To impeach or not to impeach?

Bulatlat perspective

bu-op-icons-benjieThe Supreme Court decision regarding the unconstitutionality of “specific acts” in the Disbursement Acceleration Program (DAP) is a big blow to the Aquino administration. While the 92-page Supreme Court decision appears Solomonic (as most decisions of the High Court are especially if it is critical of government policy), it is, nevertheless, a declaration that the Aquino administration acted clearly well beyond its authority or jurisdiction in determining where and how a substantial amount of government funds would be spent. How substantial? Progressive groups estimate that it is 14 times more than the fund involved in the Napoles scam.

The “specific acts” of the Aquino administration with regards the DAP that the High Court declared as unconstitutional are: 1. the seizure of “unobligated allotments” and “unreleased appropriations” of different government agencies and the unilateral declaration of such as savings; 2. the realignment of funds from the executive to other branches of government (which is expressly prohibited by the Constitution); and 3. the funding of projects, activities and programs not identified by the General Appropriations Act. In sum, what the Aquino administration did was an arrogation of the power of the purse. At the same time, the Supreme Court declared that it is within the power of the President to come up with a policy such as the DAP to steer the economy toward growth and development.

Did the Supreme Court decision state whether the Aquino administration, specifically Pres. Benigno Aquino III and Budget Sec. Florencio Abad, could be held liable for unconstitutional acts? Fr. Joaquin Bernas does not think so. He was quoted saying that the Supreme Court was not clear on whether the decision was retroactive or not. House Speaker Feliciano Belmonte and Akbayan Party-list Rep. Walden Bello even claimed that the decision was not retroactive and thus, President Aquino could not be held liable.

However, Kabataan Party-list Rep. Terry Ridon was spot on when he pointed to the Supreme Court’s application of the “operative fact doctrine” in the decision to show why President Aquino and Sec. Abad are liable. The decision clearly states that: “…the doctrine of operative fact can apply only to the PAPs [program, activity, or project] 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 favor by the proper tribunals determining their criminal, civil, administrative and other liabilities.” (page 90)

What is the principle of operative fact? Again quoting from the Supreme Court decision: “The doctrine of operative fact recognizes the existence of the law or executive act prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded.”

In layman’s terms, it means that one cannot simply undo or ignore what has been done because it might be unfair to the recipients of the programs, activities and projects of the DAP who accepted it in good faith (without knowing that it is unconstitutional) or it might be impractical for the government to undo everything. However, for the authors, proponents and implementors who include President Aquino, Budget Sec. Abad, senators and representatives of the lower house who benefited from it, they must prove before the courts that they acted in good faith, without knowing that the DAP is unconstitutional.

Rep. Ridon also pointed that, at the minimum, President Aquino and Sec. Abad violated Article 220 of the Revised Penal Code. Rep. Ridon added that Kabataan Partylist is preparing an impeachment complaint against President Aquino as well as the charges to be filed against Sec. Abad.

House Speaker Belmonte and other allies of the Aquino administration have declared that an impeachment complaint against the President would not pass the committee level.

There is truth in this as the impeachment process in Congress is essentially a political exercise. While there are appearances of hearings at the Lower House and the Senate, at the end of the day, representatives and senators vote along party lines.

But whether the President’s acts with regards the DAP constitute a “culpable violation” of the Constitution or not and even if the Liberal Party has the numbers to throw out an impeachment complaint, not making any effort to hold the President and Sec. Abad accountable would only perpetuate impunity in the abuse of power and probably, corruption. And besides, in the event that the impeachment complaint hurdles the committee level and is tabled for discussion by the plenary, the public would get the opportunity to hear all aspects of the issue and decide whether President Aquino is guilty or not.

For the President and Sec. Abad, it would do well to face the charges squarely instead of overcoming any complaint or charge with the strength of their numbers. Former president Gloria Macapagal-Arroyo was able to throw out several impeachment complaints, at least five, but in the eyes of the Filipino people, she has always been guilty of plunder. No amount of denials and legalese could erase it from the public’s mind.

Also former president Arroyo set the precedent of running after her predecessor former president Joseph Estrada, after, of course, pressure from progressive groups and the Filipino people. It is now her turn to face plunder charges and is under custody, albeit in a hospital. President Aquino may face the same after his term ends, if he does an Arroyo while still in power. (

(The enumeration of unconstitutional acts mentioned above has been paraphrased by this author. If anyone is interested in reading the 92-page decision so as not to rely on the assertions and counter-assertions of those defending and criticizing the Aquino administration, copies are uploaded at the Supreme Court website. This author downloaded a copy from For non-lawyers, you could just read pages 89 to 91 to save on the effort of reading through the whole document. It was quite a tedious experience for a non-lawyer like this author, although the decision is a good read on petitions for certiorari and prohibition and the history of the government budgeting process.)

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