DAP: What did the Supreme Court really say?

It is crucial for non-protagonists to listen carefully, and at least

not to be deaf, to what the Supreme Court en banc decision really
says about the DAP
Gerry Geronimo
Published 3:43 PM, Jul 18, 2014
Updated 8:42 PM, Jul 19, 2014
Gerry Geronimo(Part 1)
With President Benigno Aquino IIIs announcement on July 14
that the government will ask the Supreme Court to reconsider its
July 1 decision en banc on the DAP (Disbursement Acceleration
Program, i.e. Araullo, et al v. Aquino III, et al, G.R. 209287 and 8
other petitions), it is certain that the national disturbance called
DAP will outstay typhoon Glenda which, by now is reported to be
out of the PAR (Philippine Area of Responsibility).
It needs to be recalled that the Supreme Court promulgated its en
banc DAP decision on the 9 consolidated petitions which were
filed by various groups, mostly civic and non-governmental
organizations, within days of each other (sic; words of the
ponencia itself) only a little over 6 months after the Supreme
Court had decided the PDAF (Priority Development Assistance
Fund) cases of Belgica, et al v. Ochoa, et al, GR 208566, on
November 11, 2013.
The PDAF and DAP cases essentially suits that question before the
judiciary the legality of certain acts of the legislature and/or the
executive concerning the payments of public monies.
DAP defined
The DAP petitions were filed after Senator Jinggoy Estrada (now
in jail awaiting trial for having received PDAF kickbacks)
revealed that some senators (himself included) had been allotted
an additional P50 million ($1.15 million*) a couple of years back,
by way of, according to him, incentive for voting in favor of the
impeachment of Chief Justice Renato C. Corona.
Department of Budget and Management (DBM) Secretary
Florencio Abad immediately responded with a public statement,
contesting Estradas characterization of the motive behind the
allocation, which benefitted those who voted for impeachment as
well as those who voted against it, e.g. Joker Arroyo.
Abad claimed that on the contrary, the funds released to the
senators had been part of the DAP, a program designed by the
DBM to ramp up spending to accelerate economic expansion.
That public debate, which was as noisy as backyard quarrels of
housewives, on what the allocation was for brought the DAP to
the consciousness of the nation for the first time.
The DAP, as it was embodied in Budget Circular No. 541 and
related issuances of the DBM, was actually a response of the
government to criticisms that it was not spending enough to spur
the local economy onwards.
The World Bank itself had at that time warned in its quarterly
update released in September 2011 that the Philippines
economic growth could be reduced, and potential growth could
be weakened should the government continue with its
underspending ....
The government had justified its foot dragging by claiming the
need to examine carefully the expenditures of the previous
administration but nevertheless took the cue and since then had
taken steps to increase its spending. Among those steps was the
DAP.
It is to be noted that the World Bank, obviously as a result of the
governments increased spending through, among others, the
DAP, had since then accordingly revised its views of the countrys
steps to ensure its future.
In fact, the visiting World Bank President Jim Yong Kim
personally announced the international organizations intent to
offer the country substantial concessional loans to keep the
Philippines progress on course.
DAP as a 'national disturbance'
However, the DAP controversy had taken a life of its own,
parented by polygamous political motivations and nursed
undoubtedly by expressions of the pros and cons of the program
in traditional mass and social media alike.
With the national disturbance called DAP currently still raging
within the PAR, it is crucial for us non-protagonists to listen
carefully, and at least not to be deaf, to what the Supreme Court
en banc decision really said about the DAP, to be deft in sorting
out the medias statement of facts from the spin of those doing the
reporting, and, with 2016 elections at hand, expose the daft who
are obviously exploiting the bad weather for their selfish interests,
selling needless and non-functional protective gear against the
storm as well as passage through unstable make-shift planks over
flood waters.
The Supreme Court clearly recognized that the DAP, as the P in its
name stresses, is a program. It is not a single act or issuance, but a
combination of many acts and several issuances.
Thus, it must be stressed that what the Supreme Court did was to
declare questionable not all, but only some of acts and practices
in the program.
The dispositive provision stresses this fact. It states that the
decision only PARTIALLY grants the petitions for certiorari and
prohibition brought before it. Partial, not total.
The decision declared as UNCONSTITUTIONAL, only 3 kinds of
acts and practices in the program and ruled as VOID only one
kind. (The capitalization and block of PARTIALLY,
UNCONSTITUTIONAL, and VOID are the Supreme Courts, not
mine.) Rappler.com
DAP: What did the Supreme Court really say? Part 2
Understand better the 3 acts declared 'unconstitutional' and an
act as 'void' in the Supreme Court ruling over the controversial
DAP
Gerry Geronimo
Published 7:09 AM, Jul 22, 2014
Updated 11:20 AM, Jul 22, 2014
Gerry Geronimo
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.

SC: 3 DAP schemes unconstitutional
(3rd UPDATE) The High Court declares specific acts under the
Disbursement Acceleration Program unconstitutional, among
them, the cross-border transfers of savings of the executive
department to offices outside it

Buena Bernal
Published 1:38 PM, Jul 01, 2014
Updated 12:10 PM, Jul 13, 2014

ORAL ARGUMENTS. The Supreme Court hears oral arguments on
the constitutionality of the Disbursement Acceleration Program.
MANILA, Philippines (3rd UPDATE) The Supreme Court (SC) on
Tuesday, July 1, declared 3 specific acts associated with the
administration-backed Disbursement Acceleration Program
(DAP) unconstitutional.
The High Tribunal declared the following schemes under the DAP
unconstitutional:
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 without complying with the statutory
definition of savings contained in the General
Appropriations Act
Cross-border transfers of savings of the executive
department to offices outside the executive department
Funding of projects, activities, programs not covered
by appropriations in the General Appropriations Act
Watch this report below.
SC spokesman Theodore Te in a press briefing, said, "The court
also declares void the use of unprogrammed funds despite the
absence of a certification by the National Treasurer that the
revenue collections exceeded the revenue targets or non-
compliance with the conditions provided in the relevant General
Appropriations Act."
In effect, the Supreme Court declared as unconstitutional the
creation of savings prior to the end of the fiscal year and the
withdrawal of these funds for implementing agencies; the cross-
border transfers of the savings from one department to another;
and the allotment of funds for projects, activities, and programs
not outlined in the General Appropriations Act.
The petitioners alleged that the 3 acts struck down by the High
Court essentially voided the program. 9 petitioners assailed DAP
before the SC in late 2013. But other court insiders said it was an
"over-simplification."
The justices of the High Court voted 13-0-1, excluding retired
justice Roberto Abad.* Justice Teresita de Castro inhibited from
the voting. Justice Presbitero Velasco was on official leave but
gave his vote to Chief Justice Maria Lourdes Sereno.
The court has yet to release its decision.
Exact accountability
Anti-DAP groups however said the SC decision falls short of
holding the administration officials responsible for the DAP
accountable for implementing an illegal program.
"Ang malaking hamon ngayon para sa korte at para sa atin ay
yung pagpapanagot. Kung illegal ang DAP, kung merong maling
ginawa, hindi naman uubra na walang mananagot dito," said
Bayan Secretary-General Nato Reyes.
(The big challenge today for the court and for us is holding
[officials] accountable. If the DAP is illegal, if there is something
wrong done, it cannot be that no one will be accountable for it.)
DAP is a program initiated in 2011 to transfer savings and
unused funds from slow-disbursing programs of one department
to fast-moving projects of another.
It became controversial after the now-indicted plunderer and
opposition senator Jose "Jinggoy" Estrada delivered a privilege
speech alleging that huge sums through the program were
distributed to senators for the impeachment of former Chief
Justice Renato Corona.
Earlier, on June 10, the SC was expected to vote on the
constitutionality of DAP but justices deferred voting.
Necessary
President Benigno Aquino III and Department of Budget and
Management (DBM) Secretary Butch Abad have defended the
initiative, saying it was necessary to fast-track growth in the
economy.
During earlier oral arguments, SC justices already pointed out
that the cross-border transfer of funds from one branch of
government to another was not permitted by the Constitution.
Justice Antonio Carpio was categorical. Rappler columnist Marites
Vitug wrote earlier that savings, as defined by the General
Appropriations Act, are excess funds from completed projects,
discontinued projects, and those from finally abandoned projects.
But the life span of operating expenses and capital outlay, as
prescribed by the GAA, is two years, Carpio had pointed out.
This means that the government can only abandon an
infrastructure project when the second year is about to end.
Definitely, according to Carpio, the budget department cannot
declare these as savings in the first year of the GAA.
The absence of written authority from the President, in 2011 and
2013, to realign funds was worse, Vitug, quoting Carpio, wrote.
This cannot be delegated to the executive secretary, he pointed
out. The budget circular on DAP was issued in 2012 and it
regularized the disbursements in 2011.
Petitioners also further argued that it gave the executive
department power to legislate fund allocations, which is within
the duties of the legislative department when it passes the General
Appropriations Act.
The administration, they said, went beyond its jurisdiction and
overstepped its bounds.
It can be recalled that a similar argument was used to declare
void the Priority Development Assistance Fund (PDAF), a lump
sum distributed to lawmakers to fund projects at their discretion.
In declaring its unconstitutionality, the SC said the PDAF gave the
legislative branch powers to implement programs post-
enactment. Rappler.com