July 05, 2014

Good faith? Good grief!

The Supreme Court declaration of the unconstitutionality of “acts and practices under the Disbursement Acceleration Program (DAP)”, coming on the heels of the arrest and detention l of three senators charged with plunder for amassing hundreds of millions of public funds from the abuse of their pork barrel, appears to be yet another boost to the clamor for abolishing the entire pork barrel system. 

Some political analysts, however, see the decision to be favorable to Malacanang.  While the main components of the  DAP,  which is basically presidential  “pork”,  have been stricken down as unconstitutional – and therefore presumptively illegal –  the DAP can still be excused as “well-intentioned” and having a “positive impact” on the economy while its authors, proponents and implementors, because they allegedly acted in “good faith”, are therefore not politically, civilly, or worse, criminally liable. 

In contrast,it is said that the legislators, executive officials and private individuals like the notorious Ms. Janet Lim-Napoles indicted for the multi-billion PDAF scam are the ones who must face the full force of the law.  In fact the Yellow Media lauds the Aquino administration for going after Senators Jinggoy Estrada, Bong Revilla and Juan Ponce Enrile notwithstanding the obvious special treatment accorded them.

Unfortunately for respondents President BS Aquino, Budget Secretary Butch Abad and Executive Secretary Paquito Ochoa, the opposite public reaction is gaining ground. 

Many deem the SC decision as basis for holding them criminally liable for illegally taking funds appropriated by Congress for specific national agencies with a corresponding listing of “program, activity or project”  (PAP), declaring these as savings, and spending them on activities that are not even covered by the General Appropriations Act (GAA); illegally transferring the funds pooled into the DAP to other departments of government such as the legislature and the judiciary and to independent constitutional bodies; and illegally using the Unprogrammed Fund despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets as required by the GAA.

Justice Antonio Carpio minced no words in a cogent separate opinion:  “Under the DAP and NBC 541, the President disregards the specific appropriations in the GAA and treats the GAA as the President's self-created all-purpose fund, which the President can spend as he chooses without regard to the specific purposes for which the appropriations are made in theGAA…In short, the President under the DAP and National Budget Circular (NBC) 541 usurps the power of the purse of Congress.”

Let us do a layman’s review of what checks-and-balances means with regard to the national budget. Congress has the power to appropriate funds to the national agencies’ PAPs, upon recommendation of the Budget Department.  With the enactment of the GAA, these PAPs will be implemented by the Executive Department headed by the President who manages and spends public funds according to the GAA.  These two functions are given to separate branches in order to provide safeguards that trillions of pesos of the people’s money are not spent based on the arbitrary, whimsical and biased dictates of patronage politics nor for graft and corruption; moreover, that there is a way of holding the Executive to account given the vast powers and prerogatives of the Presidency.

The full import of the SC decision can thus be appreciated.  The president is not free to withdraw unobligated funds (that is, funds that are not yet bound to be paid out under contract) and pool these funds duly appropriated by Congress for specific purposes into a mechanism that allows the President unlimited power to juggle such funds at his discretion and for his own purposes.

Mr. Aquino’s defenders counter that the DAP funds were not abused, wasted or stolen unlike the PDAF.   The SC decision, and several separate opinions appear  to  concur, giving Malacanang the benefit of the doubt that the DAP was intended to ramp up government spending in light of piddling economic growth rates in the first year of the Aquino administration. 

Was the SC  paying attention to the circumstances of the Sec. Abad’s disclosure of the existence of the DAP after Sen. Estrada in a privilege speech admitted to receiving additional tens of millions of PDAF after voting for the impeachment of former SC Chief Justice Renato Corona?  Sec. Abad revealed that not only Mr. Estrada but almost the entire Senate then received such porcine largesse from the DAP.  Does this not consist of bribery by Malacanang of the members of the Senate to achieve the President’s wish to unseat a SC Chief Justice not to his liking?

The documents submitted to the SC also indicate how the DAP, on its face, appears to have been spent the way the congressional pork was being spent to augment the budgets  of certain local government units and for certain public infrastructure projects such as two billion pesos for President Aquino’s home province Tarlac, thus reeking of patronage politics.  Malacanang’s retort that less than 9% of the DAP went to congressional pork is irrelevant and meant to divert the public mind from the anomaly.

Certainly, the reason anomalies, if not outright graft and corruption of plunderous proportions, has not been discovered is that the Commission on Audit has not conducted a special audit of the DAP, and has refused to do so despite entreaties by several citizens’ groups such as the #abolishporkmovement.  

This patent act of omission by COA (whose outgoing chair is lauded by President Aquino as a hero for bringing the PDAF scam under the previous Arroyo administration to light and who is shortlisted as a nominee for a vacancy in the Supreme Court) cannot go unnoticed because it is highly suspicious.  Especially after Chair Pulido-Tan went out of her way, sans investigation or audit, to try to convince the group that there is nothing illegal or anomalous about the DAP.

Has the SC decision exonerated Malacanang for acting “in good faith”?  The Court has chosen to apply the doctrine of operative fact to the adoption and implementation of the DAP.  Ergo according to the SC, “Unless the doctrine is held to apply, the Executive as the disburserand the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government...”

On the other hand, we note the language of the decision: “The doctrine of operative fact can apply only to the PAPs (programs, activities and projects) that can no longer be undone and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents and implementors of the DAP, unless there are concrete findings of good faith in their favour by the proper tribunals determining their criminal, civil, administrative and other liabilities."

The decision explicitly says that the burden of proving good faith is on the authors, proponents and implementors.  This is a marked departure to the general legal principle/rule that good faith is assumed and bad faith must be proven.

There is thus sufficient ground in the Court DAP decision to make Messrs. Aquino, Abad and Ochoa liable for culpable violation of the Constitution and for technical malversation and other consequent criminal offenses.  At the minimum, these public officials must be called on to resign.  Meanwhile, Mr. Aquino faces impeachment even before he ends up a lame duck president. #

Published in Business World
7 July 2014


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