Column: DAP and its consequences

Published on July 15, 2014.

I will hazard one reason why only the youth groups associated with the militant Left filed a plunder case against Budget Secretary Butch Abad last week; when the gaping hole at the center of their case becomes obvious even to reporters who are not lawyers, the complainants can always hide behind their mistake by pleading the exuberance of youth.

Kabataan Rep. Terry Ridon led other youth leaders in filing the complaint with the Office of the Ombudsman, accusing Abad, the architect of the controversial Disbursement Acceleration Program, of having “systematically misappropriated, converted, misused, and malversed public funds through his executive issuances and the programs implemented by him as Secretary of the Department of Budget and Management.” Last July 1, the Supreme Court recognized the DAP as effective government policy but ruled, unanimously, that the means by which it was implemented violated the Constitution.

Because of the amounts involved, the youth groups filed a case for plunder. Republic Act No. 7080, the law “defining and penalizing the crime of plunder,” is perhaps best known for its P50-million threshold. But the heart of the plunder law, as passed by the Eighth Congress (that is, the first one in session after the plunder of the Marcos years), is the very Marcosian concept of “ill-gotten wealth.”

The first sentence of Section 2 reads: “Any public officer who, by himself or in connivance with members of his family, relatives by affinity or consanguinity, business associates, subordinates or other persons, amasses, accumulates or acquires ill-gotten wealth through a combination or series of overt or criminal acts as described in Section 1(d) hereof in the aggregate amount or total value of at least fifty million pesos (P50,000,000.00) shall be guilty of the crime of plunder and shall be punished by reclusion perpetua to death.”

In other words, the crime of plunder involves the abuse of public funds for private gain. There is nothing in the Supreme Court decision on the DAP that can be construed as implying that Abad had designed the economic stimulus program to line his own pocket. Indeed, the youth groups’ complaint does not even allege any ill-gotten wealth on Abad’s part. The most they say is the Court’s invocation of the doctrine of operative fact leaves Abad (and other officials) “open to investigation.”

Perhaps they should have investigated first, and filed the charge later. But scoring political points, especially in a fast-moving news cycle, has its own momentum. In fact, the complaint is phrased in such a way that, should its obvious deficiency in the use of the plunder law surface, the petitioners will leave the matter to the discretion of the prosecutors. “We are executing the instant complaint affidavit in order to charge the Respondent for violation of R.A. No. 7080 or, in the alternative, the Anti-Graft and Corrupt Practices Act, the Code of Conduct and Ethical Standards for Public Officials and Employees, and the Revised Penal Code.” In other words: Bahala na kayo, bossing. We just want to take Abad out, by any means.

* * *

I would like to use this same context to discuss the notions of good faith and good intentions, which have become weapons of political discourse since the Supreme Court released its ruling (and the separate opinions that accompanied it).

The youth groups’ plunder complaint against Abad is fundamentally defective; it fails to even attempt to prove the key element of personal gain. A single reading of RA 7080 would have sufficed to clue the complainants in, about the nature of a plunder charge. Should the state, or Abad in a personal capacity, sue them for manifest bad faith?

That would be to penalize the complainants for using the full scope of the law’s resources. Except in rare instances (such as the specifically prohibited act known as forum shopping), we should allow no restriction on the filing of cases. It is up to the prosecutors to determine whether the cases filed have legal legs to stand on. But it is important that each filing is assumed to have been prepared in good faith.

Good faith and good intentions become weaponized only when adversaries (not us, never us) are presumed to depend on them.

* * *

I was busy with a writing workshop last Thursday when ACT Teachers party-list Rep. Antonio Tinio tweeted as follows: “Ironic that mayors’ league quoted @jnery_newsstand in full page ad supporting Abad when he called for latter’s resignation.” An immediate reply was not possible, because I read the tweet late, and read the ad even later.

But I wouldn’t have used “ironic”—which makes sense only in a black-and-white, somos-o-no-somos world. I would have used “poignant,” or “painful,” or (if we are to offer an equivalent figure of speech), “paradoxical.” I actually agree with most of the mayors’ points, and would like to emphasize that budgetary reform is the real context of the DAP. So it is only an apparent contradiction to say that I fully support Secretary Abad and had no choice but to call for his resignation. I am glad that Abad did offer to resign, but worried that President Aquino declined it out of a similar, black-and-white view.

“To accept his resignation is to assign to him a wrong. And I can’t accept the notion that doing right by our people is a wrong.” I’m afraid that is a politically immature view. Doing right by our people, when it is declared unconstitutional, should have consequences.

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