It's good that during his 5th State of the Nation Address (SONA) last Monday, Pres. Pnoy opted to become a true statesman by not attacking the former administration and hitting the Supreme Court as an equal branch of government. We do hope that he finally learned a lesson that in disbursing government funds, it should be consistent with law and not doing anything which is tantamount to a culpable violation of the fundamental law of the land. Perhaps the impeachment complaints filed against Pnoy served him a lesson for opening his big mouth (full of nicotine) against the ruling of the High Tribunal which declared that DAP, despite being used in good faith, violated Section 29 (1) of Article VI of the 1987 Constitution, a provision that firmly ordains that “no money shall be paid out of the treasury except in pursuance of an appropriation made by law.”

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The case decided by the Supreme Court, en banc, revealed among others that Budget Sec. Butch Abad already revealed on January 28, 2014 oral arguments that the DAP as a program had been meanwhile discontinued because it had fully served its purpose, saying: “In conclusion, Your Honors, may I inform the Court that because the DAP has already fully served its purpose, the administration's economic managers have recommended its termination to the President”. The Solicitor General then quickly confirmed the termination of the DAP as a program, and urged that its termination had already mooted the challenges to the DAP's constitutionality.

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Unfortunately, the High Tribunal held: “The Court cannot agree that the termination of the DAP as a program was a supervening event that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of judicial review despite the cases being rendered moot and academic by supervening events.” In fine, the SC decision is clear that the DAP itself, as a policy, transcended a merely administrative practice especially after the executive branch, through the budget department, implemented it by issuing various memoranda and circulars. The pooling of savings pursuant to the DAP from the allotments made available to the different agencies and departments was consistently applied throughout the entire executive branch.

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“With the executive, through the DBM, being in charge of the third phase of the budget cycle – the budget execution phase, the President could legitimately adopt a policy like the DAP by virtue of his primary responsibility as the Chief Executive of directing the national economy towards growth and development. This is simply because savings could and should be determined only during the budget execution phase. As already mentioned, the implementation of the DAP resulted into the use of savings pooled by the executive to finance the projects that were not covered in the national budget or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the government in clear violation of the constitution. To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the government and the nation is to be impractical and unfair,” said the High Tribunal.

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Finally, it ruled that “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. Equity alleviates such burden”. “The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness” the SC decision concluded.

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POSTSCRIPT: We attended last Friday night the birthday bash of Aleli Estonina Lapura at Sayas Restaurant. Considering that the birthday celebrant is a lady, we will not disclose her age although we will just give a clue: she is now joining an exclusive club of senior citizens. It turned out that Aleli only realized that she is having a birthday party that evening because hubby William and their children wanted the affair to be a surprise. We took the occasion to take a trip down memory lane with Judge Sammy Biliran who was also present. He is our batch mate in the bar exam several years ago....There's more when we come back.