Understanding the DAP issue

I must confess that I find that the issue of the Disbursement Acceleration Program (DAP) much more complex than I originally perceived. There are six different written decisions on what I thought was a unanimous decision.

There is today an emerging coalition composed of Oliver Lozano, Augusto Syjuco and Neri Colmenares of BAYAN bent on exploiting this issue by filing impeachment charges against the President even if the chances for their success is negligible at best. But these are groups that are perennially on the look-out for opportunities to be on media.

After perusing readings on the different decisions on the DAP by different Supreme Court justices, I decided to begin my personal study of the DAP with the 28-page decision written by Justice Marvic Leonen.  I was largely influenced by the knowledge that he was former Dean of the College of Law of the University of the Philippines and an activist lawyer for the rights of the cultural minorities. This seems like the ideal combination of the intellectual and the activist.

One conclusion is that the Supreme Court did not declare the entire Disbursements Acceleration Program as unconstitutional, as expressed in Justice Leonen’s opening statement: “I agree that some acts and practices covered by the Disbursement Acceleration Program, as articulated in the National Budget Circular No. 541 and in related executive issuances and memoranda are unconstitutional.” Note that he actually used the word “some” and not the whole program.

The second thing I discovered is that there are portions of the decisions where there are disagreements among the Supreme Court Justices in their DAP ruling. Here is what Justice Leonen wrote:

“Justice Carpio’s interpretation of Secton 38, Chapter 5, Book VI of the Administrative Code is that the power to suspend can only be exercised by the President to appropriate funds that were obligated. If the funds were appropriated but not obligated, the power to suspend under Section 38 is not available. Justice Carpio reasons that to allow the President to suspend or stop the expenditure of unobligated funds is equivalent to giving the President the power of impoundment. If, in the opinion of the President, there are unsound appropriations in the proposed General Appropriations Act, he is allowed to exercise his line item veto power. Once the GAA is enacted into law, the President is bound to faithfully execute its provision.

I disagree.

When there are reasons apparent to the President at the time when the General Appropriations Act is submitted for approval, then he can use his line item veto. However, at a time when he executes his priorities, suspension of projects is a valid legal remedy.

Suspension is not impoundment. Besides, the prohibition against impoundment is not yet constitutional doctrine.”

If I understand correctly, this portion defends certain presidential prerogatives contrary to the opinions of Justice Carpio. Leonen clearly states: “The President, not Congress, decides priorities when actual revenue collections during a fiscal year are not sufficient to fund all authorized expenditures. In doing so, the President may have to leave some items with partial or no funding. Making priorities for spending is inherently a function within the province of the executive.”

Aside from the issue of constitutionality, the other major issues of DAP are on the “good intentions” of the President and on the criminality of the consequences of DAP being declared unconstitutional. On both these issues, Justice Leonen apparently has clear conclusions. He wrote:

“DAP is a management program that appears to have been impelled with good motives. It generally sought to bring government to the people in the most efficient and effective manner. I entertain no doubt that not a few communities have been inspired or benefited from the implementation of these projects.”

It should be recalled that in 2010, during the first six months of P-Noy’s term, the primary criticism was that the economic growth was slowing because government spending had been drastically reduced. There was an overwhelming public demand for stimulus spending to increase economic growth. Since then, of course, one of P-Noy’s greatest achievements is that the Philippine economy had the second fastest economic growth in Asia, next only to China.

But Justice Leonen had a word of caution when he wrote: “Government has to find ways to cause change in the lives of people who have lived in our society’s margins, whether this be through well thought out infrastructure or a more egalitarian business environment or addressing the social services or ensuring that just peace exists. The amount and funding of these activities, projects or programs are critical...In the desire to meet social goals urgently, processes that similarly congeal our fundamental values may have been overlooked.”

But on the issue of criminality, Justice Leonen is clear: “Likewise, to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition. It is not proper that there are suggestions of administrative or criminal liability even before the proper charges are raised, investigated and filed.

Any discussion on good faith or bad faith is thus premature. But, in our jurisdiction, the presumption of good faith is a universal one. It assures the fundamental requisites of due process and fairness. It frames a judicial attitude that requires us to be impartial.”

However, Justice Leonen did say that while their decision states that the infrastructure — like roads and bridges — made under DAP cannot obviously be undone, all officials or beneficiaries of DAP expenditures should be audited to determine whether there was personal profit. Thus, Senators Enrile, Marcos, Sotto, Revilla, Estrada, who channelled their DAP funds through the Napoles NGOs, should be audited.

Justice Leonen’s 28-page decision is a highly recommended document that will guide and enlighten those who sincerely want to understand the controversial Disbursement Acceleration Program.

(Erratum: In the July 6 column, the word linger in “Our children must see that the mastermind is not innocent because his hired guns are afraid to linger him,” should have been finger.

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