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Abad, Alcala probed on pork scam; S.C. declares DAP unconstitutional

Abad, Alcala probed on pork scam;  S.C. declares DAP unconstitutional
MANILA – Finally, the Department of Justice admitted that Budget Secretary Florencio Abad and Agriculture Secretary Proceso Alcala are under investigation in connection with the P10-billion pork barrel scandal.
Alleged pork barrel queen Janet Lim Napoles had identified Abad as the one who allegedly taught him the rudiments of the use of the pork barrel funds which the Cabinet member vehemently denied while Alcala, then a congressman of Quezon province, reportedly channelled some of his funds through the non-government organizations set up by Napoles.
This developed as the members of the Supreme Court handed President Benigno Aquino III a resounding setback on Tuesday, voting 13-0 with one abstention to declare the Chief Executive's Disbursement Acceleration Program (DAP) partly unconstitutional like the Priority Development Assistance Fund (PDAF) or pork barrel they earlier declared also unconstitutional.
DAP involved a bigger pork barrel of P192 billion in its first year alone, compared to only P25 billion for senators and congressmen.
With the ruling, it is expected that more people will call for the impeachment of President  Aquino  and the head of  Secretary Abad, who reportedly created and defended DAP.
But Speaker Feliciano Belmonte pointed out that the ruling cannot be used to impeach the President. Even if an impeachment complaint is filed in the House of Representatives, it will have no chance to prosper with an overwhelming majority of congressmen supporting the administration as shown during the time of then President Gloria Macapagal Arroyo.
The President, however, could still be held liable for the unconstitutional DAP when he leaves office, according to legal experts.
Malacanang did not immediately comment on the ruling, saying it will have to wait for the full copy of the decision first.
Some senators immediately commended the Supreme Court (SC) for declaring the Disbursement Acceleration Program (DAP) unconstitutional.
Some experts, however, said the High Court did not categorically rule as unconstitutional the President's DAP or pork barrel but only certain acts related to the use of the DAP which enabled it to fund projects of the Commission on Audit, the Commission on Elections and other offices. It was also alleged that the DAP was used to bribe the senators with P50 million to P200 million each in additional "pork barrel" fund to impeach then Chief Justice Renato Corona.
This means that the Chief Executive's power to transfer funds was sustained by the High Court and, therefore, the DAP maybe revived with some other name, except that its use will now have to conform with the Constitution and the laws on budget and fiscal administration.
Sen. Miriam Defensor Santiago, a constitutional law expert, said she anticipated the SC decision even before the matter reached the high court months ago.
Following the Supreme Court ruling, Santiago renewed her call for the Commission on Audit to probe into the alleged bribery of Congress members during the impeachment trial of ex-Chief Justice Renato Corona in connection with the DAP.
“Both the pork barrel and DAP scandals are equally repulsive, and the Supreme Court declared both funds as unconstitutional. I wholeheartedly welcome the impartial adjudication of these abominable abuses of public funds by the Supreme Court since I cannot obtain relief from the Senate itself, which appeared to have been complicit in bribery,” she said.
“It’s basically a no-brainer. The DAP is illegal because it was not contained in the 2011 or 2012 budgets, and because the alleged savings were used to augment new budget items which was not previously authorized by Congress,” Santiago said.
This developed as Senator Juan Ponce Enrile has remained scot free as the Sandiganbayan division which is handling his plunder and graft cases is  studying the charges meticulously and has yet to rule on several petitions filed by Enrile and his co-respondents. Bishops, meanwhile, urged that Enrile, owing to his age of 90 and his medical problems, be placed under hospital arrest instead of detained at the PNP Custodial Center like Senators Ramon Revilla Jr. and Jose Estrada who are now held there.
Malacañang said it is supporting the effort of the Department of Justice (DOJ) in examining evidence implicating its two close allies in the alleged misuse of Priority Development Assistance Fund (PDAF). Both Abad and Alcala were former congressmen before they were appointed to the Cabinet by President Aquino.
Critics of Malacanang, however, shrugged off the statements of Palace spokesmen, saying they are merely into window dressing as allies of the administration have been suspiciously left out from the plunder and graft charges although they have been identified by Napoles and whistleblowers as part of the pork barrel scam.  
Presidential Spokesman Edwin Lacierda said the examination of the affidavits and evidences implicating Abad and Alcala to the scam is being done as the administration is “colorblind.” Another spokesman, Secretary Herminio Coloma, said there is no sacred cows in the investigation.
Yes, we support that vetting process and it is… The investigation process, evaluation process of DOJ under the leadership of Secretary Leila de Lima is colorblind so, we support the process,” Lacierda said.
Abad and Alcala were included in the list of past and present lawmakers who allegedly benefited in the racket involving the diversion of PDAF to bogus non-governmental organizations. The list was made by suspected pork barrel scam mastermind Janet Lim Napoles.
Lacierda said it takes time to complete the vetting process on statements that should be supported with documentary evidence.
“Remember, and I’ve mentioned this time and again, that in the past, even the affidavits of Benhur Luy and the other whistleblowers, it took some time for the DOJ to evaluate and investigate,” he said.
"Kailangan lang pong lumabas ‘yung mismong kongkretong impormasyon at mismong ebidensya. Handa naman po ang ating dalawang kalihim na harapin ‘yang mga akusasyon na ‘yan," Coloma said.
In related developments:
1.    The Sandiganbayan entered a plea of not guilty for Senators Revilla and Estrada as they refused to enter a plea while Napoles and their co-accused entered a plea of not guilty.
2.    The Sandiganbayan is looking into suspending Senators Revilla and Estrada and others accused of plunder for  90 days as provided by law. The Ombudsman prosecution panel has asked the graft court to suspend the two senators and Atty. Richard Cambe due to the plunder cases filed before the Sandiganbayan.
The panel said under the plunder law (Republic Act No. 7080, as amended), any public officer against whom a criminal prosecution under a valid information for plunder is pending in court shall be suspended from office. 
"Jurisprudence sets the period of suspension pendente lite at 90 days" the Ombudsman said in a statement.
SC Public Information Office chief and spokesman Atty. Theodore Te said the SC partially granted the petitions for certiorari and prohibition "and declares the following acts and practices under the DAP National Budget Circular 541 and related executive issuances unconstitutional for being in violation of Section 25, Paragraph 5, Article 6 of the 1987 Constitution:"
1. The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts (GAAs).
2. The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive.
3. The funding of projects, activities and programs that were not covered by any appropriation in the GAA.
The SC further declared void the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAAs.
The petitioners argued that because of the DAP, grave abuse of discretion was committed on the part of the government and there was a violation of the 1987 Constitution, particularly Section 29 of Article VI of the 1987 Constitution which states that the government funds should not be utilized in projects or expenditures not covered by the appropriations law.
They stressed that the DAP cannot be found in any of the enacted GAA for the years 2011, 2012 and 2013.
Associate Justice Lucas Bersamin is the ponente or writer of the decision.
Associate Justice Presbitero J. Velasco Jr., who is on-leave, left his vote with Chief Justice Maria Lourdes P. Aranal Sereno. Associate Justice Teresita Leonardo De Castro inhibited from the case.
The petitioners against the DAP thanked the High Court for its ruling.
Detained Sen. Jose "Jinggoy" Estrada also thanked the SC “for respecting and upholding the Congress’ exclusive power of the purse.”
”On its face, DAP is unconstitutional. It really has no basis and it’s not even included and nowhere to be found in the General Appropriations Act,” said Estrada, who exposed the DAP in a privilege speech.
”Now that the highest court of the land said that the DAP mechanism is unconstitutional and illegal, heads must roll and budget officials must be held accountable,” Estrada added.
Estrada is now detained at Camp Crame for graft and plunder charges filed against him and Senators Ramon Revilla Jr. and Juan Ponce Enrile over alleged P10-billion pork barrel scam.
Senator Ralph Recto said he respects the SC ruling while Senator Francis Chiz Escudero said the decision “will have far reaching consequences and effects on government budgeting and disbursement processes.”
”We will study the decision carefully with a view to following and implementing it in the current, 2015 and succeeding budgets,” said Escudero, Senate finance committee chairman.
Santiago said the DAP violates the constitutional provision that: “No law shall be passed authorizing any transfer of appropriations; however, the President, . . . 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.”
The senator said the Constitution allows fund transfers only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted; but there are no savings if a project was merely deferred.
“The first issue is that the DAP was not taken from savings. The second issue is that the DAP was not used to augment items in the budget that were previously authorized by Congress. The alleged savings were used to augment new budget items not previously authorized by Congress,” the former UP College of Law constitutional law professor said.
Santiago said that it appeared that DAP funds were taken from alleged slow-moving projects. “If so, no savings were generated, and therefore the DAP is illegal,” she said.
The senator also said that the budget department should have sought the approval of Congress, because under the Constitution, it is Congress that exercises the power of the purse.
”Using the DAP, the budget department is basically realigning funds without public discussion in Congress. In effect, they are chipping away at the legislative power of the purse by fiddling with the budget,” she said.
Santiago said the DAP funds appear to have been disbursed in violation of the Constitution’s equal protection clause, which is the keystone of all human rights.
According to  Abad, additional pork under the so-called DAP were released reportedly during and after the impeachment trial against former Chief Justice Renato Corona.
“It should be illegal for the budget department to discriminate among senators. While all other senators received an average of P50 million in DAP funds, reportedly three senators got P100 million each. They are Sen. Juan Ponce Enrile, Sen. Franklin Drilon, and Sen. Francis Escudero,” she said.
The three senators did not explain why they got more than the others, but merely defended themselves with the excuse that they spent the money on public projects. By contrast, each representative allegedly received P15 million.
Those who were not given any additional pork from the DAP were Santiago, Sen. Bongbong Marcos, and former Sen. Joker Arroyo—the three senators who voted against impeachment.
In releasing funds, the executive branch cannot play favorites when carrying out constitutional commands such as social justice, social services, and equal work opportunities. The DAP releases, flawed as they were from the very beginning, played favorites among senators. That was clearly unconstitutional,” she said.
She quoted Article 210: “Direct Bribery. – Any public officer who shall agree to perform an act constituting a crime, in connection with the performance of his official duties, in consideration of any offer, promise, gift, or present received by such officer.”
Santiago said that every senator who voted to convict, and every representative who voted to indict, if each one is shown to have received additional pork during and immediately after the impeachment trial, are presumably guilty of bribery, because of the close timing between the two events.
She said that under the Penal Code, each senator or representative was guilty of the crime of “knowingly rendering unjust judgment.”
Presidential Communication Operations Office (PCOO) Secretary Herminio "Sonny" Coloma said the Palace will await the official copy of the SC decision "then review it to be able to understand its implications."
“We will defer comment until we've read the full text of the decision,” said Deputy Presidential spokesperson Abigail Valte.
For his part, Secretary Abad said he has yet to read the full text of the High Court decision.
"I reserve my comments until I read the full text of the (SC) decision," he said.
Presidential Spokesman Edwin Lacierda earlier said the government strongly believed that the discretionary fund has benefited the country.
“When we started, there was a very low GDP (gross domestic product). We implemented the DAP and it contributed to the various programs of the government, the various agencies,” he said.
Lacierda said the Office of the Solicitor General (OSG) was prepared to defend the legality of President Benigno S. Aquino’s discretionary fund.
Ombudsman Conchita Carpio Morales, meanwhile, defended the prosecution panel’s earlier move to amend the Informations for plunder, stating that the amendments were a matter of form and did not change the theory of the case. The Sandiganbayan had rejected the petition to amend the information against Senators Revilla and Enrile, pointing out that they maybe released if a new information or charge sheet is made.
“The prosecutors were just being thorough,” Ombudsman Morales explained, citing the rule that an information may be amended as a matter of right before arraignment. 
“The statements of the defense are mere speculations that are favorable to their client,” she replied when asked to comment on the opinions that the Informations appear to be weak or were hurriedly prepared.
Senators Enrile, Revilla and Estrada asked the Sandiganbayan to throw out the charges against them, arguing that the Ombudsman has “underwhelming evidence” that they were the masterminds behind the pork barrel scam, or that they conspired to steal millions of pesos in public funds.
In separate motions, the senators threw the accusations back at the Executive, whose implementing agencies had approved the accreditation of bogus non-government organizations set up by Janet Lim Napoles, the alleged mastermind behind the scam.
The motions came after prosecutors from the Office of the Ombudsman were compelled to withdraw their motion to amend the charge sheets against Revilla and Estrada to show that they, not Napoles, were the masterminds behind the scheme.
The senators also branded as “mere hearsay” the sworn affidavit of whistleblower Benhur Luy, which was the basis for filing plunder charges against them.
Revilla and Enrile said that by the whistleblowers’ own admission, they had forged the senators’ signatures in the pork barrel documents.
In separate urgent motions to dismiss and for bail, the three senators said their role was merely to recommend projects to be funded by their Priority Development Assistance Fund (PDAF) allocations.
“It is the Executive Department, through various implementing agencies, together with their partner-organizations, that should be held accountable for the PDAF’s use, and the implementation of projects funded by the PDAF, including the liquidation of the PDAF used for the projects,” Enrile said in his motion to dismiss.
Estrada and Revilla put the blame on the implementing agencies, saying that they expected the Executive had done “thorough due diligence” on the Napoles NGOs that these agencies had accredited.
“The entirety of the evidence on record against Enrile was simply underwhelming and clearly inadequate,” Enrile’s motion read.
“The evidence shows that Enrile was not entrusted with any PDAF allocation, nor tasked to handle the PDAF, or to participate in the implementation of any government project funded by it,” it added.
“Also, nobody actually saw Enrile misappropriate public funds, or take any kickback or bribe, which should be the gravamen of the crimes charged. Nobody ever saw him conspire with any implementing agency, or with the alleged mastermind, Janet Napoles. There was never any incriminatory document that can be traced to him,” the Enrile motion said.

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