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Sunday, March 1, 2015

Saving the skin of PNoy and Abad


By Rod Kapunan 
When the Supreme Court made a ridiculous  somersaulting in reversing its earlier decision, this time exculpating from possible criminal liability those responsible for treating public funds as though it was their own private money, the “de facto reversal,” as University of the Philippines  law professor Harry Roque, Jr. would put it, is a virtual writing on the wall that this pretending-to-be-honest government could be exonerated from any liability should the much-awaited case be filed against them once they step out of office.  This early, the mastermind who conceived of systematically siphoning public funds, Department of Budget and Management Secretary Florencio “Butch” Abad, is already shouting to high heavens as the decision already guarantees his future exoneration.    
Those  responsible for systematically stashing public funds and for making a mockery of Congress by depriving it of its  constitutional power to appropriate funds must by now laughing all the way to the banks.  As Professor Roque bluntly put it, “the new resolution …is a shocking reversal of the constitutional safeguards on the use of public funds and a virtual stamp of approval of the executive without the benefit of congressional review.”  He added, “…the new doctrine “defeats the whole purpose of giving the power of the purse to the legislature”   and also “reinstates and legitimizes the presidential pork barrel system without the benefit of congressional approval and oversight.” In that, the decision effectively bolstered and institutionalized the most dreaded threat to our democracy called “financial dictatorship,” a system that revolves and operates on the basis of bribery and blackmail.
In making a big joke of itself, the High Court played the words of mumbo jumbo in concurring the outlandish proposition peddled by the Solicitor General that allegedly “there is no constitutional requirement for Congress to create allotment with the line-item veto of the President.”    As Supreme Court spokesman Theodore Te rather coarsely explained, “so long as there is any item in the GAA (General Appropriations Act) for which Congress set aside a specific amount of public fund, savings maybe transferred thereto for augmentation purpose.” 
The problem is that the caveat Te is talking about is not in the disbursement of public funds which the mastermind crudely named Disbursement Acceleration Program (DAP), but on the intentional and malicious diversion of funds taken from over bloated projects already specified and appropriated by Congress in the GAA.  To mislead Congress, especially those in the opposition, and the public, Malacañang, in connivance with those people in the DBM headed by Abad, coordinated to purposely bloat the funds in certain projects having in mind of allowing them to generate “savings.” The unused “savings” would now be used to  fund other projects in any item in the GAA which Congress already set aside a specific amount but run short of funds.  The claim of augmentation then now becomes legally viable and tenable. 
The court completely ignored that any diversion of public funds amounts to technical malversation which is punishable under the Revised Penal Code, and the ratio decidendi of that law is to compel the reversion of savings back to the national treasury to be added into the national budget to allow Congress decide which agency in the previous year run short of funds.  But as the decision appears, it is this pretending-to-be-honest government that now decides which of those projects should be accorded “augmentation.”  To make things worse, the High Court reiterate its so-called “doctrine of operative fact” to justifiably recognize the validity of the assailed law or action prior to the determination of  its unconstitutionality as an operative fact that produced consequences that cannot always be erased, ignored or disregarded.  
As one lawyer friend would argue, how could that be when the law punishing that particular act has yet to be abrogated as unconstitutional?  Besides, the issue of operative fact, or of accepting or in leaving them as they are, much that what happened can no longer be undone, can only accepted if  all acted in good faith.  But in this case, the sidetracking of the role of Congress was intentional and premeditatedly done.   The huge amount of alleged “savings” that is now in PNoy’s pocket is the reason why political sycophants jump like toads to get their share of the manna  which he has the sole discretion whom he wants to share,  and usually based on loyalty and willingness to bootlick.  
Moreover, when the High Court acquiesced to the claim of good faith, that amounts to admitting that those justices who voted in favor of DAP were all born yesterday.  They all closed their eyes that those who conceived that syndicated idea of running around with the rudiments of congressional appropriations can never raise the defense of good faith.   In fact, good faith is least applicable to people who hold public office at the national level, more so if they are accused of crimes pertaining to the stashing of public funds.  If they did not know that, then they have no business staying in their office even for a minute. 
Even if charlatanism and demagoguery is not a crime, people still have the right to demand the resignation or removal of a public official from office much that it would amount to accepting stupidity as a defense  to run our government which no man in his right mind would concede.    But in this case, the modus operandi has all the markings that the scheme was premeditated to circumvent the mandate of the Constitution for which the representative of the people would have the last say on how the taxes they paid should be spent. 
This has to be reiterated because the constitutional phrase that “a public office is a public trust” is not empty rhetoric or slogan.   A deeper reexamination of that would clearly tell us that there is little or no room for stupidity in government, nor would it allow criminal-minded public officials take advantage of the perquisites of power to bribe and buy the loyalty of people.  Section 1, Article XI of the constitution is clear.  Rather, the High Court ignored its own landmark decision where it held liable a lowly government employee of malversation after an on-the-spot audit was conducted for which the cash on hand did not tally with the receipt.   Unfortunately, it was our own Supreme Court that threw into the wastebasket its own landmark decision that exacts from our public servants, at all times, the punctilio of honesty when it accepted the misplaced defense of good faith. 
It did not even consider that the anomaly of overpricing government projects has been going on to allow corrupt governments to generate savings with the President getting them back to allow him in turn to refund by “augmentation” other itemized projects often sponsored by his minions. 
rpkapunan@gmail.com

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