[Published June 2, 2016]
OUTGOING President Benigno S. Aquino 3rd should be very worried that President-elect Rodrigo Duterte, according to his incoming Justice Secretary Vitaliano Aguirre 2nd, had ordered him “to “investigate the Disbursement Acceleration Program (illegal funds releases) and look into the liabilities of officials responsible for it.”
Aguirre even noted: “He told me that charges should be filed no matter who gets hurt. There should be no selective justice.”
Well, only two people were responsible for the DAP: Aquino and his Budget Secretary Florencio Abad, Jr. In fact very few in government, even in the budget department, had been aware of it until Senator Jinggoy Estrada in 2013 exposed it, claiming that DAP funds were used to bribe senators to vote Chief Justice Renato Corona guilty in his impeachment trial. According to Estrada, senators voting to remove Corona from office were given P100 million for their “projects,” which, he would later on be told, came from the DAP.
When they invented this DAP, Aquino was at the peak of his popularity and political power, perhaps even more popular than Duterte, since he got 42 percent of the votes, compared with the Davao mayor’s 39 percent. Aquino thought he could get away with anything.
It turned out he was dead wrong. Even if he got to replace the Chief Justice with his handpicked choice (even if she was so very unqualified for the post), the Court ruled the DAP unconstitutional in July 2014.
Worse for Aquino, the Court ordered that “proper tribunals must determine the criminal, civil, administrative and other liabilities of its authors, proponents, and implementors.” Of course, the Ombudsman simply ignored the Court’s decision, and for the opposition and civic-minded Filipinos, it was useless to file cases while Aquino was in power.
That is no longer the case, and the nightmare facing Aquino and Abad now is that documentation for their illegal acts is very much available.
The DAP involved 1,997 SAROs or Special Allotment Release Orders, bearing written instructions for the National Treasury to release funds for specific programs and projects.
Aquino authorized the SAROs
While these were signed by Abad or his deputy then, Mario Relampagos, both would claim that this was authorized by Aquino and they would show the four memoranda Aquino signed, which approved the release of funds, such as the June 25, 2012 memorandum that hijacked funds for the use of his home province Tarlac (see accompanying image.) Aquino would, therefore, be accountable and criminally liable for the release of all the 1,977 illegal SAROs .
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. If cases were filed for each of these 1,997 illegal SAROs, that would mean 1,997 cases against Aquino. 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, asking him to just give them a lower amount than the law’s penalty.
Note that the illegal SAROs ordered a total of P147 billion released to finance projects and programs not in the appropriations law. Aquino and his clan faces the prospect of becoming totally bankrupt if he loses even just a few of the technical malversation cases, since he would be required to pay, as the Revised Penal Code put it, the “fine ranging from one half to the total of the sum misapplied.”
Those familiar with the Sandiganbayan would know that the justices would just love such cases filed at their salas.
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. At the very worst, if he loses in just a tenth of the 1,997 cases, and penalized with the minimum six months in prison for each count, he’ll be sentenced for 100 years.
This is the reason why The Manila Times reported in 2014 that before the Court’s decision on the DAP in July, there were claims that tremendous pressure – especially in the form of financial pressure in the magnitude of P500 million – was being applied on the justices, not particularly on the DAP’s constitutionality, but for them not to mention any criminal liability by its “authors and implementors.”
The Supreme Court’s hands were, in a way tied, because of its decision in November 2012 that dismissed the excuse of “good faith” in a similar technical malversation case by a mayor, which involved only a measly amount of P3,400.
A town mayor in Leyte in 2001 authorized the use of four sacks of rice and two boxes of sardines worth P3,400 to starving workers rebuilding houses destroyed by a typhoon. The rice, though, was from the town’s Supplemental Feeding Program authorized by the Sangguniang Bayan (town council that approved 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.
Aquino’s claim that the DAP was intended to accelerate government spending to stimulate the economy had been totally debunked, as it was too small in terms of the entire budget. Its purpose wasn’t at all “noble:” It was intended to raise bribe money for the Senate to remove Corona from office, to amass a slush fund for the 2013 elections, and to bribe Muslim leaders to support the enactment of the Bangsamoro Basic Law. Aquino even ordered P1.5 billion to be diverted from other uses the budget law had authorized to fund infrastructure projects in his home province of Tarlac, and I wouldn’t be surprised if these were around Hacienda Luisita.
In the case of former President Gloria Arroyo, Aquino ransacked government filing cabinets looking for evidence to concoct charges against her, but could only come up with four cases, two of which have already been dropped and the rest were based on very flimsy grounds — one involves a sole witness who was also implicated in the Ampatuan massacre.
In Aquino’s case, though, the very documents Abad had submitted to the Supreme Court and the 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.
(My series on foreigners’ domination of our telecom industry will be continued on Monday.)