PDAF unconstitutional

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Manila -- Senior Justice Antonio T. Carpio yesterday said that the Priority Development Assistance Fund (PDAF) is unconstitutional as contained in the 2013 General Appropriations Act (GAA), which is “riddled with unconstitutionality.”



No Basis

Carpio said that the provisions in the GAA stating that the President cannot spend the PDAF funds without the concurrence of the House or Senate Committee on Appropriations, allowing Cabinet secretaries to realign funds, the requirement for the House and the Senate’s concurrence with the alignment, and giving legislators the privilege of identifying their projects to be funded by PDAF have all no basis in the Constitution.

The SC held yesterday oral arguments on three petitions that challenged the constitutionality of disbursing PDAF. It had earlier issued a temporary restraining order (TRO) that stopped the disbursement of the remaining PDAF fund in the 2013 budget.

The SC also stopped the disbursement of the Malampaya fund for other purposes not related to energy development and projects.


Cabinet, Solons Can’t Realign Funds

According to Carpio, a Cabinet secretary, a House committee or a legislator cannot realign funds.

He pointed out that the power to realign funds cannot be delegated to the Cabinet. “That power cannot be delegated, thus this power to realign is unconstitutional,” he said.

“When the Constitution says all appropriations shall emanate from the House, it has to be acting as a body, it cannot be one legislator or a committee. A legislator or a House committee is not Congress,” Carpio stressed.

Riddled With Unconstitutionality

“You do not need a COA (Commission on Audit) report. The 2013 provision on PDAF, in the GAA, is riddled with unconstitutionality,” he said.

Carpio also said the power to utilize funds is the sole prerogative of the President and “any sharing of this power is unconstitutional.”


Only President Can Realign Funds

“The Constitution says the President can realign savings, it cannot be delegated to Cabinet secretaries,” he said.

On the Malampaya fund, Carpio said the presidential decree that had allowed the President to use the fund for other purposes was during the time of the late former President Ferdinand E. Marcos when the Executive department had the legislative power.

PD 910 Facially Unconstitutional

With the enactment of the 1987 Constitution, the President had been stripped of legislative power so “PD 910 is now facially unconstitutional,” Carpio added.

Justice Teresita J. Leonardo de Castro, on the other hand, asked COA Chairman Ma. Grace Pulido Tan what her agency was doing on the face of the reported misuse of the PDAF.

“Considering that the alleged misused of PDAF has been ongoing for some time, where has COA been all along?” she asked.

“Your honor, I wish I could answer your question but I have not been with COA then,” was the answer of Tan, who acted as a resource person during the oral arguments.

Justice De Castro shot back, “You cannot just put the blame on past COA officials. There should be institutional continuity in the agency.”

Tan said she was not blaming past officials of the agency. “I did not mean to put blame to my predecessor. I am sorry I cannot explain,” she said.

Lawyer Aldrich Dy, who argued for the petitioners, opposed the partial lifting of the TRO which the Office of the President and the House of Representatives, through the Office of the Solicitor General, had asked the SC.

Dy said there are other measures that the Congress and the local government units may implement to address the problem to scholarships and medical needs of indigent patients.

“It does not lie with the lifting of the TRO,” Dy said.

“It is time that our country breaks away from this system of dependency… At this point in time there is nothing more pressing than the abolition of this [PDAF],” Dy stressed.

Oral arguments on PDAF and Malampaya fund will resume on October 10 and 17.

Earlier, the Supreme Court met in full court session but did not issue a temporary restraining order (TRO) that would have stopped the Office of the President (OP), through the Department of Budget and Management (DBM), from releasing public funds under the Disbursement Acceleration Fund (DAP).

Instead, it required the Office of the President (OP), through the DBM, and the Senate to comment on the two petitions challenging the constitutionality of DAP.


Oral Arguments Set

The SC set oral arguments on the two petitions for October 22.

Sources said that after the oral arguments, the SC may still act on the request for TRO that was pleaded in the two petitions filed by former Iloilo congressman Augusto Syjuco Jr. and former Manila City councilor Greco Antonious Beda B. Belgica and his group.

On top of the TRO, Syjuco sought the filing of administrative and criminal charges against Budget Secretary Florencio B. Abad and Senate President Franklin M. Drilon for their alleged illegal and unconstitutional acts in connection with the DAP.


Grave Abuse Of Discretion

As this developed, the Philippine Constitution Association (Philconsa) yesterday filed with the SC yesterday the third petition that challenged the constitutionality of disbursing government funds through DAP.

Philconsa said it had to file the petition “in keeping with its mission to preserve, protect, and defend the Constitution.”

Represented by its vice chairman Froilan M. Bacungan, Benjamin E. Diokno, and Leonor M. Briones, Philconsa told the SC that the DAP “was issued and implemented by the DBM with grave abuse of discretion… accented by palpable violations of the Constitution and penal laws.”

DAP “violated and defiled the great trinity in the triadic separation of powers, the very anchor of constitutionalism,” it said.


DAP Legal – DBM

The DBM had earlier explained that the DAP was created through the constitutional power of the President to augment savings as provided for in Article VI, Section 25 (5) of the 1987 Constitution in relation to Book VI, Chapter 5, Section 49, of the Revised 1987 Administrative Code.

Presidential Spokesman Edwin Lacierda had said that the government has “firm footing” with regard to the legality of the DAP.

“We have basis in the Constitution. We have basis in the Administrative Code. We also have basis in the budget law itself,” Lacierda said in reaction to criticisms on the constitutionality of DAP.

Why DAP Is Unconstitutional

In his petition, Syjuco said there are three reasons DAP should be declared unconstitutional.

He pointed out that “no law was passed and promulgated for the creation of DAP and that no law likewise sanctions the appropriation, disbursement and release of public funds for the implementation of DAP.”

He said that “the funds allocated for DAP were taken from the budgets of slow-moving projects which were not completed nor performed, hence, are not savings in itself as contemplated by the Constitution.”

He also said that “the DAP was and is being used to augment new budget allocations or list not approved by the legislature.”

Earlier, Syjuco filed two plunder charges against Drilon in connection with the alleged anomaly in the construction of the Iloilo Halls of Justice and the Iloilo Airport.

Syjuco, himself, had been charged and had been ordered arrested in connection with the alleged overpricing of training tools bought by the Technical Education and Skills Development Authority when he was the agency’s head.

Incentive For Corona Impeachment Trial

Senator Jinggoy Estrada had earlier alleged that the release of government funds through DAP was used by the Office of the President as “incentive” for those who voted for the conviction of then Chief Justice Renato C. Corona in his impeachment trial.

Two members of the judiciary had said that if true and substantiated, the use of DAP as incentive for those who voted for the conviction of Corona could be used, in a petition before the SC, to nullify the impeachment decision on the ground of extrinsic fraud like bribery and corruption. Manila Bulletin

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