DAP: What did the Supreme Court really say?

Understand better the 3 acts declared 'unconstitutional' and an act as 'void' in the
Supreme Court ruling over the controversial DAP.
What is meant by unconstitutional? The prefix un means contrary to; thus, the term
unconstitutional means contrary to or violative of the Constitution. (Read:DAP: What
did the Supreme Court really say? Part 1)
The specific Disbursement Acceleration Program (DAP) acts and practices that were
ruled UNCONSTITUTIONAL are:
the withdrawal of unobligated allotments from the implementing agencies, and
the declaration of the withdrawn unobligated allotments and unreleased
appropriations as savings prior to the end of the fiscal year AND (all caps mine)
without complying with the statutory definition of savings contained in the
General Appropriations Acts (GAA);
the cross-border transfers of the savings of the Executive to augment the
appropriations of other offices outside the Executive; and
the funding of projects, activities, and programs that were not covered by any
appropriation in the GAA
Which provisions of the 1987 Constitution the longest Constitution our country ever
had were considered by the Supreme Court to have been contravened by these acts
and practices?
Constitutional violation
The DAP was said to have violated two provisions (or sections) in the Constitutions text
and one doctrine, i.e. a principle of democratic government that is considered to be
embedded in and suffuse the provisions of the text.
The specific provisions were Section 29(1) of Article VI that says no money shall be
paid out of the Treasury except in pursuance of an appropriation made by law and
Section 25(5) of the same article that says no law shall be passed authorizing any
transfer of appropriations; however, the President, the President of the Senate, the
Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and
the heads of Constitutional Commissions 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.
The principle (as distinguished from the textual provision) that the Supreme Court
considered violated by the DAP was the Constitutional Law doctrine of separation of
powers. Unfortunately, for us who have been molded to demand computer accuracy
from everything and everyone, there is no concise and precise statement in the
Constitution of what the doctrine of separation of powers allows and what it disallows.
Thus, we have to rely in the sermons and homilies of the priests and shamans of
Constitutional Law to understand the doctrine; and since, to date, the clerics of the
Constitutional Law hierarchy are still arguing among themselves on various aspects of
separation of powers (and the other side of the coin, checks and balances), even after
the more sensible sectors of the intelligentsia have long ceased their fighting on the
question of how many angels could stand on the head of a pin, I beg to refrain from that
area of Constitutional Law where holy angels fear to tread.
Unconstitutional vs. void
In addition to the 3 acts that were declared UNCONSTITUTIONAL, one act was
declared as VOID.
According to the Dictionary of Federico Moreno, citing Go Chioco v. Martinez, 45 Phil
285, void means of no effect whatsoever; absolutely and entirely null; of no legal force
and which for that reason cannot be enforced.
Declared VOID was the use of unprogrammed funds 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 GAA.
It is not clear to many what differentiates UNCONSTITUTIONAL from VOID.
But it is obvious to all that the Supreme Court did not declare any of the acts which were
ruled as either UNCONSTITUTIONAL or VOID to be, at this stage of the national
inquiry, to be criminal.
The criminal culpability of those who committed those acts, according to the Supreme
Court, needs to be further looked into in the future by the proper tribunals determining
their criminal, civil, administrative, and other liabilities.
'The doctrine of operative fact'
It is also obvious to all that, despite the ruling of unconstitutionality, the Supreme Court
did not rule that everything, as in everything, should be moved back to square one.
Instead, it declared, as it did in the earlier PDAF (Priority Development Assistance
Fund) case, the applicability of the doctrine of operative fact on the impact of its July 1
ruling on the DAP.
The doctrine of operative fact says the Supreme Court recognizes the existence of
the law or executive act prior to the determination of its unconstitutionality as an
operative fact that produced consequences that cannot always be erased, ignored or
disregarded. In short, it nullifies the void law or executive act but sustains its effects. It
provides an exception to the general rule that a void or unconstitutional law produces no
effect ....
Only the deaf could not hear the unequivocable declaration of the Supreme Court: We
find the doctrine of operative fact applicable to the adoption and implementation of the
DAP. Its application to the DAP proceeds from equity and fair play. The consequences
resulting from the DAP and its related issuances could not be ignored or could no longer
be undone.
Just precisely what consequences that resulted from the DAP (prior to the declaration
of partial unconstitutionality by the Supreme Court) are, and which of these
consequences are covered by the doctrine of operative fact and therefore cannot be
ignored or undone, remain to be spelled out and litigated in the future.
What is clear, though is that those who are involved, as authors and executors, have
ants in their pants. Rappler.com


Senate will be guided by SC ruling on DAP
August 3, 2014 11:02 pm
by J EFFERSON ANTIPORDA AND J OMAR CANLAS

THE Senate finance committee on Sunday said it will strictly abide by the ruling of the Supreme
Court (SC) on the Disbursement Acceleration Program (DAP) in studying the proposed 2015
General Appropriations Act (GAA), with or without a joint resolution defining the contentious term
savings.
President Benigno Aquino 3rd had asked Congress to come up with a joint resolution clarifying the
terms related to government spending.
On Sunday, Sen. Francis Escudero, chairman of the committee on finance, said the Senate is willing
to wait for any proposal that would define savings but even without the joint resolution, the
chamber will deliberate on the national budget in accordance with the ruling of the SC on the DAP
particularly on the use of savings.
In its ruling declaring the DAP unconstitutional, the High Court did not provide a precise definition of
the term savings but laid down the following parameters: Congress wields the power of the purse
and primarily decides how the money will be spent; the executive enforces the laws made by
Congress and is to spend in accordance with the provisions of the GAA; Congress must recognize
the need for flexibility in budget execution; and savings should be actual.
According to Escudero, he has no intention of filing a measure defining savings but his committee
welcomes proposals.
I will of course tackle it [proposed measure defining saving] but I will see to it that the measure will
not circumvent the SC ruling, he said in an interview on radio dzBB.
Senate Majority Leader Alan Peter Cayetano last Friday warned his fellow lawmakers against trying
to skirt the SC ruling by coming up with their own definition of savings.
Cayetano said while he supports the Presidents request for a joint resolution defining savings, the
measure must be well crafted so that it would not be perceived as circumventing the decision of the
High Court.
He added that there is a big chance that the joint resolution would be returned to the Supreme Court
if there a public perception that it is an attempt to go around the ruling.
If we circumvent the law, not only is it promoting a plunderous President even in this administration,
it will be promoting [Cabinet] secretaries to have less accountability, Cayetano said.
Meanwhile, a document obtained by The Manila Times indicated that the Supreme Court had
planned to hit back at the President for railing at the tribunal after its ruling on the DAP.
The document is a one-page Draft Statement entitled Response of the Supreme Court to the
Presidents Speech of July 14, 2014 on the Filing of a Motion for Reconsideration from the Supreme
Courts decision in Araullo, et al. vs. Aquino III.
The draft was prepared by the Supreme Court Public Information Office headed by Theodore Te and
presented to the court en banc on July 15.
The draft was never released to the media.
Instead, the court opted not to engage the President in a word war, and its official reaction was No
Comment.
In the draft, the justices said the court is not beholden to Aquino or any other President, but to the
1987 Constitution.
Aquino, apparently frustrated by the courts ruling on the DAP, had raised the possibility of filing an
impeachment complaint against the magistrates.
The courts greatest weapon is its independence both perceived and real. It is this independence
that allows it to take very seriously the duty of exercising the judicial power as defined under the
Constitution. The slightest hint that the members of the court may be influenced, intimidated or
instigated into acting in a manner not in keeping what that Constitution provides and what their
individual consciences dictate is unproductive, as time and again, the members of the court have
displayed a becoming ungratefulness to the current and previous appointing powers and
demonstrated a passionate fidelity to Constitution and conscience, the draft read.
The justices said it is unfortunate that so much attention has been given to [Aquinos] statements
that allude to a conflict between the court and the executive and the hint that the only recourse to
head off this supposed conflict is for the court to reverse its 13-0-1 decision in Araullo or risk
impeachment.
They added that the court will address arguments raised by Malacaang in its motion for
reconsideration.
The court speaks only through its decisions and so it will be with the governments motion for
reconsideration in this case. It is aware of the publics interest in the issues involved in this case and,
to the extent that the courts limitations will allow it, the arguments raised in the government motion
for reconsideration will be addressed within the soonest possible time, the justices said.
The Supreme Court voted 13-0 to declare Department of Budget and Management Circular 541,
which gave life to the DAP, illegal and unconstitutional.





Congress taking steps to legalize DAP Drilon
Congress is keen on taking steps to legalize the Disbursement Acceleration Program (DAP) by redefining the term
savings through a joint resolution or a supplemental budget.
Senate President Franklin Drilon stressed this yesterday as he revealed that Congress has enough powers under the
Constitution to change or invalidate any decision made by the Supreme Court (SC).
The SC had earlier ruled that some acts under the DAP are unconstitutional.
Drilon said that there are no definitions for savings in the Constitution but only on regular law, in the General
Appropriations Act (GAA), which can be outlined by Congress through a joint resolution or supplemental budget.
We can do that through a supplemental budget or joint resolution, Drilon said in an interview.
Thats why the President asked us (Congress) to pass a joint resolution and a supplemental budget so that our
concerns on DAP-funded projects that are finished and those projects that have already started wont hit a snag
because of the SC decision, Drilon said.
May I reiterate, were talking about the definition of savings, what it means the question of most people is can
Congress change the decision of the SC? My answer to that is, its not forbidden, Drilon said.
Justifying his stand, Drilon said that if for instance, a journalist was charged with libel and jailed, and the SC affirms
the decision of a lower court, Congress can reverse the decision by passing a law decriminalizing libel.
If Congress decriminalizes libel even if a newsman is already convicted, this would become null and void,
notwithstanding the decision of the SC upholding a decision convicting a journalist of libel. If Congress says that libel
is no longer a criminal act, then the decision would be rendered null and void in terms of conviction, Drilon said in
Filipino.
The same here on DAP. The SC says the interpretation of savings in the national budget is wrong. So we can
redefine it so it can be clearer, he said.
Drilon said that the SC interpreted savings in the manner that they understood it, which may not be consistent with
how Congress intended the term savings to be.
And therefore, Congress has the prerogative to review and revise the definition of savings, he reiterated.
Drilon said the High Courts decision on DAP literally defined and instituted strict adherence to the definition of
savings, which can only be utilized before year end, not in the middle of any fiscal period.
Thats one of the points. When a project is abandoned, or there is a change in the priorities and the projects for
example, funds for a bridge are abandoned; now, the appropriations for that project could be used to augment other
items in the budget, Drilon explained.
We believe we do not have to wait for the end of the year, because by the end of the year, the budget authority
would have lapsed and you have to go through bidding and all of that. The very strict and literal interpretation of term
savings, to me, can be reviewed, he added.

















Lessons to be learned
THE public outcry, the explanations and defenses made, the ruling of the Supreme
Court on the Priority Development Assistance Fund (PDAF) and recently the
Disbursement Acceleration Program (DAP) should provide instructive lessons not only
to our provinces local government leaders, from the governor to our mayors and
barangay kapitans and legislators, but to us, their constituents.
For too long, many public officials have viewed the public office as the source for
corruption and plunder. This was made possible through the decades of tolerance and
indifference of the public largely in the belief that there is nothing anyone can do to stop
them. This permissive and dismissive attitude consequently made vote-buying a
permanent feature in our elections. See how the let-them-buy-our-votes-since-they-
will-steal-our-money- anyway thought has become pervasive in our society.
The time to reflect on how each of us contributed to our damaged political culture is
here and now. Belated as it may seem, we are finally seeing senators being detained as
suspects behind the plunder of the countrys wealth, local government officials being
indicted by the ombudsman and jailed by the Sandiganbayan for violation of the Anti-
Graft and Corrupt Practices Act.
These new and yes, totally unexpected developments were made possible by the
continued vigilance of those who never gave up on the Filipino. If they can do it, so can
we can in our own province and towns.
Pangasinan can definitely be a better place if only we learn the lessons of today well.





Constitutional or unconstitutional?
BUDGET Secretary Butch Abad told the Senate on July 24 that the DAP (Disbursement
Acceleration Program) was not declared unconstitutional by the Supreme Court, that
only some parts of the DAP were declared unconstitutional. But what the SC clearly
pointed out was that the P237.5-billion savings that was earmarked by President Aquino
to accelerate growth was illegally disbursed by Malacanang because the savings
release did not conform with Congress-approved laws.
Malacanang had filed a Motion for Reconsideration (MR) asking the Supreme Court to
reverse its decision on the unconstitutional portions of the DAP. Will all 13 justices
who unanimously voted as unconstitutional some portions of the DAP make a 360-
degree turn, let alone the majority of them making an about-face, to bow to Mr. Aquinos
MR? But the more nagging question: If parts of DAP are unconstitutional, will that not
mean, too, that the entire DAP itself becomes automatically unconstitutional? Isnt the
act of either the left or right hand becomes the act of the entire body?
We wait with bated breath, again, the Supreme Court decision on the Palace appeal.