The final word on the DAP

THE DISBURSEMENT Acceleration Program (DAP) is dead, now that the Supreme Court has reaffirmed its unconstitutionality.

In particular, the Supreme Court quashed three DAP features, namely: (1) the withdrawal of unobligated allotments from implementing agencies and the declaration of such funds as savings before the end of the year; (2) the cross-border transfer of declared savings from the Executive branch to finance programs or projects of agencies outside the branch; and (3) the use of “unprogrammed funds” without the certification of the national treasurer that actual revenue collections have exceeded revenue targets.

Although the decision has struck a final blow to the DAP, the PNoy administration is unfazed. It accepts the decision, no longer criticizing it and even claiming it is a victory.

In one area, the Supreme Court granted the motion for reconsideration. This relates to the flexibility in augmenting the funding for specific projects, activities and programs that fall under the General Appropriations Act.

But the Executive’s positive attitude mainly stems from a clear statement of the Supreme Court. That is, “The July 1 decision did not result in throwing out the presumption of good faith or outrightly imputing bad faith to the authors, proponents and implementors of the DAP” on the basis of “the doctrine of operative fact.”

The “doctrine of operative fact” means that all acts are legal or valid until the Supreme Court declares them unconstitutional. In fact, all administrations since the time of Corazon Aquino have essentially done such acts. The difference is, during PNoy’s term, such acts were given the name that is DAP.

The affirmation or clarification of good faith is the most important consideration for the PNoy administration. It takes away the anxiety and the uncertainty felt by many well-meaning bureaucrats and civil servants, resulting in a slowdown in the implementation of public projects.

The PNoy administration also believes that the final Supreme Court decision on the DAP is a “de facto reversal” of its earlier ruling. With respect to some features that the Supreme Court has invalidated, these infirmities can be address through other means, including the refinement and amendment of legislation.

But what about the Supreme Court’s statement that only “authors,” but not the “proponents and implementors,” can still be held liable in the event that legal action is heard in other tribunals? Doesn’t this remain a threat to the PNoy administration?

The separate opinions of Associate Justices Antonio Carpio and Arturo Brion insist that the President and the Department of Budget and Management (DBM) Secretary cannot invoke good faith.

Take the opinion of Associate Justice Carpio, who is clever in the deployment of words (gobbledygook, to be frank), to justify his point. “Since the President and the DBM Secretary approved and issued NBC (National Budget Circular 541), they are considered the authors of the unconstitutional act. As a consequence, neither the President nor the DBM Secretary can invoke the equitable doctrine of operative fact although they may raise other defenses.”

Unfortunately or perhaps fortunately, Associate Justice Carpio’s opinion rests on an illogical premise: that the ones who approved and issued the circular are the authors. Approval and issuance do not necessarily mean authorship.

Associate Justice Carpio in this instance is slippery. As we and other parties have argued elsewhere, the provenance of the DAP goes as far back as the time of the Corazon Aquino administration. The DAP in different disguises existed a long time ago. Each administration then had its version of the DAP. Mr. Carpio has to dig up the past to find the DAP’s real authors.

At any rate, the Supreme Court has spoken, and the opinions of Justices Carpio and Brion are the minority.

Filomeno S. Sta. Ana III coordinates the Action for Economic Reforms.

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