SC justice: Abad knew DAP is unconstitutional

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Thursday, July 3, 2014

A MEMBER of the Supreme Court (SC) said Budget Secretary Florencio Abad might have established the controversial Disbursement Acceleration Program (DAP) despite knowing its constitutional infirmities.

In his separate opinion, Associate Justice Arturo Brion recalled that during the oral arguments early this year, Abad admitted that he has an extensive knowledge of both the legal and practical operations of the budget.

Add to the fact that Abad, a lawyer, was a member of the House of Representatives for 12 years and once headed the powerful appropriations committee, which scrutinizes the proposed national budget submitted by the President.

"It is inconceivable that he did not know the illegality or unconstitutionality that tainted his brainchild. Consider, too, in this regard that all appropriation, revenue and tariff bills emanate from the Lower House so that the chair of the appropriations committee cannot but be very knowledgeable about the budget, its processes and technicalities. In fact, the Secretary likewise knows budgeting from the other end, i.e., from the user as the DBM Secretary," Brion said.

Armed with this knowledge, Brion surmised that Abad went around the budget and its processes to push for the DAP, key parts of which were declared unconstitutional by the SC for withdrawing funds that are not considered as savings, pooling them together, and using them to finance projects even outside the Executive branch.

Brion also noted Senior Associate Justice Antonio Carpio's observations that the Cabinet official could not have been in good faith.

Citing Carpio, Brion said the Department of Budget and Management (DBM) implemented the DAP even if it is aware that the SC issued rulings on savings and power to realign. The DBM was a respondent in these cases.

The DBM also allegedly failed to present evidence that the Bureau of Treasury had certified that revenue collections for fiscal years 2011, 2012 and 2013 exceeded original revenue targets, which is a requirement for the use of unprogrammed funds.

During the oral arguments, Abad also admitted that DAP funds were made available to the Commission on Audit (COA) and the House of Representatives despite his awareness that cross-border transfer of funds is prohibited under the Constitution.

Specifically, the DBM released P143.7 million on November 11, 2011 for the IT infrastructure program and hiring of additional litigation experts for COA and P250 million for the completion of the construction of the legislative library and archives building of the House.

The SC hinted at slapping civil, administrative, and criminal liabilities against the authors, proponents, and implementors of the DAP if proven that they acted in bad faith.

Using the doctrine of operative fact, the Court said projects, activities and programs under the DAP remain valid because doing otherwise will result in injustice to the public or innocent third parties.

To illustrate, Carpio said if DAP funds were used to build schools without anomalies other than the fact that DAP funds were utilized, the contract could no longer be rescinded for to do so would be unfair to the innocent contractor who built the schools in good faith.

However, if DAP funds were used to augment the Priority Development Assistance Fund (PDAF) of members of Congress whose projects turned out be anomalously implemented or non-existent, Carpio said the doctrine of operative fact would not apply.

This means charges should be filed against the lawmaker involved.

In Abad’s case, however, Brion said it is not for the SC to determine whether the DBM chief should be made liable because of the DAP.

“Neither can we make any pronouncement on his criminal, civil or administrative liability, i.e., based on his performance of duty, since we do not have jurisdiction to make this kind of ruling and we cannot do so without violating his due process rights,” the magistrate said.

The Office of the Ombudsman has said it will soon investigate the DAP transactions to see if any crime or offense has been committed by involved public officials while the Kabataan party-list is gearing up for the filing of malversation raps against Abad.

Some groups and even Senator Miriam Defensor Santiago are calling for Abad’s resignation.

As of 2013, a total of P144.4 billion worth of projects, activities, and programs (PAPs) were implemented through the DAP, which was created in late 2011 to ramp up spending and push economic growth.

Of this amount, P82.5 billion were released in 2011 and P54.8 billion in 2012.

Abad earlier reported that 9 percent of the total DAP releases went to PAPs identified by legislators. (Sunnex)

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