On the SC's Role in Resolving the DAP Issue

In an article published on Rappler last 16 October (http://www.rappler.com/move-ph/ispeak/41213-why-supreme-court-step-in), I argued that the Supreme Court (SC) must intervene and rule PDAF as unconstitutional. 

I've been thinking about the Disbursement Acceleration Program (DAP). Should the Supreme Court similarly intervene and rule it as unconstitutional?

Below are my rough thoughts.

The DAP mechanism, as discussed so far, is not clear and well-established to be ruled by the SC as constitutional or not.

Let me start with two important clarifications.

One, the discretionary funds of the executive in the form of lump-sums shouldn't be a problem, as long as these are in the General Appropriations Act (GAA). As I earlier contend, an elbow room in the management of funds is necessary for managers to effectively manage. That’s the job of the executive. What’s important is that these funds are checked and their amounts are not ridiculously big.

The recent ruling of the Malampaya Fund and the Special Purpose Fund (SPF) suggests that the SC is allowing the executive’s discretionary fund, since the ruling retained these funds, which are both lump-sum allocations under the Office of the President, as long as these are used for their legally-prescribed purposes. 

Two, the discretion in the DAP could possibly happen on two accounts: when, in using this mechanism, the executive decides on which projects and programs to stop and which projects and programs to fund using savings. 

This discretionary power seems to have been abused with the giving of pork to legislators through the DAP. I already opined earlier that the giving of pork through the DAP is the executive being trapped in the pork game—where to do something unhampered/ unchecked (such as in this case when the executive tried a daring fiscal policy), it had to give legislators their cut. Now that pork is prohibited, the pork game has been abolished and any pork-giving is deemed illegal.

Two things, at least, are legally questionable in DAP: (1) the definition of savings and (2) the projects and programs funded through savings.

Legal experts say: it is not savings if the funds have not been released/ committed yet. The executive explains that the savings they used for DAP did not violate this. The executive identified several sources of funds for the DAP. For funds from cancelled projects and programs, these were all initially committed. 

Legal experts say: savings cannot be used for projects and programs that cannot be found in the GAA as only those that went through legislative enactment can be funded, in accordance to Congress’ power of the purse. The executive explains that they funded, through the DAP, only items (programs/ projects/ mechanisms) in the GAA.

This line of argument and counter-argument is the main reason I say that the DAP as a mechanism is not clear and therefore cannot be ruled as constitutional or not. It is unlike PDAF that became a customarily and operationally acceptable and practiced system that violated the principle of separation of powers that led to the breakdown of checks and balance.

It seems to me, as far as the development and use of the DAP is concerned, there is a need to establish the facts. I don’t think the Supreme Court is the place for that. At best, the SC can define and clarify the two legally questionable features of the DAP, so that if the political branches decide to keep the DAP, they will straighten up these legal features. The SC can also advice how to exact accountability in the development and use of the DAP.

So how can we exact accountability on the development and use of the DAP? The executive, at the minimum, should explain. There is also a need to find out the mistakes and shortcomings of all the actors concerned including the flaws and gaps in system that allowed the lapses to happen, if there are any. We want an accountable government, after all.

This is where the check-and-balance relationship of the executive and the legislature (particularly the legislatures’ power of inquiry in aid of legislation) and the mandate of accountability institutions like the Ombudsman and COA must come in. These are the venues that can be mobilized to exact accountability on the development and use of the DAP. There are perhaps other means in our institutional-legal framework that the SC can identify.  

A gap in the institution is emerging, as it seems. In instances such as this when the executive attempted something daring and was not immediately checked, what accountability processes that can sanction the responsible parties can be undertaken, if this is deemed necessary? At the moment, the only sanction available is impeachment. In this case, impeachment is too strong, unnecessary and uncalled for, especially the possible lapses could also be due to the failure of accountability checks and mechanisms, including the legislature's oversight. There is perhaps a need to institutionalize a sanction lower than impeachment. 

Similarly critical, mechanisms and policies that will more effectively check and limit the President's use of the executive powers must be seriously taken into consideration to avoid any similar lapses in the future, if there are any.

The DAP is a sensible fiscal discipline mechanism provided that possible abuses of discretion in its use will be avoided. In identifying which projects and programs to cancel, the executive must have a clear performance standards to use which can be checked. In re-allocating savings (as defined by law), the projects and programs to be funded must be items in the GAA or items that will pass through legislative enactment. 

However, given the controversy and since fiscal discipline will have to be observed anyway with or without a distinct mechanism for it, it is best for the political branches to do away with the DAP and abolish it.