Porking the DAP

My favorite law professor Justice Solidum once told our class, “The law is what the Supreme Court says is the law. In this class, I am the Supreme Court. Whatever I say is final and non-appealable.”

In a recent decision, the Supreme Court declared “the following acts and practices under the Disbursement Acceleration Program (DAP), National Budget Circular N0. 541 and related issuances UNCONSTITUTIONAL for being in violation of Section 25 (5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:

(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as saving prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Act;

(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

(c) The funding of projects, activities and programs that were not covered in the General Appropriations Act.”

The Court further declared as “VOID the use of unprogrammed funds despite the despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant General Appropriations Acts.”

The voting was unanimous (13-0) with 1 abstention.  Unless the Court reverses itself upon a motion for reconsideration by the respondents, it is now the law of the land. The Supreme Court says so!

Will a motion for reconsideration prosper?  The stated Constitutional and legal basis for DAP are Section 25 (5), Article VI of the 1987 Constitution; Section 49, Chapter 5, Book VI of the 1987 Administrative Code (Executive Order No. 292), Authority to Use Savings for Certain Purposes; Section 38, Chapter 5, Book VI of the 1987 Administrative Code (Executive Order No. 292) Suspension of Expenditure of Appropriations; and the General Provisions on the Use of Savings, General Appropriations Acts for Fiscal Years 2011, 2012, & 2013.

Some legal experts claim that the Justices in their judicial analysis and decision ignored Section 49 of the Administrative Code. Because if they did consider it, they would have realized that PNoy and Secretary Abad were in fact, empowered and therefore justified in conceiving DAP.

Prominent in the discussions by the Justices and other Constitutional experts is the rule on accountability.  Former Chief Justice Art Panganiban explained it simply for laymen:

“As a rule, an unconstitutional “act or practice” is void and cannot give rise to any right or obligation. However, the Court held that the exception to this rule, the old “doctrine of operative fact,” should be applied “in the implementation of the DAP.” (p.87) 

Under this doctrine, acts done in good faith pursuant to a law or executive act that is later declared unconstitutional would remain valid and enforceable. It also applies when the nullification of such acts would result in an injustice. In short, unconstitutionality has prospective effects only. 

Example: A bridge is constructed from illegally augmented funds. The government officials who supervised in good faith the construction cannot be forced to reimburse the government. Neither may injustice be heaped on suppliers of construction materials by refusing to pay them.”

Of course, it is a different story if lawmakers who were allotted DAP funds for projects that they themselves are empowered to identify, use it instead for their personal gain.  It would be like the Pork Barrel Scam all over again.

In fact, per news reports, “principal whistle-blowers Benhur Luy and Merlina Suñas are ready to execute affidavits detailing their knowledge of how five senators’ DAP allotments ended up in the fake nongovernment organizations (NGOs) of alleged pork barrel scam mastermind Janet Lim-Napoles.”

Their lawyer, Raji Mendoza said that “The affidavits will show that the same methods in the pork barrel scam was also used in the DAP funds of the senators,”

The five Senators that they allege to be involved are: Senators Jinggoy Estrada, Bong Revilla, Juan Ponce Enrile, Ferdinand Marcos, Jr. and Tito Sotto.  As expected, they are denying everything even alleging that their signatures were forged.

The Ombudsman, the Department of Justice (DOJ), and the National Bureau of Investigation (NBI) have supposedly started an investigation regarding the misappropriation of DAP funds.

Being a lifetime member of the Integrated Bar of the Philippines (IBP), I am very glad to know of the growing independence of the Supreme Court.  I always had the impression based on what my lawyer-friends tell me that we had a very corrupt judiciary – from the lowest to the highest courts.  But the impression is changing at least in the highest tribunal. 

It would even be better if the current Supreme Court not only shows independence but also a greater sense of wisdom and justice by DISMISSING Sandiganbayan Justice Gregory Ong.  Per investigation ordered by the Supreme Court, Ong was found guilty of accepting a bribe to acquit Napoles in a case involving substandard Kevlar helmets for the military.

People, including my barber, do not understand the hesitance!