Attached documents show Supreme Court made cross-border transfer requests
By Raïssa Robles
I asked the Office of the Solicitor General for a copy of the Motion for Reconsideration (MR) on the Disbursement Acceleration Program or DAP.
Other reporters were earlier given the same documents.
I have decided to upload these documents so that you can directly read them and make your own conclusions.
The MR consists of the actual 52-page petition and five annexes.
The main argument used in the MR is that while the Constitution bars the President from transferring “appropriations”, there is no such prohibition in transferring “savings.” The MR states that “savings” and “appropriations” are two different, independent constitutional concepts. The discussion on this starts on page 25 of the MR.
Annexes C and D purportedly contain copies of official documents coming from the Supreme Court showing cross-border transfer requests – a practice that the SC ruling on the DAP condemned as illegal.
Annex E shows a letter signed by Chief Justice Maria Lourdes Sereno and directed to Budget Secretary Florencio Abad withdrawing one of the cross-border transfer requests in the amount of P100 million. The original request was based on an en banc court resolution.
Annexes A and B contain documents to support the Executive Department’s contention over the transfer of “savings” to the Department of Science and Technology (DOST).
I will not comment on these documents for now. I will leave it up to you, readers to make your own conclusions.
You be the judge. Because, as even the Supreme Court says, sovereignty resides in the people.
chit navarro says
PETER WALLACE, PDI Opinion Section today 24 July, 2014
“I do not believe that one must follow the Constitution precisely as it is written; the correct way is to follow its intent, and to interpret it in a way that is best for society. As I’ve stated innumerable times, law is the servant of society. It is not an ultimate unto itself, as has, too often, become the case in the Philippine legal system (probably elsewhere, too).
To make myself clear: The Constitution should not be taken strictly by its word but by the intent of those words, and interpreted in a way that is best for society. And I suggest that “intent” should also be what guides judges in all cases.
If you agree with me, let’s start a campaign to truly reform the Philippine court system that is so dysfunctional it can take, not just years, but decades to resolve even the simplest cases, let alone the major ones. Some, like the cases involving the Marcoses, never get resolved. It takes international courts to do just a part of it for us.”
Read more: http://opinion.inquirer.net/76813/time-for-a-legal-revolution#ixzz38L9k1upX
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In the American arena, there are N main ways to interpret their constitution:
Originalists look at what the framers intended. Sad for them, they do not have the minutes of their constitutional convention like we do. The SC’s DAP opinions quoted from these 1986 Con-Con minutes. American Originalists thus have to make do with other publications that their framers wrote, such as James Madison’s Federalist Papers. (Too bad for those who did not publish! Publish or die!)
Instrumentalists believe the meaning of the constitution may change over time. This is closest to what Peter Wallace means, in my opinion.
Historical Literalists take the meaning of the words, as they meant in the 18th century. They do not believe in referring to any records outside the text of the constitution.
Contemporary Literalists take the modern meaning of the words, again without reference to anything outside the ‘sacred’ text.
The 1986 Constitutional Convention was 28 long years ago, but lies within the legal careers of many senior lawyers and jurists. It is evident from the SC opinion, quoting from its minutes to explain certain points of the constitutional text, that most justices are Originalists. We can infer that Orignalism is the dominant belief, in our legal tradition.
chit navarro says
Follow-up explanation of Peter Wallace on DAP. – Phil. Daily Inquirer 24 JUly, 2014 – OPINION
With the example of the Mining Act reversal, there is GREAT HOPE that the MR will be favorably considered by the justices, for the benefit of our country:
“Let me give you a prime example: In January 2004, the justices ruled 8-5-1 that the Mining Act was unconstitutional. In December they reversed that ruling 10-4-1, showing that the Supreme Court has the discretion to decide either way. Its second decision was probusiness, benefiting the country. Its first decision was not.
On the other hand, it seems that there will be no reversal for San Roque Power Plant, whose request to the Court for a refund of the P483 million it had paid in value-added taxes was denied with finality in October 2013 despite the government’s having promised it as part of the deal to attract investments in an area we desperately need: power. No one will invest in a country that doesn’t honor its commitments.
I can cite about a dozen similar cases of controversial decisions, and I’m sure there are far more, hence justifying the need for change.”
My Decision: DAP is Unconstitutional due to Non-conformance
If I were one of the SC Justices, I will rule that the executive, PNoy Administration, violated the constitution as Procedural Violation (example GAA), but not Criminal Violation (Plunder, Malversation, etc.), due to of Non-Conformance.
I view the constitution as those two parts, the Procedural and Criminal.
Para sa karamihan na nagtratrabaho sa mga malalaking kumpanya na may tinatatawag na merong Standard Procedures or Business Processes, alam natin na may mga procedures tayo at may quality check kung papaano natin gawin ang ating trabaho. Pero meron din sa Employees Handbook na pag nagnakaw ka, terminated ka kaagad!
Halimbawa, nasasaad sa isang procedure na bawal mong i-transfer ang isang appropriated or budgeted na pondo sa isang departamento sa ibang departamento. Halimbawa, from Executive to Legislative or Executive to Judiciary.
May bagong Manager1 (PNoy) sa isang departamento (Executive), at akala nya ay pwede dahil sa records na hawak nya ay ginawa rin ito ng pinalitan nyang Manager at iba pang Managers sa ibang departamento (Judiciary).
Pero merong mga empleyado (Enrile, Jinggoy, Bong) na nagnakaw ng pondo (PDAF! DAP?), nahuli kasabwat ang supplier (Napoles) at kinasuhan ng Kumpanya (People of the Philippines) at sila ay naaresto dahil sa matinding ebidensya na hawak ng mga pulis (Ombudsman) at ang kaso ay nasa korte (Sandiganbayan) na. Ang isa sa mga empleyado ay anak ng dating Manager ng Kompanya (Erap) na napatalsik dahil sa anomalya, napasama ang anak sa kaso pero naabswelto, so tuloy pa rin sya sa trabaho. Masama ang loob nong isang empleyado (Jinggoy) kaya sabi nya sa mga kapwa nya empleyado (Publiko at Media) bakit kami lang, hindi lang naman kami (Opposition Lawmakers) ang gumagawa ng ganyan (Pagnanakaw), yung mga tauhan din ni Manager1 (Admin Lawmakers at mga Cabinet).
So yung mga kakampi (Belgica) ng empleyadong (Jinggoy) natanggal at iba pang mga empleyado (Civic Organizations) ay naghain (petition) ng reklamo sa Quality Department(QD) (SC) na ang ginawa ni Manager1 ay nag violate ng company procedures (Constitution) sa maling pagamit ng pondo (DAP).
Nagdesisyon ang QD (SC) partially mali ang pagkagamit dahil na violate nya ang standard procedure (GAA).
Tama ba ang desisyon (Audit Report) ng Quality Department(SC)? Sa akin ay Tama! Nag-violate nga ng standard procedure si Manager1 PNoy dahil ang interpretasyon ng QD(SC), hindi nya pwedeng i-transfer yung Pondo sa ibang departamento (Legislative or Judiciary).
Nagbunyi ang mga petitioners, mali si Manager1 PNoy. At mabilis pa sa alas kwatro, naghain din yung iba na dapat daw eh tanggalin sa pwesto si Manager1 PNoy dahil ayun sa QD (SC) nag-violate ng procedure katulad din nila Jinggoy, Enrile, Bong.
Napikon si Manager1 at sabi mali daw ang Quality Department (SC) dahil sa mga records na nakalap nya, ganoon din ang ginawa ng Manager sa QD(SC). Eh bakit yung mismong dapat alam ang Standard Procedure ay nag-violate din?
Sa quality procedure, may tinatawag na Audit Review (Appeal or Motion for Reconsideration), dito may pagkakataon i-clarify kung yung desisyon (Audit Report) ay clarado dahil minsan yung mga Auditors (SC) parang cryptic magsulat at nalalagay sa alanganin yung na-Audit (PNoy).
So merong Audit Review na nagaganap ngayon sa SC, ang tanong kung ikaw ang isa sa mga Justices sa Korte Suprema ano ang gagawin mo?
Nabanggit ko na sa opening statement ko- Kung ako ang isa sa mga Justices, ang fair verdict ko ay still partly unconstitutional but not criminal.
Bakit?, Ang na-violate ni PNoy ay yung procedural part at wala pang ebidensya na ninakaw nya ang pondo o kasabwat sya sa pagnakaw (Criminal Part) ng pondo. At idadagdag ko pa ang pasasalamat kay Manager1 (PNoy) na napuna nya rin ang kamalian ng SC sa nakaraang pag-violate ng standard procedure sa pondo. Dahil may mga conflicting procedures as ibang sections at may history na kahit na SC ay hindi rin na follow yung procedure then eto ay magandang halimbawa ng lessons learned pero no foul. Ang decision ko ay bigyan ng warning lang at next time ay grounds for suspension na yun yung Executive. Magsusulat kami ng Report at babaguhin ang Standard Procedures na may mga conflicting provisions at gawing napaka-klarado para yung mga empleyado ay magabayan sa tamang pamamalakad ng kumpanya sa pag-gamit ng pondo.
At babanggitin ko pa na iba ang nature ng kaso nila Enrile, Jinggoy, Bong, Gigi, et al, dahil may ebidensya na ninakaw at pinaghatian ang pondo ng gobyerno, eto ay Criminal at hindi Procedural. Therefore the gravity of Procedural violation is less than the Criminal Violation, the former will be dealt with a warning/notification (Pag strike 2, pwede ng tanggalin) while the latter which will be dealt with immediate termination!
Posting after checking my weight on bathroom scale
ISO 9001 Quality Procedures
A non-conformance means that something went wrong – a problem has occurred and needs to be addressed. Non-conformances are addressed with corrective actions.
A non-conformance could be identified through customer complaints, internal audits, external audits, incoming material inspection or simply during normal testing and inspection activities.
Corrective actions are reactive – something has gone wrong and these are the actions taken to deal with the problem. Non-conformances are resolved through corrective actions.
This will include the immediate corrective actions you take to keep your customer happy, e.g. you sent the wrong part and will immediately replace it with the correct part.
drill down says
Aquino and the Sereno Court
drill down says
“This is the court you tried to reform by putting in fresh and competent blood – not only through Sereno but through the 3 appointees you’ve made since you became president. This is a court that still has Arroyo loyalists, yes, but nonetheless a court that’s not impervious to presidential power, especially one which emanates from a popular leader.”
“Whatever is said about imperial presidencies or executive power, the fact is your campaign against Corona gained traction because of the message it carried about the necessary wall between Malacañang and Padre Faura. You weeded out Corona principally not because he’s reportedly corrupt or incompetent. You weeded him out because he could not say no to the president who appointed him there. It’s a message that was relevant then, it’s a message that becomes more relevant now that you’re at the helm.”
Personal lay summary of the MRs procedural challenge:
B. The DAP petitioners challenge is not an actual case or “justiciable controversy” as shown by the fact they are seeking an opinion on DAP and not any specific relief from the court.
A. SC should not take cases which allege “grave abuse of discretion” but fail to cite an actual case or controversy involving such abuse.
C. Petitioners have no standing to sue because they did not allege any injury. The “transcendental importance” principle for courts to take cases lacks basis, because, in the well-known case the phrase showed up in, it was only in a side comment, whilst the actual case had actual alleged injury.
D. The “we are taxpayers” basis to sue is not well supported in case law unless the petitioner is seeking to stop government from spending money on a specific project.
E. Thus the SC is deciding a hypothetical case instead of based on actual DAP disbursement, and ruling on hypothetical cases is not allowed by law.
(Yes B is listed before A)
Thank you for this. I didn’t quite know what to make of the Procedural Arguments (being a lay person) when I first went through the MR.
I wonder though if this was not already argued by the President’s legal team the first time? Looks to me like it could have been the basis for a motion to dismiss the case? Thank you for your patience with us non-lawyers. :)
One theory, from John Nery writing in Inquirer, is that OSG is anticipating further SC challenges (Bangsamoro, RH) and reminding the court of these matters in such detail might help get those future petitions dismissed on procedure.
I am not a lawyer either. Above summary is cross posted from my comment to Nerys article.
Thanks. Posting the link now.
Aaaah comment lost again. :(
Ok, sa technicality na lang daanin.
Pero ang basa ko rin ay ang argumentong…
Kung X-border nga talagang matatawag…
Parehas lang kayong mali, ‘di ba, PNoy?
Nasampahan ng Plunder dahil sa :
Erap – Jueteng
Gloria – Hello Garci Calling
Enrile – Porking cum Luding
Jinggoy – Careless Porking
Bong – Poging Porking
Gigi – Loving-loving while Porking
Binay – Illegal Parking
Posting while Chicharon munching
PNoy – Jaywalking
May tama ka naman jan, @Parekoy.
Many of the points raised in this MR are textual examples of “legal gymnastics”. Just some examples.
1. On the definition of savings – the MR argues that the definition of savings can be overthrown by legislation. They forget that any law enacted by Congress has to pass the Constitutional muster. Thus, Congress cannot just pass a law defining savings as to give the Executive carte blanche authority to do whatever it wants with the budget. Clearly, the Constitution forbids transfer of appropriations except through the use of savings to augment items in their respective departments. What has been proscribed directly, cannot be done indirectly. Thus, there is a limit to the creativity of Congress as to how much it can bend so that it can accommodate the Executive. The Constitution, through the Supreme Court, has mechanisms to minimize damages resulting from a conspiracy between an Imperial Executive and a Sychopant Congress.
2. On the argument that it was not on the instance on the DBM but rather it was the department secretaries that “pleaded” to the DBM to withdraw their unobligated allotments – The argument is specious. The departmental secretaries are alter egos of the President. They serve at his pleasure. To point out that they can act independently of the President is a joke.
3. Since Congress is not complaining, no one should – The Palace argues that it is Congress who is the real party in interest. While Congress has the power of the purse, it does not mean it is the “only” party in interest. Again, the author of the MR forgets, the crux of the matter is public money and how it is being spent.
The constitution does not state the date when savings could be determined. Neither do the GAA’s fix that date. DAP says you have to “use or lose” your appropriation by June 30. But the SC says that date should be “prior to the end of the fiscal year”. Carpio says in Nov. Is the SC correct to provide that date ?
The answers will be satisfactory if the issues or questions are framed simply. No legal gymnastics needed.
Magandang punto mo, @Ivlivs.
Sa January o simula pa lang ng fiscal year ay magdeklara na ng savings. Wala naman sa Konstitusyon ang date.
Hoot, hoot…everybody happy!
Everybody nga ba???
The “use or lose it” dictum of Malacanang cannot prevail over the appropriation instruction by Congress. The GAA is a law. If it appropriated an amount for a project, the President has no power to refuse spending it according to the instructions of Congress.
The Constitution does not say when savings could be determined. However, it can be determined based on how Congress defined it under the GAA. Actually, Justice Carpio gave an example where the government can determine it prior to end of the year, i.e., the monthly savings from MOOE. If you did not fully spend the MOOE for the month, then you have savings. So you can have savings on a monthly basis.
is this the real ‘real story’?
Thanks for posting this. Raises some serious points which the SC will have to rebut or accept. Will be very interesting to read their response.
The procedural challenge is the most serious, but hard to see 12 judges admitting they erred in taking the case. And since they did, it’s moot but perhaps a point of honor. At most they may say, “be that as it may…”
Coffee break muna…
Familya FB- Mahilig mag Selfie
May isang middle class na pamilya na nakatira sa Makati.
Sila ang pamilya Ponce:
Dad- Johnny, 45
Mom-Brenda, 42 (Internet challenged)
Daughter- Denish, 17
Son – Bhong, 15
Bunso- Jinggoy Pototoy, 5
Luding- kasambahay, 18
Ginabi si Brenda galing sa shopping sa Glorietta. Pumasok agad sa master’s bedroom at nagshower. Pagkaligo, dumiretso sa kanyang dresser at hinanap ang moisturizer. Wala sa tabi ng kanyang Ponds at mga pabango.
Malakas na boses na nagtanong, “Johnny, hiniram mo ba ang Jergens?” Pero walang sumasagot sa kanya. Lumabas sya ng kwarto at nagtungo sa sala. Wala si Johnny sa dati nyang pwesto sa paboritong recliner, pero naka-On ang TV. Walang tao sa sala, wala rin sa living room at kitchen, wala ring gumagamit ng nag iisang Computer nila sa sala.
Uhm…Baka pinakialaman ng kanyang unica iha na si Denish. Sarado ang pinto ng kwarto ni Denish. Kumatok sya , “Denish, buksan mo nga itong pinto. Hiniram mo ba ang Jergens ko?”
Denish: “Wala sa akin Mommy, baka na kay Bhong.”
Brenda: ” Buksan mo nga ito, bakit ba naka lock ka pa, anong ginagawa mo jan?”
Denish: ” Mommy naman, nag se Selfie lang, pang FB!”
Brenda: “Tama na yang FB, FB at kung anu-anong pino-post mo.” at nagtungo sa kwarto ni Bhong.
Brenda: Habang naglalakad papunta sa kwarto ni Bhong, humihiyaw na, “Bhong, hiniram mo ba ang Jergens?”
Pero wala si Bhong sa kwarto. May narinig nag flush sa common CR nila…daling pumunta at kinatok ang pinto sa CR.
Brenda: “Bhong, anak, hiniram mo ba ang Jergens?”
Bhong: “Hindi Mommy, baka pinakialaman ni Luding.”
Brenda: “Ang tagal mo na naman jan sa CR, ano ba ang ginagawa mo ?”
Bhong: “Mommy naman, nag se Selfie rin tulad ni Ate!”
Brenda: ” Dalian mo at baka magka almoranas ka kauupo jan. Tigil tigilan mo na ang FB pag nasa CR!”, at tumalikod papunta sa maliit na kwarto ni Luding.
Brenda: “Luding buksan mo nga eto, nakita mo ba yung Jergens ko?” May narinig syang nagbubulungan. Maya maya, binuksan din ang kwarto at lumabas ang pinagpapawisan na si Johnny at nakita nya na nakaupo sa kama ang maputlang si Luding.
Johnny: “Oh Honey, dumating ka na pala?! Hinahanap ko rin yung Jergens mo kay Luding eh…”
Brenda:”Bakit ang tagal mo jan sa kwarto, kanina pa ako dumating?”
Johnny:” Wala lang. Mahilig kasi itong si Luding mag Selfie, kaya tinuruan na ko na rin ng bagong uso sa internet, yung US-sie. Kaya yun nag US-sie kami!”
Duda si Brenda kay Johnny kung may ginagawang kalokohan dahil matagal ng hindi sya gingalaw, mga ilang linggo na. Pero ayaw nya ng away lalo na pag naririnig ng mga bata. Naglakad na lang sya pabalik sa master’s bedroom. Nadaanan nya si Jinggoy Pototoy sa isang sulok at nilalaro ang kanyang birdie.
Brenda: Napangiti sa inosenteng anak. “Jinggoy, ano yang ginagawa mo? Saan ka natuto nyan?”
Jinggoy: ” Mommy, naririnig ko kasi dito sa bahay, uso yung Selfie. Nakita ko rin si Kuya Bhong minsan na ginagawa ito, at tinanong ko kung ano ang gawa nya. Sabi nya sa akin, eto daw ang uso ngayon, Selfie. Pero hwag ko raw sabihin kahit kanino dahil secret namin yun.”
Brenda: “Anak, bata ka pa para maglaro ng game na yan. Darating ang araw pag teenager ka na, yun ang tamang panahon.”
Jinggoy: ” Oh sige Mommy pag teenager na lang ako.”
Lumapit din si Johnny kay Jinggoy at nagaalala sa bata.
Johnny: “Son, hindi maganda ang larong yan, nakakabulag yan. Maghanap ka ng kalaro na ibang bata at mas mag eenjoy ka!”
Jinggoy:”Okay po Daddy, tigil na ako Selfie. Invite ko kapitbahay natin, si Kristy at maglalaro kami ng US-sie!”
Brenda: “Wala ka namang cellphone anak, pano kayo mag a US-sie ni Kristy?”
Jinggoy: “Madali lang yun Mommy, mag wrestling kami, tulad ng game ni Daddy at ni Luding. Madalas pag nag sha-shopping ka nag lalaro sila ng US-sie!”
Johnny: Namutla, ” Honey, let me explain…”
Brenda: Sinapak si Johnny, ” Mag explain kang mag-isa mo!” at daling pumunta sa loob ng masters bedroom at nag lock.
Habang nakaupo sya sa kama, napansin nya ang Jergens sa sahig. Kinuha nya ang Jergens, at nagpasalamat sa Jergens dahil kundi dahil sa nawawalang Jergens, hindi nya mahuhuli na ang kasambahay nilang si Luding ay kinakalabit ni Johnny. Ngayon alam na nya kung ano talaga ang tunay na Selfie at US-sie.
Nahiga sya sa kama at pinindot ang Jergens at ipinahid ang lotion sa kanyang braso at katawan. Masama ang loob nya habang ipinapahid nya sa kanyang tuhod. Ngunit may nabuong ngiti sa kanyang labi, kalingan mailabas nya ang sama ng loob…nag-aagaw ang mga sulyap nya sa cellphone at Jergens. Maya-maya nag decide syang subukan ang usong …
Any similarities depicted in this story are not accidental and had actually happened.
Posting after mag shower
vander anievas says
yan ang totoong selfie. sa tagalog, nag-sarili.
hala, selfie-selfie pag may time….
Pasinaya ngayon ng Philippine Arena. Wow, ang laki.
Kailangan naman kaya ang pasinaya ng Philippine Pig Pen. Siguradong malaki rin ito dahil nagkalat ang mga politikong gahaman sa pork. Damay na rin diyan ang iba pang sangay at Komisyon ng pamahalaan. Piggery ang kalalabasan…National Pig Penitentiary!
Let the ‘peanut butter’ spread to high heavens…para magkabistuhan na lahat…
“Kailan”, hindi Kailangan…
Justice Bersamin wrote in the SC decision the manifestations of Justices Brion and Leonen. However, it was still an en banc session, thus, there was collective agreement on the scenarios/situations where the Doctrine of Operative Fact is applicable or not.
Victin Luz says
@sir Baycas ….As i am now reading their Law Books on operative facts…it said that …the DOCTRINE of OPERARATIVE FACTS, does not VALIDATE an unconstitutional law. If the Supreme Court will allow this , it will open the FLOOD GATEs to the WANTON ENACTMENT of unconstitutional laws and MADE RUSH for their IMMEDIATE IMPLEMENTATION before the court can declare it unconstitutional…
Although it is a RULE of EQUITY , so with regards to PNOY really good faith is his defense for HE has enahance our economy in the instant case BUT NEVER to ABAD for the Falsification he did and the cross border of funds without FULL an HONEST accounting to date on the fund releases , particulary to the HOUSE SUPER LIBRARY and naming on his reports billions of pesos on CROSSED BORDERs funding only as ” OTHER PROJECTs “
If this is true then PNoy must not fear.
Ah ok, thanks Baycas.
Not being a lawyer, I cannot ascertain the relevance or wisdom of including these particular passages to the SC ruling from a legal or judicial standpoint. But psychology being my background, and all, my natural tendency is to approach the matter with an interest to understanding or explaining human behavior. The Justices, intelligent beings that they are would have had a reason ( in psychological parlance, motivation) for including statements suggesting that the proponents of the DAP are to put it simply “not yet off the hook” when the question that has been put before them is only whether DAP is right or wrong based on their interpretation of the Constitution.
Will we ever know? :)
Being a lay person too…
I hazarded an answer here:
The caveat (operative fact doctrine not applicable to authors, etc.) is for future use because the SC might send a wrong message that because the doctrine of operative fact was applied all things including possible liabilities of persons involved in the DAP conceptualization and implementation are now likewise off the hook. It’s kinda guiding future litigants and tribunals on how to go about similar cases wherein the doctrine may be applied.
As I said, I don’t know the most diplomatic way of warning future use of the doctrine without hurting anyone in this DAP case. Since it’s not part of the dispositive portion, former CJ Panganiban opined that it may be dropped in the final SC decision to be executed. Again, this possibility remains to be seen.
Fair enough, I think I can go with that. Let’s assume that there are no other agenda for including said side comment but to provide guidance for future litigants and tribunals as you have said.
But even then, it seems that it may still have been unnecessary, even ill- advised to do so as pointed out by La Viña in his Rappler interview, and Sta. Maria and Panganiban in their respective columns.
Furthermore, La Viña, Panganiban and Tan opine that the Supreme Court Justices ought to take measures to clarify and correct the perceived insinuation of bad faith that the side comment has generated when they respond to the MR. Hopefully the Justices heed this advice so the two branches of govt can thereafter move on and resume their work for the good of the country instead of expending their time and energy on this legal fisticuff.
What they said about the side comment: ( thanks by the way for the links you posted previously)
1. La Viña
“I think it’s best for the Supreme Court to clarify this is not part of the decision. Many of the justices actually don’t subscribe to that because it’s not fair to make a judgment on good faith, bad faith, or liability. No facts at all to make that determination,” La Viña said on Thursday, July 17.
La Viña explained that the doctrine of operative fact applies only to projects and activities, and does not touch on the liability of officials.
“It simply means that if a project was done under DAP, delivered, then it’s over and it’s recognized. You don’t tear down the building just because it was built by DAP. You don’t not pay the contractor.”
“Liability is entirely another thing and you’re not supposed to talk about liability here,” he said. “All the concurring opinions, including Justice [Arturo] Brion’s, says we have no finding on facts about liability. There are some speculations [Abad was] a congressman, etc. [He] should have known [better]. It’s all speculation and from my point of view, not legally meaningfully.”
That quotation appears alien to the otherwise well-crafted and balanced decision penned by Justice Lucas P. Bersamin. As the President pointed out, it contradicts the constitutional presumption of innocence, of good faith and of the regularity in the performance of official duties.
But all is not lost. In its ruling on the government’s MR, the Court could delete this from its decision, or clarify it to assure that this is not a prejudgment of liability and that no one shall be condemned or penalized without due process, as ordained by the Constitution. It could also explain that this statement is merely a nonbinding obiter dictum (side comment) not supported by its fallo or dispositive portion.
3. Sta. Maria
Some Justices of the Supreme Court, on the other hand, are not at all blameless. It will also do well for some of them to show respect to the President and his cabinet by exercising more restraint in their use of words, preventing any insinuation of executive bad faith prior to any actual and concrete findings based on credible evidence as to the same. Wittingly or unwittingly, sufficient provocation might have been made by their language prompting the President to respond with snarky remarks to bring home his point.
In rejecting Mr. Aquino’s motion for reconsideration, the justices might reiterate that they make no finding regarding liability. They might limit prosecution only to cases of actual theft and preempt charges of technical malversation, or misapplication of funds without need to prove that funds were pocketed, by emphasizing that Mr. Aquino did have some basis to authorize the DAP transfers. He might then claim victory and call off a pointless war over a discontinued spending program.
Considering good faith on the part of SC in imputing bad faith on the part of the Executive without intention, since it’s only a side comment, the SC might as well drop it.
Btw, in all fairness, the MR is the tame version of PNoy’s July 14 speech. I like that.
Very good, Cha, for the compilation. Thank you!
Ay nawala yung sagot ko :(
“unless there are concrete findings of good faith in their favor by the proper tribunals”
What if the authors of DAP move to dismiss the case due to insufficiency of evidence of the prosecution instead of presenting their defense, and the court dismisses the case? In that case the authors never uttered a word to show they were in good faith. Does the SC mean that the case cannot be dismissed then?
I think your concern is echoed in Tan’s suggestion to the SC about the contentious side comment:
“To…. preempt charges of technical malversation, or misapplication of funds without need to prove that funds were pocketed, by emphasizing that Mr. Aquino did have some basis to authorize the DAP transfers.”
Yes. Tan is concerned also with the “concrete findings of good faith” portion of the decision. He wishes the SC to explain by declaring that it is not imputing any liability on the authors of DAP. My wish is for the SC to remove such portion of the decision because the said statement shows pre-judgment of bad faith.
Yes. Tan is concerned also with the “concrete findings of good faith” portion of the decision. He wishes the SC to explain by declaring that it is not imputing any liability on the authors of DAP. My wish is for the SC to remove such portion of the decision because the said statement shows pre-judgment of ” no good faith” on the part of Abad.
In page 60 of Brion’s separate opinion, he cited Carpio’s findings that “Secretary Abad could not gave been in good faith.” Brion himself said in page 58 of his opinion that as to the DBM Secretary “the evidence before us, at the very least, shows that his actions negate presumption of good faith.” It is worth noting that the “concrete findings of good faith” portion derived from Brion’s opinion as cited in page 90 of the decision.
Correction: Please delete first paragraph.
Oh wow (on Carpio and Brion statements), no wonder the President got all riled up.
The two, it seems, have some misgivings about Abad (that’s about as objective as I can make it to be). The other way would be to say they have it in for the guy.
Meron ba itong history?
Comment disappeared again. :(
got to turn in now.
preserve my energy for the coming days ahead.
pls dont worry if your post doesnt come out at once. Probably landed in spam again, thanks to an over-acting Akismet app. but I have no choice at this point because I don’t want a malicious virus to get into my website.
For those who are posting for the first time, rest assured I don’t censor.
Unless you call me names or accuse me of being bayaran, that’s a different matter. I wont stand for it. Your comment will go straight into the trash bin. because that’s no longer exercising your freedom of expression. That’s abusing me in my own website.
But those who vehemently disagree with me are welcome.
Why is former national treasurer Leonor Briones so critical of the Aquino administration? It makes me wonder what’s in it for her.
I think the SC and the executive will meet on mid ground and reach a compromise.Both know that hostility towards one another would hurt them. With the govt MR, I predict that the SC will stick that DAP is unconstitutional but will clarify that the implementors are not criminally liable unless there is an evidence that proves so. This will shift the proving of guilt to those who oppose DAP.
Dr. Briones wants reforms in how government money is allocated. She believes the poor should be targeted as the largest recipients of the budget.
She wants more transparency in the budget execution, especially in the use of lump sum appropriations. She wants less lump sum appropriations.
I actually agree with her.
Like Project No. 73.
Ms Leonor Briones is acting the QA/QC which is always RED-MARKINGS which she seems not as per standard or not as per the code. QA/QC is always required not only in Engineering, not only in production, not only in taste test but also in academics of the LAW of the Land. A good reporter has their own QA/QC perhaps their legal partner in life, you may also a partner whom you can ask for double checking if the thing you do is correct or not, hurting anyone or bringing solutions or laughter.
But I hate all those people who tries to STOP PNOY governance to finish. I wish PNOY will be able to scramble the files and find more CORRUPT OFFICIALS, hopefully, those that are currently serving under PNOY Admin don’t ever steal a single cents, then WE Filipinos will PROPEL to the next LEVEL.
Liling Briones and Ben Diokno were both protégés of Dean Raul de Guzman of the UP College of Public Administration who was a brother-in-law of Erap. Liling and Ben were the National treasurer and budget secretary, respectively, of Erap. Both were very good professors in public finance at UP but they chose to become lapdog of Erap. And they now look pathetic. I am sad.
jorge bernas says
Thanks Rene, Kaya pala tuwing nagsasalita itong dalawa ay parating binabaliwala mga kabutihang ginagawa/nagawa ni Pnoy? Matagal ko nang nahalata ang pagka bias nila at palaging mali ang ipinakita/nakikita na para bang sila lang ang tama gayong during there time ay wala din kabutihang nangyari at nagawa……
Go Pnoy Go and God Bless . . .
rallie f cruz says
I only have one take on these scheme on demolishing Pinoy.
When SC declared that DAP was unconstitutional. I can sense something more than the declaration is behind it.
First to be impeached is the holier than thou and greater than thou Chief Justice of Supreme Court. Such a big blow to the face of the ones who were honorably sworn to protect the people of the nation in the misuse and abuse of the constitutional law. It appears after all that the titles such as Distinguished and Honorable can also be blinded by the sparks of Greed for money and control. they are the body that no one can easily prove to be wrong for whatever they declare.
Second, again, the administration is able to put three BIG WIGS in the Philippine Political arena and its the Senate whose very purpose is to present and enact laws that will protect the interest of the people of the nation. If the present administration is able to do that including the once was president now a congress woman then the question is who is the next target? The more influential ones and the most who raked what is due for the right people on the lists? Who are these great ones doing everything to destroy the man they believe will cause their shame and downfall? And before it happens, they have to take steps before the case gets gets to them and who could be the best to be used to make such acts? SC of course with an aim to vindicate their supposed to be untarnished name…..
People must think well why suddenly the case is made much louder than the Three Wise Men of the Senate. I am not saying that Pnoy is clean but to stop him early is to stop a much bigger exposure of the biggest culprits up to hide their loots.
vander anievas says
now i understand.
aren’t they supposed to be critical of GMA who snatched erap’s seat?
nanghihinayang ako dahil dapat nakikinabang ang bansa sa kanilang talino.
o baka naman di ko lang nakikita ang buti ng kanilang ginagawa.
No wonder I always seem to hear this old woman criticize Pnoy’s policy, left and right.
andrew lim says
In my list that appeared in Joe America’s blog and here (Waste Segregation: Sorting the DAP’s good critics from the bad) I classified Liling Briones as a “headless chicken”.
Meaning, like the other headless chickens in my list, she is prone to exploding with despair and criticisms without providing ways forward for the people to latch on. Putak ng putak, sa bayan ay wala gaanong inilagak.
But I basically agree with Raissa’s assesment of her. She is neither an extreme leftist, a Marcos or Arroyo loyalist nor a supporter of corrupt politicians.
But I have doubts about Ben Diokno, who is just as competent as her on public finance. He is too close to the Estradas for comfort. If the Napoles scam had not broken, and Jinggoy became VP under UNA, Diokno would most likely be returned to the DBM.
X-BoRdErRiFiC, if true…
Read more: http://newsinfo.inquirer.net/621680/1000-saros-issued-under-dap-900-went-to-lawmakers
The news in trickles…
Can you please comment on this? Thanks!
I read it just now.
the problem is, it doesnt give me an overall idea of which projects of DAP came from savings of the department themselves, which came from other funds.
it also makes an assumption that the reader knows what “programmed” and “unprogrammed” funds means.
It doesn’t give me an idea which programs were not in the GAA.
it would have been better if the article started by giving an overview of the national government expenditure program.
The accompanying sidebar on the chronology of events is interesting, although incomplete. Details have already emerged on when the various senators got their DAP. these are not in the chronology.
What I also realized is that no DAP – as far as this investigative is concerned – was diverted as campaign funds in the 2013 elections.
I think the Supreme Court should make public the seven evidence packets that the DBM submitted to the court.
I agree, there’s nothing in it that says were the funds specifically came from. That would shed light on which were ‘cross-border’ funds and which were from specific items in the GAA. Regarding impact all over the country, I am aware of a dike in one of the northern municipalties here in Cebu that was funded by DAP. I don’t know, though, whether the funding came under those that were listed under LGUs or under the lump sums given to senators or any other source.
PDI headlines today that “DAP: 900 SAROS FOR LAWMAKERS
The PDI investigative reporters revealed that the DBM issued 1000 special allotment release orders (SAROS) to facilitate the release of funds to the spending agencies for DAP projects from 2011 to 2013, and 90% or roughly 900 SAROS went to lawmakers.
The exact amount cannot be determined by the PDI but the impeachment rap filed by the militant groups against PNoy mentioned that P17B of DAP funds went to lawmakers as additional pork, a large portion possibly used during the 2013 elections.