The problem that is Lacierda


“You seem to equate constitutionality with criminality, those are two different things the basic question is nawaldas ba yung pera?” These were the words of Presidential bad mouth Edwin Lacierda.

This is the problem with PNoy. He has opted to trust misfits like Lacierda.

Lacierda was obviously asleep when his teachers in Constitutional Law and Criminal Law taught the sanctity of the Constitution and the Law on Public Officers. Had he been awake, he would have known that it is always criminal for a public officer, more so a President, to violate the oath to “support the Constitution and all the laws of the land”. This oath of office is not just provided in the Administrative Code, which has the effect of law. It is contained in the Constitution itself. This means that where a public officer willfully violates the Constitution, he violates his oath of office. Even for a sitting President, this is an impeachable offense. It is a ground to remove him form office.

Perhaps, what caused Lacierda’s confusion is that unlike in the United States where a violation of an oath of office is a federal crime, no such statute exists here in the Philippines.

This in turn is why Lacierda should not have slept through his class in Criminal Law and/or Public Officers. Art. 220 of the Revised penal code entitled “Malversation of Public Funds” provides: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which fund or property were appropriated by law x x x shall suffer the penalty of prision correctional its minimum period or fine ranging from one-half of the total sum misapplied x x x”.

Clearly, when the Supreme Court ruled that DAP was unconstitutional, it ruled that public funds were not spent pursuant to the appropriation law enacted by Congress. In fact, the Court enumerated at least three ways by which the crime of misappropriation were committed: one: realigned funds were not savings as defined by law; two, when realigned funds were given to offices outside of the executive, which the Court described as the “cross-border use of funds”; and three, for items not otherwise provided in the appropriations law. Truth to tell is that those behind the DAP could be held liable for a total of at least 3 counts of malversation of public funds. And given the amount involved, hundreds of billions of pesos, the administration officials behind the program could lose even their underwear since the fine for the offense is at least half of the amount misappropriated.

Note too that the criminal prosecution for malversation of public funds is separate and distinct from two further prosecutions for breach of the Anti-Graft and Corrupt practice Acts; specifically, the offense of causing damage to the government and entering into contracts disadvantageous contract to the government, both of which do not require that the public officer benefited from the public funds.

So do I think the President should be impeached?

Well, the grounds are certainly present. By committing malversation of public funds, the President committed a culpable violation of the Constitution, and even bribery -if it can be proven that the DAP distributed to the senators were in fact paid to influence their vote in the impeachment trial of removed CJ Renato Corona. But as a veteran of three impeachment complaints against GMA, I can claim some wisdom borne out of experience. First, the people, with only two years left in PNoy’s presidency, will not be too supportive of any move to remove him. The people’s thinking is that since two years is too short in politics, we might as well let him finish his term. But a more fundamental reason I am not supportive of impeachment is it will only enrich our Tongressmen and Senatongs further. Our experience against Gloria Arroyo was that Malacañang would again use the people’s money to buy the loyalty of Congress. To the movers behind the impeachment: please spare our people further acts of misappropriation which will certainly happen again in case of impeachment. Our hope is whatever is left from our coffers should be spent on our people. Meanwhile, let us initiate criminal action against those without immunity and after two years, against the soon to be-ex-President himself.

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