Commission on Audit (COA) chief and nominee for Supreme Court (SC) justice Grace Pulido-Tan failed to issue a Notice of Disallowances against the illegal Disbursement Acceleration Program (DAP) even after it was discovered that her agency benefited from the unconstitutional program created by President Benigno Aquino 3rd and his Budget secretary, Florencio “Butch” Abad.
Such failure surfaced in recent separate opinions on DAP of senior Supreme Court Justices Arturo Brion and Antonio Carpio.
Brion, in his 62-page opinion, noted that COA had received P144 million in funds from the acceleration program for the commission’s information-technology infrastructure build-up, hiring of additional litigation experts and various other local projects.
The Brion opinion said Abad sent a memorandum to the President on October 12, 2011 seeking formal confirmation of Aquino’s approval of DAP for a total of P72.11 billion that would defray COA’s expenses.
“The respondents additionally deny the existence of an actual case because the COA has yet to render its audit findings whether the DAP projects identified in the petitions are lawful or not, thus showing that these petitions may be premature. I do not find this contention persuasive,” Brion said.
Nine petitioners had challenged DAP’s constitutionality before the High Court.
In his opinion, Carpio named the beneficiaries of DAP as COA, Commission on Elections and Congress.
“DAP is unconstitutional for violating Section 25(5) of Article VI of the Constitution: the transfers of appropriations from the executive to the legislature, the Commission on Elections and Commission on Audit,” he said.
Brion said the authors of DAP—the President and his Budget secretary—must be held accountable for the illegal program that they implemented and it is only a defense of good faith that would save them.
If Aquino is removed by an impeachment court in connection with DAP, he can then be charged administratively and criminally before the Office of the Ombudsman along with Abad.
“The authors, proponents and implementors of DAP are not among those who can seek coverage under the doctrine [operative fact]; their link to the DAP was merely to establish and implement the terms that we now find unconstitutional.”
“The matter of their good faith in the performance of duty [or its absence]and their liability therefore, if any, can be made only by the proper tribunals, and not by this court in the present case,” Brion said.
To Carpio, Aquino’s DAP usurped Congress’ power of the purse, making the legislative “inutile.”
“This court cannot allow a castration of a vital part of the checks and balances enshrined under the Constitution,” he said.