President Benigno Aquino 3rd and Budget Secretary Florencio Abad are not yet off the hook for their transgressions in connection with big-ticket projects funded under the Disbursement Acceleration Program (DAP), which was declared unconstitutional by the Supreme Court (SC).
Associate Justice Arturo Brion gave this clarification in his separate opinion in light of the High Court’s decision that sealed the fate of the outlawed disbursement scheme.
The magistrate said the Commission on Audit (COA) must conduct immediately the necessary audit of all projects under the DAP.
Brion noted the use of the word “good faith” in the tribunal’s ruling must not be construed as clearing Aquino and Abad of constitutional violations they have committed.
“If I mentioned at all specific actions indicating bad faith, it was only to balance my statements that the court should not be identified with a ruling that seemingly clears the respondents from liabilities for the constitutional transgressions we found,” he said.
In fact, the magistrate, a Bar topnotcher, opined that “the authors, proponents and implementors of the unconstitutional DAP are not among those who can seek cover behind the operative fact doctrine as they did not rely on the unconstitutional act prior to the declaration of nullity.”
“They were in fact the parties responsible for establishing and implementing the DAP’s unconstitutional terms and in these capacities, cannot rely on the unconstitutionality or invalidity of the DAP as reason to escape potential liability for any unconstitutional act they might have committed,” Brion said.
He reiterated the pertinent portion of his separate opinion in the July 1, 2014 ruling of the SC declaring DAP as unconstitutional in its entirety with a unanimous vote of 13-0 and which was affirmed in the modified resolution issued on February 3, 2015.
“To go back to the case of Secretary Abad as an example, we cannot make any finding on good faith and bad faith from the perspective of the operative fact doctrine since, as author and implementor, he did not rely on good faith on the DAP,” Brion said.
He joined the majority in their DAP decision, “but subject to my opposition against the conclusion that the court’s discussion on the operative fact doctrine is obiter dictum [said in passing], as well as to the qualification that an item must first be found to be deficient before it may be augmented.”
To implement the SC ruling against the DAP, Brion said the COA should start with its probe and audit all the projects funded by the controversial program.
In the majority ruling on the DAP, the SC maintained that Aquino and Abad committed violations for the transfer of funds from the executive to the legislative department and the withdrawal of unobligated allotments.
The tribunal, however, said it will be up to the proper courts to discern whether Aquino and Abad are liable.