MARIE YUVIENCO | The Doctrine Will See You Now: The facts on operative fact

By: Marie Yuvienco

InterAksyon.com
The online news portal of TV5

Let’s see how far we can run with the “operative fact” doctrine enunciated by the Supreme Court in Araullo v. Aquino, the decision wherein 13 Justices unanimously found the Disbursement Acceleration Program (DAP) to be unconstitutional.

To refresh readers’ memories, the Court held that while the DAP may have done the national economy a lot of good, the fact remained that it violated constitutional provisions stating that “no money shall be paid out of the Treasury except in pursuance of an appropriation made by law” and that “no law shall be passed authorizing any transfer of appropriations; however, the President xxx 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.” 

Usually, when the Court declares a law unconstitutional, logic dictates that such a law confers no rights and imposes no obligations. This is fine in theory, but the reality is that until a law is declared invalid, it remains in effect and may have consequences that are retroactive in character. This is where the doctrine of “operative fact” comes in.

A rather cumbersome re-statement of the doctrine can be found in the leading case of De Agbayani v. Philippine National Bank, to wit:

It does not admit of doubt that prior to the declaration of nullity such challenged legislative or executive act must have been in force and had to be complied with. This is so as until after the judiciary, in an appropriate case, declares its invalidity, it is entitled to obedience and respect.  Parties may have acted under it and may have changed their positions. xxxx [P]rior to [a law] being nullified, its existence as a fact must be reckoned with. xxxx [B]ecause the judiciary is the governmental organ which has the final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the power of judicial review that may lead to a declaration of nullity.

In the case of the DAP, the fact remains that before it was declared unconstitutional, it was presumed valid and, as a result, public funds were disbursed under its auspices. 

These funds were then used to finance public infrastructure or other government projects; it would be absurd and illogical to require the return -- how, in the first place? -- of the funds used to build, say roads or bridges, when at the time they were released and the infrastructure built, the DAP had not yet been declared invalid by the Court.  

Confiscate the bridge? Destroy the road? The “operative fact” doctrine allows certain things to remain as they are.

What Araullo does not address, however, is the truth of the allegation that the DAP was used to bribe lawmakers to impeach and convict former Chief Justice Renato Corona.  

This was outside the framework of issues anyway, but suppose, for the sake of argument, that evidence is offered which establishes the veracity of the allegation. At this point, we can begin a thought experiment to see how far the “operative fact” doctrine can go.

If indeed the DAP was used to bribe the senators to convict Justice Corona, no one will argue that the conviction was grievously tainted by graft and corruption. The weight of jurisprudence holds that such a decision would be void; in turn, jurisprudence employs metaphors describing the nature of a void decision, to the effect that it is “a lawless thing, which can be treated as an outlaw and slain at sight, or ignored wherever and whenever its exhibits its head,” that it is “in legal effect no judgment.

By it no rights are divested. From it no rights can be obtained.

Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void.”

The Constitution does not say anything about a conviction in an impeachment trial being appealable.  

Let us not forget, however, that the judiciary’s expanded jurisdiction under the Constitution includes the duty and the power to determine if any agency or branch of government gravely abused its discretion. 

Chief Justice Corona chose not to pursue an appeal, but if the DAP was indeed used as a bribe, then he has a cause of action. 

Under the Bill of Rights, one’s employment is considered a property right, and therefore, one cannot be deprived of one’s work, trade or profession without due process. 

Government office, on the other hand, is not considered strictly a right; rather, it is construed as more of a privilege.  

Nonetheless, in the case of the former Chief Justice, were we to indulge our hypothesis, although his office is a privilege, he had no less than a constitutional security of tenure of which he was deprived by reason of a void decision. The thing about void decisions is that, again, per jurisprudence, it is vulnerable to attack in any way and at any time, even when no appeal has been taken.  

In theory, under our scenario, nothing will bar Corona from running to the Court to assail his conviction.

This is when the “operative fact” doctrine will join the fray. 

After Corona’s impeachment, a new Chief Justice was appointed, one who is now discharging the office, and this operates as a fact. Consequently, it is unlikely Corona can ask for his old job back.

He’ll just have to let it go.