… the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances [are declared]UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.
— Supreme Court decision on DAP
HERE’s the latest twist in the administration’s effort to justify President Benigno Aquino 3rd’s illegal Disbursement Acceleration Program, which covered between P140 billion and P170 billion in public expenditures, according to varying soundbites.
The new DAP tack rolled out by Aquino allies in Congress and mainstream media is to focus public attention and congressional action on the issue of misdeclaring savings. With this distraction, the apparently aim is to wipe from the public mind the inexcusable and far more serious violation of spending on “projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.”
This DAP disinformation was on display in Senate President Franklin Drilon’s interview yesterday morning on ANC’s Headstart program, hosted by Karen Davila. Unless they’ve read the Supreme Court decision, especially the dispositive portion quoted above, most people watching Drilon and Davila would think that the main violation committed by Aquino and his Budget Secretary Florencio Abad had to do with savings.
As a seasoned lawyer and a former Justice Secretary, Drilon knows that the High Court ruling cited three violations: misdeclaring savings, transferring Executive Department appropriations to other branches of government and constitutional commissions, and allocating public money on expenditures not approved or budgeted by Congress, the only entity empowered by the Constitution to authorize any government disbursement. But he never mentioned the last two offenses, and Davila didn’t press him hard on it.
Absolving the President
This misinformation may help absolve the President and his alter ego of fiscal and criminal liability, if only in the public mind. Wrongly declaring and realigning savings could be excused as a purportedly honest mistake due to an erroneous interpretation of the GAA definition of savings. Plus: The subservient Congress plans to amend the law to include the DAP manner of declaring savings among those allowed under the budget.
Senate President Drilon went even further, suggesting that the Supreme Court ruled DAP unconstitutional under its own reading of the statutes on savings. Hence, he contended, Congress just has to clarify what it really meant in the savings definitions, and all would be made right.
Not so. The definitions in the 2011, 2012 and 2013 national budgets were clear and not open to wide interpretation. The GAAs provided that savings can only come from three sources: unspent appropriations of programs and projects already completed, discontinued or abandoned; unpaid salaries and other compensation for budgeted but vacant positions; and lower implementation costs due to greater efficiency and improved systems. In its bill to legalize DAP’s declaration of savings, Congress would, in fact, adopt a new definition altogether, different from the ones used in past budgets.
There is no such way out, however, for the much more egregious violation of spending DAP funds on items never authorized by Congress. For one thing, no government official who understands English can credibly claim that he misconstrued Article VI, Section 29 of the Constitution: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”
Anyone lacking in literacy or intelligence to correctly understand that provision is clearly unqualified to hold high public office. Since Aquino and Abad evidently have both the high education and the long experience required for their respective posts, they cannot claim that they misunderstood the charter’s prohibition against unauthorized government expenditures. Nor can Congress scrap this constitutional ban by merely passing a law.
To repeat: anyone who authorizes the disbursement of state funds for expenditures not covered by legislation, is guilty of violating the Constitution. And that is what Aquino and Abad did. Said the Supreme Court ruling: “Upon careful review of the documents contained in the seven evidence packets [presented in the case], we conclude that the ‘savings’ pooled under the DAP were allocated to PAPs [programs and projects]that were not covered by any appropriations in the pertinent GAAs.”
Under the Revised Penal Code, such unauthorized spending is punishable as malversation, at the very least. The Commission on Audit can also order culpable officials to pay back misappropriated funds. If the expenditures unduly benefited the officials who authorized them, that could be grounds for corruption or plunder charges. And for impeachable officials like Aquino, disbursing public monies with no budget cover may constitute culpable violation of the Constitution and betrayal of public trust.
Few expect the current Congress to impeach him for the biggest misappropriation of funds in Philippine history. Nor is his handpicked Ombudsman Conchita Carpio Morales likely to push for his impeachment so he can be held accountable. She probably won’t file charges either against DAP architect Abad. After all, she has been sitting on countless cases against Aquino allies in Congress, including dozens involved in the decade-old P700-million fertilizer fund scam, for which voluminous documents have long implicated those lawmakers.
All this may change, however, if an opposition Chief Executive takes power in 2016, and gains full access to all the DAP and pork barrel papers now locked up by Abad in the Department of Budget and Management.
Right now, Vice-President Jejomar Binay, leader of the opposition United Nationalist Alliance, is the most popular presidentiable. This week he revealed that administration feelers have contacted him about possibly uniting behind a single presidential standard bearer. Some factions in the Aquino camp, including his sisters, are said to look with favor on the VP, an Aquino loyalist since the time of the late president Corazon Aquino.
If her son backs Binay in 2016, it may well enable both to avoid accountability for unsavory allegations raised against them. Ensuring he is undisturbed after his presidency ends—that imperative may ultimately be the bottom line for Benigno Simeon Cojuangco Aquino 3rd.