Aquino should not be charged for DAP–Justice Secretary Caguioa

President Benigno Aquino III should not be charged for the Disbursement Acceleration Program, Justice Secretary Alfredo Benjamin Caguioa, Aquino’s grade school and college classmate, told members of the Judicial and Bar Council (JBC).

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“As a matter of law and my appreciation of facts as I know them, I don’t believe he [President Aquino] should be charged precisely because of operative fact doctrine and good faith,” Caguioa told the JBC during his interview as among the 16 candidates vying for the position to be vacated by Associate Justice Martin Villarama who will retire early on Jan. 16, 2016 for health reasons.

Under the operative fact doctrine, DAP is recognized as unconstitutional but the effects of the unconstitutional law, prior to its declaration of nullity may be left undisturbed as a matter of equity and fair play.

READ: SC declares parts of DAP unconstitutional

On the other hand, proponents, implementors and authors of DAP are not spared unless they can prove good faith.

Caguioa, who left the private sector to join Aquino in 2010 as chief presidential legal counsel insisted that his former classmate is not the author, implementor or proponent of the DAP.

“He [President Aquino] does not fall in the category of an author, proponent or implementor of this program. What the President did was merely exercise his discretion under the constitution to augment projects using savings and that is completely allowable,” Caguioa said, adding that even the Chief Justice of the Supreme Court and the Senate President are allowed under the law to do that.

While he believed that the President should not be charged on DAP, Caguioa admitted: “but in today’s world, he probably will [be charged].”

But Caguioa assured that once appointed to the Supreme Court, he would not serve the interest of the outgoing Aquino administration.

READ: Justice Secretary Caguioa, 15 others nominated for SC post

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

“My father was a judge for 12 years. As a judge, I will wear an altogether different hat,” Caguioa said, adding that as a member of the Judiciary it is important “to be impervious to any kind of influence whether monetary, filial or any kind. The primary duty of the judge is to resolve the controversy on the basis of the facts and evidence and applying the law.”

Last year, two Senior Justices of the Supreme Court, in their separate opinions on DAP said Aquino and Budget Secretary Florencio “Butch” Abad should be held liable for DAP.

Senior Associate Justice Antonio Carpio said said it was the President who signed the National Budget Circular (NBC) on DAP and it was Abad who implemented it. The NBC allowed the withdrawal of unobligated allotments of agencies of low level obligations as of June 30, 2012 to augment or fund priority and/or fast moving programs and projects of the government.

Carpio pointed out that unobligated allotments are not savings. He added that the NBC authorizes augmentation of projects not considered in the 2012 budget which is contrary to the 1987 Constitution.

“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,” Carpio said in his 13-page opinion.

“As authors of the unconstitutional act, they have to answer for such act,” he added.

Both Aquino and Abad, according to Carpio cannot invoke the doctrine of operative fact because only those who merely relied in good faith on the illegal act, without any direct participation can invoke it.

“Those directly responsible for an illegal or unconstitutional act cannot invoke the doctrine. He who comes to equity must come with clean hands and he who seeks equity must do equity,” Carpio said.

Associate Justice Arturo Brion agreed with Carpio.

“They were in fact the parties responsible for establishing and implementing the DAP’s unconstitutional terms and in these capacities, cannot rely on the unconstitutionality or invalidity of the DAP as reason to escape potential liability for any unconstitutional act they might have committed,” Brion said in his 34-page opinion.

Brion said Abad’s actions “negate the presumption of good faith that he would otherwise enjoy in an assessment of his performance of duty.”

“There are indicators showing that the DBM Secretary might have established the DAP aware that it is tainted with unconstitutionality,” he added. CDG

READ:  Carpio, Brion want Aquino, Abad held liable for DAP