Advance excerpt from my Eagle Eyes column tomorrow entitled Misunderstanding the DAP decision: Startled by the President’s speech, I revisited the Araullo vs. Aquino decision - the main opinion and all the concurrences - and compared my understanding of the decision with how the President characterized it. Having done that, I have come to the conclusion that the President has been misled by someone on the implications of the decision, if not intentionally at least in a way that resulted in a very big misunderstanding on what the decision really means. A big disservice was done to the country by whoever misled the president, especially if it was done for a personal agenda. Ironically, the President and his political opponents (now calling for his impeachment) have converged and agreed in their interpretation of the Supreme Court decision. For sure, the latter will invoke this shared understanding as they pursue their political ends – citing the President’s own admission that the Supreme Court makes him and other implementors of DAP liable. There is one part of the DAP decision, however, where the President is rightly incensed. These are the lines in the decision that seems to perversely flip the presumptions of good faith, regularity of performing official actions, and innocence into presumptions of bad faith, irregularity and guilt. This discourse on good faith and liability, found in the penultimate paragraphs of the DAP decision, is what we in the legal profession call obiter - it was not necessary for the decision, it is not needed for the resolution of the issues litigated, there are certainly no finding of facts about liability in the decision, and it is definitely not binding on any future court or proceeding. Whoever told the president that this was now the rule from now on misled him and ignited his anger at the expense of our institutions and the country. This nonbinding offensive section of Araullo came about when the Court clarified the doctrine of operative fact can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice. It then said that, by implication, the doctrine can apply only to the Projects, Activities, and Programs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP. Suddenly, completely out of place and without underlying premises in logic and facts, the main opinion then observes that the doctrine of operative fact cannot apply to the authors, proponents and implementors of the DAP, “unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities”. I have reviewed this paragraph several times and have come to the conclusion that it is inappropriate and unfair, certainly not legally coherent with the doctrine of operative fact which has nothing to do with liability for official acts. I was actually taken aback at this reversal of presumptions, especially because Justice Lucas Bersamin, the author of the main decision, is one of the best legal and judicial minds in criminal and civil procedure. I can only explain this as an oversight resulting from having to complete the final draft of the opinion under time pressure. Even if it is obiter and not binding, I also feel strongly against this part of the decision because it is sure to kill reforms and will be a disincentive to change and innovation. If the paragraph is retained or not clarified, it will serve as a warning to all innovators in government, including the current and future presidents, that they should never go out of the box and must never stretch constitutional limitations even when national interests and needs require them. That is so dangerous for a country that is faced with enormous and complex problems where flexibility and adaptive management is needed. For this reason, I hope the Motion for Reconsideration to be filed by the Solicitor General will seek clarification of that part of the decision, making sure it is characterized as obiter or even abandoned altogether in the final resolution of the case. In my view, if the Court accepted such an argument, as the en banc or through concurring opinions, it is not doing so out of pressure from the President but because it is in fact the right thing to do.
Posted on: Fri, 18 Jul 2014 09:13:40 +0000
Trending Topics
Recently Viewed Topics
© 2015