This writer believes in the applicability of the "Doctrine of Operative Fact" in the assailed payments for job order personnel and other projects, covered by notices of disallowance issued by the Commission on Audit based on orders and related supporting documents found unlawful by CoA.

The hiring of job order personnel was overwhelmingly beneficial to the barangays.

Three acts and practices under the Disbursement Acceleration Program, National Budget Circular 541, and related issuances were declared unconstitutional by the Supreme Court for violating Section 25 (5), Article VI of the 1987 Constitution, and the doctrine of separation of powers.

The three acts and practices are as follows:

1) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings before the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriation Acts;

2) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and

3) The funding of projects, activities, and programs that were not covered by any appropriation in the General Appropriation Act.

The implementation of the DAP resulted in the use of savings pooled by the Executive to finance the projects, activities, and programs that were not covered in the General Appropriation Act, or that did not have proper appropriation covers, as well as to augment items about other departments of the government in clear violation of the Constitution.

To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real, as well as juristic worlds of the Government and the Nation, is to be impractical and unfair.

Unless the doctrine is held to apply, the Executive as the disburser and the offices under it and elsewhere as the recipients could be required to undo everything that they had implemented in good faith under the DAP. That scenario would be enormously burdensome for the Government. Equity alleviates such a burden.

It has been shown that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country. The positive results like public infrastructure could easily include roads, bridges, homes for the homeless, hospitals, classrooms, and the like. Not applying 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.

Similarly, expenditures of funds found to be unlawful by CoA, for violating certain laws like Section 103 of Presidential Decree No. 1445; pertinent Sections of Republic Act 7160; Local Government Ordinances, and the doctrine of separation of powers between the executive (City Mayor) and the legislative (Sangguniang Panglungsod), may be given the same treatment as in the implementation of the DAP, under the doctrine of operative fact, as decided by the Highest Court of the Land, where positive results found under the doctrine, cannot be denied, that not to apply it would literally mean the physical undoing of such worthy results.

In the language of an American Supreme Court decision: "The actual existence of a statute, before such a determination (of unconstitutionality), is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The effect of the subsequent ruling as to invalidity may have to be considered in various aspects, concerning particular relations, individual and corporate, and particular conduct, private and official."

Our succeeding episode will cover specific cases of payments for wages of job order personnel disallowed by CoA for violation of pertinent provisions of P.D. 1445 and RA 7160.

(To be continued)