Two magistrates of the Supreme Court said on Thursday that President Benigno III Aquino and Budget Secretary Florencio “Butch” Abad should be held liable for the unconstitutional acts under the Disbursement Acceleration Program. In separate opinions made available to media on Thursday, Senior Associate Justice Antonio Carpio and Associate Justice Arturo Brion explained that the President and Budget and Management Secretary Abad as “authors” of the DAP should be held liable over the illegal acts. In other developments: • The lawyer of detained Senator Ramon “Bong” Revilla on Thursday told the Sandiganbayan that he was withdrawing as counsel of the senator, who is facing plunder and graft charges filed against him by the Ombudsman. • The Sandiganbayan, meanwhile, issued a hold departure order against Masbate Governor Rizalina Seachon-Lanete effectively preventing her from leaving the country. She is one of five former lawmakers charged with plunder by the Ombudsman before the anti-graft court. According to the justices, Aquino and Abad are not covered by the doctrine of operative fact and cannot invoke good faith. “Since the President and the DBM Secretary approved and issued NBC (National Budget Circular) 541, they are considered the authors of the unconstitutional act. As a consequence, neither the President nor the DBM Secretary can invoke the equitable doctrine of operative fact although they may raise other defenses,” Carpio said, in his 13-page opinion. “As authors of the unconstitutional act, they have to answer for such act,” Carpio added. Carpio noted that the President, who has the power to realign savings, approved NBC 541, which provided for the unconstitutional “withdrawal of unobligated allotments of agencies with low level of obligations as of June 30, 2012” to augment or fund “priority and/or fast moving programs/projects of the national government.” Abad, on the other hand, issued the order and implemented it, the most senior magistrate said. Brion agreed with Carpio’s view by saying that “they were in fact the parties responsible for establishing and implementing the DAP’s unconstitutional terms and in these capacities, cannot rely on the unconstitutionality or invalidity of the DAP as reason to escape potential liability for any unconstitutional act they might have committed.” In a separate opinion, Brion cited the role of Abad and his possible liability. “There are indicators showing that the DBM Secretary might have established the DAP knowingly aware that it is tainted with unconstitutionality.” Abad, seen as the designer of the DAP, has been charged with plunder in connection with the funding program. The petitioners said earlier they also plan to file similar charges against President Aquino once he steps down and loses immunity from suit. However, the Carpio and Brian offered different views when it comes to the liability of proponents and implementors of projects under the DAP. Carpio agreed with the majority position that proponents and implementors are covered by the operative fact doctrine and should therefore enjoy presumption of good faith.“As a rule of equity, the doctrine of operative fact can be invoked only by those who relied in good faith on the law or the administrative issuance, prior to its declaration of nullity… Only those who merely relied in good faith on the illegal or unconstitutional act, without any direct participation in the commission of the illegal or unconstitutional act, can invoke the doctrine,” Carpio pointed out. But Brion insisted that the culpability over the illegal acts should extend to proponents and implementors of DAP projects. “The authors, proponents and implementors of the unconstitutional DAP are not among those who can seek cover behind the operative fact doctrine as they did not rely on the unconstitutional act prior to the declaration of nullity,” he said. Brion also opposed portion of the SC decision penned by Associate Justice Lucas Bersamin that the portion on the liability of “authors” of the DAP is considered an obiter dictum or a “by the way” statement or surplusage not needed or relevant to disposition of the case. “Without the Court’s discussion on the operative fact doctrine and its application to the case, the void ab initio (from the start) doctrine applies to nullify both the acts and the PAPs (projects, activities and programs) that relied on these acts. Hence, the Court’s discussion on the operative fact doctrine is integral to the Court’s decision - it provides how the effect of the Court’s declaration of unconstitutionality would be implemented. The discussion is not, as the ponente vaguely described it, an ‘obiter pronouncement,” Brion stressed. Because of this, Brion said there is a need for the Commission on Audit to investigate the DAP and implement the SC ruling. “Further, in light of my recommendations as regards that implementation of the Court’s ruling on the release of unprogrammed funds and augmentation, I recommend that we provide the Commission on Audit with a copy of the Court’s decision and the records of the case, and to direct it to immediately conduct the necessary audit of the projects funded by DAP,” he said. Voting 13-0 last February 3, the SC unanimously denied the appeal of the Palace on its decision in July last year striking down the withdrawal of unobligated allotments from implementing agencies and their use as savings prior to the end of fiscal year as well as the cross-border transfers of savings of the executive to augment funds of agencies outside the department. They also sustained their earlier finding that 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 was illegal. The SC again held that these acts and practices under the DAP violated the constitutional doctrine of separation of powers and the provision prohibiting inter-branch transfer of appropriations. However, the high court reversed its ruling on the act under DAP pertaining to the funding of projects, activities and programs that were not covered by any appropriation in the GAA, which was earlier declared unconstitutional. Partially granting the motion for reconsideration of the office of the solicitor general, the High Court now declared such act as constitutional. The SC agreed with the argument of the solicitor general that there is no constitutional requirement for Congress to create allotment classes within an item and that what is required only is for Congress to create items to comply with the line-item veto of the President.