Time to ‘level up’

With the Supreme Court (SC) decision finding this administration’s Disbursement Acceleration Program (DAP) unconstitutional, P-Noy should stop pretending and fooling the people that he is on a crusade to eliminate or at least minimize the chronic graft and corruption in the government. This DAP is a creation of his own regime involving the misuse of a much bigger amount of public funds which is actually the Presidential counterpart of the Congressional “pork barrel” or the PDAF. And it is a matter of public knowledge and commonly accepted fact by now that since this pork barrel system was conceived, it is the biggest source of corruption in this country. So with this ruling, P-Noy’s critics who call him the “pork barrel king” seem to have been proven correct.

For a more accurate assessment of the correlation between the DAP and the PDAF, let me just cite a portion of the concurring opinion of SC Justice Arturo D. Brion as he traced the background which form the bases of the petitions in the DAP case filed before them. Justice Brion wrote:

“The DAP, in parallel with the PDAF but going the other way, allegedly allowed the Executive to disregard the GAA (General Appropriations Act) so that the latter could determine the projects, activities and plans (PAPs) where national funds would be deployed and spent, creating thereby a budget independently determined by the Executive within the congressionally determined budget.

If true, the two systems — the PDAF and the DAP — effectively allowed the two branches of government to unconstitutionally share in their respective exclusive prerogatives in the formulation and implementation of the national budget, contrary to the checks and balances and accountability system envisioned by the Constitution. This overarching sharing system facilitated — if preliminary congressional and news reports are to be believed — the funneling of funds into the pockets of politicians and unscrupulous individuals in a widespread and systemic corruption of the country’s budgetary process.

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What is truly frightening in all these series of events is that the illegalities — based on congressional investigations and the recent charges brought by the Ombudsman — appeared to have been pervasively practiced, thus, they caught in their webs a significant number of senators and congressmen. All these appeared based on the evidence presented before this Court to have been made possible through the action of no less than the highest levels of the Executive.”

Justice Brion also pointed out in his concurring opinion why he felt the SC should not “dilly-dally” anymore in resolving the DAP case which, “together with the PDAF case, is a part of the country’s biggest scandal and, on its own is a precedent-setting case with a profound impact on the nation.” In describing the DAP case, Justice Brion further said:

“The present DAP case, for its part, involves circumstances that are similar to the PDAF and much more: it involves funds amounting to almost P150 billion or almost 15 times the PDAF case, entanglement with the unconstitutional PDAF personalities at the very highest level in both the Executive and the Legislative Departments of government; and demonstrated lack of respect for public funds, institutions, and the Constitution.”

It is thus so fortunate and quite reassuring that the SC has demonstrated its independence and integrity and did not succumb to perceived pressure. It has shown to the populace that it is one of the remaining institutions in our Republic which they can still trust to preserve the rule of law  and our democracy. In its unanimous decision (13-0) announced last July 1, 2014, the SC declared the DAP unconstitutional because it violates the principles of separation of powers and checks and balances in the budgetary process and Article VI Section 25 (5) of the Constitution. The dispositive portion is clear enough and needs no personal interpretation. It struck down the following items in the DAP: the transfer of savings outside the Executive branch; the funding of government projects not covered by the GAA; the renaming of unreleased allotments and appropriations for agencies as “savings”; and the un-programmed funds without certification by the National Treasurer that the revenue collections exceeded revenue targets.

Perhaps, the only “questionable” aspect of its ruling is on whether the doctrine of “operative fact” should be applied in this case.  This doctrine simply says that the declaration of unconstitutionality of a law or executive order should have no retroactive effect as to invalidate past acts done pursuant to thereto for they are already considered as “operative facts.”

Actually the SC ruling on this aspect is also quite clear enough and should not be interpreted any more. The SC agreed with the concurring opinion of Justice Brion on this matter and already ruled that the operative fact doctrine can only apply to the programs, projects and works that can no longer be undone and where the beneficiaries relied in good faith on the validity of the DAP. But this doctrine 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 tribunal determining their criminal, civil, administrative and other liabilities.”

Hence the proposed impeachment of P-Noy is still possible and should not be completely ruled out. Whether or not he or his people particularly Budget Secretary Abad are in good faith is a question that has to be resolved yet, not by the Malacanang spokesman but the proper tribunal. In this connection, the following comment of Justice Brion in his concurring opinion is quite interesting. He said that there are “indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality.” Hence he asked his fellow Justices that “we should not identify this Court with a ruling that seemingly clear the respondents from the liabilities for the transgressions we found in the DBM Secretary’s performance of duties when the evidence before us, at the very least, shows that his actions negate the presumption of good faith he would otherwise enjoy in the performance of duty.”

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