THE recent Supreme Court decision on the Disbursement Acceleration Program (DAP) brought to light not only that PNoy most likely committed an impeachable offense, but also that Congress made it possible for PNoy to run roughshod over our Constitution.
Expectedly, Palace brown-nosers have been falling over themselves defending PNoy amid the growing clamor from various quarters to prosecute and punish him for the alleged massive malversation of public funds through DAP.
According to House Speaker Feliciano Belmonte, the SC decision is not retroactive. Similarly, another Malacañang ally, Akabayan partylist congressman Walden Bello, argues that the SC ruling only “covers actions from the time of the ruling” and that PNoy’s actions before the SC ruled on its unconstitutionality were therefore done in good faith.
It seems Belmonte and Bello are reading too much into the SC’s ruling.
What the SC decision merely said was that “[t]he doctrine of operative fact recognizes the existence of the [DAP and its related issuances] 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.”
This means the effects of the implementation of the DAP prior to the declaration of its nullity and unconstitutionality such as the disbursements of DAP funds to various agencies or offices—including the additional PDAF (or the so-called “incentives”) given by Malacañang to senators during the Corona impeachment trial —should remain undisturbed.
The doctrine of operative fact, however, does not absolve those behind the DAP of criminal, civil, administrative and other liabilities.
In fact, the ponencia (or majority opinion) penned by Justice Lucas Bersamin, citing the incisive opinion of Justice Arturo Brion, categorically declared that the operative fact doctrine “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.”
In other words, PNoy and Budget Secretary Florencio Abad, being the prime movers of DAP, could be held liable for the illegal or unconstitutional acts which they might have committed before the SC’s ruling came out, thus clearly rebutting the argument of Malacañang defenders that the High Court’s decision had no retroactive effect.
Whether they are indeed held liable in an impeachment proceeding (in the case of Aquino) or in a civil, criminal or administrative case (in the case of Abad) remains to be seen. One thing’s for sure though. Both Abad and PNoy cannot feign ignorance of the Constitution —the highest law of the land.
As Justice Brion said in his opinion, “[a]s 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 inconceivable that [Abad] did not know the illegality or unconstitutionality that tainted his brainchild.”
For his part, PNoy also cannot claim that he didn’t know that the DAP was, at the very least, highly irregular since he even filed a bill (i.e. the Budget Impoundment Control Act) to limit then President Gloria Macapagal-Arroyo’s impoundment of funds appropriated by Congress, calling it a misuse and abuse of presidential prerogative and an emasculation of Congress’ authority.
True, the SC decision said that the “withdrawal of unobligated allotments [or savings]under the DAP should not be regarded as impoundment.” But that’s only because the General Appropriations Act (GAA)—or the budget law passed by Congress—defined impoundment as the retention or deduction of appropriations and not the transfer of funds as what PNoy did in the DAP.
However, if we were to follow PNoy’s definition of impoundment in his bill which is “the failure to spend or obligate budget authority of any type,” he’s doing exactly the same thing he accused Arroyo of doing.
“Through the DAP, funds that were meant to finance appropriations for slow-moving projects were not released, allotted and spent for the appropriations they were meant to cover. They were impounded,” Justice Brion declared in his separate opinion.
The blame, however, should not lie entirely on Aquino and Abad.
Congress was complicit in allowing PNoy to circumvent its budgetary process and to indirectly veto items of the GAA, thus enabling him to create another budget within a budget.
Aside from failing to limit PNoy’s impounding power in the GAA, the 2011 and 2012 budget law enacted by Congress “literally allowed [PNoy to] transfer . . . funds from savings to augment any item in the GAAs even if the item belonged to an office outside the Executive.”
With the 2015 proposed national budget soon to be submitted by Malacañang, will PNoy’s congressional allies allow PNoy to again usurp Congress’ power of the purse by restoring or even expanding his discretionary powers over the GAA that were struck down by the SC’s DAP ruling?