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Aquino played it safe: No written order on DAP

President Aquino has been pig-headedly defending his so-called Disbursement Acceleration Plan (DAP), despite the snowballing outrage against it, despite the consensus among constitutional experts that it is patently illegal, since it essentially throws to the dustbin Congress’ budget laws.

However, it seems that Aquino—or his closest legal advisers—wasn’t so sure himself. He played it safe to shield himself from an impeachment move that could arise from such blatant violation of the Constitution:

Aquino had not issued any written authorization to Budget Secretary Florencio Abad to undertake the DAP whether in the form of an executive order, memorandum, memorandum circular, or even a marginal note.

This is despite the fact that funds hijacked for it represented a huge chunk of government spending, totaling, according to official administration figures, P158 billion: P84 billion in 2011, P59 billion in 2012, and so far this year P15 billion.

The only documentation on the controversial DAP: What directive? Verbal?

The only documentation on the controversial DAP: What directive? Verbal?

I made an exhaustive search in official government websites, that at the www.gov.ph, (which has been transformed into the government’s Official Gazette, making it the repository of all official documents originating from the Office of the President) and that of the budget and management department. I could find no document coming from the President ordering Abad to set up the DAP.

How could such an important executive action not be covered by any written order?

Exasperated, I called several of my sources in government. I was told in various, but terse ways: “There is none.”

Only press releases

What passes off as “documentation” for the DAP were the press releases by the DBM and a “Q&A on the Disbursement Acceleration Program”, which were posted at Malacañang’s website.

The DBM press statements were purportedly released on October 12, 2011 entitled “Aquino government pursues P72.11-B disbursement acceleration plan”; on December 13, 2011, “85% of P72-B disbursement acceleration plan already released”; and on January 9, 2012, “96% of P72.11-B disbursement acceleration already released, 77.5% disbursed”. Lastly, and only released last month after the controversy broke out, is a “Q& A on the Disbursement Acceleration Program”.

Very significant in the three press releases by the DBM is that these do not refer to any documented Aquino directive ordering the setting up of the DAP, but portrayed it as merely the budget department’s initiative.

An Aquino order on the DAP is mentioned only in the “Q & A”: “The DAP was approved by the President on October 12, 2011.” However, while it provided links to the DBM press releases and to a lengthy legal brief defending the DAP, it did not post any written order by Aquino on the DAP. How did he approve it? Just verbally?

But how could the DBM defy Congress by changing the appropriations it ordered, without any documentation?

Only a single document for DAP

There is only one official document ordering the DAP: Budget Secretary Abad’s National Budget Circular No. 541 of July 18, 2012. Strangely though, it did not use the term “Disbursement Acceleration Plan” and was even innocuously titled “Adoption of Operational Efficiency Measure—Withdrawal of Agencies Unobligated Allotments as of June 30, 2012.”

In fact, neither Aquino nor Abad, after the January 2012 press release, would mention again or refer to the DAP, as if it wanted it forgotten. They did so only in September 2013, in their reply to a Senator Jinggoy Estrada speech that mentioned it as the source of bribe money for the Senate to remove Chief Justice Renato Corona.

The circular described the DAP’s justification and aims.

“For the first five months of 2012, the National government has not met its spending targets. In order to accelerate spending and sustain the fiscal targets during the year, expenditure measures have to be implemented..”

In order to speed up expenditures, the circular noted, “the President per directive issued June 27, 2012 authorized the withdrawal of unobligated allotments of agencies with low levels of obligations as of June 30, 2012..”

The circular meant that budgets for 2012 for government entities that had not been used (“unobligated”) as of June 30, 2012 would be withdrawn. The DBM will then use these funds (according to the order’s item 5.7) “to augment existing programs and projects ofany agency and to fund priority programs and projects not considered in the 2012 budget..” (Emphasis in the circular itself, not mine.)

Order didn’t make sense

The order didn’t make sense: What was rationally programmed by an agency to be used for the second half of the year was deemed as, due to its inefficiency, and the funds for the rest of the year, confiscated.

(I could not find any similar documentation authorizing the P84 billion hijacked for the DAP in 2011. Abad apparently simply directed his agency to use for projects identified as under the DAP the P30 billion unused 2011 budget for personal services, P22 billion unused appropriations in 2010, and P12 billion of profits of state firms. These are patently illegal however, as there is no ambiguity in budget laws that these funds should have been reverted to the General Fund, the use of which is determined by Congress every year through its appropriations law. )

The order actually shocked many government officials and the DBM bureaucracy—that funds unused at the middle of the year were impounded. Suddenly, projects clearly authorized by the 2012 Appropriations Law were cancelled. Reckless and profligate agencies that used their whole-year’s budget by the middle of the year were in effect awarded.

But for such a game-changing order, Abad did not “annex” in his memorandum the presidential directive authorizing such confiscation.  Was it just verbal?

And which is which? Did Aquino authorize—even just verbally—the DAP on October 12, 2011 as the “Q & A” had claimed, or was it on June 27, 2012, according to the circular? Or was Abad just lying that Aquino issued a written order that he gave different dates?

Preposterous: no written directive

That Aquino didn’t issue a written order is preposterous, as our entire presidential system is built on a mountain of documents, so there would be accountability, so there would be no ambiguity in a President’s decisions and orders.

But Aquino may have thought he was clever in not issuing any written order on the DAP, thinking that this would clear him from impeachment if ever—as it has come to pass, quite accidentally—its unconstitutional features are exposed.

It’s another nail though on his DAP’s coffin. Even if one assumes that the DAP is constitutional when it changed the budget allocations from those authorized by Congress, and merely realigned these, the Constitution very categorically says that only the President(or the heads of the other branches of government and the constitutional commissions) can do so.

But it turns out now that Aquino never ordered it—at least in the way that a President issues orders, which is in written, documented form. Only Abad did in his National Budget Circular No. 541 did.

Once the Supreme Court rules his DAP unconstitutional, Abad will likely be Aquino’s scapegoat. The President will claim that his budget secretary didn’t understand him, or misheard his verbal go-ahead to accelerate government spending to stimulate the economy.

If that happens, I wonder if Abad again be leading what would be Hyatt 10, Part II.