Malum Prohibitum

By Ronald Roy

Any breach of the law is an act classified either as malum in se (bad in itself) or malum prohibitum (bad because it is prohibited). Let us use this as a premise for a clearer understanding of the Supreme Court’s resolution declaring unconstitutional the Disbursement Acceleration Program (DAP). I think that this is necessary for observers who are not lawyers, given the complexity of the facts and the intricacies of the plunder law appurtenant to the criminal cases now before the Sandiganbayan.

An example of an act that is malum in se is stealing. An apprehended thief cannot claim he did not know that there was a law punishing theft. In this case, ignorance of the law will not excuse him because stealing is intrinsically bad, immoral or evil, and even an atheist knows this. An order for restitution and a jail term await him. On the other hand, an example of malum prohibitum is a traffic violation, like parking a car in a no-parking area. The driver will get a fine for this.

In relation to the DAP imbroglio, was the act of the executive department in usurping congress’ power of the purse malum in se or malum prohibitum? This is the essential question.

Under the constitution, congress is vested with the exclusive power to appropriate funds for the operations of government. The constitution and the General Appropriations Act (GAA) were violated when DBM Sec. Florencio Abad, his subordinates and other government functionaries gathered the unused funds of the departments, agencies and offices within the jurisdiction of the president, purportedly for the noble purpose of distributing the same to sundry priority projects to accelerate economic development. Purportedly? Granted.

It may even be further assumed for argument’s sake that the DAP was designed with a mechanism to insulate its operations from graft. Nevertheless, the DAP was still an unwarranted usurpation of the legislature’s exclusive power of the purse. And here’s why: When the executive department wrested away a power exclusively owned by both houses of congress, 1) it created an abhorrent imbalance of power among the three branches of government — a disrupting disequilibrium which no healthy democracy would wish to be home to, and 2) it opened the floodgates of graft, which incidentally is what actually happened in the premises. These are the two situations that the law seeks to prevent.

Last week, I wrote that President Noynoy could not claim good faith because when he was a senator, he authored and sponsored a bill outlawing the DAP which he then saw as evil, although his colleagues ignored him. Well, he’s now hard-pressed to convince anybody that when he woke up one morning, he realized that the DAP was a virtuous concept pala. And so, as a favor to the nation, he authorized its implementation. Ngek!!

In any event, the general consensus of observers is that DBM Sec. Abad now finds himself in deep s – – t. Last week, over a dozen youth leaders led by Kabataan Rep. Terry Ridon filed with the Office of the Ombudsman a complaint of the non-bailable crime of Plunder. The youths, acting under Youth Act Now (YAN), a nationwide alliance of youth groups, charged that Abad “conceptualized, developed and implemented the DAP himself, supposedly as an economic stimulus facility”. I’m sorry, but I fear the observers’ jubilant overconfidence will likely go for naught.

The facts of the DAP and the provisions of the plunder law itself are so complicated they will give defense counsel generous lea ways for securing Abad’s acquittal. YAN’s thrust, IMHO, would be virtually trouble-free if it had instead sued Abad for Malversation (Art. 217, Revised Penal Code). A feature in Malversation would have made it much easier to convict Abad, namely, his mere negligence in allowing another or others to illicitly profit from DAP’s operations.

And the effects thereof would be just as damning as in Plunder, viz, the penalty of reclusión perpetua (life imprisonment) if the amount misappropriated or embezzled is more than 22,000 pesos, or reclusión temporal (ten years imprisonment) if 22,000 or less; additionally, Abad would be slapped with perpetual special disqualification from holding public office and a fine equal to the amount involved, not to mention that in appropriate cases there would be prima facie evidence that he had unlawfully profited.

It has long been my belief that PDAF and DAP offenders can be more easily convicted under the provisions of Malversation. Just think: In Plunder, many transactions will usually be needed to reach the threshold of 50 million pesos for conviction, while in Malversation, one transaction will be enough.

Pres. B.S. Aquino lll? Well, his numbers in the lower house shield him against impeachment, but Malversation or the malum prohibitum offense of Technical Malversation will send him to jail after his term.

(To be continued)

For feedback: rqonald8roy@gmail.com/09186449517