SC ruling on DAP difficult to reverse - former CJ

MANILA, Philippines - It might be difficult to reverse the Supreme Court’s unanimous decision declaring some acts under the Disbursement Acceleration Program (DAP) as unconstitutional, a former Chief Justice said.

 

“I think, the Supreme Court will not reverse itself, especially in a high profile case like this one,” Former Chief Justice 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,” he added.

 

Panganiban 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 Supreme Court last November despite three previous rulings that upheld its legality.

 

“The Supreme Court, in its previous decisions, upheld unanimously the PDAF but after it has been shown by a new case that the facts were actually different, the Supreme Court overturned an earlier decision,” Panganiban said.

 

“But that is not the same with the present circumstance. The present circumstance is the same case, the same facts, the same law involved,” he added.

 

Last July, the Supreme Court unanimously declared some acts under the DAP unconstitutional for violating the constitutional doctrine of separation of powers.

 

The high court specifically struck down the withdrawal of so-called unobligated allotments from implementing agencies and their use as savings before the end of a fiscal year and the cross-border transfers of savings of the executive to augment funds of agencies outside the department. The funding of projects and programs not covered in the national budget was also declared unconstitutional.

 

The ruling also 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 believes President Aquino may 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,” he said.

 

The government has asked the Supreme Court 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 were not diverted to questionable projects. 

 

Panganiban said while the Supreme Court might 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.

 

 “That obiter is not enough to condemn them (DAP proponents) or to penalize them,” the former Chief Justice said. 

 

“They still deserve the day in court, they cannot be presumed to be in bad faith. Good faith is still presumed,” he added.

 

Panganiban said removing that portion of the ruling or declaring it as “obiter dictum” would constitute “a balanced decision.” He said the decision on DAP would remind officials not to repeat the acts struck down by the court as unconstitutional. – with a report from Irene Bongcales