Professional Documents
Culture Documents
I. STATEMENT OF FACTS
Secretary Abad clarified that the funds had been released to the
Senators based on their letters of request for funding; and that it was
not the first time that releases from the DAP had been made because
the DAP had already been instituted in 2011 to ramp up spending
after sluggish disbursements had caused the growth of the gross
domestic product (GDP) to slow down. He explained that the funds
under the DAP were usually taken from (1) unreleased appropriations
under Personnel Services; (2) unprogrammed funds; (3) carry-over
appropriations unreleased from the previous year; and (4) budgets for
slow-moving items or projects that had been realigned to support
faster-disbursing projects.
Thereafter the DBM posted on its website that the DAP releases had
been sourced from savings generated by the Government, and from
unprogrammed funds; and that the savings had been derived from (1)
the pooling of unreleased appropriations, like unreleased Personnel
Services appropriations that would lapse at the end of the year,
unreleased appropriations of slow-moving projects and discontinued
projects per zero based budgeting findings; and (2) the withdrawal of
unobligated allotments also for slow-moving programs and projects
that had been earlier released to the agencies of the National
Government. The DBM listed on its website the legal bases 1 for the
DAPs use of savings.
The revelation of Sen. Estrada and the reactions of Sec. Abad and
the DBM brought the DAP to the consciousness of the Nation for the
first time, and made this present controversy inevitable. That the
issues against the DAP came at a time when the Nation was still
seething in anger over Congressional pork barrel "an appropriation
of government spending meant for localized projects and secured
solely or primarily to bring money to a representatives district"
excited the Nation as heatedly as the pork barrel controversy.
1 1) Section 25(5), Article VI of the 1987 Constitution, which granted to the President the authority to augment an item
for his office in the general appropriations law; (2) Section 49 (Authority to Use Savings for Certain Purposes) and Section
38 (Suspension of Expenditure Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 (Administrative Code
of 1987); and (3) the General Appropriations Acts (GAAs) of 2011, 2012 and 2013, particularly their provisions on the (a)
use of savings; (b) meanings of savings and augmentation; and (c) priority in the use of savings.
II. PROCEEDINGS
A. Procedural Issue
B. Substantive Issues
1. Whether or not the DAP violates Sec. 29, Art. VI of the 1987
Constitution, which provides: "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law;"
2. Whether or not the DAP, NBC No. 541, and all other executive
issuances allegedly implementing the DAP violate Sec. 25(5), Art. VI
of the 1987 Constitution insofar as:
IV. RULINGS
Procedural Issue:
It was further held that the special civil actions of certiorari and
prohibition are the proper actions for directly assailing the
constitutionality and validity of the DAP, NBC No. 541, and the other
executive issuances implementing the DAP, contrary to the
contentions of the respondents.
Substantive Issues:
The Court declared the following acts and practices under the
Disbursement Acceleration Program, National Budget Circular No.
541 and related executive issuances UNCONSTITUTIONAL for being
in violation of Section 25(5), Article VI of the 1987 Constitution and
the doctrine of separation of powers, namely:
Issue No. 1
It was held that the DAP did not violate Section 29(1), Art. VI of the
Constitution. DAP was merely a program by the Executive and is not
a fund nor is it an appropriation. It is a program for prioritizing
government spending. As such, it did not violate the Constitutional
provision cited in Section 29(1), Art. VI of the Constitution. In DAP no
additional funds were withdrawn from the Treasury otherwise, an
appropriation made by law would have been required. Funds, which
were already appropriated for by the GAA, were merely being
realigned via the DAP.
Issue No. 2
The DAP transfers are not savings contrary to what was being
declared by the Executive. Under the definition of savings in the
GAA, savings only occur, among other instances, when there is an
excess in the funding of a certain project once it is completed, finally
discontinued, or finally abandoned. The GAA does not refer to
savings as funds withdrawn from a slow moving project. Thus, since
the statutory definition of savings was not complied with under the
DAP, there is no basis at all for the transfers. Further, savings should
only be declared at the end of the fiscal year. But under the DAP,
funds are already being withdrawn from certain projects in the middle
of the year and then being declared as savings by the Executive
particularly by the DBM.
Issue No. 3
Issue No. 4
Issue No. 5
The Court held that the doctrine of operative fact is applicable in this
case. Such doctrine recognizes the existence of the law or executive
act prior to the determination of its unconstitutionality as an operative
fact that produced consequences that cannot always be erased,
ignored or disregarded. It nullifies the void law or executive act but
sustains its effects. It provides an exception to the general rule that a
void or unconstitutional law produces no effect. But its use must be
subjected to great scrutiny and circumspection, and it cannot be
invoked to validate an unconstitutional law or executive act, but is
resorted to only as a matter of equity and fair play. It applies only to
cases where extraordinary circumstances exist, and only when the
extraordinary circumstances have met the stringent conditions that
will permit its application.
V. DOCTRINES
1. ADMINISTRATIVE LAW
2. POLITICAL LAW
3. ADMINISTRATIVE LAW
ACCUMULATION AND UTILIZATION OF SAVINGS
The Court emphasized that the exercise of the power to augment
shall be strictly construed by virtue of its being an exception to the
general rule that the funding of Presidential Acceleration Programs
shall be limited to the amount fixed by Congress for the purpose. The
utilization and management of savings will also be strictly construed
against expanding the scope of the power to augment. Strict
interpretation is essential in limiting the Executive and other budget
implementors within their prerogatives during budget execution, and
to prevent them from unduly transgressing Congress power of the
purse. Hence, regardless of the perceived beneficial purposes of the
DAP, and regardless of whether the DAP is viewed as an effective
tool of stimulating the national economy, the acts and practices under
the DAP and the relevant provisions of NBC No. 541 cited in the
Decision should remain illegal and unconstitutional as long as the
funds used to finance the projects mentioned therein are sourced
from savings that deviated from the relevant provisions of the GAA,
as well as the limitation on the power to augment under Section
25(5), Article VI of the Constitution. In a society governed by laws,
even the best intentions must come within the parameters defined
and set by the Constitution and the law. Laudable purposes must be
carried out through legal methods.
4. ADMINISTRATIVE LAW
5. CONSTITUTIONAL LAW
First, I am of the view that the Court should not make a broad and
sweeping declaration of unconstitutionality relative to acts or
practices that were not actually proven in this case. Hence, I limit the
declaration of unconstitutionality to the three admitted cross-border
transfers of savings. To rule otherwise would transgress the actual
case and controversy requirement necessary to validly exercise the
power of judicial review.
He further averred that the DAP also violates the prohibition on cross-
border transfers enshrined in Section 25(5), Article VI of the
Constitution. No less than the DBM Secretary has admitted that the
Executive transferred funds to the COA and the House of
Representatives. The OSG has also expressly admitted in its
Memorandum of March 10, 2014 that the Executive transferred
appropriations to the COA, the House of Representatives and the
COMELEC. The Executive transferred DAP funds to augment the
PDAF, or the unconstitutional Congressional Pork Barrel, making the
augmentation also unconstitutional.
Justice Carpio reiterated in his opinion that the following acts and
practices under the Disbursement Acceleration Program and the
National Budget Circular No. 541 dated July 18, 2012 are
unconstitutional for violating Section 25(5), Article VI of the
Constitution:
VIII. PUBLICATION
Understanding the
SC ruling on the
DAP
What are the main points and highlights of the Supreme Court
decision on the controversial Disbursement Acceleration
Program?
By Chay F. Hofilea, July 17, 2014
The DBM also said that 116 PAPs were financed by DAP, each
of which had existing appropriations in the budget. The Office
of the Solicitor-General submitted 7 evidence packets in
support of this claim, but the Court found that there were
projects not covered by an existing appropriation for
example, items under the P1.6-billion DREAM project under the
Department of Science and Technology. DREAM refers to
Disaster Risk, Exposure, Assessment and Mitigation.
Are cross-border transfers or augmentations of
the budget allowed?
No. Cross-border transfers refer to the movement of funds from
one branch of government to another. These are allowed only
within respective offices thus the use of DAP funds to
augment funds of the Commission on Audit (for its IT
infrastructure program and the hiring of litigation experts in
the amount of P143.7 million, or about $3.2 million) and the
House of Representatives (for a legislative library and archives
building/e-library in the amount of P250 million, or about $5.6
million) violate the Constitution.
Source: http://www.rappler.com/newsbreak/63267-understanding-supreme-court-ruling-
dap
INFOGRAPHIC: What
s DAP? FAQs about
the Disbursement
Acceleration
Program
Published August 1, 2014 1:35pm
The Disbursement Acceleration Program (DAP) has
triggered an adverse Supreme Court (SC) ruling, a
nationwide address from President Benigno Aquino III,
impeachment and plunder complaints against government
officials, and anti-corruption rallies.
What exactly is this controversial spending mechanism all
about? Did the executive branch really overstep its bounds
by implementing the DAP?
File photo of the magistrates of the Supreme Court led by Chief Justice Maria Lourdes
Sereno convening for oral arguments. Edd Gumban
MANILA, Philippines The Supreme Court (SC) on Tuesday affirmed the unconstitutionality
of the Disbursement Acceleration Program (DAP) while partially granting the government's
motion for reconsideration.
The magistrates affirmed that a significant portion of the administration's DAP, supposedly
created to speed-up public spending, violates Section 25(5), Article VI of the 1987
Constitution and the doctrine of separation of powers of the executive and legislative
branches.
SC spokesperson Theodore Te said two of the three acts and practices outlined in the July
2014 ruling of the high court are still considered unconstitutional. These are:
1. The creation of savings from un-obligated allotments prior to the end of the fiscal year
without complying with the statutory definition of savings under the General Appropriations
Act (GAA), and
"The court further declares void the use of unprogrammed funds despite the absence of a
certification by the national treasure for non-compliance," Te said in a televised press
briefing.
Citing the operative fact doctrine, the high court, however, heeded the Aquino
administration's motion in reconsidering the third scheme on the allotment of funds for
projects, activities and programs not covered by the GAA.
He added that the Constitution does not require the augmentation of funds to be under the
expense category or allotment class of the GAA.
"Accordingly, so long as there is an item in the GAA that Congress has set aside a specified
amount of public funds, savings may be transferred thereto for augmentation purposes," Te
explained.
The doctrine on operative fact sustains the effects of projects under the DAP even as it was
declared invalid.
The court's 2014 decision on the DAP, which forced government to terminate its
implementation, provoked President Benigno Aquino III to address the public and the
Supreme Court to insist on its constitutional basis.
The issue contributed to a significant drop to satisfaction ratings of the Aquino administration,
with critics saying the DAP was the executive's version of the illegal "pork barrel" funds of the
legislative.
Te said that "authors" under the DAP identified in appropriate courts can still be sanctioned
under the recent decision.
It is important to identify and point to specific authors of the DAP in subsequent filing of
cases, Te added.
He said that this modification in the language of the earlier ruling is consistent with the
operative fact doctrine.
"It would be more unproductive or disastrous for the court to declare all of these projects
invalid, and therefore sustains those projects as valid," he said.
Source:
http://www.philstar.com:8080/headlines/2015/02/03/1419749/supreme-
court-affirms-dap-unconstitutionality
7 reasons why PNoys Disbursement
Acceleration Program (DAP) is wrong
President BS Aquino: Enjoys full power of the purseDuring his fifth State of
the Nation Address, President BS Aquino appeared frustrated at having to
keep defending his Disbursement Acceleration Program (DAP) to the Filipino
people. At some point during his speech, he became flustered and tried to
fight back his tears. A lot of those who witnessed him being emotional felt
sorry for him and sympathized with him. His emotional speech paying
homage to his fathers so-called legacy managed to distract some people
from the real issue.
The lesson here is simple: emotional blackmail always work with gullible
people. Theres a catch to using emotional blackmail though. It only works in
the short term. If you keep using it to get what you want, either you will
come across as a spoiled brat or an emotional wreck something of a
weakling. Soon, peoples sympathy will fade and turn into annoyance or
worse, hate.
Since President BS Aquino cant discuss the DAP without becoming distressed
and irrational, it is up to the Filipino public to keep the discussion sober or
more level-headed. More importantly, they have to keep the discussion alive.
There is always a danger that peoples short attention spans could be
diverted again to the next viral sex video or to Presidential sister, Kris
Aquinos love life and then the controversy surrounding DAP will be forgotten.
What is wrong with the DAP anyway? The answer to that question is: A LOT.
While the average Filipino those who are not lawyers readily agree that
DAP is wrong simply because the Supreme Court ruled it unconstitutional;
most of the Presidents supporters think it is acceptable simply because BS
Aquino says it was used in good faith. In other words, the arguments over
DAP, whether for or against it, simply fly over most peoples heads.
All this talk about the General Appropriations Act (GAA), the Administrative
Code of 1987 and a new meaning for savings is doing peoples heads in.
With that in mind, I have come up with a simple, lay mans explanation of
why the DAP is wrong:
Since public funds coursed through the DAP were spent without Congress
approval, the President assumed control of public funds and in essence took
the power of the purse away from Congress.
(2) The DAP was used to continue the tradition of patronage politics.
This is where it gets complicated. A few days ago I tried to explain this to a
foreigner but he looked at me like I was talking out of my ass. He could not
comprehend why members of Philippine Congress or public auditors would
allow the DAP to happen. He said where he comes from, a cunning deception
like this would cause public outrage. I told him that most members of
Congress are always happy to receive pork barrel funds from the President
no matter where it came from and so naturally, they would help defend the
DAP. Doing the opposite would implicate them in the offense. Former Senator
Joker Arroyo likened DAP to the President raping Congress with its consent.
Sadly, even locals loyal to the Aquino regime are in denial of this. In an ideal
situation, Congress would have impeached the President immediately after
finding out his unlawful acts in the management of the national budget even
before the matter is brought to the Supreme Court. In an ideal world,
members of Congress actually use their heads. In the Philippines however,
the President and most members of Congress are in cahoots in the
mismanagement of public funds.
Unfortunately, the bill just sat on the drawing board and now the very author
of the bill has chosen to weaken the Legislatures power over how the
Executive spends appropriations without changing the Constitution.
(4) The DAP will help continue the cycle of retribution among those
in power.
If the DAP becomes legitimate and if the Executive resumes allocating funds
to members of Congress, there will be no end to rival politicians seeking
revenge once they are in power. Those who felt wronged during President BS
Aquinos term will do the same thing buy favors from lawmakers using
public funds to persecute their enemies. The circus show called
Congressional hearings will continue to be popular programming in local TV
channels.
(5) The DAP will continue the tradition of vote buying during
Philippine elections.
Just like the now defunct Priority Development Assistance Funds (PDAF) or
pork barrel funds, public servants who got fund allocations from the
Executive through the DAP had funds to buy voters. Former National
Treasurer Leonor Briones likewisewarned of the same thing. Heres what she
had to say:
When you use spending to stimulate growth, it will only work in the short-
term. The reason why former President Gloria Arroyo had to use spending to
stimulate growth was to counteract the effects of the Global Financial Crisis
that ravaged global markets in 2008. The funds to stimulate the economy
then were approved by Congress and the move was even lauded by a few
economists because the country managed to avoid going into depression
similar to what happened to Iceland and Greece. However, as soon as
President BS Aquino put government spending on hold in 2010, economic
growth drastically slowed.
An alternative that President BS Aquino should have done, which would have
had a long-term effect on the economy was to give support to local industries
to promote local employment. The government could have given low-interest
loans to small business operators that would foster innovation. Likewise, the
government should have fixed tax collection by providing incentives to
business owners to encourage them to pay the correct tax and push more
investors to join the club.
(7) Projects funded through the DAP are not visible to the naked eye.
They say an empty cart rattles loudly. President BS Aquinos defense of DAP
sounded like an empty cart, indeed. One of the reasons why it is so hard for
some people to believe public funds were spent wisely through the DAP is
because the average Filipino cant find any evidence of improvement in the
public infrastructure that they use on a daily basis. The Philippines still has
the worst airport, a bad public transport system, still suffers from flooding,
road traffic congestion and power interruptions.
If I were in President BS Aquinos shoes and have billions of public funds at
my disposal, I would have prioritized fixing those things the minute I stepped
inside Malacanang. Unfortunately, he chose to prioritize projects he thinks
are more important. This includes funding the persecution of his political
enemies.
You see, its not surprising that President BS Aquino gets frustrated when
defending the DAP. Theres no doubt that some of the funds went to
legitimate projects that would benefit the public. However, the disbursement
of the funds lacked transparency. Not to mention, still unaccounted for.
Source: http://www.getrealphilippines.com/blog/2014/08/7-reasons-
why-pnoys-disbursement-acceleration-program-dap-is-wrong/
Carpio, Brion
want Aquino,
Abad held liable
for DAP
By: Tetch Torres-Tupas - Reporter / @T2TupasINQ
INQUIRER.net / 06:01 PM February 12, 2015
MANILA, PhilippinesTwo senior justices of the Supreme
Court said President Benigno Aquino III and Budget
Secretary Florencio Butch Abad should be held liable for
unconstitutional acts under the Disbursement Acceleration
Program (DAP).
The high court, in its ruling earlier this month, said that
authors of the DAP should be held accountable for the DAP
acts declared as illegal. However, it did not specify who the
authors are.
The high court again held that these acts and practices
under the DAP violated the constitutional doctrine of
separation of powers and the provision prohibiting inter-
branch transfer of appropriations.
But the high court reversed its ruling on the act under DAP
pertaining to the funding of projects, activities and
programs that were not covered by any appropriation in the
GAA, which was earlier declared unconstitutional.
Partially granting the motion for reconsideration of the
office of the solicitor general, the High Court now declared
such act as constitutional.
Source:http://newsinfo.inquirer.net/672523/carpiobrionwantaquinoabad
heldliablefordap
SC ruling on DAP
pleases Speaker
Belmonte
By: DJ Yap, Leila B. Salaverria, Tarra Quismundo - @inquirerdotnet
Philippine Daily Inquirer / 04:10 AM February 05, 2015
But it clarified that the ruling did not mean the invalidation
of the 116 DAP projects discussed in its earlier decision in
July, and that funding authorities retained the right under
the Constitution to augment projects identified in the
budget law.
Speaker Feliciano Belmonte Jr.: Happy. INQUIRER FILE
PHOTO / LEO M. SABANGAN II
Fire Abad
We noticed that the ruling took note of the good things
that came out of the DAP but still [noted] some things that
should be done. On the other hand, its good that they
made a clarification on the people being presumed
innocent because thats a cornerstone of the Constitution,
he said.
He said the group would pursue cases and push for Mr.
Aquinos removal or resignation, citing how the high court
ruling in a way vindicates those behind the failed
impeachment move against Aquino last year, following the
release of the court decision that found his stimulus
program unconstitutional.
Time to move on
With the ruling, its time to put the issue to rest and move
on, according to Senate President Franklin Drilon and acting
Minority Leader Sen. Vicente Sotto III.
Patently unconstitutional
The National Union of Peoples Lawyers (NUPL) said in a
statement that the court ruling essentially and basically
affirms the patent unconstitutionality of the acts of both
Aquino and Abad.
Source:http://newsinfo.inquirer.net/670593/scrulingondappleasesspeaker
belmonte