POSTSCRIPT / January 30, 2014 / Thursday


Opinion Columnist

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SC must decide, not drop, DAP petitions

BIZARRE LOGIC: Malacañang’s legal logic is bizarre. It says that petitions for the Supreme Court to declare as unconstitutional the administration’s Disbursement Acceleration Program should be dismissed because DAP is being terminated anyway.

The questioned deed, which is the use of DAP funds for agencies outside the Executive department, has been committed. The petitioners are not challenging future transactions but disbursements already consummated.

This analogy may be a bit off, but the administration’s logic is like asking that charges of rape be dropped just because the accused has stopped raping his victim or has promised not to rape other women.

The question before the Court is over the constitutionality of spending Executive savings and unprogrammed sums for expenses of separate agencies such as the Commission on Audit or for pork barrel-like projects chosen by senators and congressmen.

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RULING NEEDED: The question over the constitutionality of DAP – widely referred to as presidential pork — stands. It must be answered clearly and quickly by the Supreme Court if only for these ends:

• To penalize officials who have been reckless or negligent in managing public funds under their care in violation of the Constitution and related statutes.

• To lay down clear guidelines on the crossing of departmental boundaries in the disbursement of savings (assuming they are technically “savings”) impounded in the DAP barrel outside the national budget.

• To clarify by amplification the tribunal’s definition of what “pork barrel” is.

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SMOKING GUN: Solicitor General Francis Jardeleza has said the government submitted seven memoranda signed by President Noynoy Aquino authorizing the use of DAP funds for 116 disbursements before the “pump-priming” operation was stopped middle of last year.

The petitions questioning the constitutionality of DAP have become moot and academic, he said, since the controversial program has become “extinct.”

The Court may have to rule also if the President’s signature on the documents “legalized” the disbursements or, instead, dragged him into the case. It could serve as the “smoking gun” implicating him.

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DAP EXPOSED: The use of presidential pork was questioned just as the furor over the Priority Development Assistance Fund – known as legislative pork – came to a head with the Supreme Court’s declaring PDAF unconstitutional.

The existence of DAP and its trans-departmental use came to light after Sen. Jinggoy Estrada exposed in a privilege speech that he and a few other senators received DAP funds after the Senate convicted impeached Chief Justice Renato Corona in 2012.

Budget Secretary Florencio Abad had to confirm the existence of DAP created, he said, to stimulate the economy. “The DAP is not about the use of savings and unprogrammed funds but a package of reform interventions,” he explained.

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CROSS-TRANSFER: At the SC, Justice Lucas Bersamin noted, however, that the Bureau of Budget and Management memorandum to the President on June 25, 2012, gave the impression that the objective was to “create a big pool of savings” and not to stimulate the economy.

Bersamin also asked about possible violation of the Constitution when DAP was used for “cross-border augmentation” of funds from one department to another.

Abad admitted two instances when Malacañang did this: (1) when the House of Representatives asked for additional funds for an e-library and (2) when the CoA requested for funding of one of its projects.

A related question is what constitutes “savings.” It has been observed, for instance, that funds not spent in the middle of the fiscal year are hurriedly withdrawn and then impounded as savings in the DAP for use elsewhere.

Sometimes lump sums are appropriated without any intention of using them for the avowed purpose. The forced savings are then withdrawn and diverted to the DAP.

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DEFECTIVE CIRCULAR: Some justices, including Chief Justice Ma. Lourdes Sereno, are examining some “defects” in National Budget Circular No. 541, issued by Abad in July 2012.

The circular allowed withdrawn allotments to be used to “augment existing programs and projects of any agency and to fund priority programs and projects not considered in the 2012 budget but expended to be started or implemented during the current year.”

The petitioners disputed the declaring as savings of the withdrawn allotments. Using the funds for items outside the budget, they said, violated Section 25 (5) of the Constitution that says:

“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.”

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SMUGGLING: A senior Customs official, meanwhile, may have inadvertently explained why, despite the administration’s neglect of agriculture, it boasts that the country will be self-sufficient in rice this year and will even be exporting the cereal next year.

Customs Deputy Commissioner Agaton Teodoro Uvero told a Senate hearing in reply to a question of Senate Minority Leader Juan Ponce Enrile that at the height of rice smuggling, as much as 50,000 tons is illegally brought in every week at 25 tons per 20-foot container.

And that is only rice. Overall data from the International Monetary Fund’s Direction of Trade Statistics indicate that smuggling under the Aquino administration has averaged $19.6 billion annually.

Compare that to the $3.1 billion and the $3.8 billion yearly during the Estrada and the Arroyo administrations, respectively. In the first two years of the Aquino administration, the value of smuggling totaled $39.2 billion, more than the $35.6 billion during the entire nine years of the previous Arroyo administration!

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(First published in the Philippine STAR of January 30, 2014)

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