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MANILA (Updated) -- Supreme Court justices voted on Tuesday to strike down as unconstitutional salient provisions in the controversial Disbursement Acceleration Program (DAP), setting off a possible impeachment case against President Benigno Aquino III for allegedly violating the Constitution.
In a press briefing, SC spokesperson Theodore Te said the following acts under the DAP (National Budget Circular 541) are illegal for violating Section 25(5) of the Constitution regarding the use of appropriations and separation of powers:
- withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and for not complying with the definition of savings under the national budget law;
- cross-border transfers of the savings of the Executive department to augment the appropriations of other offices outside the Executive;
- funding of projects, activities and programs that were not covered by any appropriation in the national budget;
- use of unprogrammed funds (standby allocation coming from windfall revenue collections) despite the absence of a certification by the National Treasurer that revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the national budget.
Te declined to say if the decision will be prospective or retroactive in application and if it stipulated liabilities for government officials involved in the implementation of the DAP.
Thirteen magistrates sided with the decision while Associate Justice Teresita de Castro inhibited from the case because a lawyer of one of the parties is her friend.
Senator Miriam Defensor-Santiago said she had anticipated the ruling months ago, even before the issue reached the SC in October last year.
"It's basically a no-brainer. The DAP is illegal because it was not contained in the 2011 or 2012 budgets, and because the alleged savings were used to augment new budget items which was not previously authorized by Congress," she said.
The senator said the Constitution allows fund transfers only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted. She added that there are no savings if a project was merely deferred.
Militant labor center Kilusang Mayo Uno (KMU) called for a thorough investigation into how Aquino used the DAP funds, noting that the President should be held accountable for creating the DAP and for spending it as his "personal pork barrel."
Kabataan party-list Representative Terry Ridon said the DAP could bolster the filing of an impeachment case against Aquino on the ground of culpable violation of the Constitution and betrayal of public trust.
Under the Constitution, a vote of one third of the House of Representatives is needed to impeach the President and hold trial in the Senate, which will determine if he deserves to be ousted or not. Aquino allies control both the Senate and the House of Representatives.
But Ridon said his group, along with other youth organizations, is unfazed by the dominant support for Aquino in Congress.
"It is a daunting task, but we are prepared to fight," Ridon said.
The nine petitioners claimed that DAP is unconstitutional since no law was passed by Congress that sanctions its appropriation and disbursement, the so-called "savings" were allegedly taken from slow-moving projects, which were not yet completed or performed and it was and is being used to augment new budget allocations not approved by the legislature.
But the government said the President has the power to re-align savings under the Constitution.
The DAP came to light when Senator Jose "Jinggoy" Estrada said in a privilege speech in September last year that senators who voted for the ouster of then Chief Justice Renato Corona in 2012 received amounts ranging from P50 million to P100 million for their projects.
Those who were not given any additional appropriations from the DAP were senators Santiago, Ferdinand "Bongbong" Marcos Jr., and Joker Arroyo. All three senators voted against the impeachment of Corona.
Malacañang denied that it was an incentive for kicking Corona out of the judiciary.
The government said the money went to projects to stimulate the economy from late 2011 until September of last year.
It was also used for improvements in disaster preparedness such as the purchase of Doppler radars in weather forecasting and 3D maps in flood forecasting, payment of Government Service Insurance System (GSIS) benefits for 93,500 public school teachers, electrification of 2,245 sitios and construction of nearly 40,000 classrooms.
A total of P149.25 billion was released under the DAP mechanism from October 12, 2011 to September 26, 2013, data from the Department of Budget and Management (DBM) showed.
Estrada who is facing plunder and graft charges over alleged misuse of Priority Development Assistance Fund (PDAF) thanked the SC for "respecting and upholding the Congress’ exclusive power of the purse."
"Now that the highest court of the land said that the DAP mechanism is unconstitutional and illegal, heads must roll and budget officials must be held accountable," Estrada said.
Santiago, on the other hand, renewed her call for the Commission on Audit to probe into the alleged bribery of Congress members during the impeachment trial of Corona in connection with the DAP.
She said that every senator who voted to convict, and every representative who voted to indict, if each one is shown to have received additional pork during and immediately after the impeachment trial, are presumably guilty of bribery, because of the close timing between the two events.
She said that under the Penal Code, each senator or representative was guilty of the crime of "knowingly rendering unjust judgment." (With Camille P. Balagtas/Sunnex).
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