PNoy's defense of DAP flawed – Fr. Bernas

President Benigno Aquino III's defense of the Disbursement Acceleration Program (DAP) was flawed, constitution expert Fr. Joaquin Bernas said, as it depended on the Administrative Code of the Philippines for its legality, despite the code being superseded by the 1987 Constitution.

In an interview on GMA News' TV' “State of the Nation with Jessica Soho” Tuesday evening, Bernas explained that the Administrative Code was an executive order issued by then-President Corazon Aquino before the 1987 Constitution was promulgated.



“Anything that happened before the Constitution was promulgated, they are valid until you find out that it is in conflict with some provisions of the Constitution, and this is what happened here,” Bernas, who was among those who drafted the 1987 Constitution, said.

In a nationwide televised address on Monday, Aquino argued that Section 39 Chapter 5, Book VI of the Administrative Code of the Philippines gave the president the authority to transfer government funds between programs and projects of any department, office or agency.

“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,” Aquino said.

Bernas, however, countered that the Supreme Court was correct in its interpretation of the Constitution when it declared certain acts of the DAP as unconstitutional.

Among the practices under DAP that were struck down were the declaration of unobligated and unprogrammed funds as “savings”, the “cross-border” transfer of savings between the executive branch and the other branches of the government, and the funding of projects not stated in the General Appropriations Act (GAA).

Bernas said that Article VI, Section 25 (5), of the 1987 Constitution clearly stated that the President, Senate President, Speaker of the House of Representatives and the Chief Justice of the Supreme Court were not allowed to transfer funds from their departments to the other branches of government.

The power to augment

In a separate interview, former SC Chief Justice Artemio Panganiban said that although the President was allowed to transfer or augment funds, this power was limited to the agencies under the executive department.

Panganiban also said that there should be a clear mechanism in the transfer of savings among the executive branch's departments.

“The President [Aquino] merely exercised his power of augmentation. In the exercise, certain acts were declared unconstitutional because some requirements of the Constitution were not followed. The DAP itself and the power to augment are not unconstitutional,” Panganiban said.

Meanwhile, former University of the Philippines College of Law dean Pacifico Agabin said that the tone of Aquino's speech hinted at a move towards Charter change.

In his speech, Aquino said, “Ayaw nating umabot pa sa puntong nagbabanggaan ang dalawang magkapantay na sangay ng gobyerno kung saan kailangan pang mamagitan ng ikatlong sangay ng gobyerno.”

Aquino was referring to Congress as the third branch of the government.

Agabin said that as the legislative branch of the government, the Congress could amend certain provisions of the Constitution to give legal basis for the implementation of the DAP.

“What the Congress can do is to constitute itself as a Constitutional Convention to amend the Constitution, so as to amend that portion of the Constitution which stipulates that the power to appropriate public funds lies in Congress,” Agabin said. — Elizabeth Marcelo/DVM, GMA News