Mind da News: DAP: Who’s Deceiving?

GENERAL SANTOS CITY, July 18, 2014 – Contrary to our expectation and to the conduct of past presidents under similar predicament, President Benigno Simeon C. Aquino III declared “war” against the Supreme Court for unanimously striking down as unconstitutional the DAP (Disbursement Acceleration Program) in its Decision promulgated last July 1. He has not held his shots. Expect this: He will fire more in his Speech of the Nation Address on July 28.

He has accused the Court of committing many sins against his administration — ergo, against the Filipino people. Among this is the willful omission by the Court in its decision of his legal basis in creating the DAP: Book VI, Chapter 5, Section 39 ng 1987 Administrative Code of the Philippines”.

He said (we quote the original Tagalog copy of the speech he delivered):

“Ang epektibong paggugol ng pondo ay hindi lang po dikta ng aking konsensya, malinaw din pong nakasaad sa iba’t ibang probisyon ng isang batas na ang pangalan ay Administrative Code of 1987, at tinalakay ang paggamit ng savings. Halimbawa, basahin natin ngayon (nandiyan sa inyong mga screen) ang Book VI, Chapter 5, Section 39 ng 1987 Administrative Code of the Philippines.”

(The effective way to spend funds is not just by the dictate of my conscience but is also clearly provided in the different provisions of the law called Administrative Code of 1987 that provides the guidelines in use of savings.)

He had a portion of the pertinent provision of the code flashed in the video screen while quoting that portion. Instead of the partial quotation, we are fully quoting Section 39 of the Code:

“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: Provided, that the creation of new positions or increase of salaries shall not be allowed to be funded from budgetary savings except when specifically authorized by law: Provided, further, that whenever authorized positions are transferred from one program or project to another within the same department, office or agency, the corresponding amounts appropriated for personal services are also deemed transferred, without, however increasing the total outlay for personal services of the department, office or agency concerned.” (Underscoring ours)

It must be noted well: Section 39 is specifically for the use of savings. He continues:

“Nakita naman po ninyo, na ayon sa batas na ito, hayagang binibigyan ng kapangyarihan ang Pangulo na maglipat ng savings sa ibang proyekto. Walang nakasaad na limitado sa isang departamento o sangay ng gobyerno ang paglilipat ng savings. Sa simpleng salita po: Hindi tayo lumabag sa batas nang ipatupad natin ang DAP.”

(As you see, according to this law, to some extent, the President is given the authority to transfer savings to other projects. It does not limit to one department or branch of the government the transfer of savings. In simple words: We are not violating the law in implementing the DAP.)

“Nagulat nga po kami nang makita naming hindi naisaalang-alang sa desisyon ng Korte Suprema ang ginamit naming batayan ng DAP. Paano kaya nila nasabing unconstitutional ang aming paraan ng paggastos gayong hindi man lang nila tinalakay ang aming pinagbatayan? Hanggang sa mga sandaling ito, umiiral pa rin ang Section 39 ng Administrative Code, at ang marami pang ibang bahagi nito.”

(We were surprised that the Court Decision did not consider the law we used as the basis of the DAP. How could they say our way of spending public funds is unconstitutional when they did not discuss our basis? Until this very moment, Section 39 of the Administrative Code is still in existence including its other provisions.)

Clearly, he was telling the Filipinos that the Court had deceived them by not considering in their decision Section 39 of the Administrative Code of 19 as the legal basis of the DAP. But the Court did!

As published in the Manila media, the Court distinguished Section 39, the basis for the transfer of savings, from Section 38 that provides for the suspension of expenditures – another function of the DAP.

Philippine Daily Inquirer (June 15, 2014: In the Know: Bases of DAP according to Aquino, SC) noted the President’s accusation and his quoting partially Section 39 of the Administrative Code of the Philippines. Instead of that, we quoted above Section 39 in full.

The Inquirer report said, “The Supreme Court, in its ruling declaring the DAP unconstitutional, noted that the budget department listed Chapter 5, Book VI of Executive Order No. 292 (Administrative Code of 1987) as one of the legal bases for DAP’s use of savings” without specifically mentioning Section 39. Inspect it closer. The opening “Except as provided …” phrase and the second “Provided-clause” of Section 39 limit the transfer.

However, the Court ruling stated: “The respondents rely on Section 38, Chapter 5, Book VI of the Administrative Code of 1987 to justify the withdrawal of unobligated allotments. But the provision authorized only the suspension or stoppage of further expenditures, not the withdrawal of unobligated allotments.” (Bold and underscoring ours)

As quoted in the ruling: “Section 38. Suspension of Expenditure of Appropriations. – 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.” (Bold and underscoring ours)

In the same Inquirer report, Associate Justice Estela Perlas-Bernabe, in her separate concurring opinion, took note of Sections 38 and 39. “When the executive department exercises its power of fiscal management through, for instance, withdrawing unobligated allotments and pooling them under Sections 38 and 39, Chapter 5, Book VI of the Administrative Code of 1987 … the President acts within his sphere of authority for he is merely managing the execution of the budget taking into account existing fiscal deficits as well as the circumstances that occur during actual PAP implementation …”

But she clarified: The President “must always observe and comply with existing constitutional and statutory limitations when doing so—that is, his directives in such respect should not authorize or allow expenditures for an unappropriated purpose nor sanction overspending or the modification of the purpose of the appropriation item, or even the suspension or stoppage of any expenditure without satisfying the public interest requirement, else he would be substituting his will over that of Congress and thereby violate the separation of powers principle, not to mention, act against his mandate to faithfully execute the laws.” (Bold ours)

These limitations are in GAA and Article VI, Section 25(5) of the 1987 Constitution: “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.” (Bold underscoring ours)

In another report, INQUIRER.net (July 3, 2014:  Justice Carpio: Aquino ‘castrated’ Congress’ power of the purse) Senior Justice Antonio Carpio, in his concurring opinion, said “the President under Section 38, Chapter V, Book VI of the Administrative Code of 1987 is allowed to suspend or otherwise stop further expenditure of appropriated funds but this must be for legitimate purpose, such as when there are anomalies in the implementation of a project of 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.”

Carpio also stressed that the DAP funds cannot constitute as savings adding that 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.”

To reconcile the Administrative Code of 1987 and the 1987 Constitution, Section 39 of the Code authorizes the transfer of saving; Section 38, the suspension of expenditures and appropriations. Article VI, Section 25(5) of the Constitution explicitly limits the transfer of savings. Besides the “Except as provided…” phrase, does the restriction, “within the same department”, in the second “Provided-clause” of Section 39 not construe limitation in the entire section? Section 38 has its built-in limitation: Except as otherwise provided in the General Appropriations”; the withdrawal of the suspended appropriations is not authorized.

The Constitution is superior to the Code. In conflict situations, the Constitution prevails. The President and the Palace are evidently maintaining the opposite stand. DAP was declared unconstitutional not just for the abuse of the savings but for grave violations of the doctrine of separation of powers. The President and the Palace are oblivious of these.

As reported in the media, these limitations are discussed in the Decision and by the Justices in their separate concurring opinions – not just Carpio and Perlas-Bernabe. Why has the President accused the Court of committing the grave sin of omission against him, his government and people?

That he and his advisers did not read the limitations in the Decision and concurring opinions of the Justices is unbelievable. Just as unbelievable or more is their not reading these in the media reports.

Obviously, for his own false satisfaction and self-righteousness, he told the people – who did not read the full decision as well as the media reports — the lie to rally them to his vilification of the Supreme Court. In accusing the Court of deception, has the President not exposed himself as the great deceiver?

Playing the game “turning the table” is dangerous. The table can overturn and pin you down.

[Author’s Note: Mind da News, the alternate of COMMENT, is a comment on current news. The author may be contacted at [email protected].]