SC decision does not absolve DAP operators

by Ira Pedrasa,

Posted at Jul 02 2014 11:06 PM | Updated as of Jul 03 2014 07:06 AM

MANILA - The Supreme Court did not absolve the proponents of the Disbursement Acceleration Program (DAP) of any possible liability arising from its ruling that their acts under the program are unconstitutional.

In the 92-page decision penned by Associate Justice Lucas Bersamin, the high court said the doctrine of operative act – or the doctrine that nullifies the void law but sustains its effects – cannot be applied to the DAP operators, including President Benigno Aquino III and Budget Secretary Florencio Abad.

It “cannot apply to the authors, proponents, and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative, and other liabilities," the decision read.

The separate opinion of Justice Arturo Brion was more pronounced.

He said the Supreme Court cannot make any ruling on the criminal, civil, or administrative liability of the proponents, specifically Abad, since it does not have the jurisdiction to do so.

However, he noted that “there are indicators showing that the DBM secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality…the DBM Secretary admitted that he has an extensive knowledge of both the legal and practical operations of the budget…”

“As a lawyer and with at least 12 years of experience behind him as a congressman who was even the Chairman of the House Appropriations Committee, it is conceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” he said.

The high court announced on Tuesday that several acts under the DAP were unconstitutional. It said the executive can only use and transfer money to other agencies if this is in the form of savings and appropriated under the General Appropriations Act.

It said that the doctrine of operative act can only be applied to the projects already established under the DAP.
“The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country,” the decision read.

It noted that not applying the doctrine to the DAP itself “could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness.”