Understanding the DAP ruling

12:34 AM July 30, 2014

Law students are taught early on that when they read decisions, particularly those of the Supreme Court, they should keep in mind that the judgment contains two parts: the ratio decidendi and the obiter dicta. This is especially true when the decision touches on matters of public and political importance, where the justices are likely to express, directly or indirectly, their individual preferences and opinions.

In the controversy-provoking decision on the Disbursement Acceleration Program (DAP), the Supreme Court implies that if there is no good faith in the transfer of the public funds (savings) to another project, the government officials who implemented it might be held liable. As we know, this statement offended and drew sharp criticism from President Aquino himself, bringing the nation, according to some observers, to the edge of a constitutional crisis pitting the Supreme Court against Malacañang.


How then do we classify the offending statement? Is it the ratio decidendi of the decision or is it merely obiter dicta?

Authorities say that: “A judicial statement can be ratio decidendi only if it refers to the crucial facts and law of the case. Statements that are not crucial, or which refer to hypothetical facts or to unrelated law issues, are obiter dicta. Obiter dicta (often simply dicta, or obiter) are remarks or observations made by a judge that, although included in the body of the court’s opinion, do not form a necessary part of the court’s decision. In a court opinion, obiter dicta include, but are not limited to, words ‘introduced by way of illustration, or analogy or argument.’


Unlike ratio decidendi, obiter dicta are not the subject of the judicial decision, even if they happen to be correct statements of law. The so-called Wambaugh’s Inversion Test provides that to determine whether a judicial statement is ratio or obiter, you should invert the argument—that is to say, ask whether the decision would have been different, had the statement been omitted. If so, the statement is crucial and is ratio; whereas if it is not crucial, it is obiter” (http:// en.wikipedia.org/wiki/Obiter_dictum).

A reading of the DAP decision clearly shows that the main ruling of the court—that the executive practice of transferring funds without legislative approval violates the principle of separation of powers—can stand alone even without the offending statements. Also, for being hypothetical and speculative in nature, the offending statement on the presumption of guilt is clearly obiter dicta. Devoid of any legal significance, it can be ignored, omitted or eliminated.

One hopes that when it resolves the government’s motion for reconsideration, the Supreme Court would do something about this controversial obiter dicta.


retired justice and

former assistant solicitor general,

[email protected]


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TAGS: dap, Disbursement Acceleration Program, obiter dicta, Public Funds, ratio decidendi, Supreme Court
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