POSTSCRIPT / October 4, 2015 / Sunday

By FEDERICO D. PASCUAL JR.

Opinion Columnist

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Why is Ombudsman afraid to touch Noy?

WE ASK the question because Ombudsman Conchita Carpio-Morales has cleared President Noynoy Aquino of liability in what the Supreme Court said was Malacañang’s unconstitutional use of public funds under its new-fangled Disbursement Acceleration Program, also known as presidential pork.

It appears that Morales, an appointee of President Aquino, still subscribes to the Marcosian rule written into the 1973 martial law Constitution that the President is immune from suit while in office.

If Morales had bothered to check, she would have discovered that Section 15 of Article VII of the Marcos Constitution clothing the incumbent President with immunity was not carried over to the current Constitution written under then President Cory Aquino.

The Marcos rule that the President is immune from suit was dropped from the 1987 Constitution. With reason, because NO ONE — especially the President who is sworn to “preserve and defend its Constitution (and) execute its laws” — is above the law.

In the DAP case, the President may be just as guilty as, if not more liable than, Budget Secretary Butch Abad and Undersecretary Mario Relampagos, because the two underlings were just acting under his direction. There is reason to believe there may even be conspiracy in the illegal corralling and use of DAP funds.

In Abad’s sworn testimony before the Supreme Court looking into the validity of DAP and in his public statements after Morales announced the decision to investigate them, the budget secretary said that all their actions were approved by the President.

To prove this, Abad submitted to the SC the budget documents showing the approving signature or initials of President Aquino. That was smart of the veteran political player to have covered his rear and presented what looked like the “smoking gun”.

Leave impeachment to House of Reps

IN ABSOLVING President Aquino, however, the Ombudsman determined that the charges against the Chief Executive do not amount to an impeachable offense and should thus be dismissed.

But nobody is talking of impeachment! The Ombudsman should have left the political matter of impeachment to the House of Representatives and confined herself to investigating the criminal aspects of the misuse of public funds as ordered by the SC.

Since there is nothing in the Constitution and the statutes explicitly exempting the President from suit, an objective Morales should have lumped Mr. Aquino together with his subordinates Abad and Relampagos and left him the defense option of invoking immunity.

The High Court itself had ordered the investigation for possible criminal prosecution of all persons who had something to do with DAP abuses, including the cross border fund transfers to the Commission on Audit and the House of Representatives.

A proper investigation should also include the senators led by Senate President Franklin Drilon who sat as judges in the impeachment trial of then Chief Justice Renato Corona and who each allegedly received P50 million or more from DAP.

How come no action has been taken against the senators? Is Morales also afraid to touch them? She does not have to wait for complaints to be filed, because her office can initiate action on its own initiative.

Aquino cannot escape DAP responsibility

SEVERAL parties led by lawyer Greco Belgica had asked the SC to order the investigation of the President and the Budget Secretary over their roles in the implementation of DAP (presidential pork) and the Priority Development Assistance Fund (legislative pork).

In concurring opinions to the SC ruling last Feb. 3 declaring as unconstitutional three acts and practices under the DAP, Associate Justices Antonio Carpio and Arturo Brion said that Aquino and Abad should be held liable for approving and implementing the program.

Carpio said: “Since the President and the DBM Secretary approved and issued NBC 541, they are considered the authors of the unconstitutional act. xxx As a consequence, neither the President nor the DBM Secretary can invoke the equitable doctrine of operative fact although they may raise other defenses.”

Brion said that authors, proponents, and implementors of the DAP cannot “seek cover behind” the operative fact doctrine. Only those who “relied in good faith” on the DAP can be protected by the doctrine, he added.

Good faith is precisely one of the defenses of Abad, also citing the fact that the Supreme Court had conceded that some of the accelerated disbursements under DAP have had positive impact on the economy.

But Brion said that “authors, proponents, and implementors… did not rely on the unconstitutional act… They were in fact the parties responsible for establishing and implementing the DAP’s unconstitutional terms.”

Carpio in GR No. 197156 (Philex Mining Corp. vs Commissioner of Internal Revenue) noted on the doctrine of operative fact:

“The general rule is that a void law or administrative act cannot be the source of legal rights or duties. Article 7 of the Civil Code enunciates this general rule, as well as its exception: ‘Laws are repealed only by subsequent ones, and their violation or non-observance shall not be excused by disuse, or custom or practice to the contrary. When the courts declared a law to be inconsistent with the Constitution, the former shall be void and the latter shall govern. Administrative or executive acts, orders and regulations shall be valid only when they are not contrary to the laws or the Constitution.’

The doctrine of operative fact is an exception to the general rule, such that a judicial declaration of invalidity may not necessarily obliterate all the effects and consequences of a void act prior to such declaration.

(First published in the Philippine STAR of October 4, 2015)

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