SC justices list Aquino, Abad’s ‘culpabilities’ after DAP defeat

SUPREME Court (SC) Senior Associate Justice Antonio T. Carpio on Thursday said President Aquino has made Congress “inutile” and a “surplusage” when it usurped its power of the purse to fund items not in the General Appropriations Act (GAA) under the so-called Disbursement Acceleration Program (DAP).

On the other hand, Associate Justice Arturo Brion said the Court’s unanimous ruling declaring DAP as unconstitutional should inevitably lead to the determination of possible infractions committed by DAP authors and implementors.

“The Court’s findings too should be material in the appropriate proceedings where the liabilities arising from grave constitutional violations are properly determined,” Brion said in his 62-page separate opinion.

In particular, Brion said there are “indicators” that Budget Secretary Florencio B. Abad authored DAP despite knowing that it is violative of the provisions of the Constitution.

Brion noted that Abad admitted during the oral arguments on the petitions seeking to nullify DAP he has an extensive knowledge of both the legal and practical operations of the budget.

“The exchange, to my mind, negates any claim by the respondent DBM secretary that he did not know the legal implications of what he was doing. As a lawyer and with at least 12 years of experience behind him as a congressman who was even the chairman of the House Appropriations Committee, it is inconceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” Brion said.

“Armed with all these knowledge, it is not hard to believe that he can run circles around the budget and its processes, and did, in fact, purposely use this knowledge for the administration’s objective of gathering the very sizable funds collected under the DAP,” Brion added.

Brion likened DAP to the Priority Development Assistance Fund (PDAF), which was also declared unconstitutional by the Court in an earlier decision.

The DAP, according to Brion, also involves government funds amounting to P150 billion, or almost 15 times the PDAF case.

He added that the personalities involved are at the very highest level both in the Executive and the Legislative departments of government.

“The DAP, in parallel with the PDAF but going the other way, allegedly allowed the Executive to disregard the GAA so that the latter could determine the projects, activities and plans where national funds would be deployed and spent, creating thereby a budget independently determined by the Executive within the congressionally determined budget,” Brion added.

“This case, in my view, is the biggest since I came to the Court in terms of these factors alone,” Brion noted.

Meanwhile, in his 27-page concurring opinion, Carpio said President Aquino violated the constitutional doctrine of separation of powers of the three equal branches of government in approving the DAP releases that amounted to over P149 billion from October 2011 to September 2013.

Carpio, the most senior of the magistrates, cited the admission of Abad before the High Court that the DAP, National Budget Circular (NBC) 541 and related executive issuances were approved by the President.

He pointed out that the Chief Executive has disregarded the GAA by declaring unobligated allotments from implementing agencies as savings in the middle of fiscal year and realigning them to other projects.

“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 an 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,” the magistrate pointed out.

Carpio admitted that what was more puzzling is that the “majority in the Senate and in the House of Representatives support the DAP and NBC 541 when these Executive acts actually castrate the power of the purse of Congress.”

“This Court cannot allow a castration of a vital part of the checks and balances enshrined in the Constitution, even if the branch adversely affected suicidally consents to it,” Carpio added.

Brion said that if DAP will not be halted, it may lead to the concentration of power in the Executive and weaken Congress’s power of the purse.

The magistrate also warned that the Executive may also use DAP to control the judiciary through intimidation.

“We have had a similar incident of this type in our history and we ought, by this time, to have learned our lessons. As one philosopher cautioned, those who do not remember the past are condemned to repeat it,” Brion said.

Good faith?

Malacañang, while insisting it acted in “good faith,” is still undecided on whether to file a motion for reconsideration to reverse the 13-0 Supreme Court ruling declaring the Aquino administration’s controversial DAP as unconstitutional.

“We will review the decision further to gain a more comprehensive understanding of its ramifications and study the appropriate legal options,” Communications Secretary Herminio B. Coloma Jr. said on Thursday.

At a Palace briefing on Thursday, Coloma noted that the SC, which unanimously decided that the DAP violated the Constitution, had also “affirmed the authority” of President Aquino as Chief Executive to implement the DAP “as a stimulus program to achieve economic growth and as an administrative system of prioritizing spending in the execution of the national budget.”

“It is in the interpretation of the Constitution and applicable laws on the fine details of budget execution that the views of the Executive and the Supreme Court diverged,” Coloma contends.

He further noted that the High Court, in its decision, had also conceded that “the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country.”

“To count the positive results may be impossible but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like,” he added. “Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction and would result in most undesirable wastefulness.”

The Palace official affirmed that in implementing DAP, the Executive branch “exercised good faith and due diligence, in accordance with existing laws and pertinent auditing rules and procedures. We believe we have been abiding by and complying with such lawful processes.”

Abad’s head must roll – UNA official

An official of Vice President Jejomar Binay’s group, the United Nationalist Alliance (UNA) has said that it’s about time that Mr. Aquino fire Budget Secretary Florencio “Butch” Abad from the Cabinet.

Two days after the Supreme Court declared DAP as unconstitutional, UNA Secretary General and Navotas Rep. Toby Tiangco said that Mr. Aquino has to give Abad his walking papers and “order the concerned government agencies to file malversation and other administrative and criminal cases against his budget chief.‎”

Tiangco said that the administration has to stop saving Abad’s neck and show to the people that even the closest allies of the President are not above the law.

“Abad must be fired to save the President from further embarrassment. For the longest time, Abad has been using the President as his armor to save his neck in both the PDAF and DAP controversies. With DAP being declared unconstitutional, it only unravels Abad’s recklessness and deception. And being the brains behind DAP, he has to be accountable for his illegal and criminal engagements,” Tiangco said.

He added that it is Abad who is pushing President Aquino over the edge to commit political suicide by letting the President single-handedly defend the blunders made by his Cabinet and political lieutenants. –Joel R. San Juan, Butch Fernandez & Jovee Marie N. dela Cruz, Businessmirror