Extravagance vs extravagance

The accusation against the Disbursement Acceleration Program (DAP) is constitutional extravagance in the use of public money. The accusation against Janet Lim-Napoles is criminal extravagance and corruption of the not-so-innocent.  Meanwhile, even as the Supreme Court has just finished listening to arguments for and against the Priority Development Assistance Fund (PDAF), it has now scheduled oral arguments on  the DAP.

Not to be outdone by his media critics, President Aquino gave them tit for tat in a speech before the Foreign Correspondents Association of the Philippines. Confidently he said that the DAP has its justification in the Administrative Code.

Remembering Demetria vs Alba. There is a bit of interesting history about that. Once upon a time there was the case of Demetria vs Alba.  The case arose out of Section 44 of Presidential Decree No. 1177 titled “Budget Reform Decree of 1977.” Section 44 said: “The President shall have the authority to transfer any fund, appropriated for the different departments, bureaus, offices and agencies of the Executive Department, which is included in the General Appropriations Act, to any program, project or activity of any department, bureau, or office included in the General Appropriations Act or approved after its enactment.”

President Cory Aquino blasted the provision as a violation of the Constitution. The Court agreed and ruled: “‘For the love of money is the root of all evil: …’ and money belonging to no one in particular, i.e., public funds, provide an even greater temptation for misappropriation and embezzlement. This, evidently, was foremost in the minds of the framers of the constitution in meticulously prescribing the rules regarding the appropriation and disposition of public funds . . . Hence, the conditions on the release of money from the treasury. But Paragraph 1 of Section 44 puts all these safeguards to naught. For, as correctly observed by petitioners, in view of the unlimited authority bestowed upon the President, ‘… Pres. Decree No. 1177 opens the floodgates for the enactment of unfunded appropriations, results in uncontrolled executive expenditures, diffuses accountability for budgetary performance and entrenches the pork barrel system as the ruling party may well expand [sic] public money not on the basis of development priorities but on political and personal expediency.’ . . .”

The provision in the Administrative Code relied upon by the current administration (Section 49, Chapter 5, Book VI) is an expanded version of paragraph 1 of Section 44 of PD 1177. Alas and alack!

As with Section 44 of PD 1177, so also with the current Administrative Code, EO 292—neither can go against the Constitution.

Death of pork barrel. But Palace advisers have intoned that the word of the President is equally powerful as God’s saying “Let there be light!” and the President has decreed, “Let there be no more pork barrel!”  Some members of Congress disagree.

We must remember that both the PDAF and the DAP are about public money and the Constitution clearly says that no money shall be taken out of the public treasury except in virtue of an appropriation made by law. This means that Congress is the real master of the purse. The President can exercise his veto power, but Congress can override his veto.

It has been made clear by the pork barrel controversy that we have a lot of money. It has also been made equally clear that the money has not been going to where it should go. This is the difficult challenge not just to the congressional process but also to the executive process. Principal agents in this delicate process aside from the President are the justice secretary, budget secretary, the Commission on Audit, and the ombudsman, among others.

Napoles on the dock. Much is being expected by many from Napoles’ anticipated appearance before the Senate investigation body. This will be something to watch. We have to remember that although Congress has the power to compel the attendance of witnesses, the Constitution also says “The rights of persons appearing in or affected by such inquiries shall be respected.”

In the celebrated ZTE case, the effort of the Senate to expose the truth was foiled by then

Neda director general Romulo Neri’s appeal to executive privilege. There will be no occasion, to the best of my knowledge, for appeal to such privilege in the current case. But standing tall is the right against self-incrimination of any person.

There are two distinct rights against self-incrimination: the right of an accused and the right of the witness who is not an accused. An accused has the right to refuse even to take the witness stand; a witness who is not an accused may simply refuse to answer an incriminating question.

I am not sure what the situation of Napoles is. Will she be appearing as a simple witness or as an accused? As I recall, she is already charged in court with offenses related to the pork barrel. Can she claim the right of an accused or at least the right to due process on the ground that whatever she says now can affect the criminal case against her? This right to due process was invoked and accepted in the Lopa Group case.

If she does appear but refuses to answer incriminating questions, can she be made to suffer the fate of Arnault in the Tambobong case? The consequences for Arnault was detention. But Napoles is already under detention.

The pork barrel controversy will be a long drawn-out case and, as is usually said of novel cases, the Supreme Court can “enrich” jurisprudence.