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Commentary

Diluting the DAP decision

12:23 AM February 11, 2015

Following the profound wisdom of the Supreme Court on the motion for reconsideration filed on the original July 2014 ruling of unconstitutionality on the presidential Disbursement Acceleration Program (DAP), for many, perhaps blinded by tears from constantly wailing against the pork barrel system, it is difficult to see through the blur the inscrutable logic of dismembering one of the decision’s most salient points.

While maintaining that portions of the DAP remain unconstitutional, in reconsidering the high court altered its stance on one that has to do with unconstitutionality and on another involving the very important issue of accountability.

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Imagine that the advocacy against the pork barrel stands on a three-legged stool, where each leg is critical albeit evades the patronage aspect of the pork barrel, accedes to the presumption of regularity, and thus confers good faith on the system.

Hopes had been hung on these three legs, which practically everyone applauded as historic watersheds in judicial insight and wisdom.

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Allow us to paraphrase if only to exorcise some of the convoluted legalese.

One, an act or practice was deemed unconstitutional if it involved “the withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and (sic) without complying with the statutory definition of savings contained in the General Appropriations Acts (GAA).”

Two, acts or practices were likewise deemed unconstitutional if these involved “the cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive.”

Lastly, DAP acts and practices were deemed unconstitutional if these involved “the funding of projects, activities, and programs that were not covered by any appropriation in the GAA.”

That third leg is loaded and structural. What it requires of all government expenditures is a firm foundation within the GAA. It likewise requires the strength of a statute for every expense. Its foundations lie in the Constitution’s Section 29(1), Article VI that clearly declares that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” Notably, an appropriation MUST be made by law, its social and economic impacts quantified and defended, and viabilities computed as each passes a strict congressional gauntlet of scrutiny and diligent debate.

So that there may be no mistaking the criticality of an expenditure as emanating from law, note that in a previous section—Article VI, Section 25(5)—augmentation is only allowed on items already in the GAA. To wit, “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.”

While the original decision of the Supreme Court on the DAP’s GAA requirement is founded on clear and definitive constitutional grounds, its substance is founded on even firmer rock—fiscal prudence, fiduciary responsibility and accountability.

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For those who’ve become complacent and comfortable in thinking that the problem of the pork-barrel-fed and -fattened political patronage system and the insidious presidential DAP have gone away, think again. They have not, though compelling controversies have taken center stage, hogging the limelight and casting such a blinding glare that now hides the DAP’s illegality behind the darkest shadows.

Political patronage continues to fester and grow. The unaccountable “KKK” (kaibigan, kabarilan and kaklase) remains behind the throne. The presidential pork barrel is not dead. Given a presidency that wallows in, has a penchant for, and is nourished by political patronage, that is understandable.

In effect, by surrendering to the motion for reconsideration on this critical aspect, the Supreme Court restored and declared constitutional DAP expenditures that are unbudgeted and unappropriated in the GAA.

Fearing resurgent political patronage fattened by the presidential pork barrel, critics able to discern the gambit are aghast, especially considering an attendant decision of the high court to hold DAP proponents and implementers innocent and limiting accountability only to its authors and architects.

Behind the decision is the recognition of the “operative fact”—a virtual surrender to aberrant reality. It is difficult to argue against the wisdom of some of the most profoundly intelligent men and women in the judiciary. But, as in the previous debate on the definition of “savings,” might we be splitting hairs in trying to differentiate “authors” from “proponents,” and, by so doing, let slip away those who would mangle and distort legal definitions if only to perpetuate political patronage?

Dean dela Paz is a former investment banker and a consultant to the Joint Congressional Power Commission. He authored a book on energy governance tool kits and teaches finance, investment mathematics and corporate strategy.

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TAGS: dean dela paz, Disbursement Acceleration Program, general appropriations act, pork barrel system
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