is a case of impeachment and Pnoy will be impeached, vice president Binay will be benefited, and we know already him! I’d rather to have a presidential election than impeachment in which we can select or vote a principled and uncorrupted man to ran our country. In time like this, we don’t need Binay nor Pnoy. We need a tough and principled man, who really fight corruptions.

  21. sinong ipalit nyo si BINAY? mas lalong gugulo at maghirap ang pinas! puro hoodlom ang kakampi ni BINAY! ppweh!

  22. There is something wrong with what the administration is calling savings which is the source for the DAP. Actually, most of them are really not savings but they are unused funds on projects appropriated by Congress. A lot of those savings are questionable in that either the project was not completed or the remaining funds were recalled by the Executive, resulting in an unfinished project. Those unspent portion for incomplete projects should not be transferred to DAP but to be used to complete the project. Aquino and company just muscled their will and took the monies to DAP. And this Evardone is talking nonsense. The issue on the DAP is not whether it was properly used, misused or abused but it is its constitutionality. Can he not get that to his head?

    • mar j maglasang on

      kaya palaging palpak ang mga ginagawa ng ating pamahalaan kc may ibang batas ang sinusunod nila ung batas na inimbento nila….un kung may hostage taking palpak palagi..magresulta sa patayan katulad ng yung sa Rizal Park, 8 chinese ang namatay, ung hostage dun sa Zamboanga city…ilan ang namatay, may nasusunug pa na kabahayan….sinu ba itong mga opisyales na nahalal natin HARI NG SABLAY? UNG superhighway na dahil lang sa ulan ay naputol ,ung sa SCTEX 34 BILLION PESOS ANG GASTOS,,,,PALPAK

    • Yes, this must be the only way the “matuwid na daan” has to go, if indeed DAP is declared illegal by the Supreme Court. Impeached or resigned, only the Vice President (Atty. Jejomar Binay, in this case) is the legal successor should worse comes to worst.

  23. I do not think the President will be impeached. What I think is a “President Nixon scenario will happen soon in the Philippines”. Look at what President Nixon said at the height of the Watergate Scandal – “I am not a crook”. What did President Aquino said recently – “I am not a thief”. Magkamukha, hindi ba?

    It is very interesting to note that Vice President Binay is silent all the way on this scandal that is happening in the Philippines. He has not uttered a word about it, he being the Vice President. Is something going on between the President and the Vice President?.

    President Nixon resigned before being impeached and Vice President Ford pardoned him immediately thereafter. Is the Nixon scenario will ever happen in the Philippines? Your guess is as good as mine.

  24. I would like for DAP to be fixed so it would be legal for any honest President like PNOY who has been trying his best to reform a dysfunctional government riddled with all kinds of corruption for decades now. All of the critics taken together will not equal the good, done by this president in a short period of time. If I were you,you have to be careful, in your criticism about the popular leader who has not been tainted with any shenanigans, because you might end up the target of the peoples anger, that will plunge the country in turmoil with catastrophic consequence. I hope and pray that the country and its leader be guided by the Holy Spirit to continue to serve the most vulnerable among us, moving forward.

    • there’s no doubt he is honest, not corrupt and sincere in his desire to do good for the filipinos. However, this does not mean he is not liable for the DAP scheme they created… it is technical malve isation per se if you used an appropriated funds to DAP. for ex. DBM tranferred 500M from the 700m funds for the Tacloban Airport Project and used it to other project other than which it is intended to that is malvarsation of public funds. What if the next president will used the same scheme… pano yan ni legalized ng Aquino Administration yong scheme nayan at hindi kalinis ang pumalit sa kanya? Dura lex sed lex… the law will be harsed to him but that is the law

    • Please, please, please, Nito. DAP if unconstitutional, therefore, illegal. What is there to fix in something illegal? And what is there to reform when in the first place, there was no attempt to reform, fact is, things in the country are getting worse. Wake up, my friend. Look around you and see how bad things are. Look around you and ask those citizens in the esteros, in the squatter districts if the money and funds intended for them even reached their door steps not ending the pockets of the legislators being bribed by PNoy and diverted their allocations to Napoles, et al. Wake up, my friend. We do not have a leader in PNoy, rather, we have a puppet in his person.

    • At the start I have a very high reards to PNOY. I lost my confidence on him that he had not initiated REFORMS in the goverment and trying to fix at a later date when most of his COHORTS had fattened their pockets.

  25. It will be very difficult to impeach the King of Pork Barrel. PNoy still have those thieves and pigs in the Lower House and Senate who will just act as blind, deaf and dumb legislators who will throw the impeachment acts into the garbage. Why, because they owe it to PNoy for all those bribes and extra bribes they received from him as well as they will expect more bribes until 2016. Exactly opposite to what happened to the poor man, Renato Corona who never had a chance from the very beginning. Corona was not facing impeachment via legal means but bribe money being distributed by no less than the President of the country to 99.9% of those pigs legislators to assure his guilt. In that Corona impeachment process, let us always bear in mind that PNOY USED PEOPLES TAX MONEY, NOT HIS PERSONAL FUNDS to impeach a sitting CJ.

  26. in that case…to make all the spending legal..let the SC decide where to spend the money..and let them implement all the projects…para makita nila ang totoong nangyayari sa labas ng kanilang kaharian!

    • What we have in this country is supposedly a democratic presidential form of government which has checks and balances between the 3 branches of government. Congress as the lawmakers, the Judiciary as the law interpreters and Executive as the law implementers.

      The Executive (headed by the President) CANNOT BE interpreters and implementers at the same time. That is usurping the powers of the Judiciary. The biggest question at the moment is if DAP is legal? THAT IS NOT FOR THE EXECUTIVE TO DETERMINE. When the law needs to be interpreted, IT IS THE JUDICIARY’S DOMAIN.

      It doesn’t matter if the president is the most honest person next to Jesus Christ. IT IS STILL THE JUDICIARY WHO WILL INTERPRET THE LAW, not the Executive.

      In this case, DAP is nowhere to be found in the law. So what does that make of all the “incentives” given to certain Congress members in the name of DAP as confirmed by Abad himself?

  27. Roldan Guerrero on

    IGNORANCE OF THE LAW EXCUSES NO ONE BUT CERTAINLY SUFFER THE CONSEQUENCES! BSA is not only ill advised by his Trash Legal Team but shows his gross ignorance of the law. Basic law says juggling of funds is illegal and that is exactly what DAP means. The PORK BARREL KING who pretends to know everything is now standing infront of the building where Napoles is staying and it is certain now that he will live beside the Pork Barrel Queen^s cell before his term ends. Let us see how much his two appointees in the Supreme Court can do to save him,.

  28. As long as he has the power to feed his cohorts in both houses of congress PORK, he’ll stay in power.

  29. Pinoy Makabayan on

    Thank you IBP. Mga abogado ng bayan, oras na talagang ipaglaban niyo ang ating bayan sa mga nananamantala at bumabaluktot at lumalabag sa ating mga batas! Sampahan ng impeachment at mga kaso ang mga yan!