DAP redux

A week before the State of the Nation address of the President, the Disbursement Acceleration Program (DAP) continues to be a major issue. It has overshadowed the economic breakthroughs the country has made with the clear sign that unemployment rate is finally showing signs of decline and reports that foreign investments especially from Japan, are now evidently on the rise.

Last week, I wrote my own personal conclusions about DAP primarily based on the 28-page decision written by Justice Leonen, former Dean of the UP College of Law.  Unlike most headlines, it is clear that the Supreme Court did not declare DAP as unconstitutional but only some parts of the program.  I agree with those who have said that DAP appears to have been impelled by good motives.

In 2011, many of the present  critics of DAP  were criticizing the government for underspending and, therefore, causing a slowdown in economic growth. The public demand then was for the government to launch some kind of stimulus spending program. Sometimes I wonder if it would have been better to launch the economic stimulus program without giving it a name like DAP.

It is ridiculous to say that the entire DAP  was immoral or motivated by personal greed. It is impossible to believe that P-Noy personally benefited from this program. Nor can anyone question the sincerity of DepEd Secretary Armin Luistro when he said that the P4 billion received from DAP was used to build more than 4,000 classrooms.

But I do agree that the use of the DAP funds should be audited and investigated just like any use of public funds. After all, there are also reports that five senators —Enrile, Estrada, Marcos, Sotto, Revilla – channelled the funds allocated to them through Napoles NGOs.

The other issues on DAP involve that of grounds for impeachment and criminal liability. Justice Leonen sounds very clear when he wrote: “ Likewise to rule that a declaration of unconstitutionality per se is the basis for determining liability is a dangerous proposition.”

On the issue of impeachment, it is hard to accept that the emerging pro-impeachment  coalition of Oliver Lozano, Augusto Syjuco, and Nery Colemenares  is a serious effort and not just for media opportunities.

After my last column, I received a message from a  highly respected legal practitioner and thinker who told me: “Dear Elfren, I just read your piece. If you really want to understand the [DAP] issue well , I would suggest you also read Justice Brion’s separate opinion. Tony Carpio’s opinion also deserves serious consideration. These are two justices that I truly respect in the Supreme Court.”

Here are his opinions on  whether the Supreme Court ruling  is ground for impeachment and whether there is any criminal liability.

On the issue of impeachment this is what he said:

“ Any mention of impeachment is stupid.

[There is] no culpable violation of the Constitution. P-Noy is not a lawyer. PNoy has control of the House [ of Representatives]. This [talk of impeachment] will be another chance for legislators to make money off the public coffers. Any impeachment talk has that effect.”

Then I asked him about the criminal liability. I just read that the United States Supreme Court had just ruled that several executive orders of President Obama were ruled unconstitutional by a unanimous decision of the Court. However, there was no mention of any criminal liability. The only talks of impeachment from certain extreme fringe groups and the usual hate-Obama people. The scenario seems akin to certain groups in the Philippines.

This is what this legal practitioner wrote to me:

[Supreme Court Justice] Brion had a long write up about good faith. The establishment of DAP is not necessarily a crime in the same way that plunder is a crime. But if proven that Butch Abad insisted even knowing that it violated the Constitution, there could be penalties. Improving the expenditure rate will not justify violation of the Constitution.

If people spent DAP funds not knowing the DAP is unconstitutional, no crime [is committed]. If the road is built, you cannot tear the concrete up. That is the meaning of the operative fact doctrine. Read [ Justices] Brion and Carpio. Very clear.”

It would seem that motive is really the center of these controversies. It is important that DAP is  very different from plunder and the PDAF scandals which were done for personal gain. No one has presented any evidence that P-Noy is guilty of personal gain.

If the motive of those behind the DAP is being questioned, then it is only fair that the motives of those behind the impeachment moves should also be examined.  

A very loud critic of PDAF is Bayan Muna, a party list that has regularly received pork barrel funds since the time of Gloria Macapagal Arroyo. Bayan Muna, according to records, in 2012 received P70,280,000 pork barrel releases and in 2013 again received P101,225,000 in pork barrel releases.

Teresa Abesamis, Businessworld columnist, has also pointed out that two of Erap Estrada’s top economic managers, former Budget Secretary Benjamin Diokno and former National Treasurer Leonor Briones are now severe critics of the present administration’s economic and fiscal policies. However, they were silent and acquiescent during the administration of Erap Estrada who was convicted for the crimes of plunder committed during his term. Perhaps, in their defense, the two officials decided to stay the course with Estrada because of “good intentions.”

In a recent blog, Raissa Robles has raised some arguments which could provide legal grounds for proving the constitutionality of the DAP. In short she says that the President has the power, under Section 38 of the Administrative Code “to suspend or otherwise stop  further expenditure of funds allotted for any agency or any expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.”

The President, under Section 49 of the Administrative Code has the authority to  use savings in the appropriations for 13 specific purposes. Two of them are covered by DAP including “priority activities that will promote the economic well being of the nation, including food production, agrarian reform, energy development, disaster relief and rehabilitation; and, repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities.”

The Administrative Code was drafted by then Executive Secretary Joker Arroyo and approved by President Corazon Aquino. Since there was no Congress at that time, the Code was considered a law and has never been repealed. According to Robles the pre-eminent legal luminary Rene Saguisag concurred with her opinion. However, my other lawyer friend does not believe that the Supreme Court will overturn a 13-0 decision.

On a final note, let me state that the President has the prerogative to retain or dismiss any Cabinet official.

An albatross is an inescapable burden that one metaphorically carries around his neck. When a Cabinet official becomes a political albatross it is time to go — even for those who have proven their competence and integrity. There were many such cases in previous administrations. But those cabinet officials left with their heads held high knowing it was for a greater cause.

In such cases, there is honor in resigning.

Email: [email protected]