Good faith? Good grief!

By Carol Pagaduan-Araullo
Streetwise | BusinessWorld

The Supreme Court declaration of the unconstitutionality of “acts and practices under the Disbursement Acceleration Program (DAP),” coming on the heels of the detention of 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 Malacañang. While the main components of the DAP, which is basically presidential “pork,” have been stricken down as unconstitutional — and therefore illegal — the DAP can still be excused as “well-intentioned” and having a “positive impact” on the economy. Its authors, proponents and implementors, because they allegedly acted in “good faith,” are therefore not politically, civilly or, worse, criminally liable.

In contrast, legislators, executive officials and private individuals like the notorious Janet Lim Napoles indicted for the multi-billion-peso PDAF scam 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 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.

– 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 the GAA… 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 mean 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, or for graft and corruption. Moreover, it is a way of holding the Executive to account given the vast powers and prerogatives of the Presidency.

So this is the full import of the SC decision. 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.

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 Malacaang the benefit of the doubt that the DAP was intended to ramp up 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 Sec. Abad’s disclosure of the existence of the DAP? This came after Sen. Estrada in a privilege speech admitted to receiving tens of millions of PDAF after voting for the impeachment of former Chief Justice Renato Corona.

The documents submitted to the SC also indicate how the DAP 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 P2 billion for President Aquino’s home province Tarlac. Malacañang’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) have not been discovered is that the Commission on Audit (COA) 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.

COA’s act of omission (incidentally, COA’s outgoing chair is shortlisted as a nominee for a vacancy in the Supreme Court) cannot go unnoticed because it is highly suspicious.

Has the SC decision exonerated Malacañang for acting “in good faith?” The Court has chosen to apply the doctrine of operative fact to the adoption and implementation of the DAP. According to the SC, “Unless the doctrine is held to apply, the Executive as the disburser and 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 that good faith is assumed and bad faith must be proven.

There is thus sufficient ground in the decision to make Aquino, Abad and Ochoa liable for culpable violation of the Constitution and for technical malversation and other criminal offenses. At the minimum, these public officials must be called on to resign.

Carol Pagaduan-Araullo is a medical doctor by training, social activist by choice, columnist by accident, happy partner to a liberated spouse and proud mother of two.

Published in Business World
July 6, 2014

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