SC TO DAP SPONSORS: PROVE GOOD FAITH PATRON

JULY 2 --Unless it can prove “good faith” before the proper tribunal, Malacañang may be held liable for violating the Constitution by implementing the Disbursement Acceleration Program (DAP), the Supreme Court said in striking down the presidential stimulus fund on Tuesday. In a 92-page decision written by Associate Justice Lucas Bersamin, the Supreme Court tackled the question of whether its ruling, which declared the DAP unconstitutional, could be interpreted as retroactive or prospective, essentially saying that the fund’s originators had some explaining to do. Citing the position of Associate Justice Arturo Brion, the court noted how the doctrine of operative fact could be invoked but only apply on programs, activities and projects (PAPs) implemented in good faith prior to the court ruling invalidating the DAP, as a matter of equity. Effects sustained - The doctrine is a legal principle that upholds the effects of an unconstitutional law, that is, activities conducted under that law prior to its being declared illegal. As the court stated: “…it nullifies the void law or executive act but sustains its effects.” The court said applying the principle must “be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play.” This same doctrine, the court said, could not apply on “authors, proponents and implementors of the DAP.” * READ MORE...

(ALSO) Palace: Noy takes full responsibility for DAP

JULY 3 --President Aquino is taking full responsibility for the Disbursement Acceleration Program amid controversy sparked by the Supreme Court’s unfavorable ruling on the DAP and mounting calls for the resignation of some of his officials. “In the final analysis, the President is the chief executive and the members of the Cabinet performed the role of alter ego, and whatever role that they perform is only an extension of the personality of the President himself,” Secretary Herminio Coloma of the Presidential Communications Operations Office said yesterday. Asked if the buck stopped with the President, Coloma replied, “I believe that is a principle that is well-recognized.” The Supreme Court (SC) declared last Tuesday that certain acts under DAP were unconstitutional. The ruling, details of which were made public the following day, triggered calls for the resignation of Budget Secretary Florencio Abad and the impeachment of Aquino. Malacañang argued that funds released through DAP had benefited the economy and uplifted the lives of ordinary Filipinos. Coloma emphasized there are procedures and rules to follow for determining the liability of officials who may have committed some infractions in their handling of funds released through DAP. “Kaya meron namang mga mekanismo sa pagpapanagot sa mga lalabag o lumalabag diyan (That’s why there are mechanisms for ensuring that violators or potential violators of the law are made accountable),” he said. Coloma said it’s the prerogative of the President to keep or let go of his officials. “Regarding the appointment or maintaining the services of Cabinet members, that’s the responsibility of the President as chief executive and he’s performing his task based on his judgment,” he said. Asked whether Aquino had sought explanation from Abad regarding the issue, Coloma only said “that’s the call of the President.” * READ MORE...

ALSO: Abad acted in bad faith

JULY 3 --SUPREME Court justices said Budget Secretary Florencio Abad was aware that the Disbursement Accleration Program was unconstitutional, and that the transgressions in the performance of his duties “negate the presumption of good faith.” In his separate opinion, Senior Associate Justice Antonio Carpio also said it was President Benigno Aquino III who violated the constitutional doctrine of separation of powers of the three equal branches of government, and said the Court could not allow the “castration of a vital part of the checks-and-balances enshrined in the Constitution.”The Palace on Thursday remained unapologetic, saying that the Executive branch had enough built-in mechanism to determine the accountability of public officials responsible for the DAP, including Abad. Communications Secretary Herminio Coloma said the Palace will also cooperate with the Ombudsman’s plan to initiate a probe. “If you say we need to apologize, that means we committed a wrongdoing. We did not commit any wrongdoing,” he said. But Carpio, the most senior Supreme Court magistrate cited the admission of Abad before the Court that the DAP was approved by the President. “The President under the DAP... usurps the power of the purse of Congress,” Carpio said. * READ MORE...

(ALSO) SC: Persons behind DAP liable

JULY 3 --Authors, proponents and implementors of the Disbursement Acceleration Program (DAP) may be held liable unless a proper tribunal found that they acted in good faith, the Supreme Court said in its decision that declared DAP as unconstitutional. In its 92-page decision made public Wednesday evening, the high court through Associate Justice Lucas Bersamin said programs, activities and projects funded by DAP can be covered by the ‘operative fact doctrine.’ Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity may be left undisturbed as a matter of equity and fair play. “The doctrine of operative fact can apply only to the PAPs (programs, activities and projects) 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 favour by the proper tribunals determining their criminal, civil, administrative and other liabilities,” the Supreme Court said. The high court, in its ruling declared unconstitutional National Budget Circular 541 and other related issuances related to the DAP which was issued by the Department of Budget and Management (DBM). This is the source of DAP. * READ MORE...

ALSO: Aquino’s DAP benefited PH, says Palace

JUNE 30 --As President Benigno Aquino III marks his fourth year in office, Malacañang on Thursday maintained that despite the controversy the Disbursement Acceleration Program (DAP) had served its purpose. “We strongly believe that the DAP has benefited the country,” Presidential Spokesperson Edwin Lacierda said. “When we had a quarter where there was a very low GDP (gross domestic product), we implemented the DAP and it contributed to the various programs of the government, the various agencies,” he added. The DAP, which was initially meant to pump-prime the economy through public spending, is being questioned before the Supreme Court for its legality. The Aquino administration was earlier accused of using the fund to allegedly influence senators during the impeachment of former chief justice Renato Corona. “Now, it is questioned before the Supreme Court, so we will leave it to the Supreme Court as to its constitutionality. But is our professed belief that the DAP has benefited the country,” Lacierda simply said. THIS IS THE FULL REPORT.

(ALSO) Abad, 20 senators told to quit: Good faith is no excuse

JULY 3 --Good faith is no excuse, and neither is spending Disbursement Acceleration Program (DAP) funds for projects that benefited the public, Sen. Miriam Defensor-Santiago said on Wednesday. Santiago said all officials involved in the DAP, including Budget Secretary Florencio Abad and the 20 senators who received funds from the executive, should face criminal and civil charges so that the government could get back the P1.1 billion released from the program. Abad should also resign, in order to spare the President from further embarrassment over the DAP, Santiago said. The senators, on the other hand, must return the money they had received, said Santiago, who described the funds as “stolen.” The DAP was a stimulus program that Malacañang put together from unobligated funds of various government agencies the legality of which had been challenged in the Supreme Court. On Tuesday, the Supreme Court declared the DAP unconstitutional, saying it violated the doctrine of separation of powers and the constitutional provision on the exemptions to the prohibition against the reappropriation of government funds. * READ MORE...


READ FULL MEDIA NEWS REPORT:

SC to DAP sponsors: Prove good faith patron


Unless it can prove “good faith” before the proper tribunal, Malacañang may be held liable for violating the Constitution by implementing the Disbursement Acceleration Program, the Supreme Court said in striking down the presidential stimulus fund on Tuesday. INQUIRER.net FILE PHOTO

MANILA, JULY 6, 2014 (INQUIRER) By Tarra Quismundo - Unless it can prove “good faith” before the proper tribunal, Malacañang may be held liable for violating the Constitution by implementing the Disbursement Acceleration Program (DAP), the Supreme Court said in striking down the presidential stimulus fund on Tuesday.

In a 92-page decision written by Associate Justice Lucas Bersamin, the Supreme Court tackled the question of whether its ruling, which declared the DAP unconstitutional, could be interpreted as retroactive or prospective, essentially saying that the fund’s originators had some explaining to do.

Citing the position of Associate Justice Arturo Brion, the court noted how the doctrine of operative fact could be invoked but only apply on programs, activities and projects (PAPs) implemented in good faith prior to the court ruling invalidating the DAP, as a matter of equity.

Effects sustained

The doctrine is a legal principle that upholds the effects of an unconstitutional law, that is, activities conducted under that law prior to its being declared illegal. As the court stated: “…it nullifies the void law or executive act but sustains its effects.”

The court said applying the principle must “be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair play.”

This same doctrine, the court said, could not apply on “authors, proponents and implementors of the DAP.”

* Doctrine of operative fact

“In that context, as Justice Brion has clarified, 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 implementers 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 court said.

The full text of the decision was released Wednesday night.

Impractical, unfair

The court said setting aside the DAP’s prior implementation, where such was done in good faith, would be “impractical and unfair.”

“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,” the court said.

Enormously burdensome

“Unless the doctrine is held to apply, the executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the government. Equity alleviates such burden,” it said.

The court acknowledged that the DAP “yielded undeniably positive results that enhanced the economic welfare of the country.”

SC: Persons behind DAP liable By Tetch Torres-Tupas |INQUIRER.net
8:30 pm | Wednesday, July 2nd, 2014


INQUIRER.net FILE PHOTO

MANILA, Philippines—Authors, proponents and implementors of the Disbursement Acceleration Program (DAP) may be held liable unless a proper tribunal found that they acted in good faith, the Supreme Court said in its decision that declared DAP as unconstitutional.

In its 92-page decision made public Wednesday evening, the high court through Associate Justice Lucas Bersamin said programs, activities and projects funded by DAP can be covered by the ‘operative fact doctrine.’

Under the operative fact doctrine, the law is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity may be left undisturbed as a matter of equity and fair play.

“The doctrine of operative fact can apply only to the PAPs (programs, activities and projects) 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 favour by the proper tribunals determining their criminal, civil, administrative and other liabilities,” the Supreme Court said.

The high court, in its ruling declared unconstitutional National Budget Circular 541 and other related issuances related to the DAP which was issued by the Department of Budget and Management (DBM). This is the source of DAP.

* The circular also allows “withdrawn allotments” to be used to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget but expected to be started or implemented during the current year,” Abad wrote department heads, including budget and accounting officers.

Also declared in violation of Section 25 (5) Article VI of the 1987 Constitution are the following acts;

1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. 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 the conditions provided in the relevant GAA.

The said provision states that “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

The four enumerated acts covers the entire DAP.

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 impoundment 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 appropriations were invalid for being bereft of legal support,” the high court said.

The nine petitions against DAP were filed earlier by 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; Christian sects led by losing senatorial candidate Greco Belgica; Confederation for Unity, Recognition and Advancement of Government Employees (Courage); and the Volunteers Against Crime and Corruption.

FROM PHILSTAR

Palace: Noy takes full responsibility for DAP By Delon Porcalla (The Philippine Star) | Updated July 4, 2014 - 12:00am


PNoy

MANILA, Philippines - President Aquino is taking full responsibility for the Disbursement Acceleration Program amid controversy sparked by the Supreme Court’s unfavorable ruling on the DAP and mounting calls for the resignation of some of his officials.

“In the final analysis, the President is the chief executive and the members of the Cabinet performed the role of alter ego, and whatever role that they perform is only an extension of the personality of the President himself,” Secretary Herminio Coloma of the Presidential Communications Operations Office said yesterday.

Asked if the buck stopped with the President, Coloma replied, “I believe that is a principle that is well-recognized.”

The Supreme Court (SC) declared last Tuesday that certain acts under DAP were unconstitutional. The ruling, details of which were made public the following day, triggered calls for the resignation of Budget Secretary Florencio Abad and the impeachment of Aquino.

Malacañang argued that funds released through DAP had benefited the economy and uplifted the lives of ordinary Filipinos.

Coloma emphasized there are procedures and rules to follow for determining the liability of officials who may have committed some infractions in their handling of funds released through DAP.

“Kaya meron namang mga mekanismo sa pagpapanagot sa mga lalabag o lumalabag diyan (That’s why there are mechanisms for ensuring that violators or potential violators of the law are made accountable),” he said.

Coloma said it’s the prerogative of the President to keep or let go of his officials.

“Regarding the appointment or maintaining the services of Cabinet members, that’s the responsibility of the President as chief executive and he’s performing his task based on his judgment,” he said.

Asked whether Aquino had sought explanation from Abad regarding the issue, Coloma only said “that’s the call of the President.”

* While he has “not inquired into the extent of their discussion” on the DAP issue, Coloma said he believes the President and the budget chief had talked about the matter. He also said he was not aware if Abad had offered to resign.

On the possibility that other Cabinet officials may be made to account for DAP-related acts deemed unconstitutional by the high court, Coloma said the officials’ actions and decisions have always been governed by auditing rules.

Economic managers or those in the Development Budget Coordinating Council led by Finance Secretary Cesar Purisima, Coloma said, have had their individual and collective participation or inputs in the “design and implementation of the national budget.”

“There are already built-in mechanisms for accountability, and committed as we are to the good governance principles, these are operative day after day and have never been suspended at any time,” he pointed out.

“We affirm that we have exercised good faith and due diligence, and there are lawful processes for establishing accountability, and we are, we have been abiding by and complying with all of those processes and will continue to do so,” Coloma said.

Probe welcomed

He also said they welcomed the decision of the Office of the Ombudsman to initiate an investigation into possible irregularities in the utilization of DAP funds.

“We will comply with lawful and legal processes. That’s the duty of the ombudsman and we acknowledge that it is well within the purview of their mandate,” Coloma pointed out.

The Palace spokesman said the public should avoid speculations as to who is at fault because it is “best that we allow the lawful and legal processes to take place and we are prepared to abide by all of those processes.”

“We affirm that in implementing the DAP, the executive branch exercised good faith and due diligence, in accordance with existing laws and pertinent auditing rules and procedures,” Coloma said, reading a prepared statement.

“We believe we have been abiding by and complying with such lawful processes. We will review the decision further to gain a more comprehensive understanding of its ramifications and study the appropriate legal options,” he added.

He said that in its decision, the SC “affirmed the authority of the President as Chief Executive to implement DAP as a stimulus program to achieve economic growth and as an administrative system of prioritizing spending in the execution of the national budget.”

He also insisted there is no need for the government, much less President Aquino, to apologize to the public for the DAP fiasco.

“Saying sorry presupposes we’ve done something wrong. We did nothing wrong regarding this matter,” he said.

Fighting impeachment

Meanwhile, congressmen-allies of President Aquino are closing ranks to fight off a move to impeach him on the basis of the SC decision against DAP.

Eastern Samar Rep. Ben Evardone told reporters yesterday that leaders of various regional groups and political parties under the pro-administration majority coalition in the House of Representatives have met and agreed to block any move to impeach Aquino.

“This impeachment plan will not take off. It will not even go past the committee on justice. There is no ground to impeach PNoy,” he said.

Under the Constitution, the impeachment process starts in the House of Representatives. The Senate serves as a court and tries an impeachable officer, against whom the House brings charges.

Militant party-list representatives have vowed to file an impeachment complaint against Aquino and graft charges against Abad.

The leaders of various groups who agreed to fight the impeachment move included Catanduanes Rep. Cesar Sarmiento, representing the Bicol bloc, Laguna Rep. Joaquin Chipeco of Southern Tagalog, Rep. Jerry Treñas of Iloilo City and Albee Benitez of Negros Occidental (Visayan bloc), Cavite Rep. Elpidio Barzaga Jr. of the National Unity Party, Cagayan de Oro City Rep. Rufus Rodriguez of the Mindanao bloc, Ako Bicol Rep. Rodel Batocabe (party-list groups), Ilocos Sur Rep. Eric Singson (Northern Luzon), and the Metro Manila group of Caloocan Rep. Edgar Erice and Quezon City Rep. Winston Castelo.

Even allies of Vice President Jejomar Binay are against impeaching the President, according to Navotas Rep. Tobias Tiangco, who is secretary general of Binay’s United Nationalist Alliance.

The vice president’s daughter, Makati Rep. Abigail Binay, belongs to the House majority coalition and is a deputy majority leader.

Batocabe, who is a lawyer, said he and his colleagues do not believe that Aquino and Abad had committed a crime.

“There is no offense, because they allowed the use of the DAP funds in good faith. The Supreme Court ruling has prospective, not retroactive application,” he said.

Treñas said the 34-member Visayas bloc would go with the majority in the House in blocking an impeachment against the President.

“We have reached a consensus that we will resist any move to impeach President Aquino. The DAP was a lifesaver for many of our people, especially in areas devastated by calamities,” he said. He added DAP had sustained the country’s economic growth.

“Why would we impeach a President who has done so much for the country? Why would we even entertain the ranting of a disgruntled few, who have done nothing but to divide our nation?” With Jess Diaz

FROM MANILA STANDARD

Abad acted in bad faith By Rey E. Requejo | Jul. 04, 2014 at 12:01am

SC justices find DBM chief aware DAP was illegal

SUPREME Court justices said Budget Secretary Florencio Abad was aware that the Disbursement Accleration Program was unconstitutional, and that the transgressions in the performance of his duties “negate the presumption of good faith.”

In his separate opinion, Senior Associate Justice Antonio Carpio also said it was President Benigno Aquino III who violated the constitutional doctrine of separation of powers of the three equal branches of government, and said the Court could not allow the “castration of a vital part of the checks-and-balances enshrined in the Constitution.”

The Palace on Thursday remained unapologetic, saying that the Executive branch had enough built-in mechanism to determine the accountability of public officials responsible for the DAP, including Abad.

Communications Secretary Herminio Coloma said the Palace will also cooperate with the Ombudsman’s plan to initiate a probe.

“If you say we need to apologize, that means we committed a wrongdoing. We did not commit any wrongdoing,” he said.

But Carpio, the most senior Supreme Court magistrate cited the admission of Abad before the Court that the DAP was approved by the President.

“The President under the DAP... usurps the power of the purse of Congress,” Carpio said.

* Carpio said the President disregarded the General Appropriations Acts by declaring unobligated allotments from implementing agencies as savings in the middle of fiscal year and realigning them to other projects.

“The power to impound unobligated appropriations in the GAA, coupled with the power to realign such funds to any project, whether existing or not in the GAA, is not only a usurpation of the power of the purse of Congress and a violation of the constitutional separation of powers, but also a substantial re-writing of the 1987 Constitution,” he said.

Carpio noted that what was more puzzling is that “majority in the Senate and in the House of Representatives support the DAP and NBC 541 when these Executive acts actually castrate the power of the purse of Congress.”

“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,” Carpio said, explaining why he voted to declare DAP as unconstitutional.

In his opinion, Associate Justice Arturo Brion said Abad was aware that the DAP was unconstitutional.

“Aside from the many admissions outlined elsewhere in the opinion, there are indicators showing that the DBM secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality,” Brion said.

The Court, voting 13-0, ruled Tuesday that acts undertaken by the Executive Department through the DAP were unconstitutional.

Brion noted that Abad admitted during oral arguments that he understood the legal and practical implications of the DAP.

“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,” Brion said.

“Armed with all these knowledge, it is not hard to believe that he can run circles around the budget and its processes, and did, in fact, purposely use this knowledge for the administration’s objective of gathering the very funds collected under the DAP,” he added.

Brion also said that Carpio specified examples why Abad could not have been acting in good faith while Associate Justice Lucas Bersamin showed that Abad knew of the constitutional provisions that the DAP was violating.

Brion said Carpio maintained that Abad could not have been acting in good faith because the DBM implemented the DAP even if it was a respondent in cases where the Supreme Court repeatedly ruled on savings and the power to realign funds.

The DBM also allegedly failed to present evidence that the Bureau of Treasury had certified that revenue collections for fiscal years 2011, 2012 and 2013 exceeded original revenue targets, which is a requirement for the use of unprogrammed funds.

During the oral arguments, Abad also admitted that DAP funds were made available to the Commission on Audit and the House of Representatives despite his awareness that cross-border transfer of funds is prohibited under the Constitution.

Brion said the DBM released P143.7 million on Nov. 11, 2011 for the IT infrastructure program and hiring of additional litigation experts for COA and P250 million for the completion of the construction of the legislative library and archives building of the House.

Palace official may still be held culpable for the implementation of the voided DAP, the Supreme Court said in its decision.

Associate Justice Marvic Leonen, an appointee of President Aquino, took a milder view of liabilities, and said the government was driven by good intentions.

“DAP is a management program that appears to have had been impelled with good motives. It generally sought to bring government to the people in the most efficient and effective manner,” he said, in his 29-page opinion.

But Leonen also believed that the Court was not the proper venue for determining possible liabilities.

“Whether the constitutional violation is in good faith or in bad faith, or whether any administrative or criminal liability is forthcoming, is the subject of other proceedings in other forums,” he said.

In a 92-page decision released Thursday night, the Court ruled that while recipients cannot be held liable for benefitting from programs, activities and projects under the DAP in good faith, the Executive branch cannot be instantly cleared of culpability.

The high court found the applicability in this case of the doctrine of operative fact, which recognizes the validity of the assailed law or action prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded.

“We find the doctrine of operative fact applicable to the adoption and implementation of the DAP,” the Court said.

“The doctrine of operative fact can apply only to the programs, activities and projects 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 said.

But the Court did not directly order an investigation and prosecution of the officials behind the DAP – including President Benigno Aquino III and Budget Secretary Florencio Abad – in the dispositive or conclusion of the ruling. This issue was only mentioned in passing in the ruling.

In the decision, written by Associate Justice Lucas Bersamin, the Court declared that the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision

prohibiting inter-branch transfer of appropriations.

It specifically struck down the withdrawal of unobligated allotments from implementing agencies and their use as sayings prior 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 Count has the same finding on National Budget Circular No. 541 and related executive issuances.

According to the tribunal, 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 programs and projects that were not covered by any appropriations in the pertinent GAAs.”

“Although the OSG (Office of the Solicitor General) rightly contends that the Executive was authorized to spend in line with its mandate to faithfully execute the laws (which included the GAA), such authority did not translate to unfettered discretion that allowed the President to substitute its will for that of Congress. He was still required to remain faithfully to the provisions of the GAAs (General Appropriation Acts), given that this power to spend pursuant to GAAs was but a delegation to him from Congress. Verily, however, the power to spend the public wealth resided in Congress, not in the Executive. Moreover, leaving the spending power of the Executive unrestricted would threaten to undo the principle of the separation of powers,” it said.

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 programs and projects 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 impoundment 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 appropriations were invalid for being bereft of legal support,” the high court said.

However, 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 said.

The Court said 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 Court thus exempted the DAP from the general rule that a void or unconstitutional law or act produces no effect.

The Court ruling partially granted the nine petitions filed against the DAP 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 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.

While some among the petitioners were preparing an impeachment complaint, an expert on constitutional law, Fr. Joaquin Bernas of the Ateneo Law School said it would be very difficult to oust the President over the DAP.

Bernas said impeachment was practically impossible because Aquino controlled both the House of Representative and the Senate.

He added that even the charge of culpable or an intentional violation of the Constitution might not be enough to convict Aquino.

“It seems to me it’s more of ignorance of the Constitution, and ignorance is not a ground for impeachment,” Bernas said.

But Bernas, said petitioners could go after Abad since he has no immunity from suit.

Also on Thursday, San Beda Graduate School of Law dean Fr. Ranhilio Aquino Jr. said the Court’s ruling on operative fact did not shield those who committed wrongdoing using DAP funds.

Aquino noted that the author of the Court decision declaring DAP unconstitutional cited Brion’s opinion, which said the doctrine of operative fact would protect only those who can prove they erred in good faith.

“That clearly places the burden of proof of the “authors, proponents and implementers” to prove good faith on their part,” Fr. Aquino said.

“Whether constitutional or not, funneling DAP funds to fictitious NGOs is criminal,” he added. “So the doctrine of the operative fact is no shield for those who may have committed wrongdoing using DAP funds.”

Of the P140.8 billion DAP funds, at least P12.357 billion went to lawmakers.

Some of the funds that went to the lawmakers were channeled to bogus non-government organizations of alleged pork barrel fund scam mastermind Janet Napoles.

There were also allegations that the DAP was used to reward the congressmen and senators who voted to impeach and convict former Chief Justice Renato Corona.

But Senator Juan Edgardo Angara said the President and his Cabinet were not liable because the Court’s ruling was prospective—meaning that such actions would no longer be allowed.

Senate President Pro Tempore Ralph Recto said the government should abide by the Supreme Court decision so that all expenditures must comply with the doctrines set forth by the ruling.

Prospectively, he said the proposed 2015 national budget, specifically its provisions, should comply with the Court’s ruling on DAP.

“To the credit of this administration, it is no longer doing any and all acts the Supreme Court has struck down as unconstitutional,” he said.

“These practices have long been abandoned. These violations are not in progress but have long been unilaterally terminated by the government,” he added. – With Joyce Pangco Pañares and Macon Ramos-Araneta

Aquino’s DAP benefited PH, says Palace By Kristine Angeli Sabillo |INQUIRER.net 3:54 pm | Monday, June 30th, 2014


President Benigno S. Aquino III

MANILA, Philippines – As President Benigno Aquino III marks his fourth year in office, Malacañang on Thursday maintained that despite the controversy the Disbursement Acceleration Program (DAP) had served its purpose.

“We strongly believe that the DAP has benefited the country,” Presidential Spokesperson Edwin Lacierda said.

“When we had a quarter where there was a very low GDP (gross domestic product), we implemented the DAP and it contributed to the various programs of the government, the various agencies,” he added.

The DAP, which was initially meant to pump-prime the economy through public spending, is being questioned before the Supreme Court for its legality. The Aquino administration was earlier accused of using the fund to allegedly influence senators during the impeachment of former chief justice Renato Corona.

“Now, it is questioned before the Supreme Court, so we will leave it to the Supreme Court as to its constitutionality. But is our professed belief that the DAP has benefited the country,” Lacierda simply said.

Abad, 20 senators told to quit: Good faith is no excuse By Leila B. Salaverria |Philippine Daily Inquirer 5:44 am | Thursday, July 3rd, 2014


SANTIAGO

MANILA, Philippines–Good faith is no excuse, and neither is spending Disbursement Acceleration Program (DAP) funds for projects that benefited the public, Sen. Miriam Defensor-Santiago said on Wednesday.

Santiago said all officials involved in the DAP, including Budget Secretary Florencio Abad and the 20 senators who received funds from the executive, should face criminal and civil charges so that the government could get back the P1.1 billion released from the program.

Abad should also resign, in order to spare the President from further embarrassment over the DAP, Santiago said.

The senators, on the other hand, must return the money they had received, said Santiago, who described the funds as “stolen.”

The DAP was a stimulus program that Malacañang put together from unobligated funds of various government agencies the legality of which had been challenged in the Supreme Court.

On Tuesday, the Supreme Court declared the DAP unconstitutional, saying it violated the doctrine of separation of powers and the constitutional provision on the exemptions to the prohibition against the reappropriation of government funds.

* The court also struck down the executive’s declaration of unused funds as savings before the end of the fiscal year, and the “cross-border transfers” of Palace savings to other offices outside the executive.

Criminal charges

To get back the P1.1 billion given to senators, Santiago said the Office of the Ombudsman, with the Department of Justice (DOJ), should file criminal charges against everyone responsible for the DAP.

The criminal charges could be technical malversation, she told a news conference.

She later said the release of DAP funds could be considered bribery involving votes to convict impeached Chief Justice Renato Corona in May 2012, and the senators could also be taken to task for knowingly rendering unjust judgment.

At the same time, government prosecutors should pursue a civil case in addition to the criminal cases, so that the money could be returned, Santiago said.

The DOJ and the Commission on Audit (COA) should also work together so that prosecutors could have access to the facts, documents, and other files pertaining to the DAP, she said.

“It will take long, but it must be [done], because otherwise, the attitude is that certain people can commit crimes, but if they are highly placed they don’t have to be punished for it,” she said.

Somebody must fall

In calling for Abad to step down, Santiago said somebody must be held responsible for the DAP and it should be the budget secretary.

“If the Supreme Court said what was done was wrong, and nobody’s responsible, what kind of irresponsible government is being fostered by that? You at least have to point a finger at somebody. Definitely the DBM, and if only to spare the President from further embarrassment, that secretary has to resign,” she said.

She said it was her “gentle recommendation” that Abad step down from office over the DAP, because “it will show the public that you are contrite.”

Santiago said she believed the President committed an impeachable offense by violating the Constitution, and the principles of accountability and responsibility.

But whether an impeachment case will succeed is another question, she said adding that she doubted that there are enough numbers in Congress to support such a move.

“I think it is bound to fail, but I will not blame those who will attempt to test the waters or to float a trial balloon,” she said.

According to Santiago, good intentions do not reduce the liability of officials involved in the creation of the DAP.

“You find a sentence in some opinions released that anyway, the budget secretary was in good faith. There is no such thing in the penal code or in criminal law. You don’t consider the good faith of the person except in certain instances,” she said.

Return the money

She also said the senators could not say that they had nothing to return because the funds were already spent for projects.

“That is the argument of stupidity… . What kind of argument is that? If you’re a lawmaker, ignorance does not excuse you, ignorance excuses no one,” she said.

She said the lawmakers should have checked where the funds came from and what the guidelines for using them were.

“Do you mean to say that as soon as you have stolen money from the government, you can spend it immediately? That is the consequence of that reasoning. It will reward the industrious robber or thief,” she said.

And even if the funds have already been spent, these should be returned, she insisted.

“In the theory of restitution in criminal law, there’s no factor involved such as if money went to a good or bad purpose or private or public purpose. That is not material,” she said.

She answered in the affirmative when asked if the use of the funds for projects made it less a crime.

She said Malacañang should also have released documents to explain to legislators the nature and the purpose of the funds released.

And the DAP decision could have implications on the ouster of Corona, she said.

“What happens to the decision to impeach since it’s now tainted by suspicions of bribery? The implication is they were given this amount because they voted to impeach,” she said.

Ombudsman probe

For its part, the Ombudsman will investigate budget realignments made by the Aquino administration under the DAP.

In a statement, Ombudsman Conchita Carpio Morales said she would create a panel of field investigators “to look into the DAP transactions to see if any crime or offense has been committed by involved public officials.”

“In light of the Supreme Court’s decision on the DAP case, we are initiating an investigation into the matter,” Morales said, invoking the Ombudsman’s power to initiate an investigation on its own even without any formal complaint.

Morales also cited the Ombudsman’s power to investigate any serious misconduct in office allegedly committed by impeachable officers, for the purpose of filing a verified complaint for impeachment.–With a report from Dona Z. Pazzibugan


Chief News Editor: Sol Jose Vanzi

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