An overwhelming majority of justices of the Supreme Court (SC) are expected to concur with the draft ponencia of Associate Justice Lucas Bersamin that declares the Disbursement Acceleration Program (DAP) as unconstitutional.
The Manila Times’ source in the tribunal said Bersamin’s 95-page ponencia raised four points on why DAP was illegal.
“Ang ganda ng pagkakasulat ni Luke [Bersamin’s nickname] mahirap kontrahin. Eh magaling naman talaga si Luke. Kaya sure na unconstitutional ang DAP [The draft decision is well written, it would be hard to question it. Bersamin is really good. It’s sure that DAP will be ruled as unconstitutional],” the source said.
The source added that Bersamin’s ponencia declares DBM Circular 541 unconstitutional and orders the issuance of a “prohibitive injunction” against the circular from the Department of Budget and Management.
The circular, issued by Budget Secretary Florencio “Butch” Abad on July 18, 2012, allowed the DBM to withdraw and pool the unobligated allotments of agencies “with low levels of obligations for continuing and current allotments.” These funds were then used for other priority programs and projects.
Several groups and individuals, including the Integrated Bar of the Philippines; Philippine Constitutional Association; Volunteers Against Crime and Corruption; Carol Araullo; Pork Barrel System Petitioners led by Greco Belgica, Reuben Abante and Jose Gonzales; former Iloilo Rep. Augusto Syjuco; and Citizens Crime Watch as represented by lawyers Jose Malvar Villegas Jr. and Manuelito Luna, filed petitions questioning the legality of the DAP at the Supreme Court.
The respondents are President Benigno Aquino 3rd and Abad.
Malacañang cited poverty alleviation as a major reason behind its creation of the program.
The SC en banc is expected to vote on Tuesday, July 1, on whether DAP is constitutional.
In his ponencia, Bersamin raised four grounds on why DAP is unconstitutional—cross border tossing of funds, use of funds for unlisted projects, implementing new projects even if concerned agencies had no savings to fund such projects and using DAP funds for projects that did not undergo bidding.
The magistrate said the SC “ought to halt the cross border tossing of funds,” referring to the transfer of government funds from one branch to another. The justice, in particular, pointed out the illegal transfer of funds by the executive department to the Commission on Audit and the Commission on Elections and the legislative branch.
This “cross-border” scheme was first employed by Malacanang at the height of the impeachment trial of former Chief Justice Renato Corona. The Times source said most of the justices are of the opinion that the scheme violates the doctrine of separation of powers.
Although the Constitution allows the President to use savings under his “fiscal autonomy”, the magistrates are of the opinion that he cannot transfer savings to other branches of the government.
The SC magistrates also pointed out that projects that are not listed under the General Appropriations Act (GAA) must be declared illegal and unconstitutional. They said the GAA has the force and effect of a law since it is passed by Congress and signed by the President of the Philippines. As such, the SC justices see that a prohibitive injunction must be issued in funding projects that are unlisted under the GAA.
Some justices also believe that it is unconstitutional to fund projects if there are no savings to begin with for these projects to get started, as well as bankrolling with DAP funds projects that are awarded despite the absence of public bidding.
It was Sen. Jose “Jinggoy” Estrada who exposed DAP when, in a privileged speech, he claimed that the senators were bribed by as much as P50 million each to convict Corona. He said the money given to the senators came from DAP.