Hovering over PNoy’s head

Let me put this straight into the head of Press Secretary Herminio Coloma - the difference in the use of the Priority Development Assistance Fund from the Disbursement Acceleration Fund is this: PDAF is assumed to have been released by the President, through the Department of Budget and Management Secretary Florencio “Butch” Abad, to his selected minions in the House and in the Senate after an appropriation was enacted for projects earmarked for funding by the sponsoring legislator. Those that diverted some of the PDAF funds to other projects could only be made liable for technical malversation. However, those that undervalued the cost of the project or presented ghost projects to justify their diversion of funds can be held liable for malversation.

In the case of the DAP, even if all the funds given by the Office of the President were spent to the last centavo for the earmarked project, they could be held liable for outright malversation because the funds were released without any congressional appropriation. The criminal liability sticks to him because the act of releasing, as lawyers would put it, is “illegal from the very beginning.” Unlike the PDAF where there is shade of legality, there is no such shade in his use of the DAP to justify his misappropriations of public funds. Besides, even if all the funds were spent wholly and wisely for the earmarked projects, that would not exculpate him from any criminal liability. He is not supposed to touch those funds without an appropriation. 

It became doubly illegal when it was revealed that the President diverted some of his funds to purposely bribe the senator-judges to vote for the removal of his hated Supreme Court Chief Justice Renato Corona. Of course, plain common sense would dictate that no President will certify for congressional appropriation an amount stating that he intends to use the money to bribe the judges to kick out his political enemies. This explains why Coloma’s addendum saying, “It is the President’s conviction that all his actions as chief executive are in accordance with law and the Constitution” as non sequitur because it is not his conviction that is being tried. The public assumes he knows not only the law by heart and soul, but is sworn to uphold and defend the law (Constitution). 

Moreover, the brouhaha that was created in the annual practice of allocating pork barrel to the members of both chambers was on the abuse and misuse of the PDAF fund. As a consequence, it made a mockery of our democratic system of government. Unbridled corruption became inevitable because every ambitious politician would eagerly try to make a big cut on his PDAF, use it as his logistics should he decide to seek reelection, funnel them to his wife or children should he opt to establish his own political dynasty, or enrich himself like a modern-day maharajah. In the case of the DAP, it presupposes a single purpose of bribing public officials for them to kowtow to the President’s wishes like the emperor of ancient times. Instead of the sword hovering above their heads, he uses money for them to die gloating. 

Besides, good faith can be assumed in the act of the President in his disposition of the pork barrel to his chosen loyalists. That stems from the fact that an appropriation was made by Congress, and has from the time of his mother, been the practice. But in the case of the DAP, there is no good faith defense because the Constitution is clear that no money shall be released without an appropriation enacted by Congress. For that matter, even the transfer or use of such funds for a different purpose is prohibited. In plain language, all are enjoined to obey the law, for as one Metro Manila mayor would put it the Tarzan way, “nobody is above the law or none at all.”

The greatest problem now hovering above the head of the President who has been telling everybody his administration is very honest is that the justices of the Supreme Court are about to decide the petition to declare unconstitutional his whimsical use of the DAP. People know that he has been using DAP to get what he wants and to get things done, or as one would quip, “the Sonny Belmonte way of doing things.” Conscious that the President could use it to kick them out should they show signs of recalcitrance, every independent-minded justice now bears in mind that such could happen to him or her. They fully realize that it was the enchanting magic of DAP that tilted the vote to remove Corona unceremoniously. It was the same DAP that eroded the balance in favor of the Executive Branch. Now it is threatening to reduce them to becoming the judicial butlers of Malacañang. 

What has made this regime awfully jittery is, once the High Court declares the DAP unconstitutional, that could pave the way for the filing of an impeachment case against the bandleader of “matuwid na daan.” The opposition and some disgruntled members of Congress have their reason to combine their forces to make their revenge to impeach PNoy. Maybe it would be a bit difficult to prove that he used his DAP to bribe the senator-judges, but surely it would be much easy to point out that it was downright illegal and unconstitutional to qualitatively transform the case against him to that of plunder. 

Obviously, the amount looted from the coffers of the government exceeded P50 million. The money was carted without any congressional appropriations. It would be irrelevant for one to say he used to “facilitate the release of funds for emergencies” as Coloma now vainly attempts to justify the use of the DAP. The use of the DAP in a manner of pulling out money from another person’s pocket amounts to robbing the government of its funds without its consent, and it is because of this act that some lawyers believe the President could be charged with plunder. 

Hyatt 10 veteran Butch Abad should have carefully advised his boss of the possible consequence. 

rpkapunan@gmail.com

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