Friday, January 8, 2016

DAP and operative fact doctrine- Inquirer News

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Undergoing scrutiny by the five-member JBC, Caguioa had the DAP on top of his mind as the Supreme Court decision with which he disagreed.

“I don’t believe he (Mr. Aquino) should be charged because of the operative fact doctrine, and he doesn’t fall under the author (designation),” Caguioa told the JBC Thursday morning.

“He merely exercised his discretion to augment savings. It is an act that is completely allowable,” Caguioa replied when the JBC executive committee chair, Associate Justice Angelina Sandoval-Gutierrez, asked him if the President “could be charged criminally or otherwise.”

“I don’t think he should be charged but, in today’s world, he probably will,” Caguioa said.

Caguioa was the chief presidential legal counsel when the DAP issue came up. The court struck down the DAP as unconstitutional in July 2014 for the reallocation of savings to projects not covered by the General Appropriations Act.

On appeal, the court issued a revised ruling in February last year, allowing greater flexibility for funding authorities to augment specific projects so long as they fell under a general heading under the GAA. It also upheld 116 DAP projects as valid under the “doctrine of operative fact,” a legal principle that applies to situations “where nullification of the effects will result in inequity and injustice.”

The court, however, ruled that the same doctrine may not be invoked by “authors, proponents and implementors of the DAP” to evade criminal, civil or administrative liability, “unless there are concrete findings of good faith in their favor by the proper tribunals.”

The government hailed the February decision as a “de facto reversal” of its DAP defeat. “I think the Supreme Court rectified itself,” Caguioa said.

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