Both parties—the government, as respondent, and the petitioners, particularly Grego Belgica—had gone back to court asking for a reconsideration of the July 1 judgment on DAP. In its February 2 press release, the Public Information Office of the High Court informed the nation that insofar as the petitioners were concerned, the Court denied the Motion for Reconsideration; by contrast, it partially granted the government’s motion. While media announced the triumph of the anti-DAP cause, Harry Roque’s blog carried his furor: The Court backtracked, he complained, and has in effect allowed for large swaths of disbursements to projects for which there has been no appropriation. So, where do we really stand?
Teddy Te’s summary of the Court’s resolution usefully presents the July 1 dispositive portion and that of February 3 in parallels. One immediately notices that “the funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act” is not found in the Court’s later decree. Does that, in effect, allow for the funding of such projects and activities?
The Court holds that all that the Constitution requires is that there be an “item” in the General Appropriations Act. It then defines an “item” as “the last and indivisible purpose of a program in the appropriations law, which is distinct from the expense category or allotment class.” In fact, in its discussion of “item”, the Court links the meaning of the line-item veto of the President. Unlike other statutes that must be vetoed in whole if they are not to the President’s liking, line-item vetoes of the budget are constitutionally permissible. Clearly then, it is the “item” that is required—but because of the Court’s latest resolution, we are told that there is no need for an “expense category” or an “allotment class”. It does seem then that as long as an “item” is provided for, any sub-set that can be reasonably subsumed by the “item”, though not expressly mentioned in the General Appropriations Act, can be the beneficiary of “augmentation” from savings.
There is however an earlier decision of the Supreme Court enunciating the doctrine of inappropriate provisions engendered by the following provision in the Constitution: “No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates (Art. VI, Sec. 25[2]).” In Philconsa v. Enriquez (1994), the Supreme Court taught: “[I]t follows that any provision which does not relate to any particular item, or which extends in its operation beyond an item of appropriation, is considered “an inappropriate provision” which can be vetoed separately from an item. Also to be included in the category of ‘inappropriate provisions’ are unconstitutional provisions and provisions which are intended to amend other laws, because clearly these kind of laws have no place in an appropriations bill. It will then most certainly not do for the Executive to fund projects and activities from savings through an undue extension of an item, but just how undue an extension is must be determined in each concrete case!
As to authors, implementers and executors, without saying so expressly, the Court retreats from its original position that to be off the hook, there had to be proof that they acted in good faith. Now, the Court says that “it cannot jettison the presumption of good faith is this or in any other case.” In short, anyone subsequently charged with having misused public funds under DAP starts off with the presumption of good faith in his favor—and this is indeed in accordance with established legal doctrine.
In regard to projects already funded by DAP, whether these be in accordance with what the Court holds now to be constitutional or not, the doctrine of operative fact saves them from the impracticability of undoing them by applying of the doctrine of the operative fact. In this same column, in July, I wrote that the doctrine is in fact the juridical expression of an expression of resignation: Nandiyan na yan!