THE DISBURSEMENT ACCELERATION PROGRAM

The Disbursement Acceleration Program (DAP) is a stimulus package under the Aquino
administration designed to fast-track public spending and push economic growth. This covers
high-impact budgetary programs and projects which will be augmented out of the savings
generated during the year and additional revenue sources.

Funds used for programs and projects identified through DAP were sourced from savings
generated by the government, the realignment of which is subject to the approval of the President;
as well as the Unprogrammed Fund that can be tapped when government has windfall revenue
collections, e.g., unexpected remittance of dividends from the GOCCs and Government Financial
Institutions (GFIs), sale of government assets.

I. SAVINGS

A. PHILIPPINE CONSTITUTION 1987

Section 25 (5), Article VI of the 1987 Constitution

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 Commissionsmay, 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.

Constitutionality of the pork barrel

AMID the furor over the pork barrel and its supposed misuse by the members of Congress (or what is now known as
the Priority Development Assistance Fund [PDAF]), it is interesting to observe that the Supreme Court has actually
ruled on the constitutionality of the pork barrel system a number of times.

In Philconsa v. Enriquez, G.R. No. 113888, August 19, 1994, the Supreme Court described the pork barrel system, then
known as the Countrywide Development Fund (CDF) "as an imaginative and innovative process or mechanism of
implementing priority programs/projects specified in the law."

The choice of words by the Supreme Court, i.e. “innovative” and "imaginative," is certainly impressive. It tends to
make one think that the pork barrel system is a good thing. And indeed it may have been, though many would now say
otherwise. In any case, Philconsa v. Enriquez was a major decision of the Supreme Court that rationalized and ratified
the pork barrel system in the country.

In a more recent case, Lawyers Against Monopoly and Poverty (Lamp) v. the Secretary of Budget and Management et
al, G.R. No. 164987, April 24, 2012, the constitutionality of the pork barrel system, now known as the PDAF, was
assailed again.

In the Lamp case, the petitioners asserted that the General Appropriations Act of 2004 failed to specifically allocate
and identify funds for particular projects by congressmen, and as a result, "[t]he silence in the law of direct or even
indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the
Congress to scrap and do away with the ‘pork barrel’ system.:

Hence, Lamp is of the conclusion that “the pork barrel has become legally defunct under the present state of GAA
2004.” (Lamp, supra).
Lamp also argued that, “this situation runs afoul against the principle of separation of powers because in receiving
and, thereafter, spending funds for their chosen projects, the Members of Congress in effect intrude into an executive
function. In other words, they cannot directly spend the funds, the appropriation for which was made by them.

In their individual capacities, the Members of Congress cannot “virtually tell or dictate upon the Executive Department
how to spend taxpayer's money. Further, the authority to propose and select projects does not pertain to legislation. "It
is, in fact, a non-legislative function devoid of constitutional sanction,” and, therefore, impermissible and must be
considered nothing less than malfeasance." (Lamp, supra)

You will note that many of these arguments are the very same arguments now being brought out by civil society (i.e.
the spending of taxpayer’s money by way of projects is an executive, and not legislative function).

However, the Supreme Court ruled against Lamp, upheld the constitutionality of PDAF and thus further rationalized the
pork barrel system. The Supreme Court explained that there is a strong presumption in favor of the constitutionality of
a statute, such as a General Appropriations Act subject of the case.

The Court also reasoned that "No convincing proof was presented showing that, indeed, there were direct releases of
funds to the Members of Congress, who actually spend them according to their sole discretion." (Lamp, supra).

The Court then explained that: "So long as there is no showing of a direct participation of legislators in the actual
spending of the budget, the constitutional boundaries between the Executive and the Legislative in the budgetary
process remain intact. While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated
by a piece of valid legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of
Congress. Again, all presumptions are indulged in favor of constitutionality." (Lamp, supra)

In short, the Supreme Court was aware of the possibility that the pork barrel system could be abused. However, this
was not sufficient reason to declare a law unconstitutional.

From a legal standpoint, the decision of the Supreme Court is sound. However, whether or not this decision was right
from other perspectives, remain to be seen.

In any case, we wait with bated breath as to what will happen next in the Philippines.

Prudential considerations persuade me that a dispute between Congress and the President is not ready for judicial review
unless and until each branch has taken action asserting its constitutional authority.... The Judicial Branch should not
decide issues affecting the allocation of power between the President and Congress until the political branches reach a
constitutional impasse. Otherwise, we would encourage small groups or even individual Members of Congress to seek
judicial resolution of issues before the normal political process has the opportunity to resolve the conflict. If the Congress,
by appropriate formal action, had challenged the President’s authority to terminate the treaty with Taiwan, the resulting
uncertainty could have serious consequences for our country. In that situation, it would be the duty of this Court to resolve
the issue.— Justice Powell in his opinion

I am of the view that the basic question presented by the petitioners in this case is "political" and therefore nonjusticiable
because it involves the authority of the President in the conduct of our country's foreign relations and the extent to which
the Senate or the Congress is authorized to negate the action of the President.
— Justice Rehnquist in his opinion

The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion;
accordingly, it falls within the competence of the courts
— Justice Brennan in his dissenting opinion
While dismissing the case of Goldwater v. Carter, the Supreme Court left the question of the constitutionality of the
President Carter's action open. Powell and Rehnquist merely questioned the judicial merit of the case itself; they did not
explicitly approve Carter's action.[3] Moreover, Powell even stated that this could be a valid constitutional issue. [2] Article II,
Section II of the Constitution merely states that the President cannot make treaties without a Senate majority two-thirds
vote. As it stands now, there is no official ruling on whether the President has the power to break a treaty without the
approval of Congress.

Splendid