Q and A on DAP decision (2)

This is a continuation of the questions raised on the Supreme Court decision on the Disbursement Acceleration Program or DAP taken up in this space last Sunday.

6. In Question No. 5 a week ago, you said President Aquino can use again the DAP in the future provided he observes the constitutional limitations pointed out in the Supreme Court decision. Can the Senate president, House speaker, chief justice and the heads of the independent constitutional commissions do the same?

Answer: Yes, the same power of augmentation—which was given the sophisticated name of DAP by President Aquino—is granted by the Constitution to the aforesaid officials. Thus, they may continue exercising such power (which to stress was not struck down as unconstitutional by the Supreme Court) provided they, like the President is required to, observe the limitations pointed out in the decision.

In the past, the Constitutional and Fiscal Autonomy Group, composed of the judiciary, Office of the Ombudsman, Commission on Elections, Commission on Audit and the Civil Service Commission, routinely used the power of augmentation to realign savings from vacant positions to increase the compensation and fringe benefits of incumbent officials and personnel.

7. Please explain President Aquino’s claim, which is contained in the Motion for Reconsideration (MR) filed by the Office of the Solicitor General (OSG), that the Supreme Court has committed two “acts and practices” that did not observe the limitations set out in the decision.

In its MR, the OSG said that on July 17, 2012, when Justice Antonio T. Carpio was the acting chief justice (during the interregnum after chief justice Renato C. Corona was ousted and disqualified from holding any public office by the Senate per its “Judgment” dated May 28, 2012, and the appointment of new Chief Justice Maria Lourdes P. A. Sereno on Aug. 24, 2012), the Court “earmarked its existing savings of P1.865 billion to augment the P100 million budget for the Manila Hall of Justice, which is an item… in the 2012 budget of the Department of Justice-Office of the Secretary, which is within the Executive Department… (a) cross-border augmentation… ”

The MR added that on March 5, 2013 (when Sereno was already chief justice), the Court issued a resolution which “requested the (Department of Budget and Management) to transfer the (aforementioned sum of) P100 million in the budget of the (Department of Justice) for the Manila Hall of Justice to the Judiciary… to fund the construction of the Malabon Hall of Justice… which has no item in the 2012 or the 2013 GAA.”

However, after the petitions questioning the constitutionality of the DAP had been “filed and while they were being heard, Chief Justice Sereno, in a letter dated 23 December 2013, informed the DBM that the Supreme Court was withdrawing its request to realign the P100 million intended for the Manila Hall of Justice to the budget of the Judiciary. These two instances show both cross-border transfers on the part of the Supreme Court—(a) the augmentation of an item in the Executive from funds in the Judiciary; and, (b) the ‘transfer’ of funds from the Executive to the Supreme Court, whether or not for purposes of augmentation.”

8. In view of the foregoing documented claims, is the Supreme Court also guilty of performing unconstitutional “acts and practices”?

The OSG did not denounce these acts as unconstitutional. It merely observed “that the Honorable Court’s practice(s) (were) based on an understanding of the constitutional provision that coincides with the government’s… and validate the respondent’s theory of benign and necessary interdepartmental augmentations.”

It added that this “practice of cross-border transfers was not begun by President Aquino, as in fact Presidents under the 1987 Constitutions—Fidel V. Ramos, Joseph E. Estrada, and Gloria Macapagal-Arroyo—have, from time to time, transferred savings to other (branches of government).”

9. As a retired chief justice, please comment on these two “acts and practices” of the Supreme Court.

The OSG was careful not to denounce the Court’s alleged cross-border transfers and attempt to augment a nonexisting budget item to fund the construction of the Malabon court house. The Court said that, in resolving the MR, it will justify these two acts. I will not preempt such justification now.

However, in my humble view, these two Supreme Court actions reinforce the application of the “operative fact doctrine,” i.e., that acts and practices done pursuant to a law or executive issuance prior to the declaration of their unconstitutionality are valid and enforceable as a matter of equity and fairness.

So also, they strengthen my answer to Question No. 3 last Sunday: that the “alien” statement on page 90 of the decision saying that the operative fact doctrine “cannot apply to the authors, proponents and implementors of the DAP… ” should be deleted from the decision, or clarified to assure that it is not a prejudgment of liability… or explained that it is merely a nonbinding obiter dictum (side comment) not supported by the decision’s fallo or dispositive portion.

Finally, the two acts affirm the fact that the power of augmentation is quite difficult to understand even by the most astute legal minds. In fact, it is not taught in law schools. Neither is it explained in standard political law textbooks. However, in view of the controversy it has now spawned, I am sure it would henceforth be discoursed in classrooms, legal forums and new political law books.

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