SC justices: P-Noy, Abad must answer for DAP

MANILA, Philippines - Two senior Supreme Court (SC) justices believe President Aquino and Budget Secretary Florencio Abad must answer for the unconstitutional acts made under the Disbursement Acceleration Program (DAP).

Senior Associate Justices Antonio Carpio and Arturo Brion have pointed to Aquino and Abad as the  “authors” of  DAP and thus liable for illegal acts.

This is contained in their separate opinions in the SC’s unanimous ruling declaring DAP as unconstitutional.

In their separate opinions released yesterday, Carpio and Brion said Aquino and Abad are not covered by the doctrine of operative fact and cannot invoke good faith.

“Since the President and the DBM Secretary approved and issued NBC (National Budget Circular) 541, they are considered the authors of the unconstitutional act,” read Carpio’s separate opinion.

“As a consequence, neither the President nor the DBM Secretary can invoke the equitable doctrine of operative fact although they may raise other defenses. As authors of the unconstitutional act, they have to answer for such act.” 

Carpio said Aquino approved NBC 541 providing for the unconstitutional “withdrawal of unobligated allotments of agencies with low level of obligations as of June 30, 2012” to augment or fund “priority and/or fast moving programs/projects of the  national government.”

It was Abad who issued the order and implemented it, he added. Brion agreed. 

“They were in fact the parties responsible for establishing and implementing the DAP’s unconstitutional terms and in these capacities, cannot rely on the unconstitutionality or invalidity of the DAP as reason to escape potential liability for any unconstitutional act they might have committed,”  read Brion’s separate opinion.

Brion specifically cited the role of Abad and his possible liability.

“There are indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality,” read Brion’s separate opinion.

However, Carpio and Brion differed as to the liability of proponents and implementors of projects under the DAP.

Carpio supported the SC’s clarification that proponents and implementors are covered by the operative fact doctrine and should therefore enjoy presumption of good faith.

“As a rule of equity, the doctrine of operative fact can be invoked only by those who relied in good faith on the law or the administrative issuance, prior to its declaration of nullity,” read Carpio’s separate opinion.

“Only those who merely relied in good faith on the illegal or unconstitutional act, without any direct participation in the commission of the illegal or unconstitutional act, can invoke the doctrine.” 

On the other hand, Brion said the culpability over the illegal acts should extend to proponents and implementors of DAP projects.

“The authors, proponents and implementors of the unconstitutional DAP are not among those who can seek cover behind the operative fact doctrine as they did not rely on the unconstitutional act prior to the declaration of nullity,” read Brion’s separate opinion.

Brion also disagreed with a statement in the SC decision that the portion on the liability of “authors” of the DAP is considered an obiter dictum or a “by the way” statement not needed or relevant to disposition of the case.

“Without the Court’s discussion on the operative fact doctrine and its application to the case, the void ab initio (from the start) doctrine applies to nullify both the acts and the PAPs (projects, activities and programs) that relied on these acts,” read Brion’s separate opinion.