the DAP affair

13 July 2014

so.  at the end of a week that felt like we were watching a reality pulitikanovela, history unfolding baga, with enrile estrada revilla in comfy “jails” and no doubt going through major major physical and psychological stresses as they are forced to adjust to drastic changes in lifestyle, to put it kindly…

also the end of a week when not a squeak was heard from the prez and his budget sec in the palace, only from spokesmen lacierda and coloma who continued to defend DAP, twas all in good faith, and hinted of appealing the supreme court decision…  this while calls for abad’s resignation and the president’s impeachment issued from “noisy minorities” left right and center, and pnoy’s yellow army was is on overdrive, looking for someone else to blame, such as the supreme court, never mind that it was a unanimous decision, or gma pa rin, she started it, lol.

so, at the end of the week, it was not too surprising to wake up to a live tv feed from the palace, a budget presentation, no less, that the prez kicked off with a brisk announcement of abad’s attempted resignation and why he rejected it.

To accept his resignation is to assign to him a wrong and I cannot accept the notion that doing right by our people is wrong. 

my problem with this, really, is that it is simplistic and disingenuous, as though the issue were not more complex.  even more irritating, the president is asking us to take his word for it — they did no wrong, DAP benefitted the country — this, while they get their act, i mean, the documentary evidence, together, i suppose.

pero ika nga ni propesor randy david:

The administration gains nothing from merely claiming that the PDAF and DAP had good intentions. As things stand, nothing less than a full accounting of these funds can persuade the public that these were not plundered. Of course, there is a risk in detailing how the DAP funds were allocated. It is almost certain that doing so will reveal how much of the vaunted “daang matuwid” has been paved in patronage. But I think that is still a small price to pay in exchange for achieving the Constitution. 

and true to the crisis-ridden telenovela format, the weekend brings a palace alert: the prez will be addressing the nation tomorrow monday at 6 pm. abangan!  hmm, suddenly it can’t wait till the SONA, that’s interesting.  crunch time?  should be either of two things: he will convince us that DAP was concocted in good faith, with documents galore to prove that it contributed significantly to economic growth, or he will say i-am-sorry and promise to rein in the “creative” urge to improvise and hasten processes without due diligence.

ika nga ni dean tony la vina:

the Aquino administration might have been blinded by their conviction that they were doing the right thing for the economy and the people, and because of that belief, disregarded the legal technicalities. Even now, one discerns this flawed thinking in the stubborn defense of DAP even after the Supreme Court decision, an attitude that could bode bad for other serious decisions with complex legal issues (the Bangsamoro Basic Law comes to mind) in the remaining years of this administration.

I respectfully urge a little humility to acknowledge mistakes when they happen, as it always does in governance, so corrections could be made. In fact, with the right legal staff work, DAP, which is conceptually an innovation that might have potential to solve the perennial problem of under spending by the departments, could have been crafted in a constitutional way and the same policy objectives could have been achieved without being tainted with illegality. But that, unfortunately, is water under the bridge. 

*

47 Responses to the DAP affair

  1. July 14, 2014 at 12:19 am

    “Resignations” by Ana Marie Pamintuan http://www.philstar.com/opinion/2014/07/14/1345980/resignations

  2. July 14, 2014 at 12:23 am

    ‘Lame-DAP President’ by Marichu Villanueva http://www.philstar.com/opinion/2014/07/14/1345982/lame-dap-president

  3. July 14, 2014 at 11:20 am
    baycas

    A Seal of Transparency must be accompanied by a Seal of Accountability.

    And these seals must NOT only be present in government (both national and local) web sites.

    If perhaps there should be a symbolic ‘scarlet letter’ on each public official’s forehead then these seals must be the ones symbolically imprinted on them and wholeheartedly carried out.

    The simple ‘scarlet’ T and A won’t be effective because it could just mean ‘Tago Ng Tago’ and ‘Ako’y Walang Kasalanan.’

    Let us hope the President tonight at 6:00pm, speaking on DAP, will symbolically sport the two seals as the spotlights glare on his forehead.

    Transparency and Accountability from PNoy must emanate…
    for future generations of public officials to emulate.

    baycas, 07.14.2014

  4. July 14, 2014 at 12:27 pm

    “Pulse Asia Research’s June 2014 Nationwide Survey on
    Presidential Performance and Trust Ratings” from Prof. Ronald Holmes https://docs.google.com/file/d/0B3b9qPFV1cRDS0puM0M5dzNVMjA/edit?pli=1

  5. July 14, 2014 at 12:55 pm

    “The ‘Cory’s ghost’ argument for DAP” by Rigoberto Tiglao http://www.manilatimes.net/the-corys-ghost-argument-for-dap/111305/

    • July 15, 2014 at 3:11 am
      GabbyD

      katrina, i hear that the list of projects has been released.

  6. July 14, 2014 at 1:55 pm

    Gadzooks, is this link city or what? I didn’t bring any links, sorry.

    I like baycas’ perspective on this. Accountability to me would be a list of where the DAP savings came from and where it was redirected to, and the status of the projects. Rather like a few senators have done to report their projects.

    I think I under the basics of what happened. When President Aquino took office they held back on spending for projects they did not accept, trust or understand. The spending slowed down, and savings piled up. Then they decided to stimulate the economy by spending the money on projects they did accept, trust, and understand, including releases via the legislators to get money out broadly across the Philippines, not just concentrated in Manila.

    That all seems good to me.

    Other than that, I have to decide where to put my faith, as I am not an attorney and couldn’t tell a cross-border transfer from a crocodile. Do I side with the leftists and crooks who want to bring the administration down, and add my shrill voice to the eventual outcome of destabilization? Or do I give the Administration the latitude to respond to the Supreme Court finding, as a part of the checks and balances and evolution of Philippine good governance?

    Well, I’m for stability.

    • July 14, 2014 at 1:57 pm

      para 3 line 1 “under” should be “understand”

    • July 19, 2014 at 2:59 am
      joji

      I agree with you Joe, the govt tried to stimulate the economy to attain a sustainable growth patterns which will prevent what economists call stagflation. To make it legal, they have invoked an Administrative code as a mechanism to re-align some un-utilized excess budget which was part and parcel of the available funds intended for Congress approved projects but were considered anomalous and tainted with corruption. In the eyes of the judiciary it was unconstitutional act and such procedure is invalid but is not reversible since it is already an “operative act” and cannot be undone by the duly constituted govt.

      To my mind, there is here a stalemate between the executive and the judiciary. Will the technicality of the Constitution over rule that which cannot be reversible? Did the executive dept. acted in grave abuse of discretion for personal benefit or save the economy from collapse?

      In hindsight are we looking for a Lee Kuan Yew (of Singapore) or a Mahathir (of Malayasia) type of economic leadership in the present administration? Does Pnoy qualify to lead us to a Tiger economy? Hardly not in sight.

  7. July 14, 2014 at 7:07 pm

    did i just miss it, or did the president fail to mention, to acknowledge, the constitution even once.

    • July 14, 2014 at 9:38 pm
      GabbyD

      he did mention it.

      • July 14, 2014 at 10:06 pm

        yes, once, midway in the speech in the same breath as that admin code: “We did not transgress the law when we implemented DAP. The Constitution and the Administrative Code are not at odds with each other.” http://www.gmanetwork.com/news/story/370207/news/nation/president-aquino-s-national-address-on-the-supreme-court-s-decision-on-dap

        • July 14, 2014 at 10:54 pm
          baycas

          “Ang epektibong paggugol ng pondo ay hindi lang po dikta ng aking konsensya, malinaw din pong nakasaad sa iba’t ibang probisyon ng isang batas na ang pangalan ay Administrative Code of 1987, at tinalakay ang paggamit ng savings. Halimbawa, basahin natin ngayon (nandiyan sa inyong mga screen) ang Book VI, Chapter 5, Section 39 ng 1987 Administrative Code of the Philippines:

          “—Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations…”

          Nakita naman po ninyo, na ayon sa batas na ito, hayagang binibigyan ng kapangyarihan ang Pangulo na maglipat ng savings sa ibang proyekto. Walang nakasaad na limitado sa isang departamento o sangay ng gobyerno ang paglilipat ng savings. Sa simpleng salita po: Hindi tayo lumabag sa batas nang ipatupad natin ang DAP.”

          – PNoy, July 14, 2014

          And yet the 1987 Constitution states “RESPECTIVE”…

  8. July 14, 2014 at 9:29 pm
    baycas
  9. July 14, 2014 at 11:09 pm
    baycas

    “Ang epektibong paggugol ng pondo ay hindi lang po dikta ng aking konsensya, malinaw din pong nakasaad sa iba’t ibang probisyon ng isang batas na ang pangalan ay Administrative Code of 1987, at tinalakay ang paggamit ng savings. Halimbawa, basahin natin ngayon (nandiyan sa inyong mga screen) ang Book VI, Chapter 5, Section 39 ng 1987 Administrative Code of the Philippines:

    “—Except as otherwise provided in the General Appropriations Act, any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations…”

    Nakita naman po ninyo, na ayon sa batas na ito, hayagang binibigyan ng kapangyarihan ang Pangulo na maglipat ng savings sa ibang proyekto. Walang nakasaad na limitado sa isang departamento o sangay ng gobyerno ang paglilipat ng savings. Sa simpleng salita po: Hindi tayo lumabag sa batas nang ipatupad natin ang DAP.”

    – PNoy, July 14, 2014

    (Emphasis mine.)

    And yet the 1987 Constitution states “RESPECTIVE”…twice in Article VI…

    Section 25…

    (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 for their respective offices from savings in other items of their respective appropriations.

    …which is in ARTICLE VI, THE LEGISLATIVE DEPARTMENT.

  10. July 15, 2014 at 12:23 am
    baycas

    Angela,

    Maling Batas ang nasaligan…

    Tingnan rito: http://www.interaksyon.com/assets/images/72dap/Memo%20for%20President07022014.pdf

    Nasa Item No. 4.1 ng memo.

  11. July 15, 2014 at 1:14 am

    “War of the Branches” by Tony La Vina
    http://manilastandardtoday.com/2014/07/15/war-of-the-branches/

  12. July 15, 2014 at 8:52 pm
    satur sulit

    in defense of dap, noynoy may be arguing from the wrong platform. beyond the hardline of consitutiional and unconstitional is the more appropriate philosophical debate between the “letter” and “spirit” of the law, between a “rigid” constitutiion and a “living” constituiton. a quick wiki on the american experience:

    “Interpretations of the U.S. Constitution have historically divided on the “Letter versus Spirit” debate. For example, at the founding, theFederalist Party argued for a looser interpretation of the Constitution, granting Congress broad powers in keeping with the spirit of the broader purpose of some founders In contrast, the Democratic-Republicans, who favored a limited federal government, argued for the strict interpretation of the Constitution, arguing that the federal government was granted only those powers enumerated in the Constitution, and nothing not explicitly stated; they represented the “letter” interpretation.

    “Modern Constitutional interpretation also divides on these lines. Currently, Living Constitution scholars advocate a “spirit”-esque interpretative strategy, although one grounded in a spirit that reflects broad powers. Originalist or Textualist scholars advocate a more “letter”-based approach, arguing that the Amendment process of the Constitution necessarily forecloses broader interpretations that can be accomplished simply by passing an amendment.”

    satur sulit

    • July 16, 2014 at 5:41 pm
      ricelander

      The US Constitution is written in broad strokes so it leaves much room for liberal interpretation.

      Ours is much too detailed which makes it rigid, aside from it being too control-oriented, in reaction apparently to the excesses of the Marcos years

  13. July 16, 2014 at 10:10 pm
    baycas

    1/5

    I will understand @raissa even if she quoted Sec. 25 (5) of Art. VI of the 1987 Constitution wrongly twice in the blog post: http://raissarobles.com/2014/07/14/saguisag-fully-backs-me-on-dap-and-shares-a-startling-suspicion/ :

    “(5) No law shall be passed authorizing any transfer of appropriations; however, 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 for their respective offices from savings to other items of the respective appropriations.”

    She probably inadvertently left out the “President” or the Chief Executive in the EXCEPTION to the Constitutional provision for the Legislature.

    • July 16, 2014 at 10:11 pm
      baycas

      2/5

      HOWEVER, it is unfathomable (and apparently, now unforgivable to some including me) that the ‘executor’ DBM Secretary (Abad) did not fully quote the Constitutional provision (with respect to the Executive branch) THRICE in his memorandums to the President:

      Section 25 (5), Article VI of the 1987 Constitution– The President may, by law, be authorized to augment any item in the general appropriations law from savings in other items of appropriations; and

    • July 16, 2014 at 10:14 pm
      baycas

      Alongside Section 39 which Abad quoted:

      Section 39, Chapter 5, Book VI of Executive Order No. 292, the Administrative Code of 1987– Any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations.

      reinforces the idea of “cross-border transfer of funds”. Of course, this was recently struck down by the SC as UNCONSTITUTIONAL.

      The President though still believes that, taken alone, Section 39 of the Administrative Code authorizes him to juggle funds to a co-equal branch (Congress) and to an independent Commission (COA).

    • July 16, 2014 at 10:15 pm
      baycas

      3/5

      Alongside Section 39 which Abad quoted:

      Section 39, Chapter 5, Book VI of Executive Order No. 292, the Administrative Code of 1987– Any savings in the regular appropriations authorized in the General Appropriations Act for programs and projects of any department, office or agency, may, with the approval of the President, be used to cover a deficit in any other item of the regular appropriations.

      reinforces the idea of “cross-border transfer of funds”. Of course, this was recently struck down by the SC as UNCONSTITUTIONAL.

      The President though still believes that, taken alone, Section 39 of the Administrative Code authorizes him to juggle funds to a co-equal branch (Congress) and to an independent Commission (COA).

      • July 16, 2014 at 10:26 pm
        baycas

        (…a rather dangerous belief.)

    • July 16, 2014 at 10:16 pm
      baycas

      4/5

      The Constitutional provision.

      The Legislature is ordered by the Constitution NOT to pass a law that will allow transfer of appropriations EXCEPT when creating laws for savings from respective offices is involved allowing transfer of funds to respective offices:

      The “Chief Executive’s (representing one branch of government) savings” to the Executive branch, the “Senate President’s savings” to the Senate and the “Speaker of the HOR’s savings” to the HOR (collectively, the Legislative branch), the “Chief Justice’s savings” to the Judicial branch, and the “Constitutional Commissioners’ savings” to the respective Commissions.

      Thus, the Constitution allows each branch of government and each Constitutional Commission transfer of funds within their office in the form of SAVINGS as long as laws cover it.

      The Laws.

      GAA – appropriates the funds and provides definition to SAVINGS

      Administrative Code – creates SAVINGS (Section 38, in extreme scenarios of ‘obligated’ appropriated funds with contracts already rescinded), authorizes the use of SAVINGS in appropriations to cover deficits (Section 39), and authorizes as well the use of SAVINGS for certain purposes (Section 49)

      NOWHERE in the laws specifically say the cross-border transfer of funds is allowed because both laws through its provisions pertain to SAVINGS…repeat, SAVINGS, which the Constitution prohibits to be transferred across ‘borders’, e.g., it is always wrong to transfer Executive savings to Congress or transfer Executive savings to COA.

    • July 16, 2014 at 10:17 pm
      baycas

      5/5

      Well, much is said and written about the bases for the DAP, particularly the UNCONSTITUTIONAL cross-border transfer of savings probably up to the point of confusion.

      However, Justice Estela Perlas-Bernabe’s concurring opinion this July 2014 is very, very instructive to the Chief EXECUTIVE and the DAP ‘EXECUTOR’:

      ”When the Executive Department exercises its power of fiscal management through, for instance, withdrawing unobligated allotments and pooling them under Sections 38 and 39, Chapter 5, Book VI of the Administrative Code of 1987 (Administrative Code),”

      xxxxx

      “the President acts within his sphere of authority for he is merely managing the execution of the budget taking into account existing fiscal deficits as well as the circumstances that occur during actual PAP implementation (the matter of fiscal deficits and implementation circumstances will be expounded on in the succeeding discussion). However, he must always observe and comply with existing constitutional and statutory limitations when doing so – that is, his directives in such respect should not authorize or allow expenditures for an un-appropriated purpose nor sanction overspending or the modification of the purpose of the appropriation item, or even the suspension or stoppage of any expenditure without satisfying the public interest requirement, else he would be substituting his will over that of Congress and thereby violate the separation of powers principle, not to mention, act against his mandate to faithfully execute the laws.”

      – G.R. Nos. 209287, et al, Separate concurring opinion of J. Bernabe, pp. 4-5

      I expect that the UNCONSTITUTIONALITY of the cross-border transfer of funds will remain the same…now and forever.

  14. July 17, 2014 at 12:14 pm

    “Bluster as DAP legal defense” by Oscar Franklin Tan http://opinion.inquirer.net/76582/bluster-as-dap-legal-defense

  15. July 17, 2014 at 12:54 pm

    “To try to convince the Philippine public that the funds were put to good use, an accounting of where the money purportedly was used was provided by the DBM, which instantly raised more questions than it answered. The programs which had their budgets attenuated to fund the DAP were not revealed, nor was any information provided as to whether the projects listed under DAP disbursements were actually completed. And of the P167 billion total, at least P55 billion is of dubious credibility: P5.46 billion for “landowners’ compensation” under the agrarian reform program despite there being a formal appropriation for the purpose in the GAA; P8.592 billion for unspecified programs in the Muslim areas of Mindanao; P1.88 billion for unspecified programs by government-owned corporations; at least P8.275 billion for unspecified projects under the Department of Public Works and Highways; P17.585 billion for projects requested by local government units or legislators—a usage specifically declared unconstitutional in another unanimous ruling prior to the DAP decision, this one against the Priority Development Assistance Fund; and a P13.611 billion balance, the disposition of which has not been disclosed.” Ben Kritz http://www.manilatimes.net/20-minutes-to-ruin-4-years-of-goodwill/111998/

  16. July 17, 2014 at 1:13 pm

    “…DAP disbursements in relation to total economy are limited. The DAP disbursements of P82.5 billion in the fourth quarter of 2011 may have contributed, at best, to some 0.11% to economic growth of 3.7%. Its full year contribution is 0.03%. I say at best because some of the disbursements have little impact on growth. For example, the P10 billion equity contribution to the Bangko Sentral ng Pilipinas has not resulted in a single new job. By the way, an additional P20 billion subsidy was given to BSP as part of DAP 2012.” Ben Diokno http://www.bworldonline.com/content.php?section=Opinion&title=The-President-as-bully&id=91026

  17. July 18, 2014 at 2:15 am
    baycas

    DAP’s Good Faith

    It was good money.

    Just have faith that it was spent wisely.

    (Dedicated to Mr. Edgar Lores raissarobles.com/2014/07/15/fr-joaquin-bernas-probably-forgot-the-admin-code-came-after-the-1987-constitution/comment-page-2/#comment-143375 )

  18. July 19, 2014 at 11:17 am

    “Misunderstanding the DAP decision” by Dean Tony La Viña http://manilastandardtoday.com/2014/07/19/misunderstanding-the-dap-decision/

  19. July 19, 2014 at 8:50 pm

    talaga?!? “DAR admits using DAP to pay Cojuangco-Aquinos, other landlords”
    http://bulatlat.com/main/2014/07/18/dar-admits-using-dap-to-pay-cojuangco-aquinos-other-landlords/

  20. July 19, 2014 at 11:14 pm
    manuel buencamino

    Ahahaha and now the MR cites instances when the SC engaged in cross-border transfers.

    http://raissarobles.com/2014/07/19/read-for-yourself-the-actual-motion-for-reconsideration-on-dap/comment-page-1/#comment-143878

    At annexed pa yun mga en banc requests ng korte.

    The Court says it is unconstitutional and yet it also did it. Are they going to sue themselves?

    • July 19, 2014 at 11:47 pm
      baycas

      Peanut butter defense a la Corona…

      A la Jinggoy…

      SC en banc will still rule despite that. Initiate an impeachment case…katig naman niya ang Kongreso…

      —–

      Dami whistle blower

      Luy sa PiDAF
      Jinggoy sa BADAP
      PNoy sa CJ X-border…marahil pati JaDaF

      Ang saya, saya!

      • July 21, 2014 at 12:43 am
        Jojie

        An impeachment case will not prosper since Pres. Pinoy still enjoys political goodwill among the legislators. Besides, The issue is still debatable and the mis-interpretation of the law which i believe is not a crime to warrant a plunder case neither the executive power to allocate resources for a prudent fiscal budget management and balancing will not merit grave abuse of discretion. While such strategy is tantamount to deviation of funds from one dept to another, it is my view that the funds utilized were part of general appropriations already included in the approved budget by Congress. Therefore, NO ADDITIONAL FUNDS were taken from the Treasury to augment its fiscal requirements. Hence, no law was violated and the govt can exercise its power as provided for by the Administrative code.

        • July 28, 2014 at 4:19 am
          baycas

          I-impeach ni PNoy si Carpio and/or Sereno. Sabi niya nag cross-border transfer funds ang SC.

          Hindi mo nakuha ang komento.

  21. July 19, 2014 at 11:54 pm
    Bert

    This one is what I feared most of all: They’re going to file an impeachment case against Noynoy for failing to have a love life during his presidency. Pres. Noynoy’s goose is cooked.

    • July 20, 2014 at 12:45 am
      baycas

      In the past, Abad sent him flowers to arouse intrigue during the Presidential election campaign. It may work again…this time as prophylaxis vs. impeachment.

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