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 The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of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

Prior restraint, Tacloban and Corona


 

I am forced to rush the writing of this column because I have to proceed  to the Pasay Regional Trial Court. Apparently, Jo Imbong and  son filed an application for a temporary restraining order to stop the holding of a conference on Reproductive Health currently being attended by 1,500 delegates from all over the world. The hearing this afternoon is on the prayer for the TRO.

I do not know what Jo Imbong alleged in her petition in support of her prayer for a TRO. Media reports say that she seeks to restrain the management of the Philippine International Convention Center, Health Secretary Enrique Ona and the other organizers of the conference since the affair has three panels on safe abortion and access to medical abortion. Media have reported that Imbong and son argued that these panels violate the Revised Penal Code because it encourages the commission of a crime.

I am almost sure that the Revised Penal Code does not punish any incitement to commit abortion, even if Jo imbong’s assertions are correct, but which I very much doubt. This being the case, the mere inducement or incitement is not a crime in this jurisdiction. Accordingly, what the conference will discuss should be treated by the state as protected speech. Accordingly, the prayer for the remedy of injunction will have the effect of prior restraint on the exercise of free speech. Let’s hope that the RTC of Pasay, my home city, will be true to its mandate to uphold the suprmemacy of civil rights over religious dogmatism.

* * *

I was overwhelmed by the readership of and comments on my column on graft in Tacloban. I’d like to thank the almost unanimous expression of support for my view that public international law, the dictates of conscience and the law of humanity does not discriminate on the basis of partisan political affiliations in the delivery of humanitarian assistance to the typhoon ravaged province of Leyte. By way of follow-up, I have since discovered that Dinky “If We Hold On Together” Soliman has been distributing 25 kilos of rice per week for families in Leyte. This is good but I hope not in aid of her election bid in 2016.

Apparently, this large amount of rice was sourced from the recently seized smuggled rice from Vietnam. I suppose  that distributing the fruits of the crime of smuggling to those in need is the most appropriate means of disposing of fruits of a crime. I just hope that smuggling could be curbed once and for all because in addition to depriving our farmers fair access to the market, it also deprives rice traders and allied industries a share of the market. Let’s also hope that the vultures responsible for the anomalous bunkhouses will not profit from the distribution of smuggled rice.

While we’re at it, the anomalous bunkhouses defended by Secretary Rogelio Singson as not being “overpriced” have all been blown away anew by nature. I’d like to hear the good Secretary and Malacañang say again that these bunk houses were not anomalous. Mind you, they were not blown away by a major typhoon. It was more like mere monsoon rains. Let’s refer to these golden bunkhouses as the Yolanda-gate scandal to remind us of the vultures who will make profit from the miseries of others.

* * *

Let me end by saying kind words to Malacañang.

Senator Bong Revilla was off-tangent when he claimed impropriety when the President talked to him to vote to oust Corona from the Chief Justice post. While I am of the view that PNoy certainly has a lot to answer to us, his boss, talking to the senators to rid us of a lying Chief Justice is not one of them. PNoy had nothing to do with the fact that Corona lied through his teeth o when he withheld information about his millions of dollars in dollar deposits in his Statement of Assets, Liabilities and Net Worth.

Moreover PNoy had nothing to do with the bad acting that Corona exhibited in the Senate which sealed his fate as the first Chief Justice removed through impeachment. Corona only had himself to blame for his ouster. Let’s not pass the buck to Pnoy—not on this issue, at least.

 

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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.

 

SALN


All public officers are required to file their Statement of Assets, Liabilities and Net Worth on or before 30 April of every year. This is provided by RA No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. The rationale for the filing of the same is to enable the public to find out if there has been an appreciable increase in the net worth of a public officer on a year-to-year basis. In turn, under the provisions of the Unexplained Wealth Act, any property that appears to be disproportionate to the annual salary of a public officer is prima facie presumed to be ill gotten and is subject to forfeiture in favor of the state. This is one very rare instance where the law presumes property of a public officer as ill-gotten. Cleary, the requirement to file the SALN is complimentary to the intent of the law to deprive pubic officers of the fruits of graft and other corrupt practices. It is a tool to determine if the net worth of a public officer is within his means as a public officer.I am sure that this is why the prosecution panel in the impeachment of Chief Justice Renato Corona decided to begin introduction of their evidence on Article 2 instead of Article 1 of the impeachment complaint. Stated differently, since the public prosecutors have told the nation that the Chief Justice has very valuable real estate registered in his name, property whose value appears to be beyond his annual income as an Associate Justice and later, as Chief Justice of the Supreme Court, these may be deemed ill-gotten. One of the grounds for the Chief Justice’s impeachment, in turn, is graft and corruption.Moreover, the filing of the same is mandatory and required to be under oath. Any failure to file the same, or a failure to declare all assets owned by the public officer in the same, will amount to a violation of a public officer’s duty to uphold the laws of the land.  This is also betrayal of the public trust. This is because a public office is a public trust and a public officer’s breach of an existing law is also a breach of the trust reposed in the public officer.

The Constitution further requires that the SALN “shall be disclosed to the public in the manner provided by law.” RA 6713 provides for the manner of public disclosure of a public officer’s SALN.  Section 8(C) of said law provides: “(C) Accessibility of documents. — (1) Any and all statements filed under this Act, shall be made available for inspection at reasonable hours. x x x“(2) Such statements shall be made available for copying or reproduction after ten (10) working days from the time they are filed as required by law. x x x (4) Any statement filed under this Act shall be available to the public for a period of ten (10) years after receipt of the statement.”

The crux of the controversy is while the Chief Justice maintains that he has filed his SALN according to law, no one, except for the Court Clerk of Court, has seen them. This is because in an attempt to guard against harassment, the Court, by an en banc resolution, has ruled that these SALN should not be made public and will only be released on “good grounds.”

A legal issue to be resolved by the Impeachment Court is whether the Chief Justice, relying on a court resolution, can claim immunity from Section 8C of the law as quoted above. The House prosecutors obviously believe that he cannot and the refusal to make such SALN public is already a violation of the law — hence, an impeachable offense, that of betrayal of public trust. Corona maintains otherwise.

But a startling event happened yesterday when the Clerk of Court of the Supreme Court refused to turn over Corona’s SALN to the Senate despite a subpoena issued for them. Obviously, much of Article 2 of the impeachment complaint may be proven by the production of Corona’s SALN’s in the custody of the Clerk of Court. But the Clerk, alleging that the Supreme Court as a co-equal branch of government with its own internal rules, initially refused, pleading that the Court en banc must give her authority to surrender them to the Senate.

A constitutional crisis was averted when Senate President Juan Ponce Enrile rightfully ordered the Clerk of Court to surrender the SALN to the Senate. If this is a portent of things to come, we’re bound to have many more potential constitutional crises in the course of this impeachment.

The lesson is clear: let us elect a President who will make responsible appointments particularly to the Judiciary. Never again should we allow a person with no mandate to govern. And by God, let’s make our elections clean and safe especially from high-tech cheats!