Doctrine of operative fact (3)

As pointed out by Justice Arturo D. Brion during the oral arguments on the unconstitutionality of the Disbursement Acceleration Program, "the doctrine of operative fact does not always apply and is not always the consequence of every declaration of constitutional invalidity. It can be invoked only in situations where the nullification of the effects of what used to be a valid law would result in inequity and injustice."

"In that context, as Justice Brion has clarified, the doctrine of operative fact can apply only to the programs, activities, and projects, but cannot apply to the authors, proponents, and implementors of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities," stated a portion of the SC ruling on the controversial Palace money poll as penned by Retired Associate Justice Lucas Bersamin, now the Executive Secretary.

In view thereof, this writer reiterates his belief that the "doctrine of operative fact" is applicable in the case of the assailed payments for job order personnel and other projects, covered by notices of disallowance issued by the Supervising Auditor of the Commission on Audit based on orders and related supporting documents which she found unlawful and affirmed by the CoA Central office.

The hiring of job order personnel was overwhelmingly beneficial to the 201 barangays in the City of Pasay.

Jobless and out-of-school youths were hired as job order personnel and utilized in feeding and medical missions for the nutritional needs of the children and the aged.

For this, Pasay City was declared champion of the "Garantisadong Pambata" Award of 2012 by the Department of Health beating all LGUs in the National Capital Region. This was in recognition by the national government of the many health programs launched by incumbent Mayor Imelda "Emi" Calixto-Rubiano and now Congressman Antonino "Tony" Calixto.

For utilizing job order personnel in areas of good governance, from 2010 to 2016, the City of Pasay was accorded 14 national and regional awards by the national government, on top of its greatest achievement: "Transforming Pasay, from the City of Sin to the Only Travel City of the Philippines."

Similarly, the expenditure of funds found to be unlawful by C0A, for violating certain laws like Section 103 of Presidential Decree 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.

I have written a volume, together with the late Niñez Cacho Olivares, about how the CoA Commission Proper was, during the darkest page in the history of this nation as far as government auditing was concerned, and during the time of Grace Pulido Tan and Heidi Mendoza from 2011 to 2015, which was the same period when the resident auditor of Pasay City "terrorized" the councilors.

In the same fashion, Grace Pulido Tan placed resident auditors under "house arrest" or pulled them from their units and assigned them to the central office without any assignment, on the ground of suspected misbehavior.

The following text message sent to me by the late State Auditor V, Rey Redolme, indicated the situation then prevailing in the CoA central office: "Art, if you read SC en banc decision (CLU vs Exec. Secretary GR # 83815 dated 1/22/91, you would know that recent news on allowances being received by Cabinet members are unconstitutional but are being tolerated by CoA, which is a breach that can be raised against the CoA Chairman. It is an obvious tolerance or ignorance of the law on the part of CoA for allowing extra compensation of Cabinet members which was held unconstitutional by the SC. Read it."

In my next episode, for a change, please read about your humble author's assignment in Europe, and in New York, USA during one of the more critical periods in the history of the country.