Noy, aides liable for DAP—SC Written by Tribune Friday, 04 July 2014 00:00 font size decrease font size increase font size Print Be the first to comment! Abad aware DAP brainchild illegal; Noy usurped Congress power The gloves are definitely off, as at least two Supreme Court (SC) associate justices put their foot down on the Palace spins of President Aquino and his Palace aides involved in the creation and implementation of the Disbursement Acceleration Program by saying the Palace committed no wrong and had only good faith in implementing DAP as people benefited from the DAP projects. SC Justice Arturo Brion, in his dissenting opinion, made it crystal clear that Budget Secretary Florencio “Butch” Abad, said to be the brains behind the DAP, knew that which he had created was illegal and unconstitutional. “As a lawyer and with at least 12 years of experience behind him as a congressman who was even the Chairman of the House Appropriations Committee, it is inconceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” Justice Briones pointed out. He added that the court could not make any pronouncement on the criminal, civil, or administrative liability of the proponents since it does not have the jurisdiction to do so, but pointed out that “There are indicators showing that the DBM (Department of Budget) Secretary might have established the DAP knowlingly aware that it is tainted with unconstitutionality...the DBM secretary admitted that he has an extensive knowledge of both the legal and practical operations of the budget,” he added. Justice Carpio, in his dissenting opinion, virtually called President Aquino and his aides “usurpers” of power, as he pointed out that the Executive Department “usurped” Congress’ power of the purse and made it “inutile and a surplusage.” Aquino’s spokesmen continue to claim that neither their principal nor Abad acted in bad faith, and that they are not liable for coming up with DAP, as its funds certainly benefited the people. But even the SC ruling itself, in its ponencia, said that Malacañang may be held liable for the DAP. In its 92-page decision by Associate Justice Lucas Bersamin, the high court said that although recipients cannot be held liable for benefiting from programs, activities and projects (PAPs) under the DAP in good faith, the executive branch cannot be similarly cleared of culpabilities. The SC pointed out that under the doctrine of operative recognizing the validity of the assailed law or action prior to the determination of its unconstitu-tionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. “The doctrine of operative fact can apply only to the programs, activities and projects PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but 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,” read the ruling. The SC held the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations. The Court specifically struck down the withdrawal of unobligated allotments from implementing agencies and their use as sayings pripor to end of fiscal year, cross-border transfers of savings of the executive to augment funds of agencies outside the department and funding of projects and programs not covered by the General Appropriations Act (GAA). It also voided the use of unprogrammed funds despite the absence of a certification by the national treasurer that the revenue collections exceeded the revenue targets for non-compliance with condititions in the GAA. The SC has the same finding on National Budget Circular No. 541 and related executive issuances. The high court said there is nothing under the General Appropriations Act of 2011 and 2012 to authorize transfers of funds under the DAP. The high court added that a careful review of the documents submitted to them showed that the “savings pooled under the DAP were allocated to PAPs that were not covered by any appropriations in the pertinent GAAs.” The high court agreed with petitioners that the Executive department forced the generation of savings in order to have a larger fund available for discretionary spending. They said the government “by withdrawing unobligated allotments in the middle of the fiscal year, in effect deprived funding for PAPs with existing appropriations under the GAAs.” The anti-DAP groups said there was no law that authorized the withdrawal and transfer of unobligated allotments and the pooling of unreleased ppropriations; and that the unbridled withdrawal of unobligated allotments and the retention of appropriated funds were akin to the impounding of appropriations that could be allowed only in case of “unmanageable national government budget deficit” under the GAAs, thus violating the provisions of the GAAs of 2011, 2012 and 2013 prohibiting the retention or deduction of allotments. “The assertions of the petitioners are upheld. The withdrawal and transfer of unobligated allotments and the pooling of unreleased appropria-tions were invalid for being bereft of legal support,” the high court said. But while the acts under DAP were illegal, the high tribunal cited “equity and fair play” and the “undeniably positive results (of the DAP) that enhanced the economic welfare of the country.” “To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness,” it stressed. It pointed out that consequences resulting from the DAP and its related issuances could no longer be undone. Because of this, it applied the doctrine of operative fact, which nullifies the executive act but sustains its effects. The SC has exempted the DAP from the general rule that a void or unconstitutional law or act produces no effect. “To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair… That scenario would be enormously burdensome for the Government. Equity alleviates such burden,” it added. But two justices, Brion and Carpio, in their dissenting opinion on “good faith” pointed out the liabilities of the President and his Budget Secretary for creating the DAP. Said Justice Carpio: “This court cannot allow a castration of a vital part of the checks-and-balances enshrined in the Constitution, even if the branch adversely affected suicidally consents to it,” adding that in the implementation of the DAP, “the President disregarded the specific appropriations in the (General Appropriations Act) and treats it as his self-created all-purpose fund, which he can spend as he chooses without regard to the specific purposes for which the appropriations are made,” making it clear that Aquino “usurped” Congress’ power of the purse and made it “inutile and a surplusage.” He noted that the doctrine of operative fact – or the doctrine that nullifies the void law but sustains its effects – cannot be used by those who acted in bad faith or with gross negligence. He also stressed that those “directly responsible” for the unconstitutional act can’t invoke the doctrine. “He who comes to equity must come with clean hands, and he who seeks equity must do equity,” he said. Moreover, the doctrine is only applicable when nullifying the effect would result in the prejudice of the innocent, he said. This means school buildings, roads, and other projects funded by the DAP. The contractor who built the school houses in “good faith” should not be prejudiced, he said. “However, if DAP funds were used to augment the PDAF of members of Congress whose identified projects were in fact non-existent or anomalously implemented, the doctrine of operative fact would not apply,” Carpio declared. In what could be termed a swipe at members of Congress, Carpio said he was surprised that the majority in the Senate and in the House of Representatives supported the DAP. Brion also cited the reason Secretary Abad ‘s acts could not have been done in good faith,” stressing that Abad, when questioned by Associate Justice Lucas Bersamin during one of the oral arguments admitted that fund transfers made to the Commission on Audit and the House of Representatives pushed through despite constitutional prohibition. “In this light, we should take the utmost care in what we declare as it can have far reaching effects. Worse, for this Court, any advocacy or mention of presumption of good faith may be characterized as an undue and underserved deference to the Executive, implying that the rule of law, separation of powers and checks and balances may have been compromised in this country,” Brion said. Of Abad, Briones said: “As a lawyer and with at least 12 years of experience behind him as a congressman who was even the Chairman of the House Appropriations Committee, it is conceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” he said. He stressed that the court could not make any pronouncement on the criminal, civil, or administrative liability of the proponents since it does not have the jurisdiction to do so, but pointed out that “There are indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality,” adding that “the DBM Secretary admitted that he has an extensive knowledge of both the legal and practical operations of the budget.” During the high court’s deliberations, Brion had stressed that the “doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but 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,” the decision read. Translated, this means any showing of bad faith, or any abuse on the part of officials in the implementation of the DAP proven before an appropriate tribunal, enable them to evade liabilities. Malacañang and its allies in the House and the Senate went into the defense of Aquino and Abad, insisting that they acted in good faith in implementing the struck down acts in the DAP and that they committed no wrong. Senate President Franklin Drilon, even came out with a press release saying that Aquino and Abad cannot possibly be accused of bad faith in implementing the DAP. The SC ruling partially granted the nine petitions filed last year by former Manila Councilor Greco Belgica, former Iloilo Rep. Augusto Syjuco, lawyers Jose Malvar Villegas Jr. and Manuelito Luna; Philippine Constitution Association (Philconsa); Integrated Bar of the Philippines (IBP); the militant Bayan Muna, Kabataan and Gabriela party-list groups; Confederation for Unity, Recognition and Advancement of Government Employees (Courage); and the Volunteers Against Crime and Corruption.
Posted on: Thu, 03 Jul 2014 14:17:45 +0000
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