BUDGET Secretary Florencio Abad cannot escape criminal prosecution for the questionable release of funds through the controversial Development Acceleration Program (DAP), according to Sen. Miriam Defensor Santiago.
Santiago said that unlike his boss, President Benigno Aquino 3rd, Abad has no immunity from suit.
She added that although it is the President who approved the DAP, which has been deemed illegal by some constitutionalists and lawyers, he cannot be sued until after his term ends in 2016. However, under the principle of presidential immunity, it is the Cabinet secretary who has to assume criminal liability, which means that people who want to go after those behind the DAP can sue Abad.
“He can be charged with malversation under the penal code or plunder if it reached the threshold of P50 million,” Santiago, who is also an expert on constitutional law, said.
The senator maintained that the DAP violates the constitutional provision that “No law shall be passed authorizing any transfer of appropriations; however, the President, . . . may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”
Santiago said the Constitution allows fund transfers but only if there are savings, meaning that the project was completed and part of the appropriation was not used. She said there are no savings if a project was merely deferred.
Considering that the DAP funds were taken from alleged slow-moving projects, she believes that no savings were generated, and therefore the DAP is illegal.
Santiago said the Budget department should have sought the approval of Congress, because under the Constitution it is Congress that exercises the power of the purse.
“Absolutely, you could see the criminal mind of the one who thought of this,’’ the senator said in a radio interview.
Abakada Representative Jonathan dela Cruz shared the senator’s position, noting that if Malacañang had no intention to hide DAP, it should have sought congressional approval.
He said the President could have just endorsed the DAP measure as urgent and have his allies in Congress approve it immediately.
De la Cruz said Malacañang kept the fund secret for two years. It would not have been exposed if not for the privilege speech of Sen. Jose “Jinggoy” Estrada, who said lawmakers got additional funds for ousting former chief justice Renato Corona.
The lawmaker said the House of Representatives’ independent bloc is ready to take legal action against the people who created DAP if the House leadership snubs the resolution calling for the appropriate committee to investigate the questionable fund releases.
“Now that the budget is also finished and no government agencies are conducting an investigation of DAP, I don’t see any reason why the House will not investigate DAP,” Dela Cruz said in a radio interview.
He said they will charge personalities behind the DAP if House leaders ignore their request for a congressional inquiry.
“We can’t allow the issue to pass,” he added.
Former senator Joker Arroyo said in another radio interview the way the Aquino administration used billions of pesos in public funds is “budgetary dictatorship.”
Arroyo maintained that the Executive can’t realign and disburse budgets that have been allocated without the approval of Congress.
“No money should be paid out of the treasury without congressional approval, otherwise that’s dictatorship,” the former senator said.
Malacañang has stood firm in defending DAP, citing the Administrative Code which was passed in 1987 that allows the President to realign funds.
Arroyo pointed out that the late president Corazon Aquino, and former presidents Fidel Ramos, Joseph Estrada and Gloria Arroyo never invoked or used the code.
According to him, officials of the present administration disregarded guidelines and standards.
Palace deputy spokesman Abigail Valte said on Sunday that officials who misused DAP funds will be held accountable.
Valte said projects funded by DAP will continue, except for those endorsed by lawmakers.
Abad had admitted that from P50 million to P100 million were released for projects of legislators under the DAP.