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With Due Respect

Q and A on DAP decision

I have been peppered with questions on the Supreme Court (SC) decision on the Disbursement Acceleration Program or DAP (Araullo vs Aquino, July 1, 2014). Here are some of them.

1. By filing a Motion for Reconsideration (MR), does the government expect the SC to reverse its unanimous 13-0 decision?

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Answer: As a private citizen, I cannot speak for the government. However, an MR is filed not necessarily to reverse a decision. In fact, I do not think the justices will completely turn it around. But they can modify or clarify it.

2. The President complained that the decision “put our country’s development in a state of paralysis.” Do you agree?

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Answer: With due respect, I would rather look at the bright side. True, the SC declared unconstitutional some “acts and practices under the DAP.” That is the dark side, the bad news the President is referring to. But the bright side, the good news, is that the “doctrine of operative fact [is] applicable to the adoption and implementation of the DAP.” (p87, decision)

This simply means that actions and programs done prior to the declaration of unconstitutionality are valid and enforceable. In short, unconstitutionality has a prospective effect. Only future “acts and practices” would be adversely affected.

Thus, bridges, roads and school houses built with DAP funds need not be destroyed, and those given to the Bangko Sentral to increase its capital, or transferred to the House of Representatives (a “cross-border transfer”) for the “construction of the Legislative Library and Archives Building” need not be returned.

So, too, the decision (p21) states that “the DAP as a program had been meanwhile discontinued because it had fully served its purpose…” This implies that the DAP is no longer needed to stimulate the economy since the funds for such purpose had been amply provided for in the 2013 budget.

3. Please comment on the President’s argument that the decision condemned government officials without due process when, on page 90, it said 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.”

Answer: That quotation appears alien to the otherwise well-crafted and balanced decision penned by Justice Lucas P. Bersamin. As the President pointed out, it contradicts the constitutional presumption of innocence, of good faith and of the regularity in the performance of official duties.

But all is not lost. In its ruling on the government’s MR, the Court could delete this from its decision, or clarify it to assure that this is not a prejudgment of liability and that no one shall be condemned or penalized without due process, as ordained by the Constitution. It could also explain that this statement is merely a nonbinding obiter dictum (side comment) not supported by its fallo or dispositive portion.

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4. Why did the decision’s fallo say that only some “acts and practices under the DAP” are unconstitutional; why not the DAP itself?

Answer: As stressed in my column on July 6, Araullo vs Aquino did not strike down the DAP itself, only some “acts and practices under it, unlike Belgica vs Ochoa (Nov. 13, 2013), which plainly declared the Priority Development Assistance Fund (PDAF) unconstitutional.”

The reason is that the DAP is just a sophisticated name for the power of augmentation granted by the Charter not only to the President, but also to the Senate President, the House Speaker, the Chief Justice and the heads of the independent constitutional commissions, to transfer funds from one budget item to another budget item.

Being merely an exception to the constitutional ban on the “transfers of appropriations,” this power has strict limitations. For instance, transfers may be made only from one item to another item in the same branch or office. Cross-border transfers are prohibited. Thus, the President cannot transfer savings from a budget item in the executive branch to a deficient budget item in the legislature, or in the judiciary.

Let me cite a parallel: the Charter gives the President the power of appointment. However, such power is subject to limitations. Example: the Constitution says that only Filipinos may be named judges. So, if the President appoints an alien to the judiciary, that “act” would be unconstitutional but not the power to appoint; neither are the other appointments which observed the limitations.

Likewise, an augmentation made without observing the limitations would be unconstitutional, but the power to augment itself would not be. Also, other augmentations which observed the limitations, would not be affected. In fact, the decision went further by saying that, under the operative fact doctrine, only future unconstitutional augmentations would be deemed void and unenforceable.

5. Can the President use the DAP again in the future?

Answer. Yes, nothing prevents the President from transferring funds from one item to another provided he observes the constitutional limitations pointed out in the decision. To stress, the DAP, which is just another name for the power of augmentation, is not itself unconstitutional, only some “acts and practices under it.” Also, he can ask Congress to pass a supplemental budget, or to redefine “savings,” or to refine the law requiring a certification from the national treasurer to use unprogrammed funds.

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