Noy has no liability over DAP, says DOJ chief

MANILA, Philippines - President Aquino cannot be held liable for the Disbursement Acceleration Program (DAP) that was declared unconstitutional by the Supreme Court in 2014, Justice Secretary Alfredo Benjamin Caguioa said yesterday.

In an interview with the Judicial and Bar Council (JBC) for an upcoming vacancy in the SC, Caguioa defended the President from possible cases stemming from the DAP after the end of his term in June.

“As a matter of law and my appreciation of facts as I know them, I don’t believe he should be charged precisely because of the operative fact doctrine and good faith,” Caguioa said.

He was referring to the portion of the SC ruling in July 2014 citing the doctrine of operative fact, which recognizes the validity of the assailed law or action before it was declared unconstitutional.

Caguioa believes that while the SC suggested that executive officials may be held liable for the DAP, the President is not among the “authors and proponents” of the program specified in the ruling.

He explained Aquino’s role in the DAP was “merely to exercise his discretion under the Constitution to augment” the budget by using savings and that it was an “allowable act.”

“He does not fall in the category of an author, proponent or implementor of this program,” Caguioa stressed.

He added that even the Chief Justice and the Senate President are allowed under the law to do the same.

Caguioa, former chief presidential legal counsel and classmate from elementary to college of Aquino, believes that possible cases against the President stemming from the DAP would not stand.

But while the President should not be charged after his term, Caguioa foresees possible cases.

“In today’s world, he probably will (be charged),” he lamented.

In its ruling in July 2014, the high court unanimously held that the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations.

The SC specifically struck down the withdrawal of unobligated allotments from implementing agencies and their use as savings prior to end of fiscal year, cross-border transfers of savings of the executive to augment funds of agencies outside the department and funding of projects and programs not covered by the General Appropriations Act (GAA).

It also voided the use of unprogrammed funds despite the absence of a certification by the national treasurer that the revenue collections exceeded revenue targets for non-compliance with conditions in the GAA.

The SC held that while recipients cannot be held liable for benefiting from programs, activities and projects under the DAP in good faith, the executive branch cannot be instantly cleared of culpabilities.

In their separate opinions, Senior Associate Justice Antonio Carpio and Associate Justice Arturo Brion have pointed to President Aquino and Budget Secretary Florencio Abad as the “authors” of the DAP who could be held liable over the illegal acts.

The two magistrates said Aquino and Abad are not covered by the doctrine of operative fact and cannot invoke good faith.

But after defending the President, Caguioa vowed to be independent from the executive if appointed to the high court.

He said he would not be biased or maintain a debt of gratitude to the appointing authority.

In the same interview, JBC members brought to Caguioa’s attention a letter opposing his nomination for the SC and alleging that he would be “protecting the interest” of Aquino and everybody in his outgoing administration if appointed to the judiciary.

In response, Caguioa said: “My father was a judge for 12 years. I know how a judicial mind thinks. As a judge, I will wear an altogether different hat.

“As judge, I will be confined to what the facts are and what the law is,” he stressed, adding that “there is no bias or inclination in whatever fact is presented to me and whatever law to apply.”

Caguioa is among 16 nominees for the imminent vacancy in the SC to be left by the early retirement of Associate Justice Martin Villarama Jr. on Jan. 16. Reports had it that he is expected to be appointed to the SC post due to his close ties with the President.