DAP: Good faith, bad faith, or stupid?

Posted at 07/03/14 4:32 PM

Two justices point out liabilities of PNoy, Abad

MANILA - At least two justices of the Supreme Court pointed out the liabilities of President Benigno Aquino III and Budget Secretary Florencio Abad in putting up the unconstitutional Disbursement Acceleration Program (DAP).

“This court cannot allow a castration of a vital part of the checks-and-balances enshrined in the Constitution, even if the branch adversely affected suicidally consents to it,” said Senior Associate Justice Antonio Carpio in his separate opinion.

He said that in implementing the DAP, “the President disregarded the specific appropriations in the [General Appropriations Act] and treats [it] as his self-created all-purpose fund, which he can spend as he chooses without regard to the specific purposes for which the appropriations are made…”

This means that Aquino “usurped” Congress’ power of the purse and made it “inutile and a surplusage,” he said.

He noted that the doctrine of operative fact – or the doctrine that nullifies the void law but sustains its effects – cannot be used by those who acted in bad faith or with gross negligence.

He also stressed that those “directly responsible” for the unconstitutional act can’t invoke the doctrine.

“He who comes to equity must come with clean hands, and he who seeks equity must do equity,” he said.

Moreover, the doctrine is only applicable when nullifying the effect would result in the prejudice of the innocent, he said.

This means school buildings, roads, and other projects funded by the DAP. The contractor who built the school houses in “good faith” should not be prejudiced, he said.

“However, if DAP funds were used to augment the PDAF of members of Congress whose identified projects were in fact non-existent or anomalously implemented, the doctrine of operative fact would not apply,” Carpio declared.

He even expressed surprise that “the majority in the Senate and in the House of Representatives support the DAP.”


Justice Arturo Brion, on the other hand, pointed out the faults of Abad.

“As 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 conceivable that he did not know the illegality or unconstitutionality that tainted his brainchild,” he said.

He said the court could not make any pronouncement on the criminal, civil, or administrative liability of the proponents since it does not have the jurisdiction to do so.

He pointed out, nonetheless: “There are indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality…the DBM Secretary admitted that he has an extensive knowledge of both the legal and practical operations of the budget…”

Malacanang has invoked good faith on the part of Aquino and Abad in implementing the struck down acts in the DAP. Allies, including Senate President Franklin Drilon, moved to rally behind the government officials.


On his Facebook page, lawyer Raymond Fortun downplayed the good faith principle on the issue of the DAP.

“Surely, with so many lawyers at the beck and call of Malacañang -- OSG, DoJ, Presidential Legal Counsel, Presidential Management Staff, the legal division of the DBM -- someone would have pointed out that the funding of projects, activities, and programs not covered by appropriations in the General Appropriations Act is illegal?” he said.

There is good faith and there is stupidity, he said.

He said Malacanang can always apologize and say: “Sorry, we were all stupid to think that it was okay.”

“Indeed, there may be a thin line between being in good faith and being stupid. And if Filipinos accept that so many lawyers may be this stupid, then we're the stupidest nation on earth,” Fortun said.