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MANILA, Philippines - President Aquino and Budget Secretary Florencio Abad should be held liable over the Disbursement Acceleration Program (DAP), the Bagong Alyansang Makabayan (Bayan) said yesterday.
In a statement, Bayan secretary-general Renato Reyes Jr. downplayed the modification made by the Supreme Court (SC) in its latest ruling, which now allows funding of projects and programs not covered by the General Appropriations Act (GAA).
Bayan, one of nine petitioners in the case before the SC, cited the portion of the decision that provides for the liability of “authors” of DAP “unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.”
Abad, seen as the designer of the DAP, has been charged with plunder in connection with the funding program. The group earlier said it also plans to file similar charges against President Aquino once he steps down and loses immunity from suit.
“Malacañang cannot claim the SC DAP ruling as a victory for its fiscal dictatorship and impunity. The ruling does not exculpate the President. On the contrary, it says that the actual accountability of the authors of DAP need to be determined by the proper tribunals,” he explained.
Reyes further claimed that the affirmation of unconstitutionality of DAP was a vindication of the impeachment complaint they filed against the President after the SC handed down its original decision in July last year.
SC spokesman Theodore Te, for his part, clarified that the portion of the decision on the liability of “authors” of the DAP is considered an obiter dictum or “by the way” statement not needed or relevant to disposition of the case.
Still, he said it could be used as basis for filing of case against DAP authors – if they would be identified by proper body.
“An obiter does not mean it has no jurisprudential value, it just means that it is not necessary for the resolution of the case. It is still part of the decision but it’s not doctrinal, at least not yet,” Te explained.
“Since it forms part of the decision, it can be used (to file cases); but if it is used as authority or precedent in a similar case then it may be argued that since it was obiter it does not constitute precedent unless the SC decides that it will adopt a previous obiter as ratio in the new case,” he added.
In other words, Te said the use of the liability portion in the ruling would be “up to lawyers.”
If Bayan thinks the SC case on DAP is already done, another petitioner – UP law professor Harry Roque Jr. – believes otherwise.
In a statement yesterday, Roque said they are planning to appeal the high court’s reconsideration of the act under DAP pertaining to the funding of projects, activities and programs that were not covered by any appropriation in the GAA.
“The new resolution of the high court on the DAP is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval on the de facto appropriation by the executive without the benefit of congressional review,” he lamented.
Roque believes that the new doctrine “defeats the whole purpose of giving the power of the purse to the legislature” and also “reinstates and legitimizes the presidential pork barrel system without benefit of congressional approval and oversight.”
He said they were also surprised that the SC has dropped proponents and implementers of DAP projects in its ruling on liability.
“We will file a motion for reconsideration of this resolution within the period provided by the rules,” he bared.
Voting 13-0 in session last Tuesday, the SC justices unanimously denied the appeal of the Palace on its decision in July last year striking down the withdrawal of unobligated allotments from implementing agencies and their use as savings prior to end of fiscal year, as well as the cross-border transfers of savings of the executive to augment funds of agencies outside the department.
They likewise stood by their earlier finding that the use of unprogrammed funds was illegal for non-compliance with conditions in the GAA.
The SC again held that these acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations.
But the Court reversed its ruling on the act under DAP pertaining to the funding of projects, activities and programs that were not covered by any appropriation in the GAA, which was earlier declared unconstitutional.
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.
Palace execs absolved
Budget Secretary Florencio Abad declared yesterday that he, along with President Aquino and several other Cabinet members, were absolved by the Supreme Court of any liability on the nullified DAP.
“Walang sinabi ang SC na may liability ang sinuman,” Abad said, noting that with the modified ruling, it now clearly means they cannot be held either administratively or criminally liable.
He said the presumption of regularity in the performance of duties by public officials has been restored, unlike in the July 2014 original ruling where they were accused of having acted in bad faith.
“Because of this, presumptions of good faith and regularity by which public officials performed their functions will be restored. The SC clarified that doctrine of operative fact is applicable in the DAP issue,” he said.
Abad stressed that the SC said that the two paragraphs of the decision issued in July 2014 that presumed lack of good faith with regard to the authors, sponsors and implementors are obiter dictum (passing remark or comment) and not part of the decision.
Solicitor General Florin Hilbay described SC’s latest ruling as a “de facto reversal.”
Malacañang hailed the SC for modifying its decision on DAP where it removed the presumption of bad faith of Cabinet officials and restored the presumption of regularity in the performance of their duties.
“The presumption of good faith has been preserved and emphasized, which clarified the previous impression that the authors are presumed to be in bad faith,” presidential spokesman Edwin Lacierda said.
This simply means the burden of proof still lies with anybody who would accuse public officials of irregularity in the disbursement of funds and even the implementation of projects in the countryside, either by way of infrastructure or procurement of supplies.
“We note that based on the limited information provided by attorney Ted Te, the SC has upheld the doctrine of operative fact which declared all acts are valid until they are declared unconstitutional,” Lacierda added.
Move in right direction
Speaker Feliciano Belmonte Jr. welcomed yesterday the SC’s decision upholding the constitutionality of DAP with modifications, saying “it was a ruling in the right direction.”
Belmonte said the modifications in the SC ruling helped clear officials who had no intention of violating the law in crafting the DAP, and will allow greater public spending for growth.
He said there is always a presumption of regularity in government programs and transactions.
“The ruling of the Supreme Court on DAP was a ruling in the right direction. You will notice the ruling took note of the benefits of the DAP but still there are some strict things that should be done,” Belmonte said. – With Paolo Romero, Jess Diaz, Marvin Sy, Eva Visperas, Edith Regalado, Ding Cervantes
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