Will P-Noy, Abad go to jail due to DAP?

Are reports true that the Supreme Court is about to declare the Disbursement Acceleration Program (DAP) unconstitutional? It would seem so, going by hot exchanges in a prominent e-group. For, one of its members, a newspaper columnist (not The STAR’s), claimed Wednesday that he had in fact read the ruling. He even quoted the supposed ruling’s last line: “This Decision is immediately executory but prospective in effect.”

The exchanges rapidly spilled over yesterday to other e-groups. The question arose from netizen-lawyers: who in the SC leaked the ruling? Discussions dwelt on a potential breach of Rules of Court and Judicial Conduct. For, no ruling may be released to the public, much less the ponente (author-justice) be identified, until formally promulgated. And from recent pronouncements, such promulgation on the contentious presidential pork barrel, DAP, would be in the first half of July at the earliest.

The e-groups recounted the case of retired SC justice Ruben Reyes, whom colleagues in 2009 found guilty of one such leak. He was fined P500,000, barred forever from public office, and suspended six months from practicing law.

Likely the SC would investigate if there indeed was a leak of the DAP ruling.

Meanwhile, political watchers’ eyes are still on the ball. That is, the implications of the DAP being declared unconstitutional.

Petitioners argue that President Noynoy Aquino and Budget Sec. Butch Abad broke at least two provisions of the fundamental law. First is the separation of Executive and Legislative branches. In 2011-2012 they gathered from various Executive agencies P142 billion — funds duly allocated by Congress — and rechanneled these to un-programmed works. (The SC last Nov, cited this provision in illegalizing the congressional pork barrel for arrogating the Executive’s power to implement projects.)

Second is the provision limiting the use of savings by branch or agency heads only within their divisions. Of the P142 billion, P13 billion was doled by P-Noy and Abad to co-equal Congress, and P100 million to the independent Commission on Audit.

Will P-Noy be impeached and, with Abad, go to jail for the breaches?

One view likens it to a child who does something bad for the first time, and is scolded by parents not to do it again, or else. P-Noy and Abad could not have violated the Constitution if the SC only now would declare the DAP wrong. If the DAP was not unconstitutional before, then they violated nothing. But after it is declared unconstitutional, and they again exercise the DAP, only then would they be punishable.

This line was in fact Solicitor General Francis Jardeleza’s defense of the DAP during oral arguments at the SC: if it’s wrong after all, then we won’t do it again; in fact, we didn’t do it with the 2013 national budget.

On the other hand are those who say that P-Noy and Abad deserve a spanking right away. They hold that the two are not innocent babes, but long-serving public officials who ought to know the criminal laws that govern their acts. The DAP allegedly was illegal juggling of public funds.

Cited for this argument is Article 220 of the Revised Penal Code: “Illegal use of public funds or property. 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 or ordinance 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, if by reason of such misapplication, any damages or embarrassment shall have resulted to the public service. In either case, the offender shall also suffer the penalty of temporary special disqualification.

“If no damage or embarrassment to the public service has resulted, the penalty shall be a fine from 5 to 50 percent of the sum misapplied.”

Prision correccional is six months and one day to six years’ imprisonment. Its minimum period is six months and one day to two years. In such case, says law school dean Amado Valdez, the convict can avail of probation, which covers sentences of six years or less. A convict on probation need not spend a single day behind bars, but only render public labor while reporting to a probate officer. The only exception is multiple convictions.

P-Noy would be impeachable, for culpable violation of the Constitution, if the SC illegalizes the DAP. But whether the Congress dominated by his Liberal Party mates actually would impeach and convict him is another story.

Abad this early, and P-Noy when his immunity from suit ends with his term in 2016, can be indicted for illegal use of public funds. But if found guilty, they can be let off on probation.

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Home Guaranty Corp. president Manuel Sanchez reacts to my piece last June 9 about a shady contract by his predecessor. Specifically, the latter granted a prime property to his friends for P2 million a month for 25 years, when the agency already was earning P12 million a month for it. Writes Sanchez:

“I commend you for a very fair and objective presentation of the challenges the HGC is facing. Let me point out that, while the issues in your article are attributable to previous managements, we have taken steps to remedy them. Reforms have been put in place to prevent the mistakes of the past. I assure you that HGC continues to effectively perform its mandate as ‘mobilizer of private funds for public housing.’”

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