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Read for yourself the actual motion for reconsideration on DAP

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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.

Here are the documents: 

Motion for Reconsideration 

Annex A – Document to justify use of savings for a Department of Science and Technology (DOST) project 

Annex B – Document to justify use of savings for a Department of Science and Technology (DOST) project 

Annex C – document showing cross-border transfer request from the Supreme Court to the Executive Department  

Annex D – document showing cross-border transfer request from the Supreme court to the Executive Department  

Annex E – document showing notice of withdrawal of a previous cross-border transfer request from the Supreme Court to the Executive Department  

Comments

  1. Sunganga ang SC sa katarantaduhan nila. Unconstitutional daw ang “cross border transfers” sa ilalim ng DAP pero sila ginawa din pala nila. Paano ngayon ‘yan? Torete ang mga hunghang na mahistrado.

    • er, pls moderate your language.

      you could find more imaginative ways of saying that.

      thanks.

      • What I would like to know is, at what point did Malacanang know that money going to lawmakers – pdaf or dap – was being diverted into private pockets.

        Because one way to stimulate the economy would be to bring government money all over the countryside.

        The idea of making lawmakers partake in stimulating the economy was not wrong per se.

        What would be wrong is if Malacanang knew the money would be stolen if given to the lawmakers but went ahead and gave to them anyway.

        Even the left-wing Bayan Muna was getting pork barrel.

        • Part of the accounting that the MR, upon finally decided and executory, will be expected.

        • @raissa

          Due to our Lawmakers ‘and Politicians’ history of Kleptocracy, the presumption of irregularity shall be the default mode.

          Corruption crosses borders. It is not only the Admin Politicians but also the opposition. Even the party list representathieves also have their “parte” of corruption from their pork.

          I believe that the executive is the big supplier of corruption. They are the enabler. If there are no Pork Barrels and or Special Purpose Funds, then corruption will be down in record levels. These politicians will scamper to find their next fix. Remember, the pork barrel is their shabu for their addiction to corruption, and if you take out the supply of shabu then they will go crazy or in Pilipino parlance, mapa-praning. Pag napraning eh baka madali mag-impeach ng Presidente.

          Take note that the executive is the supplier of this shabu, and naturally they take advantage of this situation to be able to control the legislature. So, I believe that Malacanang was not born yesterday, else they are the most stupid gullible creatures if they don’t presume any irregularities among the recipients of these pork!

          Parekoy
          07/21/2014
          Posting while visiting the MIT campus

        • Clarifications:

          Executive means previous administrations and the present one. The previous ones are the Mafia, while the present one wanted to be a legit corporation.

          IMO, Though Pnoy wanted to eradicate corruption, he can’t do it overnight in the democratic form of government. He inherited the franchise of corruption and now wanted to go legit. The first step is to lessen the supply. 

          If you want to cure addicts,  you don’t want them to go cold turkey, else they become violent. They might turn against you in a violent way, the impeachment way. While weaning them out of addiction, you could use them to help you clear the straight path. Some of them will be converts but those who don’t tow the line will be severely punished-not admitted in St. Loots but at Mandaluyong.

          So, those DAP funds for the lawmakers is  part of his prescription. But @baycas et. al. caught him playing psychiatrist without a license! :-)

          PS
          Give them weeds (comensurate salaries), not shabu (pork laden barrels)!

          Make weeds legal! it clears the mind of corruption!

          Hithot pa ‘tol.

        • @parekoy,
          natumbok mo.
          iyan ang aking thesis.
          yan ang robredo-way.
          madalas kong iparamdam iyan dito.
          dapat at tama lang, hinay-hinay lang.
          slowly but surely.

        • @vander

          Thanks!

          Sabi nung kaibigan kong Bicolano supporter ni Robredo, tanungin daw kita kung ikaw daw ay Pa(ra)quito Diaz din?

        • @parekoy,
          jesse is an idol to me. a smooth-operator. a silent corrupt-buster.
          a doer and a transformer.
          to me, no one can equate his deeds. not even a pure filipino-bred like me.

        • @ tristanism

          Nabigyan ng konting bonus, so nagbakasyon at nag visit sa MIT.

          Unfortunately, there was no chanced meeting with Noam Chomsky, pa autograph pa naman sana ako ng libro nyang Failed States.

          Nag slipped lang out of habit parang nasa FB, may location entry.

        • If the defense of some senators (some are detained now) was that “I did not know if the fake NGOs were fake or not,” or ‘It is not my duty anymore to check where my pork went’…

          …such defense also cannot be given or accepted by Malacanang or the DBM as to “at what point did Malacanang know that the money’ was going to lawmakers,’

          or ‘if Malacanang knew the money would be stolen if given to the lawmakers but went ahead and gave them anyway.’

          Either of the two would be a dereliction of duty just like some senators’ initial answers given to the public.

          Maybe that is the reason why no clear ‘reports’ are coming out from Malacanang where did the money go? At what point did it know? Did it know and went ahead to just give the money anyway?

          Points to ponder and points to Answer. No. 30.2.1 on Raissa’s.

        • given your view then that those types of reasons are unacceptable, do you think malacanang was happy or unhappy that the pdaf scam was exposed?

        • ..But is there a “fake” senator or congressman, that you would have to check if you’ve given budget to the right and legit person?

    • @ john c. jacinto,

      Tama po kayo john, Paano ngayon ipapaliwanag ito nang korte suprema gayong sila na dapat magaling mag interpret nang batas ay sila pa pala lumabag? je je je…huwag nila sabihin judicial independences na naman. o baka oks lang kami naman gumagawa pero kong iba mali/unconstitutional? gusto ko makita na humingi sila na SORRY sa unconstitutional/kapalpakan nilang ginawa? Abused of Power ito, diba? Pakilinis muna sariling basura bago kayo mamuna nang iba? Ang savings ni Pnoy na ginamit sa DAP Fund ay nakabuti sa Mamamamayan, Bansa at sa Economiya. Pero ang questionable Savings daw nang supreme court ay ginamit sa Bonus, Allowances etc. kahit hindi naman maganda ang serbisyo nila etc. l myself was a victim of their very bad services like broken typewritters/computers/xerox machines daw etc. at higit sa lahat wala daw silang bond paper dahil ginipit daw sa itaas ang budget nila je je je what a stupid reason…and the sad thing was some ask for extra money???

      • ang gusto kong mabulatlat sana at makita kung totoo ay hindi ung naipa-bonus nila sa kanilang sarili.
        kundi un sanang mga kasong inamag na at inaamag na at aamagin pa sa mga baul.
        dahil naungkat na rin ang savings na iyan noong kasagsagan ng impeachment ni TJ na sa halip daw na mag-hire ng marami pang empleyadong tutulong sa pagpo-proseso ng mga dokumento ay tinipid at di na nag-hire pa, para raw mas maraming savings.

  3. How about the transfer of SC savings worth 1.8 billion used to augment the construction of Manila Hall of Justice which is under DOJ well within the Executive Department..?
    At yung 100 million from DOJ ni request ng SC na gamitin nalang sa pag ayos ng Malabon Hall of Justice…
    Ang masaklap doon wala sa GAA ang malabon hall of justice.
    pwede rin bang TECHNICAL MALVERSATION ito pero above board kasi EN BANC ng SC ang nag request ng mga yan eh… Tapos tanggalin din ang GOOD FAITH at Presumption Innocence gaya ng sinulat nila sa dispositive portion ng kanilang decision noong july 1…

  4. Will you please explain further when former chief justice panganiban said the president can still use Dap in the future.

    • @rey

      5. Can the President use the DAP again in the future?

      Answer. Yes, nothing prevents the President from transferring funds from one item to another provided he observes the constitutional limitations pointed out in the decision. To stress, the DAP, which is just another name for the power of augmentation, is not itself unconstitutional, only some “acts and practices under it.” Also, he can ask Congress to pass a supplemental budget, or to redefine “savings,” or to refine the law requiring a certification from the national treasurer to use unprogrammed funds.

      Read more: http://opinion.inquirer.net/76705/q-and-a-on-dap-decision#ixzz381A6rASn
      Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

      • Oh, it’s ex-CJ Panganiban who said it.

        What he’s saying is that “DAP” as a fiscal program can continue to be used for as long as it follows the limitations set by the SC. For instance, no cross border funds, no funding of projects not under the GAA in the first place.

    • @ rey,

      In my humble opinion ay puwede naman gamitin ang DAP kasi portion lang naman nang DAP ang unconstitutional saka mayroong motion for reconsideration na inihain ang office of solicitor general (Sol.Gen.) tungkol sa DAP kaya marami pa magagawa? Basta ba napunta sa dapat puntahan Oks lang kisa mapunta sa bulsa nang mga Mandarambong na Mambabatas at Opisyal na kasabwat..Saka dapat ang Savings ay huwag paghahatian para sa Bonuses/allowances kong hindi maganda ang serbisyo dahil hindi karapatdapat, diba?

  5. Me too after reading the MR, now I recall and it is this: the MR and earlier arguments before the decision came out, the Executive Dept is mainly asking the Court to give ‘deference’ to the Executive Dept in the handling and implementing of the budgets and its funds.

    ‘Deference’ …to give it a wide latitude as much as possible without violating the laws or the Consti. But it didn’t help. So, motion for reconsideration. This time, more penetrating with a sharp objective thrusts.

  6. I have read the 52 pages DAP MR and since the SC likes to interpret the law as technical as possible I would like to note what I think is very good argument from the Solicitor General regarding the word “savings” which the SC declared unconstitutional…

    While “savings” is a constitutional term, its meaning is legislatively determined. The constitution textually commits to congress the authority to define the term “savings”. And in this case, GAA is the enabling law of the term “savings” in the constitution. Therefore, the court’s interpretation of savings is not a constitutional rule, and can be overturned by legislation. After SONA budget deliberations will follow. What if in this GAA for 2015 the congress redefines the word “savings”
    a. any allotment for any work, activity, or purpose for which the appropriation is authorized, which has not been obligated notwithstanding the lapse of 6 months.
    b. and any appropriations balances arising from unfilled positions shall not constitute shall not constitute savings and revert to the National treasury, provided, that 25% of such appropriations balances may be treated as savings.

    a – entirely wipes out the court’s concept of savings
    b – redefines the concept of unreleased appropriations and overturns the practice of accumulating savings

    Kung mangyari yan, UNCONSTITUTIONAL parin ba..?

    • The DAP laden with ‘X-borders’ is covered by GAA 2011-2013 and partly by the Administrative Code (38, 39, and 49 I believe), which are laws in operation and are Constitutional. It’s the act and practice of X-borders that rendered the part of DAP unconstitutional.

      Define “savings” in future GAAs in a manner that is Constitutional. Implement GAA in a manner that is Constitutional.

      • He he agree @ sir baycas … Walng kawala sila sa explanation mo sir…hagip na lahat….

  7. Waltzing away from the hot potato? I got lost. It all started when Estrada claimed that senators were bribed to convict Corona. And now we are discussing constitutional issues, a battle of lofty principles as the separation of powers and the executive priority of growing the economy, both getting my sympathy. But I didn’t see the transfers to the Senators in any of the SC or MR documents, but is the only part of DAP that stuck with the public. Is this orchestrated or just coincidence?

    • Josephlvo@…no orchestration.

      Mainly, the Motion for Reconsideration is an elaboration of something…asking the Court to grant ‘deference’ to the Executive Dept. as regards the Budgets and its implementations.

      Just keep in mind…’deference’ – due respect or to give wide latitude for the implementor of the budgets, as you go along reading.

      Remembering the OPENING statement of the MR, a quote from Oliver Wendell Holmes, Jr.,i t says something about: some accidents of immediate interest will even make principles of laws BEND… that interest is ‘deference’ to a gov’t agency – the Executive Department.

      • Could you explain me what this ‘deference’ has to do with the suspicion that senators misused the millions they got to distribute? What is the link between this ‘legal’ fight and the fight against corruption? Why are so many bright people engaged in the wrong fight? Is it to delay conviction of politicians, executives and judges? People around me don’t understand, I don’t have any answer neither.

        • ..it has got nothing to do with those: misuse by senators the funds;
          legal against corruption; just people, never mind if bright or dumb; no connection to delay politicians’ convictions etc., many says ‘di ko maintindihan,’ or I also do not understand many people.

          But I understand a couple…

        • The link between the legal fight and the corruption fight is the defense mechanism of deflection. You will recall it was Jinggoy who brought up DAP and suggested it was used to bribe senators. This was to deflect attention away from the wrongdoing of the plunderers and focus attention on the possible wrongdoing of the president. Bong also adopted the same strategy of attacking the president.

          Is it orchestrated or coincidence? There is a large measure of orchestration by all estates:

          1. First Estate. The friars have joined the fray. Recently the CBCP head enjoined Pnoy to follow the rule of law.
          2. Second Estate. The political elite are busy with their machinations against Pnoy. Binay briefly stepped out into the limelight then sunk back into his natural background camouflage. The magistrates of justice have declared part of DAP unconstitutional. The “side comments” in their decisions cast doubt on their impartiality.
          3. Third Estate. The people as reflected in social media are evenly divided. The citizens who petitioned the Supreme Court are a mixture of leftists, church adherents and do-gooders, each with their own agenda.
          4. Fourth Estate. The press are equally vociferous in their defense or condemnation as pointed out by Andrew in The Society of Honor. Not only individual columnists but the whole media enterprise leans for or against.
          5. Fifth Estate. The bloggers are also having their heyday.

          The stratagem is working: scammers are off the front page, except for Gigi, and Pnoy is under attack, weakened and hugging the headlines. It is good he has decided to stand and fight.

          *****

          Filipinos are crazy. We are stuck in static thinking, holding onto impractical constitutional standards out of fear and distrust. We cannot move to process thinking, whereby we attempt to find solutions to roadblocks that stand in the way. Rather than simplify we complicate. Rather than using Occam’s razor we build Rube Goldberg contraptions.

          Why not simplify the definition of savings as “disposable income”? This would then include excess programmed funds and unprogrammed funds and free their usage for maximum economic development.

          Why not allow cross-border transfers? Inter-branch transactions, whether monetary or non-monetary, whether within the budget or not, must occur in the service of the nation. To prematurely characterize such transactions as horse trading is to impute malice where there may be none. Why not characterize them as euvoluntary exchanges, meaning non-coercive and beneficial? Instead of prohibiting them, why not devise process controls – such as three-way branch consensus and approval – that will ensure their correct and proper usage?

          Fear, the great motivator, has made Filipinos captives in their own Pacific but non-pacific paradise.

        • @Edgar

          To prematurely characterize such transactions as horse trading is to impute malice where there may be none.

          Kung sa Australian Parliament or sa US Congress eto eh possible pa, pero Pinas to @Edgar, Pinas!

          euvoluntary exchanges?

          karamihan ng mga mambabatas natin eh baka hindi alam ang term na yan, yung pa kayang ethical application saka implication sa Social Justice?

          Pero meron din naman talagang euvoluntary exchanges sa mga Pulitiko natin hindi nga lang ethical at ala-mafia, sila sila lang ang nakikinabang sa kanilang euvoluntary exchanges, sindikato style.

          Stil, I appreciate you imparting us with purist and ethical philosophies.

  9. Please read former chief justice panganiban in the daily inquirer dated july 20 2014

        • It’s possibly true but it’s a spin.

          Recall that the SC under Corona ruled that Hacienda Luisita should be placed under land reform and the owners given compensation.

          So this is an implementation of the SC ruling.

          How can the land there be apportioned to farmers if the owners aren’t paid?

          What Bulatlat wants – and I respect them for it since it springs from their ideology even if I don’t agree with their ideology – is that the land should simply be seized from the owners.

          That is not what the SC said, though.

          It’s a catch-22 situation.

          The Cojuangcos are being told to hurry up to place their land under land reform. the court said they should be paid. but when they are paid, the Left complains they are being paid.

          Personally, I believe the compensation the Cojuangcos are getting is way too much. But apparently, the SC didn’t think so.

        • Appropriated or DAP-funded? That is probably the question.

          Kung sunod sa utos ng SC, dapat may maliwanag na appropriation at hindi juggled fund.

        • If an implementation of SC order, I think there should be appropriation…NOT from ‘savings’.

        • Worse, the left cum farmers wanted to sell their newly acquired land right away or before the mandatory 10 year limitation from issuance of CLOA has expired. They rationalize that the land should have been awarded to them in 1989 yet. But the law says 10 years from issuance of the Certificate of Land Ownership Award (CLOA).

        • @ Rene,

          Worse, the left cum.farmers wanted to sell there newly acquired land right away or before the mandatory 10 years limitation from issuance of CLOAs has expired kong tama ito ay maliwanag na niloloko nila ang Taongbayan at puwede sila kasohan maging ang Bibili dahil bawal nga?

  10. In PARE DELICTO sabi dito sa libro ninyo mga lawyers….kaya lang ,ang kasalanan ng SC noong isang araw ay HINDI nangangahulugan na SUNDIN MULI ni PNOY ng isa pang PAGKAKAMALI … At ang ginawa mung mali ngayon ay mas makakabuti sa sanlahatan kung baguhin sa lalong madaling panahon para maiwasan pa muli ng mas maraming pagkakamali o KASINUNGSLINGAN…

    Malinaw mga na mayroong CROSS BORDER request ang SC sa DBM …pero ang MALAKING PAGKAKAIBA nila nito sa GINAWA ni ABAD sa CONGRESS , para makita natin na in BAD FAITH si ABAD ay …dito sa request to fund and withdrawal of funds ng HUDIKATORA ,,,MALINAW na MALINAW kung saan dadalhin at dinala mga ang PONDO sa pagpapaayos ng COURT ROOM/HALL ng mga justices…100% PRIORITY PROJECT of the Judicial Department …Kaysa TENANT lang sila pa noon sa mga buildings na pribado o pag aari ng ibang sangay ng Executive Department….Ilang taon na na nakikitira o naguupa ang Manila RTC sa old building ng NAPOCOR sa may Aduana Circle sa Pier… at pumunta po tayo sa Manila City Hall ,, makikita natin kung ang bagong pagkakaayos ( reconstruction of delapidated — tumutulong bubung ) ng Room/ Branches sa Manila City Hall… Pwede kayong mag imbestiga doon kung gusto ninyo…

    Kay ABAD ang ginawa nya sa pagdepensa sa COA LIBRARY na kung ano ano depensa pati SYMETRY ng Batasan ay ginawa nilang alibi to justify to build a new LIBRARY for 250million and abandoned the 1stly designed and constructed building na nagkakahalag na ng 60 million pesos bago sanbihing masisira ang BEAUTY of the BATASAN…very clesr….HINDI PRIORITY PROJECT ito…. Ang isinumite nila na SAVINGs at ipinamudmud sa ibang sangay ng gobyerno kagaya sa pag cross border nils papuntang house at nasa internet pa daw ay ang halagan 7billion pesos ….ang nakalagay ay …OTHER PROJECTs…FULL ACOUNTING ba ito… BAD FAITH diba …papaano nating malalaman na GOOD FAITH ito o BAD FAITH i ang nakalagay ay ” OTHER PROJECTS ” ….baka nga napunta diretso sa BULSA ng magnanakaw na si BONG at mga kasamahan ninya…dahil hanggang ngayon ayaw idetalyado ni ABAD ang OTHERs …..PRIORITY PROJECT ba ito….to say that the USE of electronic system in a library is priority maybe sound good but to say that a symmetry of the Batasan Complex will be altered was an absurdity because they just only wanted to justify an ADDITIONAL cross border funds ,,, marami pang iba sa 7billions na nakalathala sa ” OTHER PROJECTs “. …

    ngayon kung nagkamali man si SC sa paghingin ng cross border na PONDO …. para dina maulit at wag nang ULITIN kaninuman kahit SI PNOY,,dapat lang na i declara ng SC na ang ibang parts ng DAP ay UNCONSTITUTIONAL at parusahan si ABAD ,, dahila wala akong makitang BAD FAITH sa ginawa nya lalo na sa ginawa nyang FALSIFICATION of his MEMO…

    Sa mga Supreme Court Justice naman na humingi o gumamit ng cross border funding ay dapat ma IMPEACH din sila ….Ang ibig sabihin ng nga MASA at ni Mang Bernie ,,, HINDI pwedng hindi sila PAREHAS na MSPARUSAHAN ….ang mamayang Filipino na ang umaayaw …. Kung ang depensa mga PNOY ay ang paggamit din ng SC sa cross border FUNDING na mali… at mapatunayan na hindi sya in GOOD FAITH , siguro wala na tayong magagawa dyan…IGNORANCE of the LAW EXCUSES NO ONE ….not even SERENO nor PNOY… Tapos ang storya… Ikulung natin pati si RAMOS…payag kami na taga MASA ….taga masa ng kahit na ano….

    • The fate of Abad lie on “bad faith” and the “operative f_ck.”

      A bad effing fateful faith.

      • Abad’s fate lies on the so-called “bad faith” imputed and his non-inclusion in the “operative fact,” both made by the SC.

    • Para bang pagkatapos mong insultuhin ang SC sabihan mo na mali ka palpak desisyon mo, ngayon hihingi ka ng MR, dapat nag hain na lng ng MR hindi na dapat nagsalita si pnoy, Kaya tanga ang SC pag ni reverse nila desisyon nila. Ay sorry palpak pala kmi ikaw ang tama. Dapat mag resign na ang SC pagkatapos nilang i reverse desisyon nila. dahil naglagay kyo ng 13 stupidong abogado sa SC.

      • @ jaimep,

        Hindi naman puwedeng kahit alam mong mali din ang korte suprema ay tatanggapin muna lamang at tatahimik kahit napahiya din si Pnoy being an co-equal branch diba kaya nga nagpapaliwanag ito sa Sambayanan at kahit ang korte suprema ay aminadong malaki naitulong nang DAP sa mga Mamamayan, sa Bansa at sa Economiya. Saka hindi dapat magkamali ang korte suprema dahil trabaho nila mag interpret nang Batas….Saka ang Saving ay para sa pandagdag sa programa o dagdag proyekto at hindi dapat paghahatian at mapunta sa Bulsa katulad nang dagdag Bonuses at Allowances etc.nang mga justices at empleyado nang korte suprema lalo na kong ang Sebisyo nito ay hindi maganda..

        At lalong hindi dapat sisihin si Pnoy kong magpapaliwanag ito sa mga Mamamayan dahil kinakailangan dahil palagi naman nag Plip-Ploffing ang mga dsiscion nang korte suprema?

  11. 2. The President complained that the decision “put our country’s development in a state of paralysis.” Do you agree?

    Answer: With due respect, I would rather look at the bright side. True, the SC declared unconstitutional some “acts and practices under the DAP.” That is the dark side, the bad news the President is referring to. But the bright side, the good news, is that the “doctrine of operative fact [is] applicable to the adoption and implementation of the DAP.” (p87, decision)

    This simply means that actions and programs done prior to the declaration of unconstitutionality are valid and enforceable. In short, unconstitutionality has a prospective effect. Only future “acts and practices” would be adversely affected.

    Thus, bridges, roads and school houses built with DAP funds need not be destroyed, and those given to the Bangko Sentral to increase its capital, or transferred to the House of Representatives (a “cross-border transfer”) for the “construction of the Legislative Library and Archives Building” need not be returned.

    So, too, the decision (p21) states that “the DAP as a program had been meanwhile discontinued because it had fully served its purpose…” This implies that the DAP is no longer needed to stimulate the economy since the funds for such purpose had been amply provided for in the 2013 budget.

    3. Please comment on the President’s argument that the decision condemned government officials without due process when, on page 90, it said that the doctrine of operative fact “cannot apply to the authors, proponents 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.”

    Answer: 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.

    – Artemio Panganiban

    • Maybe not paralysis but nonetheless impacting on economic growth???? :

      Phil Growth Forecast Trimmed to 5.8%

      MANILA, Philippines – New York-based think tank Global Source has slashed its growth forecast for the Philippine economy this year, citing the controversy over the Disbursement Allocation Program which may further cut government spending and investments.

      Bernardo and Tang explained that the Supreme Court’s action declaring the P144-billion stimulus package illegal will significantly reduce government spending, which has been a driver of economic growth.

      “(M)ore timid government spending as projects and transactions come under increased scrutiny especially by state auditors and the executive’s lost flexibility in funding within-year spending priorities from identified savings, tell us that government outlays will again fall below program this year,” Bernardo and Tang said.

      “Although we had expected underspending at the start of the year, we were looking at a J-curve recovery by the second half as government officials ironed out kinks and cleared away bottlenecks, most particularly in reconstruction and rehabilitation activities. We are less confident of that happening now,” they said.

      The analysts pointed out that even if the share of infrastructure outlays in public expenditures has been low despite its steady increase through the past quarters, such has been “vital” in giving a boost to the domestic economy.

      http://www.philstar.com/business/2014/07/19/1347705/phl-growth-forecast-trimmed-5.8

    • The “side comment” unfortunately is what the media and the President’s detractors ran away with, thus hardening the Executive’s stance towards the ruling and their preoccupation with it in the MR.I wonder who is responsible for the “insertion”. (Doesn’t this remind you guys of another hot issue from the past? Hehe.)

      • @Cha,

        Dahan dahan ka lang please sa pagpapaalala at baka humantong na naman sa di kanais-nais sa panlasa ng ibang mambababsa.

        “Insertion”…LOL…

        • Hahaha. Naku ginamit ko pa naman yung H word in the same comment. What was I thinking? :)

        • Hahaha…

          You made my Sunday very bright…after Glenda…naapektuhan kasi kami dito sa amin.

          Thanks, Cha. Glad to have read you again.

        • Sorry to hear that Baycas. Hope damage wasn’t extensive. Please stay safe. Another one coming, I believe.

    • baycas@…on No. 3 in bold

      …that paragraph by the SC decision, as I honestly believe it, is an unnecessary message; it is a threat that is so awkward to be ‘inserted’ in the Decision. Cannot blame Pres. Aquino also to respond in his own way publicly as he cannot ‘write’ a similar decision, THUS, it is only in their MR it can be discussed or argued.

      Congress, Lower House or the Senate, can get to investigate on their own if crimes were behind the implementation of the budgets as they do almost every day on any issue or issues.

      That ‘threat’ is a bad Catch-22 and can even be said to be an insult at that to a co-equal branch. SC started it. Pres. Aquino will into join it. When will it end? ‘Check and Balance’ in gov’t can be accomplish without alluding such threats of criminal liability.

      So, since it was started, it is clearly suggesting to ‘others’ to have a duel with the officials of the Executive but without the SC initially participating at that. Who knows who will suffer on this? …country and the people.

      • In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAP, but cannot apply to the authors, proponents 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.

        – Par. 4, p.90, Araullo vs Aquino. http://sc.judiciary.gov.ph/jurisprudence/2014/july2014/209287.pdf#pdfjs.action=download

        True essence of a responsible person is not to fear. Well, as Mang Bernie et al concluded:

        “Pusong mamon lang ba si Abad o guilty?

        Natakot kasi natiklo.

        My opinion: SC should make a reservation to future tribunals that the “operative fact” must not apply to possible wrongdoers. I just don’t know the most diplomatic way of saying it.

        Probably the SC will drop the text…anyway, I’ll just wait for the final decision…

        Just concentrating on the ‘X-borders’ and it’s implication on the COORDINATED FUNCTION of government.

    • Josephlvo@…no orchestration.

      Mainly, the Motion for Reconsideration is an elaboration of something…asking the Court to grant ‘deference’ to the Executive Dept. as regards the Budgets and its implementations.

      Just keep in mind…’deference’ – due respect or to give wide latitude for the implementor of the budgets, as you go along reading.

      Remembering the OPENING statement of the MR, a quote from Oliver Wendell Holmes, Jr.,i t says something about: some accidents of immediate interest will even make principles of laws BEND… that interest is ‘deference’ to a gov’t agency – the Executive Department.

    • Mr. Artemio Panganiban should give his own opinion outright about those ‘questions or topic’ and not beg readers ahead to give their own.

      We want to get his side what he thinks. Simultaneous exchanges. [I have not read yet anything from him on this. ] but I like always to read baycas@’s side. Thanks.

  12. Nakakatakot mag-comment kasi hindi ako abugado. Baka masabihan – mag-aral ka muna ng batas o abugasya.

    So I will do a President Aquino and appeal for the presumption of good faith in my posting of this comment. :)

    I basically started with a ‘cringe’ in going through the MR. I was afraid the Executive may once again embarass itself especially with the inclusion of a supposed case of cross border transfer initiated by the the SC. Here we go again, I thought – digging dirt from one spot to cover up what also looks like dirt in another.

    I couldn’t say I understood perfectly the whole thing. I actually skipped a lot of portions where there was just too much legalese involved that was just making my head spin. So the following observations/ insights are based on sections I did give some time and effort to comprehend:

    1. The appeal to restore the presumption of good faith figures prominently in the MR. And probably rightly so. Also it looks like this is where the Executive has the strongest case (from my non-expert, non-lawyerly brain at least), and the President’s legal team, I would say, did a great job hammering down this point.

    2. The inclusion of the incidences of cross-border transfers initiated by the SC strongly supports the Executive’s call for the SC to take back the perceived imputation of bad faith which may have been implied, inadvertently or not, in the earlier SC ruling on DAP.

    I initially thought that this was meant to embarass the SC primarily when I first heard of its inclusio. That is, without benefit of actually reading the MR first. But those, who like me, will actually read the pertinent sections in the MR, will probably end up understanding why the President’s lawyers had to cite these as part of their case. I would also say that they did so carefully, objectively and without unduly maligning the integrity of the SC. Maayos naman kung baga ang pagkakakasaad ng mga insidenteng nabanggit.

    Eh kasi nga naman, kung yung SC mismo nag-akala na walang masama doon sa tinatawag na cross border transfers, na pinatutunayan ng kanilang paggawa ng parehong hakbangin (ke binawi man nila o hindi pagkatapos nilang mapag-isip isip na mali nga pala ito) , ay nagpapatunay na hindi lang ang nasa Executive ang nakapag-isip na maaari nga itong gawin nang walang masamang intensyon o motibo kungdi ang matugunan lamang ang mga pangangailangan sa pagpapatakbo ng normal na operasyon ng pamamahala.

    Kaya sa ganang akin, hindi ko masisi ang mga abugado ng Presidente sa pagsama ng mga insidenteng ito sa kanilang pagdepensa sa pagkakaroon ng good faith kaugnay sa naturingang pamamaraan ng paggamit ng DAP.

    Have some other notes, insights, observations but this is it for now. I want to enjoy the rest of my beautiful Sunday morning reading a good book instead :)

    • @Cha,

      Naintindihan ko kasi ang Palasyo. Lalo na ang memo. Maaari kasing may shortcuts na nagawa to the point of unconstitutionality sa aking pananaw. Kaya nga ako sumasalungat sa kanila lalo na sa ‘X-border’. Aba, siyempre salungat din ako sa ‘X-border’ ng Judiciary through Sereno.

      ‘Good faith’ really sums up the defense for DAP. As I said, although may be perceived as in jest…

      The money through DAP is good, please just have faith that it was spent wisely because PNoy is good.

      It’s really not bad…but how sure are we that there are no bad apples in his administration. Safeguards for transparency of DAP, nakalimutan.

      Mayroon pa ring lump sums of ‘savings’ na naipamahagi. Ang sigurado, sa aking paningin, magkakaroon nang malawakang audit ang DAP monies. (Ang tinamaan ng lintek ay pati ang COA nabahagian ng ‘X-border’ na sa tema ng MR ay kalakaran naman daw pala ang ‘X-border’. Plain and simple ‘peanut butter’ defense a la Corona, a la Jinggoy. One thing is sure ang leakage sa kaban ng bayan ay KALAKARAN and it’s bad faith on me to say that but it’s true.)

      Maayos naman ang hinihingi ni Chiz ayon sa mga panuntunan ng paglalahad ng Aquino government ng mga pondo bagama’t wala pang pinal na SC decision.

      Isa kasi rito ay nabanggit ko na rin (kay @letlet yata) na ilahad ang mga pondong nagamit sa CONSTITUTIONAL na paraan at sa UNCONSTITUTIONAL na paraan. Maliwanag na accounting yan after an MR has been decided and executed with finality.

      Alam ko nagloloko lang si @Parekoy regarding sa bagong bad luck number 73. May nabanggit ang PDI sa kanilang editorial na Project No. 73. Lump sum through DAP din daw yan.

      • Whether he likes it or not, President Aquino is faced with the unenviable task of proving the negative. His administration, then, must provide a further itemization for allocations like that for Project No. 73, to prove that with the DAP there was no abuse. Placeholder item titles like “Other Various Infrastructure Projects” simply won’t do.

        Read more: http://opinion.inquirer.net/76650/proof-of-non-abuse

      • Whether he likes it or not, President Aquino is faced with the unenviable task of proving the negative. His administration, then, must provide a further itemization for allocations like that for Project No. 73, to prove that with the DAP there was no abuse. Placeholder item titles like “Other Various Infrastructure Projects” simply won’t do.

        http://opinion.inquirer.net/76650/proof-of-non-abuse

      • I understand your concern, Baycas.

        In fact I wouldn’t have a problem if the SC still rules the act of cross border transferring of savings as unconstitutional.

        I don’t think good faith should be used as the defense for DAP or any other executiv, legslative or judiciary initiative. Aba, eh di nga wala nang mahahatulang mga anomalya sa bayan niyan dahil nga lahat na lang sasabihin done in good faith.

        Having said that, the imputation of bad faith without proper basis, to me is likewise unacceptable and dangerous especially coming from a co-equal branch of govt. Hindi mo man mapatunayan eventually, you still do damage in the meantime and in the long run.

        I think the Executive has every right to defend itself against the said imputation. I suspect that is more the motivation for the MR than anything else. And like panganiban said in the link you posted, pwede naman itong bawiin o linawin ng SC sa magiging sagot nila sa MR. I believe that is important to restore the Executive’s good standing, until proven otherwise at a later point.

    • cha@…your size up is also correct. I agree. The MR on the fact that the SC or judiciary likewise committed ‘border-crossing’ on funds as brought out respectfully is much better than the Decision’s containing a ‘threat’ of criminal liability for the officials of the Executive Dept. The threat is without doubt, an INSULT.

      Decision lang ang needed but why include an insult? Other gov’t agencies like both Houses of Congress, Ombudsman, etc., know what to do. Why ‘spread the alleged dirty criminal liability-linen’ in that threat to the public?

      The Decision, tama yun sabi mo, knocked down the Executive, to kick it further [on such threat] while being down, isn’t an insult?

      • What’s your take on the source of the side comment? Do you think the insertion came from the ponente himself or from somewhere else? Is that possible for someone else to slip in a paragraph or two in these SC rulings without the ponente and the rest approving its inclusion?

  13. My take in all these brouhaha. All along, what the President was trying to convey was all about fairness. The Executive did not impute bad faith when the SC did the same now unconstitutional acts in the two instances mentioned above. Why did the SC, in its ruling had to say that you have to prove good faith in doing something that was not yet held unconstitutional prior to the ruling? I see it all very clearly. The bone of contention is all about presumption of regularity. The SC may still uphold its decision and PNoy will be fine with that but no charges should be filed citing presumption of regularity on acts made prior to the ruling.

  14. Reader Mark Andrade at comment # 4.2 below has hit on the way out of this:

    Since the SC relies on the definition of “savings” in the GAA, which is a law crafted by Congress, all Congress has to do is re-define savings in the next cycle. The SC and the petitioners against DAP will then have no more justiciable issue to talk about.

    Am I correct on this?

    On another topic, I caught a news report on Harry Roque ( a headless chicken) citing his justification for filing a petition vs DAP: “I’m a taxpayer and [was] injured by illegal expenditure of public funds.”

    Imaginary injury, my foot. he he he

    • (Madaling araw na…)

      Mga lekat sila ngayon pa sila nag-isip ng depinisyon matapos matiklo ang may Boss sa atin. Anyway…

      Pakisabi on the way to the “savings” definition ay idamay na nila ang “political dynasty” definition. Malapit na yata sa Mababang Kahangalan…este…Kapulungan pala…

      Mabawas-bawasan naman ang mga kurakot.

    • Well, here is my answer to that member of demolition job for PNOY: I AM A TAXPAYER AS WELL, AND I APPROVED THE USAGE OF DAP FOR PEOPLE OF THE PHILIPPINE AND I AM HAPPY ABOUT IT!!!

      HE HE HE HE

      • macspeed@…you are the one Ms. Doris Bigornia is looking for to interview! hahaha

        Many out there are actually ‘happy’ without consciously realizing it…on how the DAP was spent or misspent!

        Transparent and Account…I’ll be more happy about it. But I do not like to go much ahead to agree to suspect the officials of the Executive Dept on alleged criminal liability. I can wait on that.

    • By this time, I am sure someone’s now scrutinizing his (Harry Roque) tax filings. and that of his company, et al. :)

      • sometimes, I wonder how many people harry roque have overcharged dahil sagot ng gobyerno ang legal fees nila.

        • andrew lim, harry roque should demonstrate transparency and made public his ‘injury’ gotten through illegal expenditure of public funds. show us which part of his body is injured. he has not lost a limb and not been hospitalized too, last I saw him.

          tumataba yata siya ngayon e, life must be good, business is booming. lalong kumokulot at kumikintab ang buhok niya, nagpastem cell therapy yata.

        • ang narinig ko lang po ay may private practice daw si roque. pero, paminsan-minsan daw he is hired as counsel by people in the government.

        • he, he, now, about that ‘injury’ roque is supposed to have sustained caused by illegal expenditure of public funds, I would like him to elaborate more. c’mon, roque, dont be shy and give us a list of your injury/s. enrile listed 13 (baker’s dozen) ailments, would yours be nowhere near?