13-0 ruling on DAP difficult to overturn, says ex-CJ

MANILA, Philippines - A former chief justice said it would be difficult for the Supreme Court (SC) to reverse its decision declaring some acts in the Disbursement Acceleration Program (DAP) unconstitutional. 

“I think the Supreme Court will not reverse itself, especially in a high profile case like this,” Artemio Panganiban said on the sidelines of a forum organized by the Far Eastern University Public Policy Center last Wednesday.

“It is very difficult to overturn a unanimous decision in the same case,” Panganiban said.

He explained that it is possible to overturn a decision but this could happen after another case is filed.

He cited the case of the Priority Development Assistance Fund (PDAF) or “pork barrel,” which was declared unconstitutional by the high court last November despite three previous rulings that upheld its legality.

The SC unanimously upheld the PDAF, but after a new case was presented and the facts became different, it overturned its earlier decision, Panganiban said.

“That is not the same with the present circumstance. The present circumstance is the same case, the same facts, the same law involved.”

In July, the SC unanimously declared some acts in the DAP violated the constitutional doctrine of the separation of powers.

The high court struck down the withdrawal of the so-called unobligated allotments from implementing agencies and their use as savings before the end of a fiscal year and the cross-border transfer of savings of the executive branch to augment funds of agencies outside the department, Panganiban said.

The funding of projects and programs not covered in the national budget was declared unconstitutional, he said.

The ruling stated that the doctrine of operative fact – which states that programs and acts done before they are declared unconstitutional can be enforced – cannot apply to authors, proponents and implementors of DAP “unless there are concrete findings of good faith in their favor by the proper tribunals.”

Panganiban said President Aquino might have been upset by the portion of the ruling that required DAP proponents to prove “good faith” in their actions.

“The President reacted because he probably felt that it was an undue attack on his integrity,” the former chief justice said.

The government has asked the SC to reconsider its ruling on the DAP, which was meant to promote economic growth.

Officials maintain that the funds under the program were used properly and not diverted to questionable projects.

Panganiban said while the SC may not reverse its decision, it may delete the portion requiring DAP authors to prove good faith or declare it as “obiter dictum” or a mere side comment.