The first or original complaint against the Disbursement Acceleration Program (DAP) was filed by 28 signatories before the House of Representatives in 2014 as basis for the impeachment complaint against former President Benigno Simeon Aquino III. Among them are Renato Reyes of Bagong Alyansang Makabayan (BAYAN), Ferdinand Gaite of COURAGE, Volunteers Against Crime and Corruption (VACC) founding Chairman Dante Jimenez, Liza Maza of Gabriela, UP Professor Judy Taguiwalo, whistleblower Sandra Cam, Archbishop Oscar Cruz, Iglesia Filipina Indipendiente (IFI) Bishop Joselito Cruz and United Church of Christ in the Philippines (UCCP) Bishop Emergenio Padiollo among others. However, the impeachment case was blocked by the then Liberal Party-dominated chamber.
Now that Aquino is no longer immune from lawsuits, charges against him are almost expected to be filed. But the complaint against the DAP came only second to the charge on Aquino’s culpability in the Mamasapano bloodshed.
“The DAP was nothing more than presidential pork taken from forced savings then realigned for pet projects of the President. It was not a stimulus program as many of the projects approved by Aquino had nothing to do with stimulating the economy,” said Bayan Muna Party-list Rep. Carlos Zarate who is also one of the complainants.
Bagong Alyansang Makabayan (BAYAN) and other progressive organizations trooped to the Office of the Ombudsman on July 8 to file their 26-page case against former president Aquino and his Budget and Management Secretary Florencio “Butch” Abad for the “unconstitutional” DAP.
Among the charges filed against Aquino and Abad were illegal use of public funds or property or technical malversation, usurpation of legislative powers, and violation of the Anti-Graft and Corrupt Practices Act and Grave Misconduct.
DAP Complaint Affidavit vs Aquino, Abad by Manila Today on Scribd
DAP was first introduced in 2011 by the Department of Budget and Management (DBM).
According to BAYAN Secretary-General Renato Reyes, Jr., “DAP is a form of ‘presidential pork’ that was abused during Aquino’s term which resulted in the violation of the law. There should be accountability after what happened.”
In July 2014, the Supreme Court (SC) ruled on the complaints by progressive groups questioning the constitutionality of DAP, National Budget Circular No. 541. With a vote of 13-0-1, the SC declared unconstitutional the following: (1) withdrawal of unobligated allotments from implementing agencies and declaring it as savings prior to the end of the fiscal year; (2) cross-border transfer of the savings of the Executive to augment the appropriations of other offices outside the Executive; and, (3) funding of projects, activities and programs that were not covered by the General Appropriations Act (GAA). The court further declared void the use of unprogrammed funds without the certification from the National Treasury that revenue collections exceeded revenue targets.
SC Decision on DAP by Manila Today on Scribd
Aquino approved and signed all memorandum and issuances on the consolidation and realignment of funds for DAP identified projects amounting to P167 billion from 2011 to 2013.
After the SC released its July 1 ruling on DAP, Aquino was mum for two weeks on the issue. Aquino made a live public statement on primetime television on July 14 to question the SC ruling and defend DAP. He reiterated that DAP is good, its intentions are right and the mechanism is within the bounds of the law.
However, at a time after the pork barrel scam broke out, netizens were outraged with Aquino’s defense of what is strongly believed as another form of pork barrel, prompting several memes that went viral in the social media. (insert meme’s gallery)
[masterslider alias=”ms-88″]
A month after the online outrage and series of street protests, Aquino floated the idea that he is already open to term extension in an interview with TV5. The DAP issue toned down along with this pronouncement.
Only a year before the SC ruling, around 200,000 gathered in Quirino Grandstand in Manila to show their disgust against corruption and the pork barrel. The gathering which came about through social media invitations was dubbed as the Million People March. This was at that time the largest protest during PNoy’s term.
In a Senate Probe in July 2014 by the Senate Committee on Finance, Abad admitted that the ‘savings’ from 2011-2013 amounted to more than P237.5 billion from the government’s budget for Personnel Services (PS), Maintenance and Other Operating Expenses (MOOE) and Capital Outlay (CO) from different agencies.
However, Abad defended DAP as a ‘stimulus package’ to fuel government spending and the economy.
On July 18, 2014, the Office of the Solicitor General (OSG) led by now SC Justice Francis Jardeleza filed for a Motion for Reconsideration (MR). The motion argued that issues are mischaracterized and not necessarily unconstitutional, that the DBM did not engage in a policy of accumulating savings, and that the political departments—the Legislative and Executive Departments—and not the judiciary is in charge of running the government and managing the economy.
The OSG further argued that “the President and his alter egos, in implementing a decidedly successful program, deserve to be afforded the traditional constitutional presumptions that apply to most other forms of public actions, especially the presumption of good faith.”
The High Court, passing judgment on appeals to its July decision, said that “so long as there is an item in the GAA for which Congress had set aside a specified amount of public funds” in its February 2015 ruling.
The palace rejoiced with the decision and described it as a ‘de facto reversal’ of the July 2014 ruling.
The decision also said that “the Court has neither thrown out the presumption of good faith nor imputed bad faith to the authors, proponents and implementers of the DAP.”
Then Presidential Spokesperson Edwin Lacierda said in a statement after the ruling was released that “the presumption of good faith has been preserved and emphasized, which clarified the previous impression that that the authors are presumed to be in bad faith.”
The SC maintained its position on the other DAP practices it declared unconstitutional and void.
The High Court’s ruling it pointed out that “the doctrine of operative fact xxx cannot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”
In a separate opinion by Senior Associate Justice Antonio Carpio, he clarified that the doctrine of operative fact can be invoked only by those who relied in good faith on the law or the administrative issuance, prior to its declaration of nullity.”
He further stressed that those who acted in bad faith and directly responsible for an illegal or unconstitutional act cannot invoke the said doctrine.
He argued that since the President and DBM Secretary approved and issued the DAP issuances, “they are considered the authors of the unconstitutional act.”
He further stated that “as authors of the unconstitutional act, they have to answer for such an act.”
In a telephone interview, Bayan Muna Party-list Representative Carlos Zarate said that the DAP case they filed is mala prohibita in nature, which means that the conduct is prohibited by laws. This also means that neither good or bad faith nor criminal intent in implementing DAP is immaterial because Aquino and Abad are liable for their illegal act, i.e. transferring of funds without the consent of Congress .
“Our smoking gun in the complaint are the DAP documents that Aquino and Abad signed which allowed withdrawal of unobligated allotments from agencies in the middle of the year and realignment to other projects,” said Zarate.
Unobligated allotments are funds allotted to government agencies based on the GAA that have not been used yet.
He also mentioned that other bases for the case are the DAP funded projects which Aquino himself approved and signed, the cross border augmentation of funds to the Commission on Audit (COA) which is an independent body and the House of Representatives (HOR) which is a different government department.
The 1987 Philippine Constitution allows augmentation of funds from savings but only within the same department (Executive, Legislative and Judiciary).
According to Zarate, who is also a lawyer, savings can only be declared if (1) the projects cannot be continued due to uncontrollable circumstances like typhoon; (2) after the implementation of the project; or, (3) when projects were not implemented at the end of the year.
DAP funds came from the consolidated savings and withdrawn unobligated allotments from the PS, MOOE and CO from different government agencies from 2010 to 2013. The DBM listed consolidated savings in 2010 at P63.6 billion, P60 billion in 2011, P66.8 billion in 2012, and P47.5 billion in 2013, or a total of P237.5 billion.
As of July 17, 2014, the DBM listed a total of 116 DAP Identified Projects that were approved by Aquino.
‘Other Various Local Projects’ amounting to P6.5 billion approved in October 2011, P8.3 billion approved in June 2012 and P2.8 billion approved in December 2012 funded “priority local projects nationwide requested by legislators, local government officials and national agencies.”
Renato Reyes of BAYAN described the DPWH’s ‘Various Infrastructure Projects’ in his article “Questionable DAP Spending Belies Economic Stimulus Claims by Aquino Gov’t” as “usually upon the recommendation of politicians.” In 2011, the budget allotted from DAP was P5.5 billion, in 2012 was P2.7 billion, while in 2013 was P1.3 billion.
A P450 million allocation for the Jalaur River Multipurpose Project 2 in Iloilo City. Reportedly, Senator Franklin Drilon is the main proponent.
In Tarlac, the President’s home province, P2 billion was allocated for road and bridge projects.
The following are some of the DAP spending in Metro Manila:
In 2011, P450 million was allotted to the National Housing Authority (NHA) for the construction of medium-rise buildings to provide shelter for the demolished informal settlers in North Triangle, Quezon City.
Also in 2011, another P 1 billion was allotted for the construction of in-city medium-rise buildings to provide shelter for 20,000 informal settlers living along dangerous zones in the National Capital Region (NCR).
The DPWH and MMDA were allotted P296 billion for the construction of a pumping station in San Juan City for their flood control project.
P6.5 billion was allocated in 2011 for LGU Support Fund. The fund is supposed to “help local governments cushion the impact of the 4.8 percent decrease in the 2012 Internal Revenue Allotment (IRA) over the 2011 levels due to abrupt decrease in national internal revenue collection in 2009.”
Abad confirmed in 2013 that 20 senators received a total of P1.07 billion, or up to P50 million each of allocation from DAP after Supreme Court Chief Justice Renato Corona’s impeachment.
“It was presidential pork used to entice lawmakers to impeach then convict former Chief Justice Renato Corona,” asserted Zarate.
