SC affirms, with changes, unconstitutionality of DAP

MANILA, Philippines - The Supreme Court (SC) has affirmed, with motodifications, the unconstitutionality of acts under President Aquino’s controversial Disbursement Acceleration Program (DAP), except for the funding of projects and programs not covered by the General Appropriations Act.

The slightly modified ruling also absolved direct “proponents” and “implementors” of DAP-funded projects of culpability.

Budget Secretary Florencio Abad, seen as the designer of the DAP, has been charged with plunder in connection with the funding program. The petitioners said they also plan to file similar charges against President Aquino once he steps down and loses immunity from suit.

Voting 13-0 in session yesterday, justices of the high court unanimously denied the appeal of the Palace on its decision in July last year declaring as unconstitutional the withdrawal of unobligated allotments from implementing agencies and their use as savings before the end of a fiscal year. Also declared unconstitutional is cross-border transfer of savings of the executive to augment funds of agencies outside the department.

“Savings” cannot be declared before the end of the year and used for other purposes, the SC affirmed.

All magistrates led by Chief Justice Ma. Lourdes Sereno approved this ruling, except for Associate Justice Teresita Leonardo-de Castro and Francis Jardeleza, who inhibited from the case.

But the SC reversed its ruling on the act under DAP pertaining to the funding of projects, activities and programs not covered by any appropriation in the GAA.

Partially granting the motion for reconsideration of the Office of the Solicitor General, the High Court now declared such act as constitutional.

The SC agreed with the argument of the solicitor general that there is no constitutional requirement for Congress to create allotment classes within an item and that what is required only is for Congress to create items to comply with the line-item veto of the President.

“Accordingly, so long as there is an item in the GAA for which Congress had set aside a specified amount of public funds, savings may be transferred thereto for augmentation purposes,” SC spokesman Theodore Te said in explaining the new ruling during a press conference.

Quoting from the ruling which was not immediately released as it was still awaiting signature of all justices, Te clarified: “This modified interpretation nonetheless does not take away the caveat that only DAP projects found in the appropriate GAAs may be subject of augmentation by legally accumulated savings.”

“Whether the 116 DAP-funded projects had appropriation cover and were validly augmented require factual determination, which is not within the scope of the present consolidated petitions under Rule 65 (or the Rules of Court),” he added.

The SC likewise made a clarification on its ruling that executive officials may be held liable over the DAP.

In its original decision, the high tribunal explained that while recipients cannot be held liable for benefiting from programs, activities and projects (PAPs) under the DAP in good faith, the executive branch cannot be instantly cleared of culpability.

The SC cited 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.

It held that authors of DAP as well as proponents and implementors of projects could be held liable “unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”

But in the latest ruling, the SC removed the words “proponents” and “implementors,” leaving only “authors” of the DAP as those who could possibly be held liable.

“If the authors will be identified, only those could possibly be held liable, according to the Court,” Te explained.

But he added that the presumption of good faith in the implementation of DAP-related projects still stands in the latest ruling.

Lastly, the SC has denied the motion for partial reconsideration from petitioner, former Manila councilor Greco Belgica seeking to invalidate all PAPs under the DAP.

“The PAPs under the DAP remain valid under the operative fact doctrine,” Te reiterated. 

The SC decision will not stop the Church People’s Alliance Against the Pork Barrel (CPAPB) from gathering more signatures against the controversial allocation. The group hopes to gather six million signatures.

“An appeal for acceleration of gathering of signatures is being undertaken. (Anti-pork barrel) members likewise will meet with leaders of different institutions to realize our appeal and target, especially since it seems that DAP was declared unconstitutional with finality,” CPABP’s Nardy Sabino said.

Former Catholic Bishops’ Conference of the Philippines president Cebu Archbishop Jose Palma said they hope to turn over to the Commission on Elections in the next months the signatures gathered as part of a people’s initiative against the pork barrel system.

“Just like what we have been saying all along, there is a better way to make use of the people’s money, our taxes. A better way to access our needs rather than just giving the lump sum to the congressmen and to the leaders of the government,” the Cebu prelate added.

The Bagong Alyansang Makabayan (Bayan), for its part, said it still considers the SC decision a victory even if the ruling has some modifications.

The group said the latest SC decision should now pave the way for holding President Aquino and Abad accountable for the funding tack.

“We will now have to study the implications of the SC removing the third act under DAP for being constitutional. The third act under DAP refers to funding of projects, activities and programs that were not covered by any appropriation under the General Appropriations Act,” Bayan secretary-general Renato Reyes said.

“The SC decision in a way vindicates the complainants in the impeachment against Aquino. The President has a lot to answer for to the Filipino people. The legal and moral grounds for his removal from office are now stronger than ever,” he said.  – With Rhodina Villanueva, Evelyn Macairan