Who won in new DAP ruling?

In an en banc resolution, the Supreme Court modified its earlier decision declaring unconstitutional four specific acts under the Disbursement Acceleration Program (DAP). While the Court issued a press statement on Feb. 3, the resolution itself, also dated Feb. 3, was released to the public only on Feb. 11.

Original decision. To understand fully the changes made, we must first review the original decision dated July 1, 2014, as follows:

Annually, Congress enacts the General Appropriations Act (GAA) or budget containing an itemized list of expenditures for the three main branches of government (legislative, executive and judicial) and the independent agencies like the Commission on Elections.

Under the Constitution, money allotted in the GAA for one program, activity, or project (PAP) cannot be spent for another PAP. Much less can it be spent for a PAP not included at all in the GAA. Even Congress cannot “authorize the transfer of appropriation” from one budget item to another.

However, the Constitution allows one exception: “… [T]he President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions may, by law, be authorized to augment any item in the [GAA] for their respective offices from savings in other items of their respective appropriations.” (bold types mine) This limited exception is called the power of augmentation.

Unconstitutional acts. The Court held that the following DAP acts of transferring funds are unconstitutional or illegal, because they failed to follow the strict requirements of the exception:

1) Transfers of savings “prior to the end of the fiscal year”; savings are not generated unless the PAP for which they are intended have been legally “completed, discontinued or abandoned.”

2) Transfers at any time from one branch to another branch of government; hence, a “cross-border” transfer from the executive to the legislative is unconstitutional.

3) Transfers to a PAP not included in the GAA.

4) Transfer of “unprogrammed funds” or UF (money from unexpected sources, like dividends) without a certification from the national treasurer that the revenue collections exceeded the “total of the revenue targets.”

The Court further ruled that, under the doctrine of operative fact, these four acts, though unconstitutional or illegal, remain valid and the public officials who committed them in good faith are not culpable. But the doctrine “cannot apply to the authors, proponents and implement[e]rs 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.”

Changes made. In its new resolution, the Court deleted “proponents and implement[e]rs” but retained “authors.” Proponents refer to lawmakers, governors, mayors, etc. who requested funding for the PAPs and the implementers are the executive officers who built or undertook the PAPs.

This deletion is fair because the proponents and implementers were innocent participants. Even Sen. Jinggoy Estrada, who “exposed” the DAP, did not know that the funds came from augmentations.

The Court also clarified that the “authors” enjoy the presumptions of innocence, good faith and regularity in the performance of official duties. These presumptions can be eroded only if and when, after proper charges are filed and due process observed in specific cases, other tribunals (like the Department of Justice, Office of the Ombudsman and trial courts) find enough evidence showing their bad faith and culpability.

Further, in relation to Item 3, the Court said that “as long as there is an item in the GAA for which Congress has set aside a specific amount of public fund, savings may be transferred thereto for augmentation purposes.” And in relation to Item 4, UFs may be used on a quarterly basis “upon proof that the total revenues exceed the target.”

Who won? Plainly, the government won because the Court partially granted its motion for reconsideration by limiting personal liability only to the “authors” of the DAP, and only after other tribunals find evidence showing bad faith and culpability. Otherwise stated, the DAP decision cannot, by itself, be a source of liability.

Clearly, the above-quoted constitutional exception is quite difficult to comprehend. In fact, on March 5, 2013, the Court itself asked for the cross-border transfer of P100 million from the Department of Justice’s budget to the judiciary for the construction of the Malabon Hall of Justice. This request was, however, withdrawn on Dec. 23, 2013, after the petitions questioning the constitutionality of the DAP were filed.

This shows that even the keenest legal minds can misconstrue the exception. Hence, it is fair and reasonable that the doctrine of operative fact should validate past acts, and that everyone, including the “authors,” should be given the presumptions of innocence, good faith, and regularity in the performance of official duties.

Far from condemning it, the DAP, said the Court, “is a policy instrument that the Executive, by its own prerogative, may utilize to spur economic growth and development.” Moreover, unlike in the case involving the PDAF (Priority Development Assistance Fund), the Court did not find any public money malevolently flowing into private pockets, or to pseudo foundations, or to fake nongovernment organizations.

At bottom, I think it is reason, logic and fairness that really won.

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