That’s not a hyperbole, but a conservative estimate.
President Benigno S. Aquino 3rd’s illegal Disbursement Acceleration Program (DAP) involved 1,997 SAROs or Special Allotment Release Orders, the documents ordering the National Treasury to release funds for specific programs and projects.
Since the Supreme Court ruled the DAP unconstitutional, each SARO violated Article IV, Section 29 of the Constitution: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The projects the SAROs Aquino ordered to be financed from the budget were not in any of the budget laws from 2010 to 2013.
Each SARO would be an instance of technical malversation, and for each, Aquino would be charged under Article 220 of the Revised Penal Code:
“Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law… shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one half to the total of the sum misapplied… “
Prision correccional in its minimum period means a jail term of six months to two years. Not too long, compared with a lifetime sentence for the crime of plunder.
But what if the many people Aquino has wronged filed separate cases for even just one-fourth of the 1,997 SAROs he had ordered issued, and just a fourth of those cases resulted in a guilty verdict? That would be 124 instances of technical malversation, and at the minimum six months jail term for each case, that would mean 62 years in prison. Even Ombudsman Conchita Carpio-Morales would not be able to block that flood of cases against him.
Worse, while many patriots would file cases against Aquino in order to strengthen our rule of law, there would be scores of unscrupulous lawyers who would file cases in order to extort money from him in exchange for dropping the cases.
They would bargain for a lower amount than the law’s penalty that at least one-half of the sum misappropriated be reimbursed to government.
Those familiar with the Sandiganbayan would know that the justices would just love such cases filed at their salas.
Note that the illegal SAROs ordered a total of P147 billion to finance projects and programs not in the appropriations law. Aquino and his clan faces the prospect of becoming totally bankrupt if he even loses a few of the technical malversation cases, and required to pay, as the Revised Penal Code put it, the “fine ranging from one half to the total of the sum misapplied.”
At best, Aquino stands to spend a lot of his time in Sandiganbayan courtrooms as soon as he steps down and loses his immunity from suit.
The decision of the high court in fact didn’t just rule that the DAP was unconstitutional, it said, “proper tribunals must determine the criminal, civil, administrative and other liabilities of its authors, proponents, and implementors.”
If you listened to Abad at the July 24 Senate hearing on the DAP, it was this part of the Supreme Court’s decision stating criminal liability that he and Aquino were raving mad against. You can’t blame them: no one would relish the prospect of jail terms.
My sources, as well as those of Manila Times’ reporters, in fact had claimed that before the Court’s decision on the DAP on July 1, tremendous pressure – even financial pressure at the magnitude of P500 million – was being applied on the justices, not on their decision on its constitutionality, but for them not to mention any criminal liability by its “authors and implementors.”
On the face of it, Aquino’s “motion for reconsideration” filed at the Court to reverse its ruling would seem stupid and useless as it was a unanimous decision. Its real intention, however, is to get the High Court – by hook or by crook – to amend its decision so that Aquino won’t be liable for any criminal prosecution over the DAP.
But the Court can’t rule against past jurisprudence here and elsewhere that rejects the excuse of “good faith” in criminal acts since this is the basic foundation of the justice system. If good faith were a valid excuse, the bulk, or even a hundred percent of trials, would involve determination of good or bad faith, not concrete evidence that a crime was committed.
In fact, a Supreme Court decision in November 2012 dismissed the excuse of “good faith” in a case that has similarities, though on a much smaller scale, to the DAP case.
A town mayor in Leyte in 2001 authorized the “realignment” of four sacks of rice and two boxes of sardines worth P3,400 to starving workers rebuilding houses destroyed by a typhoon. It turned out that the food was from the town’s Supplemental Feeding Program authorized by the Sangguniang Bayan (town council that approves the town’s budget).
The mayor was charged with technical malversation, but appealed that the transfer was done in good faith and that it represented savings.
The Supreme Court upheld the decision of the Sandiganbayan finding the mayor guilty and pointed out: “Dura lex sed lex.” (The law may be harsh, but it is the law.) The mayor’s act – no matter how noble, or how minuscule the amount diverted – constitutes the crime of technical malversation because he used the goods for a purpose other than what had been approved under the law.
Similarly, I’m sure a thorough investigation would reveal that DAP’s purpose wasn’t at all “noble,” but was intended to raise bribe money for Congress’ cooperation in removing Chief Justice Renato Corona from office and to amass a slush fund for the 2013 elections.
I was told that Aquino had asked different lawyers about their opinion on the matter in terms of his liability. He was screwed, everyone told him.
This is probably why Aquino was close to crying when he was finishing his 5th SONA speech recently: the realization that he trusted Abad too much and made such a terrible mistake in undertaking the DAP; that he would land in jail when he steps down in 2016; that he would be bankrupted by the financial penalties; and that the best-case scenario is that he would spend most of his time in the hot, cramped courtrooms of the Sandiganbayan.
This is also the reason why he can’t fire Abad, even if people within and outside his camp have asked him to do so: Abad could hit back by claiming he was just ordered by Aquino to implement the DAP.
Aquino’s certain criminal liability explains the desperate tone of the wild statements he has recently been blabbering, and the rumors his propagandists have been circulating:
That he is open to a second term because the people are asking for it – which is the craziest statement he has made so far; he can’t even get enough people to wear his yellow ribbon. His approval ratings are slipping by the day and most Filipinos, tired of the high prices of rice and other commodities, poor infrastructure, inept response to Yolanda, the Zamboanga and Luneta incidents, can’t wait for him to step down. Even those sympathetic to him and believe that he isn’t corrupt are now admitting that he is, indeed, mentally and emotionally incapable of being president.
That Congress, which he controls by a vote of three-fourths of its members, can propose an amendment to the Constitution allowing him a second term – another wacky idea because even if Congress were to do that, the amendment would have to be approved by a plebiscite.
That Vice President Jejomar Binay, the shoo-in for the presidency in 2016 at least at this time, is a bosom friend of the family and will protect him when he steps down. But even Binay can’t stop citizens filing hundreds of technical malversation cases against Aquino.
In the case of former President Gloria Arroyo, Aquino had to scrounge and scrape the barrel to come up with charges against her for only four cases, one of which already has been dropped and the rest obviously based on very flimsy grounds — one involves a sole witness implicated in the Ampatuan massacre. Aquino had to ask his mercenary NGO, Akbayan, as well as the sycophant justice secretary to file the cases.
In Aquino’s case though, the very documents Abad had submitted to the Supreme Court and Senate – Aquino’s memoranda authorizing the DAP and impounding funds authorized by the budget laws and the detailed list of DAP projects – would be the evidence for this president’s crime of technical malversation.
I’ll explain that on Monday, and discuss the liability of the DAP’s architect, the man considered as Aquino’s brain, Florencio Abad.