Aquino’s DAP: lethal mix of ignorance and arrogance

Commentary

By Ellen T. Tordesillas

President Aquino’s belligerent stand against the Supreme Court’s decision declaring his pet initiative, the Disbursement Acceleration Program, unconstitutional was not at all surprising considering his defense of Budget Secretary Florencio Abad, Jr. last Friday.

Reading and listening to his speech was not only appalling. It was disturbing.

It showed  the  lethal combination of  ignorance and arrogance.

The issue is his usurpation of Congress’ power of the purse which is  a violation of the Constitution and he talked  about parking zones.

The President cited  provisions the 1987 Administrative Code as legal basis of DAP. He said, “..we were surprised to find that the Supreme Court decision did not take into account our legal basis for DAP. How can they say that our spending methods are unconstitutional when they did not look into our basis? Even until now, Section 39 of the Administrative Code is in effect, along with its other sections.”

What he was referring to was Book VI, Chapter 5, Section 39 of the 1987 Administrative Code of the Philippines which states, “Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations…”

Did he read the part, “be used to cover a deficit …”.  I dare Malacanang to show a certification of deficit  from  the agencies it gave DAP funding to.

In what is an indication that Malacañang is hard put scrambling for justification for DAP, Aquino cited Sec. 39 of the  1987 Administrative Code while the Solicitor General Francis Jardeleza invoked Sec. 38 in his defense of  DAP before the High Court.

Section 38 on suspension of Expenditure of Appropriations states:”Except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorized in the General Appropriations Act, except for personal services appropriations used for permanent officials and employees.”

The main decision penned by Justice Lucas Bersamin said, “The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropriations were invalid for being bereft of legal support.

Justice Antonio T. Carpio, in his concurring decision, lengthily explained why  DAP cannot be legal based on the  1987 Administrative Code  issued  by President Corazon Aquino, which her son now is clinging to to save his presidency.

Carpio’s explanation: “Section 38, Chapter V, Book VI of the Administrative Code of 1987 allows the President ‘ to suspend or otherwise stop further expenditure ‘ of appropriated funds but this must be for a legitimate purpose, like when there are anomalies in the implementation of a project or in the disbursement of funds.

“Section 38 cannot be read to authorize the President to permanently stop so as to cancel the implementation of a project in the GAA because the President has no power to amend the law, and the GAA is a law.

“ Section 38 cannot also be read to authorize the President to impound the disbursement of funds for projects approved in the GAA because the President has no power to impound funds approved by Congress.

“The President can suspend or stop further expenditure of appropriated funds only after the appropriated funds have become obligated , that is, a contract has been signed for the implementation of the project. The reason for the suspension or stoppage must be legitimate, as when there are anomalies. The President has the Executive power to see to it that the GAA is faithfully implemented, without anomalies. However, despite the order to suspend or stop further expenditure of funds the appropriated funds remain obligated until the contract is rescinded. As long as the appropriated funds are still obligated, the funds cannot constitute savings because ‘savings’ as defined in the GAA, must come from appropriations that are ‘free from any obligation or encumbrance.’

“Section 38 cannot be used by the President to stop permanently the expenditure of unobligated appropriated funds because that would amount to a Presidential power to impound funds appropriated in the GAA.

“The President has no power to impound unobligated funds in the GAA for two reasons: first, the GAA once it becomes law cannot be amended by the President and an impoundment of unobligated funds is an amendment of the GAA since it reverses the will of Congress;second , the Constitution gives the President the power to prevent unsound appropriations by Congress only through his line item veto power, which he can exercise only when the GAA is submitted to him by Congress for approval.

“Once the President approves the GAA or allows it to lapse into law, he himself is bound by it.

“There is no presidential power of impoundment in the Constitution and this Court cannot create one . Any ordinary legislation giving the President the power to impound unobligated appropriations is unconstitutional.

“The power to impound unobligated appropriations in the GAA, coupled with the power to realign such funds to any project, whether existing or not in the GAA, is not only a usurpation of the power of the purse of Congress and a violation of the constitutional separation of powers, but also a substantial re-writing of the 1987 Constitution….

“Section 38 cannot be invoked by the President to create ‘savings’ by ordering the permanent stoppage of disbursement of appropriated funds, whether obligated or not. If the appropriated funds are already obligated,then the stoppage of disbursements of funds does not create any savings because the funds remain obligated until the contract is rescinded. If the appropriated funds are unobligated , such permanent stoppage amounts to an impoundment of appropriated funds which is unconstitutional.

“The authority of the President to suspend or stop the disbursement of appropriated funds under Section 38 can refer only to obligated funds;otherwise, Section 38 will be patently unconstitutional because it will constitute a power by the President to impound appropriated funds…

“Therefore, it is grave error to construe that the DAP is an exercise of the President’s power to impound under Section 38, Chapter VI, Book VI of the Administrative Code of 1987.

“The OSG and DBM do not interpret Section 38 as granting the President the power to impound. The essence of impoundment is not to spend. The essence of DAP is to ‘spend, spend,spend,’ in the words of the Solicitor General.”

Harry Roque, one of the petitioners representing the Concerned Citizens Movement, said, it is elementary: “Administrative Code cannot prevail over the Constitution.”

Is that too much for President Aquino  to understand?