With the Ombudsman poised to begin the preliminary investigation of Malacañang officials implicated in the controversial Disbursement Acceleration Program (DAP), Department of Budget and Management (DBM) Secretary Butch Abad has made it crystal clear that he is not willing to go to jail for the questionable funding scheme – and if he ever does, he’s going to take PNoy with him.
That is the subtext of Abad’s statement when he declared last week that it was PNoy who had the final say in the approval and release of the funds for DAP.
“We endorse to the President and the President has final approval…I sign the endorsements and the approval, (it) is approved by the President. Of course, all the projects are approved by the President,” Abad explained.
When told that the SC ruling declaring the DAP as unconstitutional might be used against him, Abad countered that his acts should be presumed to have been done in “good faith” and with “regularity” in the course of his official functions as budget secretary and – take note – as the “alter ego” of the President.
In Latin, alter ego literally means “second ‘I.’ ” It is like being another person’s clone. In politics, being an alter ego of a president means the heads of the various executive departments are extensions of the legal personality of the president, and the acts of the Cabinet secretaries in the course of their duties are deemed to be acts of the president.
This “alter ego principle” or the “doctrine of political agency” as it is known in Philippine law, was explained by the Supreme Court (SC) in the landmark case of Villena vs. Secretary of Interior, wherein the High Court said: “(T)he acts of the secretaries of [executive]departments, performed and promulgated in the regular course of business, are, unless disapproved of reprobated by the Chief Executive, presumptively the acts of the Chief Executive.”
Abad is obviously using this “alter ego principle” to wash his hands of any liability for what is undeniably a technical malversation of public funds. However, since the “regularity” of Abad’s actions under the so-called doctrine of political agency are – based on the SC ruling – merely “presumed” and not conclusive, it may still be rebutted or disavowed by PNoy.
To rule out the possibility that his boss may one day hang him out to dry, Abad immediately and categorically tagged PNoy to be the final approving authority of the illegal disbursements of public funds to agencies and projects outside the budget approved by Congress. In other words, if there was anyone guilty of technical malversation, it should be PNoy, not him. Genius din itong si Abad!
These remarks by Abad are, without a doubt, a veiled threat to PNoy to do everything in his power to get the BDM chief off the hook or else. Abad clearly has no qualms throwing PNoy under the bus if it means beating the raps against him.
It is no-brainer therefore why Malacañang immediately came to the defense of Abad and his deputy, DBM undersecretary Mario Relampagos, saying that their actions were in the public’s interest.
We don’t blame Abad for showing his true colors. He has every reason to be nervous especially after the Field Investigation Office (FIO) of the Office of the Ombudsman prematurely absolved PNoy for the misuse of the DAP funds on the ground that the charges against him do not amount to an impeachable offense.
But the Ombudsman’s decision to quickly clear PNoy on a technicality only bolstered the belief of many Filipinos that the anti-graft agency’s investigation into the DAP funds is merely “for show.” Others, meanwhile, see it as a Palace script to bury the issue in the Office of the Ombudsman until after the 2016 elections.
For Kabataan party-list Rep. Terry Ridon, Ombudsman Conchita Carpio Morales should not have exempted President Aquino from the ongoing preliminary investigation into the DAP. Constitutionalists we’ve talked to agree.
They say the constitutional provision on impeachment cannot be invoked to justify PNoy’s immunity from a preliminary investigation by the Ombudsman for a criminal offense because an impeachment and a preliminary investigation are legally distinct from one another.
Impeachment is a political process to remove a president from office for a specific offense or offenses while a preliminary investigation is a quasi-judicial process to determine if there is probable cause to charge the president for a crime.
Moreover, a preliminary investigation is not the “suit” contemplated in the doctrine of presidential immunity from suit, the legal experts said. The “immunity” applies only to actual cases filed in court and does not cover a preliminary investigation into a president’s possible criminal liability.
Morales’ decision, however, does not guarantee that PNoy won’t be haled into court after June 2016. PNoy would do well to start preparing his defense sooner rather than later, just in case Abad starts singing like a canary. Well, that or make sure Mar (or a sympathetic president) wins in next year’s elections – by hook or by crook.