Tuesday, July 15, 2014

DAP: Separation of Powers and Power of the Purse

I spent a substantial portion of my weekend reading the Supreme Court Decision on DAP penned by Justice Lucas Bersamin as well as the opinions of some of the other SC Justices. I also read views of respected legal scholars and the articles of smart investigative reporter Raissa Robles.  I woke up early so as not to miss the address of President Benigno Aquino III as he explained his administration’s position on the matter.

His explanation to the people sounded clear and convincing as he spoke using the country’s national language, Pilipino. He said his office decided to file a motion for reconsideration.

Will it prosper?  Brilliant lawyer and professor Rene Saguisag thinks that it is “legally tenable and defensible”.  But convincing 13 or the majority of the Supreme Court Justices to reverse their views will be hard. The same Supreme Court earlier declared the PDAF as unconstitutional.  It reversed previous Supreme Court rulings on PDAF or the Pork Barrel System.
The Supreme Court did NOT declare PNoy’s Disbursement Acceleration Program (DAP) unconstitutional. It only considered certain parts, “acts and practices under the Disbursement Acceleration Program (DAP), National Budget Circular No. 541 and related executive issuances unconstitutional for violating Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, such as:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; 
(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Acts.
The Court further declared void the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts (GAAs).”
In short, as far as the Justices are concerned, all other parts, acts and practices that DO NOT fall under any of the four, are CONSTITUTIONAL.
In fact it was ruled “The DAP is not an appropriation measure and does not contravene Section 29(1), Article VI of the ConstitutionThe President, in keeping with his duty to faithfully execute the laws, had sufficient discretion during the execution of the budget to adapt the budget to changes in the country’s economic situation. He could adopt a plan like the DAP for the purpose. He could pool the savings and identify the PAPs to be funded under the DAP. The pooling of savings pursuant to the DAP, and the identification of the PAPs to be funded under the DAP did not involve appropriation in the strict sense because the money had been already set apart from the public treasury by Congress through the GAAs. In such actions, the Executive did not usurp the power vested in Congress under Section 29(1), Article VI of the Constitution [that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” (IBP Makati Continuing Legal Education)
The Supreme Court says that Section 25 (5) Article VI of the 1987 Constitution and the doctrine of Separation of Powers were violated.
I will deal with the Doctrine of Separation of Powers in this issue. I will discuss my views on the violation of Section 25 (5) Article VI of the Constitution in Part 2 of my column.
Doctrine of Separation of Powers – Power of the Purse
Section 1, Article II of the 1987 Constitution says, “The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.”

The sovereign people elect the President, the members of Congress, and local officials for their national and local interests. Their will and desires are expressed through the elected officials. 

In national governance, both the President and Congress are the political departments. The Judiciary do not get elected and are therefore, not expected to express the people’s desires. Members of the Judiciary are appointed by the President in order to interpret the laws taking into consideration the original and legislative intent of the source – presumably the people.
Although the powers of Congress and the President should be separate, both are expected to work together for the benefit of their BOSSES – the people. The fact is, their powers really complement each other to achieve a government of the people, by the people, and for the people.
The Power of the Purse should be a legislative power separated distinctly from Presidential powers. In fact, for so many years, the Supreme Court used it as a basis for declaring PDAF or pork barrel as constitutional. It ruled, “It was a legitimate exercise of the Power of the Purse."
This was more of a myth than reality. 
Let us consider the National Government Budgeting process as provided for in BOOK VI of the Administrative Code of 1987.
1.    The Budget Preparation phase is done by the Executive Department.
2.    The Budget Authorization or Legislation phase is supposed to be done by Congress. But constitutionally, the latter cannot increase the budget submitted by the Executive. The General Appropriations bill passed by Congress does not become law unless signed by or allowed to be so by the President.  In fact, the latter even has the power to veto the entire appropriations bill, line items or inappropriate provisions. It takes 2/3 votes to override his veto. The President’s vote is equivalent to 2/3 minus 1 of the total votes in the House and the Senate voting separately. The President can hasten the legislative process by certifying a desired measure as urgent.
3.    The Budget Execution phase is, of course, all-executive.
4.    Then the Budget Accountability that happens alongside with Budget Execution is obviously non-legislative.
Section 25 (5) Article VI of the 1987 Constitution, together with Sections 38, 39, and 49 of Chapter 5 of the Administrative Code actually confirm that the Power of the Purse as a separate legislative power is more of a myth.  Section 38 empowers the President to suspend expenditures of appropriations whenever in his judgment the public interest so requires. Section 39 authorizes the President to use savings in appropriations to cover deficits. Section 49 gives the President authority to use savings for certain purposes that include: “priority activities that will promote the economic well-being of the nation, including food production, agrarian reform, energy development, disaster relief, and rehabilitation; and repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities.”
Former National Treasurer Leonor Magtolis Briones, a perennial critic of PNoy even confirms this reality in a meeting with Congressmen.  Congress does not really have the Power of the Purse. It is a myth!

So, why accuse the President for encroaching upon a power that he actually possesses under the Constitution, the Administrative Code, and the General Appropriations Acts? Why focus on the separation rather than the complementing of powers for the benefit of the sovereign people? 

When the President transfers savings to COA in order to purchase computers and to improve auditing efficiency, he empowers the agency not usurps its power.  When the President transfers savings to Congress to complete its eLibary project, thus improving its digital infrastructure, he empowers legislators to access data and knowledge, not encroaches upon their powers.

Reviewing the doctrine of Separation of Powers as applied to the DAP case would be a wise move!

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