JUSTICE Secretary Alfredo Benjamin Caguioa said Thursday he thought it was likely that President Benigno Aquino III will be charged for approving the Disbursement Acceleration Program, which was ruled illegal by the Supreme Court in 2014.
In an interview before members of the Judicial and Bar Council who are screening candidates for the Supreme Court, Caguioa said although he and the President have known each other since they were schoolchildren at the Ateneo de Manila, he would not favor him in court.
“My father was a judge. I know how a judicial mind thinks. As a judge, I will wear an altogether different hat,” he told the council, adding that he had “no bias or inclination” in whatever facts are presented to him and whatever law to apply.
“As judge, I will be confined to what the facts are and what the law is,” Caguioa said, fending off objections to his appointment to the high court purportedly because he will only defend his childhood friend.
At the same time, however, he spelled out why his childhood friend should not be prosecuted for the DAP.
“As a matter of law and my appreciation of facts as I know them, I don’t believe he should be charged precisely because of the operative fact doctrine and good faith… but in today’s world, he probably will,” Caguioa said.
Caguioa also cleared the President of any liability for unconstitutional acts in his Disbursement Acceleration Program.
Caguioa referred to the portion in the Supreme Court’s decision in July 2014 that cited the doctrine of operative fact, which recognizes the validity of actions taken based on a law before it is found to be unconstitutional.
While the Court suggested that executive officials could be held liable for the DAP, Caguioa said the President was not among “the authors and proponents” of the program.
The Justice Secretary said that Aquino’s role in the DAP was “merely to exercise his discretion under the Constitution to augment” the budget by using savings and that this was an “allowable act.”
Caguioa, former chief presidential legal counsel and classmate from elementary to college of Aquino, said he believes that criminal charges that may be filed against the President in connection with the DAP controversy would not stand.
In its ruling in July 2014, the Supreme Court unanimously held that the acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations.
The high tribunal specifically struck down the withdrawal of unobligated allotments from implementing agencies and their use as savings prior to end of fiscal year, cross-border transfers of savings of the executive to augment funds of agencies outside the department and funding of projects and programs not covered by the General Appropriations Act.
It also voided the use of unprogrammed funds despite the absence of a certification by the national treasurer that the revenue collections exceeded the revenue targets for non-compliance with conditions in the GAA.
The justices said that while recipients cannot be held liable for benefitting from programs, activities and projects under the DAP in good faith, the executive branch cannot be instantly cleared of culpabiliy.
In their separate opinions, Senior Associate Justice Antonio Carpio and Associate Justice Arturo Brion have pointed to President Aquino and Budget Secretary Florencio Abad as the “authors” of the DAP who could be held liable for the illegal acts.
The two magistrates said Mr. Aquino and Abad are not covered by the doctrine of operative fact and cannot invoke good faith.
After defending the President, Caguioa vowed to be independent from the executive if appointed to the high court.
The Justice secretary said that he would not be biased or maintain a debt of gratitude to the appointing authority.
In the same interview, JBC members brought to Caguioa’s attention a letter opposing his nomination for the SC and alleging that he would be “protecting the interest” of Aquino and everybody in his outgoing administration if appointed to the judiciary.
Caguioa is among 16 nominees for the imminent vacancy in the Supreme Court to be left by the early retirement of Justice Martin Villarama Jr. on Jan. 16. Reports indicated that he has a greater chance of being appointed to the post due to his closeness with the President.
Apart from him, eight other aspirants faced the JBC in public interviews Thursday: Court of Appeals (CA) Associate Justices Apolinario Bruselas, Rosmari Carandang, Mariflor Punzalan-Castillo; Sandiganbayan Presiding Justice Amparo Cabotaje-Tang and Associate Justice Maria Cristina Cornejo, Deputy Ombudsman for Luzon Gerard Mosquera, Quezon Citizen’s Battle Against Corruption party-list Rep. Cinchona Cruz-Gonzales and former University of Manila law dean Joe-Santos Bisquera.
Today, the other seven bets will take their turn: CA Presiding Justice Andres Reyes Jr., Associate Justices Jose Reyes Jr., Stephen Cruz, Sandiganbayan Associate Justice Alex Quiroz, Solicitor General Florin Hilbay, former Commission on Audit chairperson Maria Gracia Pulido-Tan and Quezon City Regional Trial Court Branch 90 presiding Judge Reynaldo Daway.
After the interviews, the council is expected to come up with a shortlist by February, which means President Aquino may be able to name his sixth appointee to the Supreme Court before the period covered by the election ban on midnight appointments.
Posts in the Supreme Court, however, are exempted from the ban per Court’s 2010 ruling for the vacancy in the retirement of then Chief Justice Reynato Puno, which President Aquino had questioned.
The seven-member JBC is the constitutional body tasked to accept nominations and applications, screen them and come up with a short list of nominees for vacancies in the judiciary and the Office of the Ombudsman.
The Constitution requires a justice of the Supreme Court to be natural-born citizen, at least 40 years old, with at least 15 years of experience as judge of a lower court or lawyer. The law also requires that the magistrate “must be a person of proven competence, integrity, probity, and independence.”
Villarama was supposed to retire on April 14 next year when he reaches mandatory retirement age of 70. But in his letter to Chief Justice Maria Lourdes Sereno, the magistrate asked that he be allowed to retire on Jan. 16 due to his poor health.
Villarama had a double knee metal implant in 2013 and a cataract operation in 2014.
Of the 15 current justices of the high court, five were appointed by Aquino – Sereno and Associate Justices Bienvenido Reyes, Estela Perlas-Bernabe, Marvic Leonen and Francis Jardeleza.