Justice looks for evidence that Aquino OKd DAP
Senior Associate Justice Antonio Carpio on Tuesday looked for evidence that President Aquino had authorized Budget Secretary Florencio Abad to create the Disbursement Acceleration Program (DAP)—a little-known mechanism that impounded government savings and allegedly juggled among various departments.
Moments after the Supreme Court announced that it had declared unconstitutional the congressional Priority Development Assistance Fund (PDAF), the high tribunal opened arguments questioning the legality of the so-called presidential pork barrel.
During the five-hour hearing, Carpio said he had seen no official document that showed Aquino had realigned government savings for the DAP and authorized the Department of Budget and Management (DBM) to do it.
Questioning Bayan Muna Rep. Carlos Zarate, one of six lawyers representing nine anti-DAP petitioners, Carpio noted that there was no written document on the creation of the DAP in 2011 although he observed that there was a realignment of savings to that facility.
“No written document that there is the DAP and no written document that said the President realigned. So Secretary Abad realigned it,” Carpio said, adding that under the law, the President himself could realign savings. “It cannot be delegated,” he said.
Carpio noted that the DBM came out with a National Budget Circular No. 541 in 2012 “which regularized what was done in 2011 and 2012.”
But Carpio said while there was no document for the DAP this year, Malacañang still continued the program.
“So the secretary realigned but there was no presidential approval, which was even worse because they admitted they realigned in 2013 but there was no written directive from the President,” Carpio said.
He also maintained that the funds where the DAP was sourced by the DBM could not qualify as savings as defined under the law.
Carpio noted that under the Constitution, in order for the President to transfer funds from an office to another, he could realign savings from completed and discontinued projects.
Savings defined
But Carpio said the sources of savings stated by the DBM for the DAP could not be considered as savings as defined in the General Appropriations Act (GAA). These included unobligated allotments, dividends of government-owned and -controlled corporations, proceeds from sales of assets, and unprogrammed funds in the GAA.
“These are all sources of the DAP according to the DBM. But these do not qualify as definition of savings,” Carpio said.
Associate Justice Estela Perlas-Bernade also questioned Zarate on presidential authorization for the DAP. Zarate said that he had “not seen any circular that proves realignment of funds except a statement on a website that the DAP had been approved by the President.”
Raymond Fortun, another lawyer for the petitioners, pleaded for the issuance of a temporary restraining order for the DAP’s implementation, saying that “taxpayers were entitled to relief.”
Fortun asked the high court to stop the “haemorrhaging” of public funds through the DAP, noting that the DBM had listed 50 new projects amounting to P30.4 billion which was 279 percent more than the pork barrel allocations to senators.
He asked the high court “not to wait for the DAP to bare its fangs … or strike down another member of this court,” referring to claims that the Palace used the facility to oust Chief Justice Renato Corona.
Both Justice Marvic Leonen and Chief Justice Ma. Lourdes Sereno questioned Pacifico Agabin, on how he thought the high court should deal with the DAP case, whether there was an exercise of grave abuse of discretion by the President.
When Agabin referred to the privilege speech of Sen. Jinggoy Estrada that hinted that the DAP was used to bribe some senators to convict Corona in 2012, Leonen asked whether the court should rely on what one senator said.
Factual context
Leonen also asked Agabin and Zarate whether the court should first wait for the Commission on Audit to examine how spending was done under the DAP. He also asked whether the court would become a trier of facts by having had to examine the projects funded by the DAP one by one.
“So many facts have to be established here,” Sereno said, adding that many incidents and issues raised by the petitioners were based on newspaper accounts.
Agabin said that grave abuse of discretion involved factual context. “I believe the new definition of the power of judicial review now makes this court a trier of facts,” he said.
“This court has been designated the checker and balancer of the power between the three branches of government,” Agabin said, adding that the Constitution provided so in response to the “traumatic experience” suffered by the people during the martial law years.
Leonen also pointed out that the Circular No. 541 was dated 2012 and so no longer pertained to the current budget. He also asked if there was anything wrong with the President’s desire to improve the economy, reallocate unobligated funds to other projects rather than just be bound by what the GAA states.
Zarate, however, stuck to the petitioners’ stand, saying, “unobligated funds cannot be taken out; if they’re not spent, they should revert back to the general fund, and they may only be spent if there is legislative authorization.”
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