Can the President of the Philippines commandeer the savings of cabinet ministries and agencies of government, pool these into a single fund and dispense the money in any way he pleases, whether for good or bad, without a law authorized by Congress?
The answer, obviously, is No.
But that is precisely what President Benigno Simeon Cojuangco Aquino 3rd has done. His budget secretary, Florencio Abad, forcibly took the savings of cabinet departments and agencies of government, and created what he himself has called the Disbursement Acceleration Program or DAP.
The Philippines is a government of laws. No man is above the law. Not even the President of the Philippines. Even if the chief executive is someone as popular as BS Aquino, who won the presidency riding on the reflected glory of the iconic heroes Benigno S. Aquino Jr., who was assassinated Aug. 21, 1983, and former President Corazon Cojuangco Aquino, who died on Aug. 1, 2009, nine months before the May 2010 presidential elections.
Section 25 of Article VI of the Philippine Constitution says:
“(5) No law shall be passed authorizing any transfer of appropriations: however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”
“(6) Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law.”
Moreover, Section 29 of the same Article VI says:
“(1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”
“(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.”
Citing Sections VI and XXIX, the Philippine Constitution Association (Philconsa) on Oct. 8, 2013 asked the Supreme Court to stop the enforcement of the DAP.
Cited as respondents are the Department of Budget and Management (DBM) and Budget Secretary Florencio B. Abad, a stalwart of BS Aquino’s ruling Liberal Party and one of his closest advisers.
The petition was signed by lawyer Manuel M. Lazaro, chairman of Philconsa and counsel for petitioners—former University of the Philippines Law Dean Froilan Bacungan and lawyers Rita Linda V. Jimeno, Reynaldo Y. Maulit and Romulo B. Lumauig, as well as former Budget Secretary Benmjamin E. Diokno and former National Treasurer Leonor M. Briones.
Said the Philconsa: “This petition involves the ‘Toxic Golden Pig’ (TGP) called `Disbursement Acceleration Program’ (DAP) that scourged the people and fomented public outrage and fury. The acronym “DAP” sired vexatious and mischievous references. The addlepated DAP was issued and implemented by respondents with grave abuse of discretion amounting to lack or excess of jurisdiction, accented by palpable violations of the Constitution and penal laws. It violated and defiled the great trinity in the triadic separation of powers, the very anchor of constitutionalism.”
“The DAP is veiled and implemented as a law. DAP is admittedly established by respondents DBM and Hon. Florencio B. Abad, not by Congress. Hence, DAP is not a law. DAP is funded by DBM from unspecified or tainted sources, not approved by Congress. DBM/Office of the President boasted and published the DAP funds were used for laudable programs, projects and activities (PR-DBM-OP) (Vide: Phil. Star issue of Oct. 5, 2013; Manila Standard issue of Oct. 6, 2013). However, they are not authorized or included in the General Appropriation Acts (GAAs). The OSEC-Communications Development admits the misuse of the DAP funds. The crafty implementation of DAP is the inventive creation of respondent DBM under the aegis of Abad. The toxic creation of DAP, its mystic sources of funds and the vicious accrual of funds from alleged savings and the profligacy in the use and abuse of funds are vitiated by infirmities and therefore odious. In the words of Macaulay, DAP is “all sail and no anchor.” DAP is void. All appropriations/disbursements/actions founded or emanating from DAP are invalid. The “TGP”/DAP is unconstitutional and unlawful. The DAP is the “magic wand” that transmogrifies public funds.”
“The DAP is the classic anathema to the constitutional mandate, “No money shall be paid out of the treasury except in pursuance of an appropriation made by law” (Sec. 29, Art. VI of the Constitution) and the injunction that the President may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items in their respective appropriations”, (Sec. 25(5), Art. VI of the Constitution): and the well-defined meaning of “savings,” “augmentation” and realignment in the GAAs.
The Philconsa warned that:
“Until and unless the respondent and its functionaries and agents/instrumentalities are immediately restrained/enjoined from continuing to implement the DAP (despite announcements it will be suspended), grave irreparable injury will be caused to the Filipino people, and decent public functionaries and the people will remain restive and agitated.”
For relief, the Philconsa is asking the Supreme Court, “in the exercise of its legal and equity jurisdiction, that a judgment be rendered:
1) Declaring the creation/establishment and implementation of the Disbursement Acceleration Program (DAP) by the respondents DBM/Abad and their functionaries, agents or instrumentalities unconstitutional, illegal and void; and respondents are prohibited from further doing/acting or funding/disbursing on any matter arising from, connected with or related to the unconstitutional and unlawful DAP;
2) Prohibiting/enjoining the recipients/beneficiaries of the DAP funds from using funds received and return the balance of unspent funds to the National Treasurer;
3) Ordering and directing the NBI and/or Chief of Staff of the Armed Forces of the Philippines and/or Director General of the Philippine National Police, designated on motion of petitioners, to seize the funds, assets or properties acquired thru the use of the DAP funds and turn over the same to the National Treasurer;
4) Ordering the NBI and/or the Office of the Solicitor General to file charges against all persons who participated in the establishment of DAP and in the release and use of funds and the recipients/beneficiaries who conspired and to report to the Court Administrator, status of actions undertaken pursuant to this Decision on a quarterly basis; and
5) Ordering the Integrated Bar of the Philippines (IBP) to request the assistance and cooperation of associations of lawyers whose membership are also members of the IBP assist the DOJ, National Bureau of Investigation (NBI) and OSG to prosecute public functionaries/parties who are accountable and/or to file civil and criminal cases for the recovery of public funds that were squandered and make a quarterly report to the Supreme Court of the status of the cases filed.
The Philconsa said it filed the urgent special civil action for certiorari and prohibition in keeping with its mission to preserve, protect and defend the Constitution.