WILL the Supreme Court (SC) save President Benigno Aquino 3rd and Budget Secretary Florencio “Butch” Abad from criminal prosecution?
If Chief Justice Maria Lourdes Sereno and the other allies of the President at the SC prevail over the other justices, then Aquino and Abad will not be slapped with criminal charges even if the Disbursement Acceleration Program (DAP) is declared unconstitutional by the tribunal.
The SC ruling is expected to be out on the first week of July.
A highly placed source had told The Manila Times that majority of the justices had voted to declare the DAP unconstitutional.
Since the justices are done debating on the constitutionality of the DAP, arguments are now centered on the possibility of punishing the president and the budget secretary for implementing a program that violated the Constitution.
The source said Sereno and some justices are of the view that even if the DAP were to be declared unconstitutional, Aquino could be spared from criminal liability because of the doctrine of “presumption of innocence unless proven otherwise.”
It was learned that Associate Justice Marvic Leonen has issued a separate opinion in favor of Malacanang. Leonen and Sereno are appointees of Aquino.
The Times source said the magistrates will discuss the “doctrine of operative facts” and the declaration of the DAP as unconstitutional but shall be “prospective in application.”
Sereno, the source added, is pushing for the doctrine of operative facts to be applied in the case of Aquino. Such doctrine states that while the acts of the president may be invalidated, for as long he exercised good faith, then all the effects of his act, including the release and transfer of funds, shall be considered valid.
As a sitting president, Aquino is immune from suit. But once he steps down, he can be charged criminally.
The Times source said Malacañang has sought the help of the president’s allies in the High Court to spare Aquino and Abad from criminal liability.
This could explain why Aquino’s appointees in the court led by Sereno are lobbying that despite the declaration of the unconstitutionality of the DAP, it shall be “prospective in application.”
This means that even if the tribunal had ruled that the DAP was illegal, Aquino and Abad would not be prosecuted in the future.
“Parang magulang iyan sa nangupit na anak. Kahit na i-declare na unconstitutional ang DAP hindi papaluin ang Malacanang, basta huwag lang uulitin ang pangungupit dahil kapag inulit papaluin na sila [It’s just like a child who stole from his parents. Even if, for instance, the DAP has been declared as illegal, as long as Malacanang refrains from committing the same mistake, then (Aquino) won’t be punished. But if they commit the same illegal act, then they will be punished],” the source explained.
The Times source pointed out that the justices shall decide whether or not to include in the dispositive portion of the ruling Aquino and Abad’s possible prosecution, similar to what they did in their decision on the priority development assistance fund or pork barrel issue.
But even if the SC does not punish the president for creating and implementing the DAP, any one can file an impeachment complaint against Aquino once the High Court has ruled that the DAP is illegal, The Times source said.
SC justices have until June 25 to submit the final draft of their separate opinions, which shall be deliberated upon during their final voting on July 1.
The source said the draft ponencia of Associate Justice Lucas Bersamin has been circulated among the justices and some magistrates have also finished the draft of their concurring or dissenting opinions.
Downfall?
The Integrated Bar of the Philippines (IBP) earlier warned that the DAP controversy may lead to Aquino’s downfall.
Vicente Joyas, IBP president, said if the SC declares the DAP unconstitutional, the president may be held liable for technical malversation, a solid ground for impeachment.
“They may be prosecuted for technical malversation and COA [Commission on Audit] shall require the return of the funds [released through DAP],” Joyas told The Manila Times.
The IBP filed the fifth petition against the DAP and asked the SC to order COA to conduct an immediate audit of the program and disallow all public money spent through it.
The other petitions questioning the disbursement program were filed separately by former Iloilo congressmen Augusto Syjuco, Manuelito Luna, Jose Malvar Villegas and the Philippine Constitution Association (Philconsa). Militant groups also filed a similar case at the High Court.
Also on Monday, Abad claimed there were sectors that were out to influence the outcome of the SC decision on the DAP with the aim of fanning anti-government sentiment among the people.
Although an SC insider had told The Times that nine of the 13 justices voted to declare the DAP unconstitutional, the budget chief said they remained hopeful that the High Court’s decision would favor them.
“There are elements who are trying to unduly influence the SC and
condition the minds of our people. Let us not be carried away by them,” Abad said in a text message to The Manila Times.
“It is dangerous and unproductive to speculate at this point,” he stressed.
As of Monday, the budget chief claimed they “do not have any inkling as to how the justices will finally decide.”
“But we are hoping and praying for the best,” he said.
The Times source said at least nine out of the 13 justices manifested their intention to declare the DAP illegal.
“A consensus was already made by the justice—DAP is unconstitutional. Two violations were committed by [the President] and Abad: First, there are no savings to begin with and second, if there are such savings, [the] cross-border of money savings is not allowed,” the source at the High Court said.
Meanwhile, Presidential Communications Secretary Herminio Coloma Jr. shied away from discussing the issue during his regular news briefing.
“It’s better that we wait for the decision of the Supreme Court,” he told reporters.
When asked to react to reports that opposition lawmakers are raising the specter of an impeachment case against President Aquino, Coloma dismissed them as “speculation.”
“Let us not engage in speculation. This will not be of help at this time.
Everything we say would be pure speculation and it should be best that we wait for the [SC] ruling,” he said.
With A Report From Joel M. Sy Egco