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 The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of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/

Allan and Chiz : Walk the Talk


Unlike Butch Abad about whom I wrote last week, both Senators Alan Cayetano and Chiz Escudero were known to me during the anti-President Gloria Macapagal Arroyo days.

I had the privilege of working with both of them in the three impeachment complaints that we filed against Arroyo. PNoy, then their colleague at the House of Representatives, was with us. But the acknowledged brains and spokesman for the impeachment team were Escudero and Cayetano, respectively.

Chiz Escudero was minority floor leader when we filed the first impeachment complaint. Unlike Alan whom I knew only in the course of the impeachment, I have known Chiz since high school in UP Integrated School, although I was three years ahead of him. The task of dealing with the dubious Oliver Lozano bogus impeachment complaint fell on his shoulder, this despite that he and Lozano belonged to the same fraternity.

Alan Cayetano was my best yield from the ill-fated impeachment complaint. While the complaint was thrown out by Arroyo loyalist Edcel Lagman on the basis of “a prejudicial question” which was that the first Lozano complaint, bogus as it was, barred the filing of our substantive complaint. My involvement in the impeachment process gave me a true friend in the person of Senator Cayetano. We may not have reached second base in the sui generis process of the impeachment, but Alan was to shine nationally courtesy of his eloquence and his one-liners.

I have nothing but utmost respect for these two honorable Senators. They are without doubt, men of principle, and both have proven that they adhere to the highest ideal of justice and public accountability.

How do I feel now that we hear that Napoles allegedly paid them off? Like the rest of their supporters, I was very disappointed and sad.

There seems to be a substantial difference between the entanglements of the two senators with the PDAF queen. In Cayetano’s case, it was the uncle, whom everyone knows is the political adviser of the senator, who allegedly received but returned a sum of money because they wanted a bigger percentage. In the case of Escudero, it was alleged that Napoles contributed to his campaign kitty. The difference is, if Napoles is to be believed, that Cayetano’s bribery was frustrated allegedly because his camp wanted a bigger percentage of the loot, while Escudero may have benefited from the scam without probably being aware if it.

Nonetheless, their names have been dragged into the scandal. No longer are both of them the epitome of new politics that they were during the challenging anti-PGMA days.

Am I surprised that even the most idealistic politicians have been dragged into the mess?

Not really. The nature of PDAF as an institutional source of corruption has been widely known since Yvonne Chua and Ellen Tordesillas wrote about it as early as the 1990s. This means that all politicians, even the most progressive, benefitted from institutional corruption for as long as they accepted and/or utilized their pork barrel. That is why only Ping Lacson stands on moral high ground since he is the only one (possibly Joker Arroyo, as well) who refused to accept his pork barrel. So the thought that both Cayetano and Escudero benefited from institutional corruption does not come as a surprise, at least to me.

Be that as it may, the fact that they were dragged into this pork scandal is still depressing, I know both gentlemen as true nationalists. They are competent, and winnable. The two, either individually or together, could very well redefine personality based and feudalistic Philippine politics into an issue and solution based multi-sectoral discussion. While party lists Bayan Muna and Akbayan (during their pre-PNoy collaboration for the latter) have been articulating well the need for progressive politics, Alan and Chiz have also been doing this and still win in the game—something that Bayan and Rissa Hontiveros have failed to do.

Is all lost for these two young beacons of hope?

Most certainly not. But the beginning should be utmost transparency from both of them. Alan here has a bit of an advantage since he never received money from Napoles, even if it is for the wrong reason. He should probably use this opportunity to clean his own backyard and get rid of nepotism within his own camp. This should mean retirement for his uncle.

Chiz, on the other hand, should just come clean since the only allegation against him is that he received campaign funds from Napoles. He probably did on his first run for Congress when as a member of the opposition, there was truly a dearth of campaign funds for those who opposed Mrs. Arroyo. But he has to come clean and be honest in this regard.

I also personally know that both senators have been utilizing the same contractor from the South, notorious also for paying SOPs to his legislator principals. Perhaps, as part of their re-birth in Philippine politics, they should both shun this practice of favoring contractors whom Chua and Tordesillas claim will in turn, pay kickbacks to the legislators. This entire scheme explains the sad state of our public infrastructure.

Not all is lost for these two brilliant statesmen. But they have to walk the talk. They have to practice new politics and not just play lip service to it.

Pigs all


Now it can be told: they were all pigs.

While Malacanang may have intended its witch-hunt to be limited to the political opposition with the recent cases field against Tanda, Pogi and Sexy, the dangerous maneuver has since boomeranged and the pig stench now goes all the way to Malacanang.

We now know that Napoles did not just deal with three senators. She dealt with no less than 25 of them. This is why the only senator who is undoubtedly untarnished by the pork barrel scandal, Ping Lacson, said that the latest Napoles list may bring down the Senate as an institution.

In fairness to those whose names appeared in the list, their guilt still has to be proven in a court of law. All of them, including the initial targets of Malacanang, are all entitled to presumption of innocence. This applies even to DBM Secretary Butch Abad, probably among the closest to PNoy, and even to the Umali siblings, one of whom, the incumbent governor of Mindoro, is known to be among the BFFs of the President. But the cat is now out of the bag. While they all enjoy due process rights, they all now have to answer to the court of public opinion. Ultimately, Malacanang is the biggest loser in this latest expose. For while the Palace billed itself as the persecutor of the corrupt in high and mighty places, such as the Senate, it now has to account for the fact that the dung is now in its front porch. Talk of karma.

Lest we think that only those who appeared in list should explain themselves to the public, the reality is that list only enumerates senatongs and tongressmen who allegedly benefitted from the Napoles style of funneling pubic funds to bogus NGOs. It is not an authoritative list of legislators who personally benefitted from their pork. Ten billion pesos, after all, is a very small amount relative to the total expenditure for PDAF over the years. What still have to be accounted for are the kickbacks, anywhere from a low of 10 percent to a high of 60 percent, in the cost of infrastructure projects. Already, we have heard how a southern contractor, also said to be fronting for the former FG, has cornered the infrastructure allocations from his region and even of sitting and past senators. When will we begin the inquiry on this? Ten billion is an anthill compared to the amount of money funneled to this southern contractor.

The truth is that every legislator who accepted and used his or her pork stinks. Those not in the lists are not in the limelight but are dirty nonetheless. Another stinking truth is that legislators bought their seats in Congress expecting to make a net profit from their pork barrel allocations. This explains why we have a Congress with virtually no cerebral capacity.

But the blame should not be on the corrupt legislators alone. It is the people, after all, who sold their votes to these thieves for a song! Had they voted on the basis of qualification and integrity of those who stood for public office, we would have had quality policies and not the crap that we have right now. And it is precisely because their votes had to be bought that politicians systematically made money out of their pork.

Furthermore, let us not deceive ourselves into thinking that the problem is only in the Legislature. The President has the biggest pork! It’s in the national budget, in Pagcor, and in PCSO. Presidential aspirants, PNoy included, spent no less than P2 billion to join the presidential fray. How do you think a sitting President will recoup his cost? Part of it will come from his pork, although a large part of it will be repaid in dole to campaign contributors.

And yes, even the Judiciary has its own pork, the Judicial Development Fund. Until today, this has not been subjected to full audit.

Was I therefore surprised, or even excited by Ping’s revelation of the names in the list? Certainly not. I know in my heart and mind that all those who accepted pork are corrupt. There is nothing new therefore in the revelation. But what is new is the fact that unlike in the past when the public appeared complacent to systemic thievery, as in fact tongpats has been referred to as “standard operating procedure”, the public now appears enraged.

Some good will hopefully result in this latest telenovela. For instance, it is hoped that with national elections barely two years away, the recent developments will result in the public electing individuals who have the competence and the skills to run both the executive and legislative branches of government. Hopefully, those who have been convicted in the court of public opinion will be meted the penalty of defeat in 2016. This may actually pave the way for those who have not stolen, and will not steal from the public coffers to have the opportunity to render genuine pubic service. Moreover, the public, hopefully, will also be educated that they will have the same rotten leadership if they continue to sell their votes.

The pigsty stinks. Some good will come from  dung—but it wil only come after the process of composting. Let’s hope this is the ending to this zarzuela.

35

The porky jurisprudence on the pork barrel


Now that taxpayers have filed anew a constitutional challenge against the pork-barrel system, it is apropos to review judicial precedents on the issue in order to determine what may become of these recent petitions.  Offhand, it looks dire for the petitioners and the Filipino people.

The starting point is the 1994 case of Philippine Constitutional Association vs. Enriquez. In this case, as is with the petitions filed recently, petitioners sought to nullify the Countryside Development Fund by arguing that: “claim that the power given to the members of Congress to propose and identify the projects and activities to be funded by the Countrywide Development Fund is an encroachment by the legislature on executive power, since said power in an appropriation act in implementation of a law”. Petitioners argued “the proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the Constitution”.

The CDF for that year in 1994 was P2,977,000,000. In 1994, the sum was to “be used for infrastructure, purchase of ambulances and computers and other priority projects and activities and credit facilities to qualified beneficiaries.”

The court dismissed the petition and ruled that there was no violation of the constitution: “The authority given to the members of Congress is only to propose and identify projects to be implemented by the President.  x x x the President must perforce examine whether the proposals submitted by the members of Congress fall within the specific items of expenditures for which the Fund was set up, and if qualified, he next determines whether they are in line with other projects planned for the locality. Thereafter, if the proposed projects qualify for funding under the Funds, it is the President who shall implement them. In short, the proposals and identifications made by the members of Congress are merely recommendatory.”

In fact the Court even endorsed the CDF as being  “imaginative” and “innovative”: “The Countrywide Development Fund attempts to make equal the unequal. It is also a recognition that individual members of Congress, far more than the President and their congressional colleagues are likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project.”

But the victory of the CDF was short lived. Not long after the case was decided, Ellen Tordesillas and Yvonne Chua, both then with the Philippine Center for Investigative Journalism, and now with the renowned Vera Files, wrote a book detailing how the CDF operates to benefit our senatongs and tongressmen. It appears that the pork is in the 30 percent to 50 percent kickbacks that legislators made from their CDF. There naturally was uproar against the pork after this revelation.  This was enough to compel then-President Joseph Estrada to attempt to do away with the pork barrel.

But Estrada’s resistance to the pork was short-lived. He soon realized that without pork, the Executive cannot have the cooperation of Congress. This may also have been why he was so easily impeached on the House. To make a long story short, the CDF was renamed the Priority Development Fund, which until today remains the official designation of the pork barrel.

Not long after the renaming of the pork, the Lawyers Against Monopoly filed suit anew challenging the constitutionality of the renamed pork, the PDAF. In the case of LAMP vs. Secretary of the DBM, the petitioners impugned the P8-billion PDAF in the 2004 budget, which was earmarked “ to fund priority programs and projects or to fund the required counterpart for foreign-assisted programs and projects.” According to petitioners, the provision of the PDAF, unlike the CDF, does not allow members of Congress to identify projects. According to them, “[t] he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the ‘pork barrel’ system.” “[T]he omission of the PDAF provision to specify sums as ‘allocations’ to individual Members of Congress is a ‘casus omissus’ signifying an omission intentionally made by Congress that this Court is forbidden to supply.” LAMP then concluded that “the pork barrel has become legally defunct under the present state of GAA 2004.”

The Court, in upholding the pork barrel for the second time, ruled: “Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld in Philconsa. This remains as valid case law”.

It is unlikely that the Court will deviate from these jurisprudence. What must be done is to document that almost all of our legislators abused and misappropriated the PDAF. Absent this, there will be “no changed circumstance” that would warrant the reversal of these two decisions. It’s a tough job, but let’s do it!