Good Intentions Do Not Cure Constitutional Defects

On Wednesday the Senate Finance Committee headed by Senator Chiz Escudero passed the President’s mammoth pork barrel, euphemistically called Special Purpose Fund (SPF), for 2014 amounting to a massive P600B. Along with it, it also endorsed to the plenary session the Executive Department’s unprogrammed funds for P139B and DBM’s close to a billion-peso lump sum outlay, both derivative nomenclature for the same fatty pork barrel.

Senator Escudero promised the committee would introduce amendments to the bill that would itemize “as best as we can, as far as practicable,” and that there would be provisions on their release, on reporting requirements and transparency, “so that it will make it almost like a line item.”

He cited as reason for its seeming hasty approval of the SPF its being “pressed for time to approve the budget (next year’s) within the year.” This sounds like a good intention. But that is besides the point. “Almost like a line item” is not a line item, thus not in consonance with the constitutional requirement that proposed expenditure be made as line items.

This persisting disregard of the edict of the constitution is what has taken us to the mess we are in now. If the Executive department is too indolent to craft the budget for Congress to deliberate and approve in time before the year ends, and in a manner that satisfies the requirements of the Constitution, then we must go the US way of shutting down the government for Congress’ Failure to pass the Budget Law or the General Appropriations Act (GAA).

The line mechanism prescribed by the Constitution is in acknowledgment of the perils of discretion in the use of funds. Where there is discretion, there is always corruption, as we have painfully learned.

Sadly, the Senate while condemning pork barrel, moves quickly anew to perpetuate the same in next year’s budget. This is proving what has been observed before of Lawmakers’ chorus in demonizing pork barrel as outrage over its scam erupted: it was hokey.

Will JLN Bare it All or Will a Senate Contempt Reward Her?

As the Nation awaits the appearance of Janet Lim-Napoles (JLN), alleged mastermind of the 10-billion PDAF scam, before the Senate Blue Ribbon Committee on Nov. 7, 2013 presumably to testify on what she knows of the issue under investigation, speculations and analyses on whether she would bare all or whether she should be made a State Witness, thereby affording her immunity from prosecution, to cajole her into naming the lawmakers, executive officials, and private person she had conspired with and bribed, have swirled in the papers and online publications.

One senator opines that Janet Lim-Napoles should be made a State Witness citing the committee’s power and the fact that it had done so in the past, arguing that the country’s quest for truth about who among the government officials and private persons she colluded with in carrying out the elaborate scheme should justify letting her off the hook.

Another says the fact that she is already under detention on a charge of the illegal detention of her erstwhile trusted operator, and cousin Benhur Luy emasculates the coercive nature of the Senate committee’s contempt power as there is no incentive in avoiding the same –you can’t compel her under threat of detention if she refuses when she is detained elsewhere anyway.

Yet another senator even provides more color by hunching that she may even deliberately court senate contempt by refusing to answer any question so that the committee would detain her in the chamber’s holding room, citing the air-conditioned room, better amenities, possible internet and pc use are enough lure to escape her less desirable detention in a Police’s Special Action Force camp in Sta. Rosa Laguna.

These could spark a debate and even protest among the readers, so let’s give each of the above a short discussion.

On the issue of making her a state witness, it is worth noting that not every one (of the accused) may be made a state witness. Even the courts, upon which the power to discharge is bestowed as an exercise of its jurisdiction, on proposal and initiation of the prosecutor, have to be satisfied with the requirements of the law.

So who can be a State Witness? Section 9, Rule 119 of the Rules of Court provides enlightenment, to wit:

“Sec. 9. Discharge of accused to be state witness.

When two or more persons are jointly charged with the commission of any offense, upon motion of the prosecution before resting its case, the court may direct one or more of the accused to be discharged with their consent so that they may be witnesses for the state when after requiring the prosecution to present evidence and the sworn statement of each proposed state witness at a hearing in support of the discharge, the court is satisfied that:

(a) There is absolute necessity for the testimony of the accused whose discharge is requested;

(b) There is no other direct evidence available for the proper prosecution of the offense committed, except the testimony of said accused;

(c) The testimony of said accused can be substantially corroborated in its material points;

(d) Said accused does not appear to be the most guilty;

(e) Said accused has not at any time been convicted of any offense involving moral turpitude.

Evidence adduced in support of the discharge shall automatically form part of the trial. If the court denies the motion for discharge of the accused as State Witness, his sworn statement shall be inadmissible in evidence.”

Is there absolute necessity for JLN’s testimony? This is answered by the answer to question no 2. It would not be difficult for the judge, on whom such determination is charged, to give a negative answer to question number one owing to the positive answer in question number two, and obviates answering question number three.

Put another way, there is no necessity, much less ABSOLUTE necessity, because there are whistleblowers who have similar firsthand detailed accounts of JLN’s inner workings such that their testimonies are enough to sustain conviction of the accused, including JLN.

On question number four, even considering that the law does not require that the person sought to be discharged be the LEAST GUILTY, but simply not the most guilty, JLN hardly seem to be lesser guilty than the other co-accused, she having masterminded the scam based on testimonies of the whistleblowers. If at all, she could ONLY BE equally guilty as her co-accused.

Lastly, whether she had been convicted of any offense involving moral turpitude, we have not heard the DOJ, the Court, or the Ombudsman making any pronouncement on the issue, but even on the first four requisites, JLN would not qualify as a State Witness.

Why others are floating the idea, no one really knows for sure what the real score is. Certainly, the public who has since been dumbfounded by the scale of the scam of which JLN et al. stand accused, would never sit idly if the ombudsman would eventually propose or resolve to discharge her as an accused in favor of her testifying for the State. Plainly, the tradeoff is unwarranted.

On another senator’s suggestion that the Senate contempt power and its consequent order of detention could hardly compel JLN because she is detained anyway already. Not true at all, let us remember that for time spent under preventive imprisonment she gets to earn the entire time or eighty percent thereof, as the case may be, as credit against her eventual sentence (Article 29, Revised Penal Code or RA 3815). The same is not true, though, if she were detained as a consequence of the senate committee citing her in contempt, for the latter is not deprivation of liberty in relation with the crime for which she is being presently detained (Serious Illegal Detention of Benhur Luy), and it is by order of another institution (the Senate), other than that issuing the commitment order (the courts).

On yet another senator’s banter that she might deliberately court Senate’s contempt preferring to be detained in the senate chamber apparently for its better condition, the Senate is not obliged to extend to its detainee the privilege to use and enjoy all its amenities. A detainee, certainly, and more importantly in this case one who is not a public official, or as the upper house would love to call it, a co-equal branch, does not annex to his/her rights the enjoyment of comforts available in a place of detention, which happens to be, this time, the Senate. After all, the Senate is not a correction facility, and the purpose of detention is correction, a penalty, not vacation or sort of reward.

Truth be told, there should be no pressure on the State to extend all sorts of accommodation to JLN. As things stand now, she is an accused, she must be treated like one.

Pnoy’s Obstinate Stand on DAP May Well Cost Him the Presidency

Pnoy has been stumping around at every speaking engagement and media interaction on his recalcitrant position on the legality and constitutionality of the little-known Disbursement Acceleration Program (DAP) at the backdrop of pronouncements made by a score of the country’s recognized Constitutional Law experts as Senator Mirriam Defensor Santiago, former Senator Joker Arroyo, and Constitutional Convention member Fr. Joaquin Bernas, a member of 1986 Constitutional Commission, which drafted the 1987 Philippine Constitution. Even Former Chief Justice Reynato Puno shares the same view.

Pnoy has, it seems, as source of his basis for his audacious DAP constitutionality argument the opinions of his Budget main man and architect of DAP, Lawyer Butch Abad, Presidential Spokesperson and Deputy Spokesperson, Lawyers Edwin Lacierda and Abigail Valte, respectively, and presumably his Executive Secretary, Lawyer Pacquito Ochoa. I don’t want to take anything away from the latter, but to be pitted against the former (Sen. Santiago et al.) on issue of constitutionality, is like a boxing match between Floyd Mayweather and Oscar Larios (very little-known).

And it is not as if Sen. Santiago et al. simply said DAP was unconstitutional without providing bases for the position, on the contrary, they were almost unanimous on their basis: “No money shall be paid out of the treasury except in pursuance of an appropriation made by law.” (Section 29, Article VI, Philippine Constitution).

The “appropriation” being referred to in the adverted provision is the General Appropriation Act (GAA), the law containing the executive-detailed budget to run the government on a given year. Congress deliberates on whether to approve or reduce the budget so proposed by the president, but it cannot increase the same. Clearly, once the GAA is passed, certified by both houses, and approved by the president, and becomes a law, Congress’s task is done except for its Oversight Committee, and it is the executive department that carries out the provisions thereof.

That the president exercises discretion in the disbursement of so-called DAP, allegedly representing savings from the budget, is paying out money not in accord with an appropriation made by law.

Paragraph 5, Section 25 of the same article on “The Legislative Department” of the Constitution, provides, viz:

“Section 5.

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.”

While this provision continues to reinforce the argument in favor of unconstitutionality, this seems to be where Pnoy is drawing his constitutionality argument: “xxx the President xxx 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.”

However, that is a clear misreading of the provision. The president may augment any item in the general appropriations law, it speaks of the law or what is stated therein, which negates discretion on disbursement.

The president may continue his stubborn stance on the matter, but the longer he does so the more that his base support will erode. Many of his supporters, at this point, continue to give him a pass on his transgressions, but they have been calling on the President to make his Liberal Party stalwart and DAP architect bow out of office out of delicadeza and spare the president the flak he had brought on him.

If delicadeza, however fails to dawn on Butch Abad, Pnoy must exercise his power to remove and fire Abad. This can save his presidency, and refocus the hunt on the scammers who are enjoying the benefits of muddled issues brought about by DAP.

No Crisis-Turned-Opportunity: This Time Let Us Make Sure the Funds Go to Intended Beneficiaries -The Quake Victims

Amid complaints on the government’s languid response to the disaster that the 7.2-magnitude quake brought to Visayas provinces of Bohol and Cebu, the Palace assures “help is on the way.”

Calamity funds are being released, but as we recently learned, calamities are a crisis turned to opportunities by unscrupulous public officials who are given power of control over such funds. This time, while we goad the government to, and root for, the release of funds, the public must be vigilant that they go to intended beneficiaries.

Let us not allow the victims of this “act of God” that is the earthquake catastrophe be victimized twice by the greater man-made calamity of corruption.

DepEd has announced it is mobilizing its contingency fund and releasing some Three Hundred Million Pesos (P300,000,000.00) to farm out the works and repairs necessary to expedite reopening of school classrooms. Let us watch those zeroes in the amount, and make sure they all go to rebuilding the decimated and damaged classrooms and amenities.

One way to lessen the trauma for the victims, especially the children, is to reopen the schools for them as quickly as possible, and comfort them with the sense of normalcy it projects.

 

At the Backdrop of GMA et al. Plunder Indictment, the Pork Scourge Stares Pnoy in the Face

It is amazing how former government officials of the Arroyo Administration are crying foul over plunder charges filed against them for their role in the release of approximately 23B of Malampaya funds (an accumulation of royalty for the government on oil and gas finds in the country), purportedly decreed by an EO issued by then President GMA to attend to the urgent needs of the victims of typhoons Ondoy and Pepeng. COA, however, finds in its report, and on which DOJ bases its case, that they went NOT to typhoon victims, but to pockets of lawmakers, Arroyo cronies, and executive officials as high up as former president herself Gloria Macapagal Arroyo (GMA).

Ermita says he only carried out the orders of the then president GMA. Former Budget Secretary and now congressman Rolando Andaya echoes Ermita saying his job was simply ministerial. But is it really plausible that these heads of offices who wield so much power and clout with then president GMA would just carry out orders and release budget involving billions of pesos all in faithful compliance with the mandate of their office, and without consideration? I tell you that is a tough sell.

On whining why the former president GMA is being indicted. What is the fuss? Even the P10B PDAF scam, as narrated in statements sworn to separately by the whistleblowers, covered the period ten years back, which puts it right within the 3-term (9 years) GMA regime which ended in 2010. Janet Lim Napoles herself, the PDAF Scam mastermind, hinted in interviews prior to her surrender, that she was not the boss, and instead referred to her boss as little girl or small girl. They saw this coming, so the make-believe surprise play is not going to cut it.

It is not to say that I am without beef with the Pnoy administration. I wrote in a previous post how disappointed I was, so were many who until then fully supported him, at his insidious double talk regarding pork barrel. While he said it was finally time for the pork to vanish for good, he kept in his 2014 Budget some P450B in so-called Special Purpose Fund, which he could direct the disbursement of as he would please.

Again, these attempts, never mind the subtlety with which they tried to portray innocence, are what infuriate the Filipino people, inasmuch as they NOT only betray the president’s one-upping them, but more than that, they insult them. How dare the president and his, what appears now to be, not-so-bright boys think that the Filipino people are too dumb to tell pork when it goes by another name?

Then came the DAP debacle, which the flailing Jinggoy brought to fore, coloring it as bribe to Senators for Voting to convict then Chief Justice Corona in his impeachment, even as he later clarified it was not bribe, but incentive. It did not help that they all chorused in defense of said DAP, arguing that there was legal basis for it, for there simply was none. It was patently illegal.

It is these miscalculations that would put the president at a collision course with his bosses, who are now ready to flex their muscles. I am sure right now the president is seeing enough that could provide the impetus to his untimely and drastic ouster, if he is not careful.

If the president wants to preclude a whopping precipitation of events, he must give up some heads. The people are shouting for the blood of whoever architected DAP. Right now, it’s ABAD’s head that towers the rest. Before the situation spins out of control, Pnoy must ask Abad to bow out of office.

Sure, he must have considered Abad’s genius as responsible for most of his administrations praise-drawing initiatives, but the situation demands that he go, if the president is to keep his head above water.