Return the money

Declining to give more details, Commission on Audit chair Grace Pulido-Tan last week confirmed only the most basic fact: that notices of disallowances had already been sent to those public officials implicated in the alleged systematic diversion of pork barrel funds to fake nongovernment organizations. The list includes four sitting senators: Bong Revilla, Juan Ponce Enrile, Jinggoy Estrada and Gringo Honasan.

“You have to trust us that we’ve sent them,” Tan told Senate reporters. Indeed, after Estrada used his privilege speech last September to call the COA chair either “too lazy” or “ignorant,” and then peppered her with questions during a Senate hearing the following month, Tan dramatically promised in a television interview to send the first notice of disallowance to Estrada.

In their confrontation at the Senate last October, Estrada belittled the notion that a lawmaker could be asked to return the Priority Development Assistance Fund money he had coursed through other government agencies, reasoning that they, not the lawmaker, had control over the money. Tan’s response: “That’s the consequence of a notice of disallowance. Those who will get such notices would become jointly and solidarily liable for the return of the money, and that is a matter of law.”

Perhaps Estrada was too lazy to do the necessary research, or ignorant about the scope of the commission’s work, but in fact the constitutional agency can force a public officer like him to return government money inappropriately used—even if he says he only endorsed the implementing agency and did not touch any of the funds.

What uses can be disallowed? The 2009 Revised Rules of Procedure of the Commission on Audit has the answer: “Disallowance of expenditures or uses of government funds and properties found to be illegal, irregular, unnecessary, excessive, extravagant or unconscionable.”

What do these six terms mean? The first and the sixth terms are defined in a 2009 COA circular, while the middle four terms have their own definition in a much earlier circular, from 1985. Of particular moment in the alleged pork barrel scam are the more recent definitions. “Illegal expenditures are expenditures which are contrary to law.” And “Unconscionable expenditures are expenditures which are unreasonable and immoderate, and which no man in his right sense would make, nor a fair and honest man would accept as reasonable, and those incurred in violation of ethical and moral standards.”

The same 2009 circular specifies five types of liability. Two seem to apply to the public officials, such as the four senators, who are implicated in the pork barrel scam. “Public officers who certify as to the necessity, legality and availability of funds or adequacy of documents shall be liable according to their respective certifications.” This one alone puts the burden of responsibility back on those implicated legislators whose main legal defense was that they had nothing to do with the funds themselves, but only certified as to their necessity.

But the second applicable liability fits the pork barrel scam like grasping hand in fingerprint-avoiding glove. “Public officers and other persons who confederated or conspired in a transaction which is disadvantageous or prejudicial to the government shall be held jointly and severally with those who benefited therefrom.”

This must be the provision Tan referenced, in her confrontation with Estrada. Joint and several or solidary liability means each person involved in the illegal transaction is individually liable for all of the amount.

TV-friendly bravado aside, Tan had no other choice but to issue the notices of disallowance. The COA’s power to audit, and then to hold the auditees to account, is also a duty. Once the COA’s special audit team had determined that as much as P6 billion in pork barrel funds between 2007 and 2009 had been diverted to some 82 bogus or irregular NGOs, at least eight of which are affiliated with alleged scam mastermind Janet Lim-Napoles, the agency had no option but to file the notices. Like the impeachment process, the audit cycle has a logic that must be followed.