Good faith can’t exculpate PNoy from DAP raps PDF Print E-mail
Tuesday, 16 May 2017 11:19

KAKAMPI MO ANG BATAS

BY Atty. BATAS MAURICIO

LIFE’S INSPIRATIONS: “… Your rulers are rebels, partners with thieves; they all love bribes and chase after gifts. They do not defend the cause of the fatherless; the widow’s case does not come before them…” (Isaiah 1:23, the Holy Bible).

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GOOD FAITH CAN’T EXCULPATE PNOY FROM RAPS OVER DAP: Here’s one for academic discussion for my former law students: can the invocation by former President Benigno Aquino III of good faith on his role or participation in the outlawed “disbursement acceleration program” (DAP) of his administration exculpate him from criminal liability for graft or even plunder for the misuse of some P150 billion in government funds?

The answer is yes, according to the Supreme Court in its 2014 decision declaring the DAP unconstitutional (see Araulo vs. Aquino III, G.R. No. 209287, July 01, 2014), but he has the burden of showing concrete proof of his “good faith” in the planning and execution of the DAP, after he has been sued in court first on account of the Court’s declaration of illegality of the DAP.

In other words, the defense of “good faith” on the part of Aquino should or could be considered only when there is already a court case against him in connection with the DAP. He cannot invoke it yet, during the preliminary investigation of the DAP at the Ombudsman, since the Supreme Court ruling is clear: Aquino, as a proponent and executor or implementor of the DAP should be criminally sued first, because his DAP was entirely illegal.

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THE DOER OF UNCONSTITUTIONAL ACT CAN BE PENALIZED FOR A CRIMINAL ACT: And so everyone is apprised all over again on this point, here was what the Supreme Court, through Associate Justice Lucas Bersamin, said relative to this issue: “The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country.

“To count the positive results may be impossible, but the visible ones, like public infrastructure, could easily include roads, bridges, homes for the homeless, hospitals, classrooms and the like. Not to apply the doctrine of operative fact to the DAP could literally cause the physical undoing of such worthy results by destruction, and would result in most undesirable wastefulness.

“Nonetheless, as Justice Brion has pointed out during the deliberations, the doctrine of operative fact does not always apply, and is not always the consequence of every declaration of constitutional invalidity…”

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OMBUDSMAN DISOBEYED SC RULING ON DAP: The Supreme Court went further: “It (the doctrine of operative fact) can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice; but where no such result would ensue, the general rule that an unconstitutional law is totally ineffective should apply.

“In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the PAPs (or the projects) 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…”

What the Ombudsman should have done here, pursuant to this decision of the Supreme Court, is to charge Aquino with graft and corruption, at the very least, in view of the tribunal’s finding that the expenditure of billions in government money through DAP by Aquino and his cohorts was illegal and unconstitutional. But then, the current Ombudsman refused to charge him, in violation of the Court’s direct order. Oh well…

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