IN A UNANIMOUS decision, the Supreme Court has ruled with finality that the President cannot rewrite the budget as approved by Congress. Its original ruling on the Disbursement Acceleration Program (DAP) on July 1 last year was upheld with one modification: it narrowed the scope of legal liability to DAP’s “authors” and removed “proponents and implementors.”
This is a landmark decision by the Supreme Court, and the justices should be lauded for having the moral courage and wisdom to fight the overwhelming pressure from President Aquino III.
The sitting President and future presidents, this Congress and future congresses better heed the SC ruling. The Court supports the constitutional rule that the power of the purse belongs to Congress.
President Aquino III and Budget Secretary Butch Abad are liable for their fiscal adventurism -- for rewriting the budget as authorized by Congress to satisfy their whims and caprices, including using the DAP to “bribe” legislators to impeach and convict Chief Justice Renato Corona.
Such wanton abuse and misuse of taxpayers’ money should not go unpunished.
President Aquino may be impeached for usurping the congressional power of the purse and for misusing and misallocating public funds. The sad reality however is that since Mr. Aquino controls both houses of Congress, his impeachment is highly unlikely. However, once he steps down from Malacañang, he cannot escape criminal prosecution.
The fate of Secretary Abad is straightforward. He is liable for committing the P140-billion monumental mistake. A suit has already been filed against him before the Ombudsman, and more lawsuits will follow in the days ahead.
He has to be held liable, given such a huge misappropriation and misspending of public funds. For a much lesser offense, say for malversing a few thousand pesos, some local chief executives have gone to jail. But why not the architects of the DAP?
The modified ruling removed the legal liability of proponents and implementors of the DAP under the “operative fact doctrine.” For example, proponents (senators, congressmen, governors, university presidents, department heads and so on) and implementors (heads of agencies, local government executives, contractors, etc.) for projects funded by the DAP, where they were implemented and disbursed before the Supreme Court ruling (July 1, 2014) cannot be held liable for the use of the fund.
All transactions -- from the issuance of authority to start the project to actual construction or implementation, and finally payment of work or services actually rendered -- that was done on or before July 1, 2014, is deemed valid under the operative fact doctrine.
That’s fair. It is reasonable to assume that proponents and implementors of DAP-funded projects do not know the funding source. According, they do not have any legal liability, assuming that the work or projects were implemented according to all existing budget, accounting and auditing rules and regulations; that’s a big assumption.
But if there were misuse and fraud in the use of the DAP, then proponents and implementors of projects are not totally off the hook. For example, it would be illegal if DAP-financed projects were implemented without public bidding, where one is required.
Since the DAP has the reputation of being a “secret” fund -- not approved by Congress and unknown to the general public -- there might have been a tendency to disburse the DAP money with little regard for fiscal rules. The subsequent lists of DAP projects show that such fear was not unfounded.
The irregularities in the use of the DAP should be unearthed by the Commission on Audit, or by appropriate congressional committees or by an independent review group.
Moreover, transactions done after July 1, 2014, after the Supreme Court ruling on the DAP, may be deemed illegal. For example, work or projects funded by DAP which have not been started or completed by July 1, 2014 should cease to be valid, and any disbursements therefrom should be rendered illegal.
It is the responsibility of the Commission on Audit to issue disallowances of disbursements associated with the DAP after July 1, 2014.
The Supreme Court affirmed the illegality of three budget practices assailed in the original July 1. 2014, decision. The ruling clearly limits the tendency of the Executive to broaden its budgetary powers. It affirmed the illegality of the following:
• Withdrawal of unobligated allotments from implementing agencies and declaration of “savings” of withdrawn unobligated allotments and unreleased appropriations before the end of the fiscal year.
• Cross-border transfers of savings from the Executive to augment appropriations of other offices; and
• Use of unprogrammed funds despite the absence of the National Treasurer’s certification that revenue collections exceeded targets.
The decision does not limit the President, the Senate President, the Speaker of the House of Representatives, and the heads of constitutional offices in their use of savings and the augmentation of items in the General Appropriations Act (GAA). The constitutional power to use savings is intact; it is not in dispute.
The Supreme Court rules that the term “savings” has to be used in its true sense. It has to be real savings, not contrived ones. The withdrawal of unobligated allotments from implementing agencies and declaration as “savings” of withdrawn unobligated allotments and unreleased appropriations before the end of the fiscal year is not savings in its true sense.
In addition, the item to be augmented by savings has to be specified in the General Appropriations Act. Put differently, the President cannot use savings to augment a nonexistent item in the GAA.
For too long, our national leaders have chosen to take the Constitution lightly. They observe it when expedient and ignore it when inconvenient.
Finally, this unfortunate DAP episode could have been avoided had the Executive prepared the national budget well. There would have been no need for the President and his budget secretary to rewrite the budget after Congress had approved it, had they prepared it carefully and in accordance with national priorities.
Benjamin E. DiOkno is a former secretary of Budget and Management.
bediokno@gmail.com
source: Businessworld
No comments:
Post a Comment