Presidential spokesperson Edwin Lacierda has done it again--he says that what is unconstitutional may not be criminal. Lacierda is reacting to rising calls for accountability on the DAP or the Disbursement Acceleration Program.
I havent read the official version of the Supreme Court decision on the DAP. What I will be basing my comments today is from the public pronouncement given by Supreme Court spokesperson Atty. Theodore Te.
What the SC says, the DAP is inherently illegal or unconstitutional. Good.
What confuses everyone is when the Highest Tribunal says that some parts of the program are legal. What???
What I understand about the law is that it is precisely an either or thing--it is legal or it is not. And there are two things that define acts of men---acts that are patently evil due to its nature and acts that are prohibited by Congress.
Now, you cannot say that killing is illegal yet using a knife instead of a gun is not entirely illegal?
The DAP violates the very principle of good governance and the rule of law, because it exercises a function which is reserved only to Congress. Congress is given the power of the purse, period. The Executive has the power to implement the programs of government while the Judiciary sees to it that everybody follows the Rule of Law.
The DAP simply says that you can allocate to other uses, savings which some agencies have garnered for a period of time.
Under our Constitution, the Executive has the power to propose programs and projects. These are included in the General Appropriations Act or GAA. The GAA is then submitted to Congress. Congress debates.
After the debates, Congress exercises the option to approve the budget or not. Usually, they do, with certain revisions. They then pass it as LAW.
Now, GAA becomes truly a law, when the President signs it into law.
Why is it important for Congress to declare it as law? Because by declaring it as law, the Executive is bound to implement only those stated in the GAA and no more. It cannot allocate things which are not contemplated in the GAA.
Now, going back to what Lacierda says that even if the Supreme Court has declared DAP as unconstitutional, acts that implemented this program is not criminal.
What is being penalized by law is the illegal use of public funds. This is called malversation.
When a public officer uses funds not allocated to a certain thing or service, he commits malversation. What Malacanang did when they implemented DAP is technically, malversation of funds--they used funds called savings to fund another program which these funds are not supposed to fund. Since the GAA is law, when one violates it, the violation becomes criminal.