DAP and good faith

By Fr. Joaquin G. Bernas S. J. |Philippine Daily Inquirer

12:56 am | Monday, July 7th, 2014

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DAP, of course, is the Disbursement Acceleration Program used by the
government to speed up the use of government money for the accomplishment
of public purposes. The money involved is public money in the national treasury
and the fundamental constitutional rule is that no money may be taken out of
the public treasure except in accordance with an appropriation made by law.
And even after the money is appropriated by law, it may be spent only within
the limits prescribed by law.
The DAP involves money that were placed in the hands of President Aquino. It is
broken up into items. An item consists of two parts: an amount of money and
the purpose for which it is to be spent. Normally such money may be used only
for the purpose specified in the item. However, in order to give some flexibility to
the President in the handling of money, he may be authorized by law to
augment the money in one item in his department with savings from another
item. Savings mean leftover money after the purpose of an item has been
accomplished.
There are therefore two important limitations here: (1) The President can transfer
only savings and (2) the transfers can only be to augment items in the
Presidents budget. In declaring the DAP unconstitutional, the Court said that (1)
the President moved money which were not savings in an item but which were
sourced from various places, and (2) that he transferred money from his budget
to other offices (e.g., the Commission on Audit and Congress).
This was all done by the budget secretary and therefore effectively by the
President because in our presidential system, the acts of department heads are
presumptively the acts of the President, unless the President expressly reprobates
them. I am not sure if in fact it was he who signed the documents needed. But
certainly he considered it an important accomplishment. Unfortunately, by the
unanimous vote of the Supreme Court justices, the accomplishment was
declared partly unconstitutional. Why only partly?
The reason is the operation of what is called the operative fact doctrine. What
is this? The doctrine of operative fact recognizes that a law or executive act,
before it is declared unconstitutional, is an operative fact which produces
consequences that cannot always be erased, ignored or disregarded. The law is
nullified, but its effect is sustained. 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.
However, as Justice Arturo Brion has clarified, the doctrine of operative fact
cannot apply to the authors 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. The Supreme Court is not
the proper tribunal to determine that.
Necessarily, therefore, the question must be asked about the good faith of the
author of the law that has been declared unconstitutional. But what is good
faith?
Good faith is an abstract term which includes a sincere belief without any
malice or intent to defraud. It is a term often found in Commercial Lawe.g., a
buyer who purchases from one who did not have title to the object bought may
be called a buyer in good faith if he observed honesty in the transaction and
observed reasonable commercial standards. To meet this test, the person must
have demonstrated honesty in the conduct of the transaction concerned, and
must have observed reasonable commercial standards of fair dealing in the
trade.
If the purchaser acquires the property by an honest contract or agreement and
without knowledge of any defect in the title of the seller or means of knowledge
sufficient to charge the buyer with such knowledge, the purchaser is deemed a
purchaser in good faith.
By analogy, if the President and the budget secretary did not know that what
they were doing was illegal and could not have reasonably known its illegality
and only wanted to accelerate the movement of public money for the public
good, they would be in good faith. Remember, however, that what is involved
here is not just peanuts but billions and billions of pesos. How believable would
the claim be that the President and the budget secretary, both veterans of
Congress, had no inkling or the slightest suspicion of what the Constitution
requires for handling public money?

Read more: http://opinion.inquirer.net/76342/dap-and-good-

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