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 The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of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 http://manilastandardtoday.com/2014/07/03/criminal-liability-for-dap/

Impeach the gods (again)?


There’s a twist in the continuing Marinduque drama involving elected Rep. Regina O. Reyes and defeated candidate Lord Allan Velasco. While the Supreme Court decided 5-4 to uphold an earlier resolution of the Commission on Elections annulling the certificate of candidacy of Reyes on the basis of a blog entry that she is an American, at least 161 members of the House of Representatives signed a resolution recognizing the jurisdiction of the House of Representatives Electoral Tribunal to act as the sole judge of the qualification of Rep. Reyes to sit as a member of the House.

Previously, the Supreme Court, in what Justice Arturo Brion described as done with “undue haste to benefit one of us” (Lord Allan is the son of Senior Associate Justice Presbiterio Velasco) affirmed the decision of the Comelec despite the fact that during the pendency of the petition for annulment, Rep. Reyes had already been proclaimed, sworn, and had discharged her functions as a member of the House. The decision of the Court, according to at least four dissenting justices, overturned a long line of jurisprudence that upon proclamation, the HRET remains the sole judge of all contests involving members of the House of Representatives. Worse, as observed by Senior Justice Antonio Carpio, the ruling in Reyes had the effect of amending the Constitution on when the term of the members of Congress commence. For while the Constitution specifies noon of June 30, the majority decision in Reyes said that members of Congress do not commence their term until they have taken their oath before either the Speaker of the House or the President of the Senate. As observed by the dissenting opinions, this would mean that members of Congress have no mandate from noon of June 30 until the day of the State of the Nation address or the third Monday of July which is when both houses of Congress organize and where the head of each chamber administer the oath to its members.

Solita Monsod was right. This is a case where the Court by edict declared a loser as the winner contrary to the mandate of the sovereign people of Marinduque.

But two obstacles still stand in the way of the Velascos. First, the son of the god erred in not impleading the House of Representatives in the cases filed against Reyes. This means that while Velasco may have won the support of his father’s peers, that decision is not binding on the House. Moreover, the bigger challenge now is how the House can recognize Velasco as one of  its members when an overwhelming number of its members have decided to ignore the ruling of the Court. They have signified their decision to allow the HRET to decide the issue of Rep. Reyes’ qualification to sit in the chamber.

This turn of events is unprecedented. Never before has there been an instance when the Court intruded on an exclusive power of the House, and never before has Congress rebuffed the Court in the manner that it has just done so. As a believer in the view that law forms part of a normative system and is not just the cold application of rules, one cannot help but wonder whether the Court itself undermined its own independence and effectiveness by ruling in the manner that it did in Reyes v. Comelec. I am of the personal belief that the criticism expressed by the dissenting justices has eroded the reputation and integrity of the Court itself. It does not help that in the end, a mere five justices out of 15 voted to favor the son of one of its own.

So are we now facing a constitutional crisis? I do not think so. The fact that Velasco did not implead the House as a party to his cases made this a certainty. But we do have a crisis at the moment. For while the court is believed to be a co-equal branch because of its function to uphold the supremacy of the Constitution, what happens when a co-equal branch, applying a long line of jurisprudence set by the court itself, interprets the Constitution in a manner contrary to that of the court?

Well, this is yet another instance of a political decision taking precedence over jurisprudence of a court without a popular mandate. And as former Chief Justice Renato Corona and Former Ombudsman Merceditas Gutierrez learned in recent years, a political judgment often results in a political decision to impeach even the gods for the sake of upholding the Constitution.

May history repeat itself sooner rather than later!

Disclosure: I stood as counsel for Reyes in the afore-discussed case.

The defense’s debacle


The prosecutors in the on-going impeachment trial of Chief Justice Renato Corona owe the defense a mountain of gratitude. After all, it was the defense that proved what the prosecutors could not:  That the chief justice has dollar deposits in the amount of— at least—$12 million, which he failed to disclose in his Statement of Assets, Liabilities and Net Worth.

 

What on earth was the defense thinking when it called on the Ombudsman as its own witness? Perhaps they thought that the Ombudsman would not honor the subpoena sent to her to testify in the Senate. But why would she ignore such a subpoena when as a retired Supreme Court magistrate, she knows all too well that unlike contempt issued by the courts, a contempt imposed by the legislature may be for a lifetime. Did they think that the Ombudsman would not disclose details of her ongoing investigation, or at least not the documents tending to show the existence of the CJ’s dollar deposits, because to disclose these would be to violate the existing law protecting the confidentiality of dollar deposits without a court order?

 

But why would the Ombudsman not disclose this? To begin with, the secrecy of dollar deposits is only provided for by a law, while the duty of the Ombudsman to “investigate public official” for “illegal, unjust, improper, or inefficient” acts and its power to “request any government agency for assistance and information necessary  x x x  and to examine, if necessary, pertinent records and documents” are both provided for by the Constitution. Pursuant to the principle of hierarchy of laws, the Constitutional provisions on the Ombudsman prevail over the prohibition of the FCDU law.

 

What makes the defense act even more perplexing is that from the declarations of the Ombudsman herself, she apparently had no intention of taking the stand in the ongoing trial. When asked by Senator Miriam Defensor Santiago to what purpose the Ombudsman could investigate an impeachable officer such as the CJ, the Ombudsman responded that is was only for the purpose of “recommending to Congress the filing of an impeachment complaint after the one-year ban in December of this year.” Ergo, her investigation, if warranted, would have resulted only in a letter to the Speaker of the House perhaps recommending a second impeachment proceeding against the chief justice. This implies that she did not see taking the stand as an option.

 

So the question is: Why did they do it?

 

Lawyer Jose Roy III said it was upon the express order of Corona himself, to know what the Ombudsman has. I guess the defense achieved its purpose—except that in the process, they crucified their client.

 

The defense, after realizing that the Ombudsman dropped a bomb shell against the chief justice, is now saying that the information divulged are: one, not accurate, because the amounts were not verified by the Ombudsman herself; and two, in any case, illegally obtained and hence inadmissible.

 

Such are admirable attempts to contain the consequences of their self-inflicted damage. But these are utterly bereft of merit. To begin with, the Ombudsman divulged the documents only insofar as it forms part of her ongoing investigation about an alleged dollar deposit undeclared by the chief justice in his SALN. Certainly, this was what complainants Rissa Hontiveros-Baraquel et al alleged in their complaint. Moreover, although she has not personally verified the accuracy of the accounts, she is still entitled to presume that a very specialized agency such as the Anti-Money Laundering Council would be discharging its functions regularly. If at all, the AMLC cannot be faulted for heeding the constitutionally mandated power of the Ombudsman to solicit its assistance. Instead, it should perhaps be faulted for not conducting its own investigation even before the impeachment trial.

 

Moreover, the chief justice himself, in the form prescribed for the SALN,  has expressly authorized the “ obtain and secure from all appropriate government agencies, x x x such documents that may show my assets, liabilities, net worth, business interests and financial connections.” How can he now complain about the acts of the Ombudsman?

 

With the testimony of the Ombudsman,  Corona has put the last nail in his own coffin. Ironically, we have the defense to thank for this.