Prior to the disbursement acceleration program (DAP) cases, the essence, breadth
and scope of “savings” and “augmentation” as referred to in the 1987 Philippine Constitution
have already been discussed by the Supreme Court (en
banc) in the 2008 case of “Sanchez,
et. al. vs. Commission on Audit (COA).” The Highest Court, through Justice
Tinga, explains, to wit-
“Sec. 25(5), Art.
VI of the 1987 Constitution, in turn, provides:
Sec. 25(5) 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
Commissions may, 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.
The deliberations
of the Constitutional Commission are instructive as regards the extent of the
President’s power to augment:
MR. SARMENTO: I
have one last question. Section 25, paragraph (5) authorizes the Chief Justice
of the Supreme Court, the Speaker of the House of Representatives, the
President, the President of the Senate to augment any item in the General
Appropriations Law. Do we have a limit in terms of percentage as to how much
they should augment any item in the General Appropriations Law?
MR. AZCUNA: The
limit is not in percentage but “from savings.” So it is only to the extent of
their savings.
Construing this
provision, the Court ruled in the pre-eminent case of Demetria v. Alba:
The prohibition
to transfer an appropriation for one item to another was explicit and
categorical under the 1973 Constitution. However, to afford the heads of the
different branches of the government and those of the constitutional
commissions considerable flexibility in the use of public funds and resources,
the constitution allowed the enactment of a law authorizing the transfer of
funds for the purpose of augmenting an item from savings in another item in the
appropriation concerned. The leeway granted was thus limited. The
purpose and conditions for which funds may be transferred were specified, i.e.
transfer may be allowed for the purpose of augmenting an item and such transfer
may be made only if there are savings from another item in the appropriation of
the government branch or constitutional body. [Emphasis supplied]
Thus, we
declared unconstitutional par. 1, Sec. 44 of Presidential Decree No. 1177 which
authorized the President “to transfer any fund, appropriated for the different
departments, bureaus, offices and agencies of the Executive Department, which
are included in the General Appropriations Act, to any program, project or
activity of any department, bureau or office included in the General
Appropriations Act or approved after its enactment” because it
unduly overextends the privilege granted under Sec. 16(5) of the 1973
Constitution.
We ruled that the
President cannot indiscriminately transfer funds from one department, bureau,
office or agency of the Executive Department to any program, project or
activity of any department, bureau or office included in the General
Appropriations Act or approved after its enactment, without regard to whether
the funds to be transferred are actually savings in the item from which the
same are to be taken, or whether or not the transfer is for the purpose of
augmenting the item to which the transfer is to be made.
R.A. 7180
contains a similar provision on the President’s power to augment and provides
the meaning of “savings” and “augmentation,” thus:
Sec. 17. Use of
Savings. The President of the Philippines, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, the Heads of Constitutional Commissions under Article IX of the
Constitution, the Ombudsman and the Commission on Human Rights are hereby
authorized to augment any item in this Act for their respective offices from
savings in other items of their respective appropriations.
x x x
Sec. 19. Meaning
of Savings and Augmentation. Savings refer to portions or balances
of any programmed appropriation free of any obligation or encumbrance still
available after the satisfactory completion or unavoidable discontinuance or
abandonment of the work, activity or purpose for which the appropriation is
authorized, or arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay. Augmentation implies the
existence in this Act of an item, project, activity or purpose with an
appropriation which upon implementation or subsequent evaluation of needed
resources is determined to be deficient. In no case, therefore, shall a
non-existent item, project, activity, purpose or object of expenditure be
funded by augmentation from savings or by the use of appropriations authorized
otherwise in this act.
Clearly, there
are two essential requisites in order that a transfer of appropriation with the
corresponding funds may legally be effected. First, there
must be savings in the programmed appropriation of the transferring
agency. Second, there must be an existing
item, project or activity with an appropriation in the receiving agency to
which the savings will be transferred.
Actual savings is a sine
qua non to a valid transfer of funds from one government agency to
another. The word “actual” denotes that something is real or
substantial, orexists presently in fact as opposed to something
which is merely theoretical, possible, potential or hypothetical.
As a case in
point, the Chief Justice himself transfers funds only when there are
actual savings, e.g., from unfilled positions in the
Judiciary.
The thesis
that savings may and should be presumed from the mere transfer of funds is
plainly anathema to the doctrine laid down in Demetria v. Alba as
it makes the prohibition against transfer of appropriations the general rule
rather than the stringent exception the constitutional framers clearly intended
it to be. It makes a mockery of Demetria v. Alba as
it would have the Court allow the mere expectancy of savings to be
transferred.
Contrary to
another submission in this case, the President, Chief Justice, Senate
President, and the heads of constitutional commissions need not first prove and
declare the existence of savings before transferring funds, the Court in Philconsa
v. Enriquez, supra, categorically declared that the Senate President
and the Speaker of the House of Representatives, as the case may be, shall
approve the realignment (of savings). However, “[B]efore giving their stamp of
approval, these two officials will have to see to it that: (1)The funds to
be realigned or transferred are actually savings in the items of expenditures
from which the same are to be taken; and (2) The transfer or realignment is for
the purpose of augmenting the items of expenditure to which said transfer or
realignment is to be made.”
As it is, the
fact that the permissible transfers contemplated by Section 25(5), Article VI
of the 1987 Constitution would occur entirely within the framework of the
executive, legislative, judiciary, or the constitutional commissions, already
makes wanton and unmitigated malversation of public funds all too easy, without
the Court abetting it by ruling that transfer of funds ipso facto denotes
the existence of savings.
Precisely, the
restriction on the transfer of funds, and similar constitutional limitations
such as the specification of purpose for special appropriations bill, the
restriction on disbursement of discretionary funds, the conditions on the
release of money from the Treasury, among others, “were all safeguards
designed to forestall abuses in the expenditure of public funds.” (emphases by
the Court; G.R. No. 127545)
As such settled jurisprudence, would the impending redefinition by Congress of "savings" and "augmentation" be vulnerable to judicial review due to apparent grave abuse of discretion amounting to lack or excess of jurisdiction, and thus, be declared as invalid and unlawful by the Supreme Court? Grave abuse of discretion is defined as "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility." (Ganaden, et. al. vs. The Hon. Court of Appeals, et. al., G.R. Nos. 170500 & 170510-11 [2011]). Or, on the other hand, would the Supreme Court apply the political question doctrine and/or succumb to the adage, "vox populi, vox Dei?"
Abangan!
