Atty Dodo Dulay, Manila Times: ... .......What the SC decision merely said was that “[t]he doctrine of operative fact recognizes the existence of the [DAP and its related issuances] prior to the determination of its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded. In short, it nullifies the void law or executive act but sustains its effects.” This means the effects of the implementation of the DAP prior to the declaration of its nullity and unconstitutionality such as the disbursements of DAP funds to various agencies or offices—including the additional PDAF (or the so-called “incentives”) given by Malacañang to senators during the Corona impeachment trial —should remain undisturbed. The doctrine of operative fact, however, does not absolve those behind the DAP of criminal, civil, administrative and other liabilities. In fact, the ponencia (or majority opinion) penned by Justice Lucas Bersamin, citing the incisive opinion of Justice Arturo Brion, categorically declared that the operative fact doctrine “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.” In other words, PNoy and Budget Secretary Florencio Abad, being the prime movers of DAP, could be held liable for the illegal or unconstitutional acts which they might have committed before the SC’s ruling came out, thus clearly rebutting the argument of Malacañang defenders that the High Court’s decision had no retroactive effect. Whether they are indeed held liable in an impeachment proceeding (in the case of Aquino) or in a civil, criminal or administrative case (in the case of Abad) remains to be seen. One thing’s for sure though. Both Abad and PNoy cannot feign ignorance of the Constitution —the highest law of the land. As Justice Brion said in his opinion, “[a]s 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 inconceivable that [Abad] did not know the illegality or unconstitutionality that tainted his brainchild.” For his part, PNoy also cannot claim that he didn’t know that the DAP was, at the very least, highly irregular since he even filed a bill (i.e. the Budget Impoundment Control Act) to limit then President Gloria Macapagal-Arroyo’s impoundment of funds appropriated by Congress, calling it a misuse and abuse of presidential prerogative and an emasculation of Congress’ authority.
Posted on: Tue, 08 Jul 2014 07:34:49 +0000
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