The DBM secretary now says that the DAP funds were released to the senators, who then chose the projects.
This makes the DAP unconstitutional because: it is a form of juggling of funds appropriated by Congress to the executive branch –– that is, from the departments under the executive branch, it is recreated as savings then released to the senators under the DAP.
Choose your weapon well: You can say: The senators were responsible, the DAP funds released to them were under their control, the President transferred funds from the executive branch to the senators.
This however makes the DAP unconstitutional; the President violated the Constitution, the funds were juggled, it was technical malversation and later, plunder.
Or… You can say: The DAP funds went to the President’s implementing agencies, no juggling occured, it is constitutional, except that, those funds landed in Napoles NGOs, also plunder.
(choose your theory of the case, choose your lawyers — “i don’t know to your lawyer.” — translation of: ewan ko sa abugado mo).
Here’s the news peg: “When contacted by the Inquirer, Budget Secretary Florencio Abad said his department did release the allotments of the senators, but stressed: “We never choose the projects nor the implementing agency.”
(Last week, Malacaňang said that the P1.1 billion in DAP funds were not released to the senators but went to implementing agencies for projects that were in line with the objectives of the PNoy administration and therefore approved by the President. This Sunday, after it was “uncovered” that at least P370 million of the DAP funds went to Napoles NGOs, Malacaňang is now taking the senators to task: It was the senators! They did it! “Senators sought DAP transfer–Palace” )
Now it has come to this…
It landed in the Napoles NGOs because of the SAROs issued by the DBM under the DAP approved by Malacaňang.
According to DAR Secretary Gil de los Reyes (DBM Secretary Butch Abad is pointing to his agency as the body which should do the explaining), here’s how the DAP funds landed in the Napoles NGOs:
(The SARO is the Special Allotment Release Order. It is issued by the DBM to government agencies to authorize them to “obligate” government funds, or to be able to use government funds thru vouchers and checks.)
1.The SAROs, on instructions of the senators to the DBM, were originally issued to the DAR.
2.However, the senators then asked DBM to transfer the funds from DAR to the NLDC or the National Livelihood Development Corp.
3.The NLDC is a GOCC (government-owned and controlled corporation) controlled by Napoles. The projects of the NLDC are managed and administered by Napoles NGOs. Yes, it’s a GOCC; yes, it’s controlled by Napoles: it’s an NOCC or an NOCGOCC (Napoles-owned- and-controlled GOCC – keep up with the acronyms, sweetie).
4.After the senators asked the DBM to transfer funds from the DAR to the NLDC, the DBM issued “negative” SAROs to the DAR withdrawing the funds out of the DAR.
5.After the funds have been constructively taken out of the DAR thru the “negative” SAROs, the DBM then issued a SARO to the NLDC. The NLDC, an NOCGOCC or a Napoles-owned- and-controlled GOCC, then received the SARO issued to them by the DBM, presented the SARO to the accounting offices and staff and got the vouchers and checks; then gave them to the Napoles NGOs (the Napoles NGOs then encashed the checks; these are then hauled off as bags of cash, and plopped on the Napoles bed and bath.)
How can the DBM be issuing SAROs to the NLDC? It is a GOCC, silly. The Commission on Audit as early as 1996 issued a circular creating procedures for a simplified fund release to government agencies including GOCCs.
The DBM under the DAP approved by PNoy, issued SAROs to Napoles? Yes, sir/ ma’am, that’s what the documentary and testimonial evidence show.
You know what? There are actually constitutional law issues with how the President used the newly exposed so-called Disbursement Acceleration Program or DAP.
According to Budget Secretary Butch Abad, they’re from savings.
The funds given to the senators, exposed by accidental, ex-future “whistleblower” Jinggoy (my god, I can’t believe I said whistleblower, but I put in in quotes! And I said accidental! And ex-future because he stopped short, hindi nya tinuloy-tuloy. He thought it was a simple case of bribery in exchange for convicting CJ Corona. I bet he didn’t realize there were constitutional law issues. And requisites. And if the President did not comply with the constitutional requirements, it’s an open-and-shut case of technical malversation. And a violation of the constitution. Now he has something to leverage with for the plunder case) totalled 1.107 billion pesos. The P1.107 B was released to the senators at, at least, P50 million pesos apiece; supposedly from savings of various government agencies.
Presumably, these savings, if true, accrued the previous year, 2012, and/ or 2011, when the concept of DAP was introduced in the national budget, according to the budget secretary.
Now… they – the DBM, the Palace spokespersons, the Palace lawyers, etc. etc., have not itemized , upon demand or upon questions from the news media, what these government agencies are, whence the so-called savings were taken. They are still listing them down daw. Why are they taking a long time to produce the list?
The manner by which the Office of thePresident re-allocated the funds should be examined, because the funds were juggled.
The Palace spokesperson said that the President realigned the savings based on Article VI ( Legislative Department), Section 25, paragraph 5, as follows:
Article VI Sec. 25 para. [5]: “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 from their respective offices from savings in other items of their respective appropriations.”
Get your pens and papers — constitutional law construction (interpretation). This is a provision found under the article on the legislature, not the executive, granting powers to the legislature and the limits to those powers.
Section 25, paragraph 5 states that Congress cannot pass a law that authorizes any transfer of appropriations – that’s the general rule. Except that: “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 add funds to (or to “augment”) any item in their office from savings of other items in the appropriation for their office.
Since this is an exception, it is construed strictissimi juris or strictly in conformity with the terms of the provision. The policy of the Consitution as stated in said provision, is not to allow any law that authorizes the transfer of appropriations; except that the heads of the three branches of government (and the constitutional commissions) can, by law, be allowed to use up savings from one agency to another within their branch of the government. In case of doubt or dispute, the grant of authority will be interpreted strictly, to conform with the terms of the grant.
Therefore, the constitutional requisites must be complied with for the act to be considered as being in conformity with the Constitution, to wit:
First: Were there savings? Are all the savings from agencies under the Office of the President? (I think they can hurdle this).
Second, the constitution requires a law authorizing the President. Budget Secretary Abad said the DAP was introduced in the 2011 national budget or the 2011 General Appropriations Act. That’s a law, but what were the exact terms of the DAP provision in the 2011 GAA? Is it in conformity with the terms of Section 25 par. 5, i.e., to augment an item under the President’s office from savings from other items in his office?
Third, if it’s in the 2011 GAA, was it re-enacted in the 2012 GAA? The 2011 GAA lapses after the budget year. It is a “law” for that year, legalizing all appropriations for that year – unless re-enacted in full. Since the distribution to the senators occurred in 2012, was it re-enacted in the 2012? If re-enacted in 2012, what were its terms?
Let’s presume the provision in the GAA authorizing the President to re-distribute the DAP was couched in general terms, such as: to “ramp up spending and help accelerate economic expansion”, etc.. Since this is a motherhood statement, we go back to the constitutional provision.
That’s the fourth requisite: It must be: “to augment any item in the general appropriations law from their respective offices…”(Art. VI. Sec. 25, par. 5). “(T)o augment any item” means to add funds to the item. And “from their respective offices” refers to the office of each of the officials named in the provision: “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…” (Art. VI. Sec. 25, par. 5).
In other words, the President may be authorized to augment any item under his office, or add funds to any item under his office, sourced from “savings in other items of their respective appropriations.” (Art. VI. Sec. 25, par. 5). In other words: He can be authorized by law to use savings from one agency to another agency all under the Office of the President.
A simple illustration would be: If the Department of Tourism has savings of, say, ten million pesos, the President, under the DAP provision, can realign it to the building of schoolhouses and put it under the Department of Education (but for this, the DAP provision would have to be re-enacted for the succeeding year).
Here in the 2012 distribution of the DAP, the President realigned it to… the senators. Assuming the act conforms with the other requirements of the constitutional provision, does it conform with the constitutional requisite that it should be “to augment any item in the general appropriations law from their respective offices…”(Art. VI. Sec. 25, par. 5).
The Palace can argue, but the senators named implementing agencies, which were government agencies under the Office of the President.
But it was given to the senators. It is only by accident that some of the funds went to implementing agencies.
Ifit does not conform to the requisites of the Constitution, then you’re looking at the Revised Penal Code (Art. 220 on technical malversation, which is easier to prove than bribery, just produce the documents realigning the funds without authority and show damage); you’re also looking at disallowances: the 1.107 billion pesos has to be paid off the pockets of the government official who authorized the realignment; and — i hate to say this, I really do – but if it does not conform with the constitutional requisites, you’re looking at a violation of the Constitution and whether or not it’s culpable – I hate to say that, I hope nag-ingat kayo nang ginawa nyo ito (i hope you were careful when you juggled this).
(sorry i wrote this… in my posts two weeks ago, i justified the President’s exercise of the commander-in-chief powers in the way he directly supervised the armed forces during the Zamboanga standoff… i had nothing to post today and there was a constitutional law issue … and no one was spelling out in detail this particular constitutional law issue arising from the act of the President at realigning funds from agencies under his Office to the senators’ pockets, ehe, er, to the senators.)
