No conflict between Public and Private Prosecutors in Ampatuan Massacre Case: It’s a conflict between Attys Nena Santos ,Prima Quinsayas and everyone else Ref. Prof. H. Harry L. Roque, Jr. 09175398096

“There’s no conflict between the public and private prosecutors in the Ampatuan massacre case. The conflict is between Attys Nena Santos and Prima Quinsayas and everyone else”, this was the reaction of Prof. H. Harry L. Roque, Jr., private prosecutor for 15 media victims in the massacre.

Roque was reacting to the statement of Atty Nena Santos, counsel for Governor Toto Mangundadatu, that a conflict exists between the public and private prosecutors.

Atty Santos has been objecting to the action of the Public Prosecutors in resting its evidence versus 28 of the accused, including Andal Ampatuan Jr aka “Unsay “. Roque added: “We cannot join her in this objection because it was upon our instance that the Supreme Court allowed the system of “First in-First Out” that allows the prosecution to rest its case against some of the 194 accused without waiting for the presentation of the evidence against all of the accused. It was pursuant to this that the prosecutors partially rested its evidence against 28 of the accused.

Roque explained that this is without prejudice to the prosecution resting their evidence against Andal Sr and Gov. Zaldy Ampatuan when all pending incidents in the appellate courts are finally decided upon.

Roque explained that they moved the Regional Trial Court to adopt the “First in First out policy” so that there can be partial promulgation of judgment against some of the accused , hopefully including the Ampatuan patriarch and his two sons, before the end of the administration of President Noynoy Aquino. Roque declared: “for all the President’s fault, we know that he does not owe any debt of gratitude to the Ampatuans. We’re not sure the next President can claim this much”.

Roque, Chair of the Center for International Law (Centerlaw) filed a motion before the Regional Trial Court to adopt the :”First in First Out Policy’. This was denied by the Trial Court but later provided by the Supreme Court in its guidelines for the Trial of Ampatuan Massacre Case.

A Decent SONA

I would have wanted to hear his policy directions for the last two years of his term, which he had nothing to say about. Still, PNoy’s latest State of the Nation Address the other day was decent.

To begin with, four years into his term, PNoy finally ceased passing the buck to anyone. Gone were his annual complaints that much of the problems that his administration faced were created by his predecessor. While he still had stinging rebuke for his critics- as if he deserves only praises, at least, this time, he did not say that the problems of his administration were the creation of other people.

There too was a tacit acceptance of defeat as far as the controversial DAP is concerned. We discern this from two of his statements: one, that he will ask Congress to pass a supplemental budget for items covered by DAP; and two, he will ask Congress for a definition of “savings”. It would appear that after taking flak even from his own allies and the yellow PR machinery itself, the President has finally admitted, albeit impliedly, that the DAP is flawed. As a counsel for Petitioner Belgica in the case where the Court ruled DAP to be unconstitutional, we have always argued that in lieu of DAP, the Executive should have gone to Congress for a supplemental budget to fund the projects funded by it. We pointed out that in the case of Yolanda, all that the President required was two weeks to pass a supplemental budget. This after is the fringe benefit of controlling both Houses of Congress.

Anent the definition of “savings”, the President’s desire for a legislated definition certainly confirms that as currently defined by law, savings pertains to leftover sums after a project has been competed or abandoned. This does not currently cover the administration’s substitution of its judgment for what projects should proceed outside of what is provided in the appropriations law. Dean Raul Pangalangan observed on national television that the President’s second remark on DAP mirrors the administration’s position in its Motion for Reconsideration that “savings” is defined by law and not by the Constitution. Be that as it may, the fact is that his declaration that he would ask Congress for a definition is an admission that its own definition of “savings” as nullified by the Court lacks legal basis. Why else would he ask Congress for a definition anew?

It helped too that the President became magnanimous in the case of “Tanda”, “Sexy” and “Pogi.” He could have claimed their incarceration as a victory for his administration but rightfully desisted from doing so. First, because it is uncertain whether the prosecution of the three will actually warrant a conviction on the basis of evidence gathered by the Executive department through the Department of Justice; and two, whether the proceedings will conclude seasonably, or at least during his lifetime, even if it is certain that it is not going to be in the lifetime of all the accused. To claim the prosecution of the three would also have been wrong since until proven guilty, they enjoy the presumption of innocence.

Yes, this Sona was decent. Still, the President did leave out a lot of things. There was no mention for a second straight year of the Ampatuan massacre case and whether he can promise its conclusion during his administration. There too was no mention of the Freedom of Information law which he promised to support when he was campaigning. Likewise, there was no promise to repeal EO 464 which prohibits the appearance of Cabinet officials before legislative inquiries without permission of the President. There too was no policy direction on why he is not supportive of efforts to extend the life of Carper, or the Comprehensive Agrarian Reform Law which expired this year. And while I am sure foreign policy prudence was behind the absence of the West Philippine Sea issue in the Sona, the President should have assured the nation that we continue to be ever vigilant in the defense of our national territory.

I twitted during the course of the Sona that when all else failed, the President invoked the name of his dearly departed parents and resorted to tried-and-tested tears. That was the highlight of the Sona. For as he parries criticisms of the DAP, the President invoked the imagery of the democracy icons – his parents. He repeated their words that “the Filipino was worth dying for”. What he omitted is the fact that Filipinos are in fact, dying: from extralegal killings, enforced disappearances, torture, war crimes, and hunger.

But heck, a speech is to inform and entertain. The tears and the croaking voice was good entertainment giving the hottest telenovelas a run for their money.

Ultimately, what was lacking in his Sona was typical PNoy: what will he do for his last two remaining years in office? His omission of any agenda for the remainder of his term sends the message henceforth, that it’s all about who will succeed him in office. But the more than 700 days remaining in his term deserves an agenda which he should have discussed in his second-to-the-last Sona. The fact that he lacked a road map for the remainder of his term is confirmation that as usual, his governance will be reactive to everyday events rather than attempting to influence how the days will go by.

Oh well, it was a decent Sona. Let’s hope for an equally decent last two years of the PNoy administration. Meanwhile, as Ellen Tordesillas suggests, let’s find ways to both survive and be amused during the last two years of this President’s term.

MH17 and war crimes

The shooting down of Malaysian Airlines 17 over the territory of Ukraine should indeed be a source of great alarm. To begin with, airline travel has toady become the primary mode of transportation for passengers. I log in no less than 50,000 miles per year because I am engaged in the practice of International Law. The 11 million Filipino diaspora worldwide rely on air travel to reach their place of work and to return to their loved ones here in the Philippines. In fact, the three Filipinos based in the Netherlands who perished in the ill-fated flight were part of that diaspora. The concern is if a civilian airliner could accidentally be fired upon by a surface to air missile in an area with an armed conflict, no air passenger is in fact safe today.

The incident, under existing air travel conventions, should primarily be investigated by Ukrainian authorities. This is because Ukraine remains sovereign over its airspace. This is part of its territory. But even if this is the case, the shooting down of a civilian airliner is a concern for the entire international community. This is because the shooting incident is a grave breach of the non-derogable norms of the laws and customs of armed conflict, International Humanitarian Law. Under this law, combatants and fighters must at all times distinguish between civilians, as protected individuals, and other combatants and fighters. The rules say that civilians must not be the object of attack. This is in line with the avowed purpose of the law, which is to spare civilians and other protected persons, of the adverse consequences of an armed conflict. This is why the Geneva Conventions, the treaty that restates the norms of International Humanitarian Law, remains today to be the only universally ratified convention in our planet.

Why is International Humanitarian Law (IHL) applicable to the incident?

It is applicable since there is an armed conflict in parts of Ukraine where pro-Russian separatists have taken up arms with the goal of either creating a new state, or to be reunified with Russia. IHL is applicable to both international and non-international armed conflicts. Here, the rules applicable appear to be those for non-international armed conflicts since it is uncertain if the support given by Russia to the separatists is sufficient to ‘internationalize” the conflict. Thus far, it appears that the separatists, while armed and financed by Russia, do not appear to be under either the effective or over-all control of Russia. In any case, the duty to distinguish between combatants and civilians is a positive obligation of all fighters regardless of the type of conflict.

So how does the application of IHL affect the incident?

In many ways. To begin with, the investigation, apprehension, prosecution and punishment of all those behind the shooting become the concern not only of Ukraine, but the entire international community. In fact, their apprehension and punishment under the doctrine of au dudire au adjudicare are an obligation of all states. Russia hence, must take steps, as do Ukrainian authorities, to investigate the incident and ensure their prosecution and punishment. In default of this duty, Russia is under a positive obligation to surrender the suspected perpetrators to the jurisdiction of a third state that is able and willing to prosecute them.

International precedents have also treated attacks on civilians also as threats to international peace. IHL, or jus in belo, is distinct form the law that determines the legality of the use of force, Jud ad bellum. Under the latter the UN Charter provides that the use of force is illegal save in instances of self-defense or when authorized by the UN Security Council itself. The Security Council, in turn, has characterized the duty of states to turn over suspected perpetrators of attacks against civilian airlines as a binding obligation of UN member states. This was why Libya had to later create a fund to indemnify victims of the Lockerbie incident where a Pan-American airline 747 was shot down in the airspace of Lockerbie, Scotland. Libya initially invoked the provisions of the Montréal convention to argue that it should exercise jurisdiction over the suspected Libyan bombers, but the Security Council, weary of a moro-moro, said that Libya should turn over the suspects to United States authorities, the flag state of Pan Am. Libya’s initial refusal to turn over the suspects became the grounds for the imposition of economic sanctions against it for a very long time. In fact, the sanctions were only lifted shortly before the ouster of Khadafy and after it agreed to put up the fund to indemnify the victims.

Apart from the duty to investigate and prosecute, can Russia incur additional responsibility for the incident?

This would depend on whether evidence can be presented to prove that the separatists are in fact acting for and on its behalf. In the case of the contras that were financed and used by the Americans in attempting to topple the then Sandinista regime in Nicaragua, the International Court of Justice said that the mere training and funding do not make the acts of the contras attributable to the United States, The Court said that it must be shown that the contras were under the effective control of the Americans so that their acts could be attributed to the latter; this means that all the acts of the contras should be shown as undertaken upon orders of the American. This is a very high threshold.

This is probably why the International War Crimes Tribunal for the former Yugoslavia formulated an alternative test known as the Over-all Control test. Under this test it need only be shown that the third state shared the same military objectives as the armed insurgents, even if the daily course of battle is not dictated by the third state. The problem is that the ICJ in a later case of Bosnia vs., Serbia ruled that the correct test should still be the higher Effective Control test. Currently, it is uncertain which test should apply. Maybe the ill-fated MH17 incident will provide the answer.

Petitioners file Motion for Partial Reconsideration of SC decision on DAP

P-Noy cannot augment funds for approved government projects, activities and programs (PAPs) in the annual General Appropriations Act (GAA) through his controversial Disbursement Acceleration Program (DAP) beyond what he had originally recommended to Congress.

To allow him to do so violates the mechanisms for checks and balances provided in the Constitution and opens the budget process to abuse, according to   defeated senatorial candidate Greco Antonious Beda Belgica, one of the main petitioners in the case.

Belgica, through his lawyers Harry L. Roque, Jr., Joel Ruiz Butuyan and Roger R. Rayel of the Roque and Butuyan Law Offices, filed yesterday a Motion for Partial Reconsideration of the Supreme Court’s earlier ruling striking down cross-border transfers of funds made by the Office of the President through the DAP.

He said there is a need for a definitive ruling from the Supreme Court on the power of the President to augment the funds to cover a deficit in a program for which public funds had been earmarked under the annual appropriations law.

He said that under the DAP, President Aquino in many occasions augmented or added funds from government savings for projects in amounts that exceeded many times the originally funding for them under the GAA.

“To do so would mean giving the President more money for a project that he failed to properly assess and evaluate how much it would cost to implement,” he said in his 23-page motion. “ To allow him to use more money than he initially determined would be required for a certain project would be to disregard the process of budgeting required to be observed under the law.” As proof of this, he cited the following:


  • The DREAM Project of the Department of Science and Technology under the 2011 budget (R.A. No. 10147) with an augmentation of One Billion Six Hundred Million Pesos (P1,600,000,000.00).[1] A check with Republic Act No. 10147 disclosed that the project referred to by the Office of the President only had a total appropriation of Five Hundred Thirty Seven Million, Nine Hundred Ten Thousand Pesos (P537,910,000.00) under the category of Maintenance and Other Operating Expenses (MOOE). How could a P537,910,000.00 appropriation be augmented by almost three times such amount, that is, P1.6 Billion for a total expenditure of P2.137 Billion?
  • The same thing is true with respect to the second item wherein the total appropriation under R.A. No. 10147, p. 711, under Section A.II.a is P8,003,000.00 comprising of P5,975,000.00 for Personal Services and P2,028,000.00 for MOOE. Yet, this was “augmented by P300 Million, an amount more than twenty six (26) times the original appropriation.
  • The Repair/Rehabilitation of the PNP Crime Laboratory under R.A. No. 10147, p. 502 under Section A.III.a.1.a on “Conduct of operation and other related confidential activities against dissidents, subversives, lawless elements and organized crime syndicates and campaign against kidnapping, trafficking of women and minors, smuggling, carnapping, gunrunning, illegal fishing and trafficking of illegal drugs.” Clearly, the activity to be funded is a operational activity and not a capital outlay. However, the “augmentation” expense of P3,255,837,000.00 is one for capital outlay for the “Repair/Rehabilitation of the PNP Crime Laboratory.” What is worse is that out of the P48,152,488,000.00 total appropriation for the item under Sec. A.III.a.1.a, P47,476,814,000.00 was for Personal Services while only P675,674,000.00 was for MOOE. There is no appropriation for capital outlay. Thus, there existed no appropriation that the Office of the President could latch on to for this particular “augmentation.”


He also attacked recent proposals made by some sectors sympathetic to the President on the issue that the DAP expenditure by the President may be justified under Section 49 of Book VI of the Administrative Code of 1987. The provision reads in part thus:

Section 49. Authority to Use Savings for Certain Purposes. – Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by the Secretary in accordance with rules and procedures as may be approved by the President:


(9) Priority activities that will promote the economic well-being of the entire, including food production, agrarian reform, energy development, disaster relief, and rehabilitation;

(10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities;

xxx (Emphasis supplied)


However, Belgica said through his lawyers that the very same provision requires that the obligations being funded from savings be “incurred during a current fiscal year or previous fiscal years.”


This, it can only refer to PAPs with existing appropriation covers and to those unpaid obligations of the previous years, especially contingent obligations that became due and demandable only during the current fiscal year as borne by the enumeration in the cited provision, he said.


Belgica took issue with the Supreme Court’s characterization of the government’s budget process as descriptive rather than normative, charging that to do so ignores the constitutional requirement found in            Section 15 (1), Article VI of the 1987 Constitution requiring that the “form, content, and manner of preparation of the budget shall be prescribed by law.”


“Thus, and with due respect, to characterize the budget process as merely ‘descriptive, not normative’ and to propose a different ‘treatment of departments and offices granted fiscal autonomy’ is to demean the legal significance thereof as if the process described is merely directory and not mandatory,” he said.


[1] Consolidated Comment, par. 33.

The President as a bully

I could not believe my ears. There he was- the President of the Republic—acting like the head of the Sputnik gang, with apologies to the gang.

Sure, no one likes to lose. But when you want to reconsider a loss, you should argue on the basis of law and reasons- at least if its the highest court that you need to convince. But no, the President threw both reason and law and instead acted like a bully telling the members of the Court that if they do not reverse themselves on the DAP, he will ask the Legislature to remove them from office. He even taunted them to a fight, as if the Justices, because of their sheer physical age, could stand up to him.

And why did he think the Court was wrong on the DAP? He identified at least two points, both of which do not hold water. One, the administrative code purportedly empowers him to realign funds even on a cross-border basis. The problem with this submission is the elementary principle of hierarchy of laws. Even assuming that the administrative code authorizes him to resort the DAP, all laws must still conform to the Constitution, the latter being the supreme law of the land. Those that do not are declared by the courts as null and void ab initio, or without legal effect from the beginning.

Second, he argued that at most, the DAP is akin to parking at a no parking zone in order to bring a dying patient to a hospital. Really? Since when did a culpable breach of the Constitution become akin to a breach of a minor local ordinance? Moreover, the Court identified a major breach of the Constitution as basis for invalidating the DAP; that is, that it usurped the exclusive power of Congress over the purse. The DAP involved more than a violation of an ordinance that could result in a parking ticket. The DAP was about the very essence of representative democracy: that there will be no taxation without representation and its corollary, that there can be no spending of public funds without the consent of the people acting through their representatives. That was the full impact of the ruling of the Supreme Court when it reiterated the doctrine in Demetria vs. Alba that the Executive could only realign savings to augment an existing line item and only within the executive or that branch of government that incurred the saving. To sanction what the DAP purported to do, which was to replace projects identified by Congress with other projects identified by the Executive would infringe on the power of Congress to pass the appropriations law which incidentally, is also an important part of the system of checks and balances institutionalized by the Constitution by having three co-equal branches of government.

Well, we ourselves will file a partial motion for reconsideration but find no need in bullying the Court to accede to our arguments. We will rely on the tried and tested formula of arguing through law and reason.

What are our grounds for reconsideration?

Two points.

First, the Court was not clear how much the executive could augment for existing line appropriation items using savings. On the basis of the Court decision itself, we identified at least three projects that were augmented by at least doubling the amount originally appropriated and even up to 51 times of the appropriated amount. Take for instance the national highway project for the President’s home province of Tarlac. The original budget was P1 billion. This was augmented by P900 million, or almost double the initial amount., This, we will argue, is no longer augmentation but a new budget allocation which again, infringes on the power of the purse that properly pertains to Congress. Similar “augmentations” mentioned in the Court’s decision include a P6 million budget for research and development of the DOST which was augmented 51 times with 300M and the billions and billions by way of augmentation to senatoriables Ging Deles and peace bond queen alias “when we hold on together” Dinky Soliman’s departments.

A second ground for reconsideration is that the lump sump for contingencies and natural calamities should also be declared unconstitutional. This is pursuant to the earlier Belgica decision on PDAF which declared all lumps sums, except for these two items, as being unconstitutional. We will argue that even these two should be declared unconstitutional since the remedy for the executive in case of extraordinary expense is to go to Congress for a supplemental budget. This was done for Yolanda. Why shouldn’t it be done anew for similar unexpected expenses?

In any case, what appeared more troublesome with the President’s desperate effort to defend the patently constitutional infirmed program that is the DAP is the reality that while he has the Constitutional mandate to enforce the Constitution and the laws of the land, he is the first to breach both the Constitution and the laws of the land. And in so breaching his constitutional oath, he resorts to bullying the Judicial branch of government into sustaining his unconstitutional acts. This is troubling because this would have been unthinkable in the administration of both my idols, Ninoy and Cory. The parents must now be turning in their graves with the acts of their unico hijo.

Petitioners to seek partial reconsideration of SC decision on DAP

Centerlaw Press Release
Reference: Prof. Harry L. Roque, Jr. 09175398096

A group of Petitioners against the Disbursement Acceleration Program (DAP) will seek a partial reconsideration of the DAP Decision to force the Supreme Court to implement the laws that require that savings can only be used for augmentation of deficient appropriations according to lawyer Harry Roque, counsel of Petitioners Greco Belgica, et al. This is necessitated by the fact that while the Decision categorically said that “an appropriation for any PAP must first be determined to be deficient before it could be augmented from savings,” in the dispositive portion of the Decision, the Court declared as unconstitutional only “The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.” Thus, the Court did not actually give life to the constitutional requirement for valid augmentation and did not implement the provisions of the General Appropriations Act for 2011, 2012 and 2013 and the second paragraph of Section 44 of Presidential Decree 1177 which required that for any augmentation to be valid, there must be an actual deficiency in an existing appropriation and not merely the existence of an appropriation cover.

Roque said that this is a disturbing part of the Decision as it seems that the discussion and examples cited by the Supreme Court on the subject focused only on the lack of appropriation cover. For example, the Court cited the Disaster Risk, Exposure, Assessment and Mitigation (DREAM) Project of the Department of Science and Technology (DOST) with the following expenditures under the DAP: Personnel Services – P43.5 Million; MOOE – P1.164 Billion; and Capital Outlays – P391.9 Million. However, the original appropriations under the General Appropriations Act for 2011 are: Personnel Services – P0.00; MOOE – P537.9 Million; and Capital Outlays – P0.00. If the Supreme Court Decision as it now stands is followed, the only questionable augmentations in the above example as pointed out by the Supreme Court itself are those relating to Personnel Services and Capital Outlays which amount to only P435 Million out of the P1.6 Billion spent for the Dream Project. However, the money spent for MOOE under the DREAM-DAP is P1.164 Billion or almost three times (3X) the amount spent for Personnel Services and Capital Outlays (P435 Million) under the DREAM-DAP. More importantly, the P1.164 Billion spent on MOOE is more than twice the P537 Million originally appropriated for MOOE.

It is clear that on the items for Personnel Services and Capital Outlays, there was no valid augmentation as there were no appropriations to be augmented. What is not so clear is whether there was actual deficiency for the MOOE that required augmentation. In the example cited by the Supreme Court, the augmentation was more than twice the original appropriation. Roque asked: “Can this be reasonably called a deficiency considering that the augmentation is more than two times the original budget? Would the additional P1.164 Billion be considered as the actual deficiency in the original appropriation? What would prevent the President to add P1 Billion, P10 Billion or P100 Billion more and claim that it is a valid augmentation?”

He cited other examples:

1. The “National Road Project in the Province of Tarlac” where the original appropriation was only P1.1Billion was given an additional P900 Million which is almost (P200 Million less) the same amount as the original appropriation. Would an augmentation in an amount equal to or less than the original appropriation automatically qualify as a valid augmentation?
2. The DOST original appropriation of P5.975 Million was augmented by P300 Million or almost fifty (50) times the original appropriation. Is fifty times the original amount be reasonably called a deficit so as to qualify for augmentation?
3. The budget for the Office of the Presidential Assistant for the Peace Process (OPAPP) for 2011, 2012 and 2013 totaled P700 Million, more or less, including the budget for the program called Payapa at Masaganang Pamayanan or PAMANA. However, the money given under the DAP for this program granted to the Cordillera People’s Liberation Army (CPLA) amounted to P1.5 Billion while the money given to the Moro National Liberation Front (MNLF) was P1.8 Billion. How can this be called an augmentation of an actual deficiency when the amounts used to augment is more than two times (2X) the budget of the implementing agency for the past three years?
4. The P700 Million in DAP assistance to the Province of Quezon under the Local Government Support Fund (LGSF). The appropriation for years 2011, 2012 and 2013 for LGSF was P200 Million for each year. How can P700 Million be characterized as augmentation when it is more than the budget of the program for the past three (3) years?

Given the above examples, there is a need to clearly define what constitutes actual deficit so as to be able to make valid augmentations as this may be exploited by those responsible for the DAP as their escape mechanism to avoid criminal and administrative liability. Further, this may be relied upon as authority in the future to provide for measly funding for many items in the GAA just for the purpose of providing “appropriations cover” where “savings” may be used.

Roque concluded that what is paramount is the Constitution which requires that “Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget.” If Congress (whose role is to authorize the maximum amounts that Government may spend for any appropriation for any given year) cannot increase the amounts submitted by the President, then all the more reason that the President (whose role is limited to the execution of the budget) cannot go beyond the amounts authorized by Congress unless there is actual deficiency to be augmented.

The problem that is Lacierda

“You seem to equate constitutionality with criminality, those are two different things the basic question is nawaldas ba yung pera?” These were the words of Presidential bad mouth Edwin Lacierda.

This is the problem with PNoy. He has opted to trust misfits like Lacierda.

Lacierda was obviously asleep when his teachers in Constitutional Law and Criminal Law taught the sanctity of the Constitution and the Law on Public Officers. Had he been awake, he would have known that it is always criminal for a public officer, more so a President, to violate the oath to “support the Constitution and all the laws of the land”. This oath of office is not just provided in the Administrative Code, which has the effect of law. It is contained in the Constitution itself. This means that where a public officer willfully violates the Constitution, he violates his oath of office. Even for a sitting President, this is an impeachable offense. It is a ground to remove him form office.

Perhaps, what caused Lacierda’s confusion is that unlike in the United States where a violation of an oath of office is a federal crime, no such statute exists here in the Philippines.

This in turn is why Lacierda should not have slept through his class in Criminal Law and/or Public Officers. Art. 220 of the Revised penal code entitled “Malversation of Public Funds” provides: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which fund or property were appropriated by law x x x shall suffer the penalty of prision correctional its minimum period or fine ranging from one-half of the total sum misapplied x x x”.

Clearly, when the Supreme Court ruled that DAP was unconstitutional, it ruled that public funds were not spent pursuant to the appropriation law enacted by Congress. In fact, the Court enumerated at least three ways by which the crime of misappropriation were committed: one: realigned funds were not savings as defined by law; two, when realigned funds were given to offices outside of the executive, which the Court described as the “cross-border use of funds”; and three, for items not otherwise provided in the appropriations law. Truth to tell is that those behind the DAP could be held liable for a total of at least 3 counts of malversation of public funds. And given the amount involved, hundreds of billions of pesos, the administration officials behind the program could lose even their underwear since the fine for the offense is at least half of the amount misappropriated.

Note too that the criminal prosecution for malversation of public funds is separate and distinct from two further prosecutions for breach of the Anti-Graft and Corrupt practice Acts; specifically, the offense of causing damage to the government and entering into contracts disadvantageous contract to the government, both of which do not require that the public officer benefited from the public funds.

So do I think the President should be impeached?

Well, the grounds are certainly present. By committing malversation of public funds, the President committed a culpable violation of the Constitution, and even bribery -if it can be proven that the DAP distributed to the senators were in fact paid to influence their vote in the impeachment trial of removed CJ Renato Corona. But as a veteran of three impeachment complaints against GMA, I can claim some wisdom borne out of experience. First, the people, with only two years left in PNoy’s presidency, will not be too supportive of any move to remove him. The people’s thinking is that since two years is too short in politics, we might as well let him finish his term. But a more fundamental reason I am not supportive of impeachment is it will only enrich our Tongressmen and Senatongs further. Our experience against Gloria Arroyo was that Malacañang would again use the people’s money to buy the loyalty of Congress. To the movers behind the impeachment: please spare our people further acts of misappropriation which will certainly happen again in case of impeachment. Our hope is whatever is left from our coffers should be spent on our people. Meanwhile, let us initiate criminal action against those without immunity and after two years, against the soon to be-ex-President himself.

Criminal liability for DAP

This is one of our biggest wins. On Tuesday, the Court voting almost unanimously (because J. Teresita De Castro took no part) declared all the features of DAP which we impugned as being unconstitutional as illegal. Specifically, newspapers reported Budget Circular 541 issued by the Department of Budget and Management allowing it to withdraw “unobligated allotments of agencies with low levels of obligations as of June 20, 2012 to “augment existing programs and projects of any agency [emphasis by DBM] and to fund priority programs and projects not considered in the 2012 budget was declared unconstitutional.

The Court also annulled the following:

“1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;

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

3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA;

4. 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 the conditions provided in the relevant GAA”.

The Constitutional provision declared to have been violated by the DAP is Section 25 (5) Article VI of the 1987 Constitution which reads: “no law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Now that the Court has declared the DAP as invalid, what happens to those who implemented it?

Here, a distinction should be made between those who implemented them allegedly as a “stimulus measure’, and those who gave them to the senators to influence their votes for the ouster of former Chief Justice Renato Corona. In any case, for both types of government officials, they are liable for graft and corruption.

For those who implemented the DAP in good faith, believing that this would stimulate the economy, RA 3019 penalizes those who “caused any undue injury to any party, including the Government, x x x in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence.”Certainly, violating the Constitution through illegal disbursements of public funds constitute a damage to the government whether or not the public officer actually benefitted from the disbursement.

For those who disbursed it and accepted it to influence the outcome of the impeachment trial of former Chief Justice Corona, the anti-graft law states that penalizes this as bribery, or “directly or indirectly requesting or receiving any gift, present, x x x or benefit, for himself or for any other person, in connection with any x x x transaction between the Government and any other part, wherein the public officer in his official capacity has to intervene under the law.”

While the proceeds of DAP were allegedly for government projects, the reality is the benefit for the legislators will be the “tongpats”, or the commissions, which respected journalists Yvonne Chua and Ellen Tordesillas wrote could range anywhere from 10-50% of the total cost of the project. The element of the transaction wherein the public officer has to intervene in his official capacity is the removal of the former Chief Justice.

I have said it before and will say it again: resort to bribery to remove the former Chief Justice was wholly unnecessary. It was Corona himself that called attention to his own culpability of betrayal of public trust when he himself acknowledged not having declared the entirety of his assets in his SALN. Moreover, the Ombudsman had the goods on him: AMLAC records proving the bank deposits which the removed Chief Justice did not declare. As a Private Prosecutor in that impeachment trial, it angers me that the not-so-bright boys and girls of Malacanang had to taint the process with fraud when in truth and in fact, no Senator could have turned a blind eye to the evidence against Corona.

So what now? Well, we’ve started the cleansing when we charged three senators for plunder. Time now to charge more senior officials, including Cabinet members, and the senators who benefitted from DAP for graft. Anent the President—well, the wait won’t be too long. His immunity is only for the next two years. Hopefully by then, we’ve done away with hospital arrests for former presidents!

This column appeared in Manila Standard Today on July 3, 2014

Notice of Coverage

Request for Coverage
Reference: Prof. Harry L. Roque, Jr. 09175398096

Today, July 2, 2014, 1:30 pm at Max’s Restaurant (1123 M.Y. Orosa Street, corner U.N. Avenue, Ermita, Manila), Centerlaw and the Roque & Butuyan Law offices will hold a press conference on the recent court decisions on the following cases:

1) Rev Magnolia Mendoza vs Cebu Pacific – where the court ordered CebuPac to pay 2M in damages to Rev Mendoza.
2) On the Declaration of Unconstitutionality of the Disbursement Acceleration Program (DAP)

Media coverage is requested.