This is an excerpt of Sen. Miriam Defensor Santiago’s keynote speech at the 4th National Young Hoteliers and Restauranteurs Power Conference organized by De La Salle University-Dasmariñas last 9 September 2013at the SMX Convention Center, SM Mall of Asia, Pasay City
I have taken the position that pork barrel should be abolished for all members of Congress. It should not be left to the individual senator or representative to waive his pork barrel, because the money will simply go either to his colleagues, or to other corrupt bureaucrats. Hence, it is necessary not only to waive the pork barrel, but also to abolish the entire pork barrel system. The Supreme Court in the 1994 case of Philconsa v. Enriquez upheld the constitutionality of the pork barrel, at that time called the Countrywide Development Fund. As a student of constitutional law,I believe that that it is time for the Supreme Court to revisit this problem. We have had too many years of rapacious experience with pork barrel abuses to continue to ignore that corruption is embedded in the system.
Some of the defenders of pork barrel claim that if administered properly, it will result in distributive justice, meaning that money will go to the poor who most urgently need it. That was the dream. But as it turned out, the dream has been exploded by the money culture of corrupt politicians. I hope the Supreme Court will take heed of the words of wisdom from Justice Oliver Wendell Holmes, Jr., who said in one of his famous aphorisms: “The life of the law has not been logic; it has been experience.”
Today, people throughout the archipelago, cutting across the various economic classes, are rising in colossal outrage against the pork barrel sinkhole which has swallowed up P10billion of taxpayers’ money. It now appears that at least three senators, not to speak of over 20 representatives, have been giving their pork barrel funds, not to the government departments as directed by law; but to non-government organizations (NGOs) that do not exist.
My humble opinion on the controversy whether pork barrel can be given to NGOs is that the budget law allows public funds to be transferred to NGOs. However, the procedure provided by law has been deliberately ignored, and therefore transfer of public funds to NGOs has been illegal, for the following reasons:
First, the transfer of pork barrel funds to NGOs do not appear to follow the rules defined under R.A. No. 9184, also known as the Government Procurement Reform Act. More specifically, the transfer of funds appear to have failed to follow the rules under Resolution No. 12-2007 of the Government Procurement and Policy Board, which is now a provision of the implementing rules and regulations of the Government Procurement Reform Act.
Second, the NGOs have miserably failed to comply with the requirement that the NGO should have an established track record of service delivery and should be financially stable. It appears that there is no compliance with the rule requiring the submission of “audited financial statements for the past three (3) years, stamped ‘received’ by the BIR, or its duly accredited and authorized institutions, for the immediately preceding current year, showing, among others, its total and current assets and liabilities.”
Pork barrel is a special purpose fund. In my humble opinion, the General Provisions of the budget apply both to the special purpose funds and to the regular budgets of line departments. However, the General Provisions on the Limitations on Transfer of Funds to NGOs is intended to impose limitations. The essence of the law is to limit, and not to facilitate, the transfer of funds.
Allow me to emphasize this important principle which in my text appears in bold face: The funds, whether from PDAF or other sources of appropriations, are ALWAYS released to an implementing agency (IA) – which is a department, an agency, or a local government unit – and NEVER to an NGO. The choice of the NGO, if GPPB Resolution No. 12-2007 is followed, is subject to competitive bidding or through negotiated procurement. The choice of the NGO is the responsibility of the agency head, not the senator or congressman, even in the case of PDAF or other off-budget funds.
The lawmaker makes his ill-gotten wealth usually by choosing the supplier of the service contract, or the contractor of the supply contract. To prevent corruption, it is the responsibility of the agency head – normally the department secretary – to advice the lawmaker that choosing a contractor violates the rules of the Government Procurement Reform Act. Choosing the contractor is illegal. And yet, lawmakers have been doing it with impunity. When the lawmaker chooses the contractor, thatis a crime and a dead giveaway of the lawmaker’s malicious intent to get kickbacks.
Janet Lim Napoles and her ilk have failed to obey the conditions of the2012 budget on the rules and use of funds. I quote the following:
Sec. 72.Requirements on Fund Transfers to Civil Society Organization (including NGOs). Fund transfers to Civil Society Organizations (CSOs) shall be made only when earlier fund releases, if any, availed by the CSOs shall have been fully liquidated pursuant to pertinent accounting and auditing rules and regulations.
Government agencies shall likewise ensure that the CSOs they deal with are legitimate. A report on the fund releases indicating the names of CSOs shall be prepared by the agency concerned and duly audited by the COA, and shall be submitted to the Senate Committee on Finance and the House Committee on Appropriations, either in printed form or by way of electronic document.
The Napoles NGOs and similar syndicated criminal NGOs did not fully liquidate their earlier fund releases, before they availed of new fund transfers from pork barrel funds. It appears that, contrary to the budget requirement, the Senate Committee on Finance did not receive reports on the fund releases of the NGOs prepared by the government agency concerned, and duly audited by the COA. Under the budget requirement, it is the responsibility of the government agency head to require a COA audit.
In 2013, Congress amended the budget, specifically the General Provisions Sec. 72, entitled “Requirement on Fund Transfer to Civil Society Organizations,” page 1691. This provision now allows CSOs to receive subsequent fund transfers when earlier fund releases, if any, have been fully liquidated and at least seventy percent (70%) of the latest fund transfer availed of by CSOs shall have been liquidated.
This provision weakened the compliance requirement, which used to call for full liquidation prior to future releases of funds. By introducing the amendment, certain crooks in Congress inserted a phrase that allowed fake NGOs to get more and more pork barrel funds without even liquidating all prior pork barrel funds that they had obtained.
There is an existing agency to investigate corruption. It is called the Interagency Antigraft Coordinating Council, and has eight members, led by three agencies: the Secretary of Justice, Ombudsman, and COA chair. They have promised a report very soon. Once the report is released, it appears that at least three senators will be identified for preliminary investigation. This procedure means that in front of the prosecutor, the affidavits of the alleged whistleblowers will be presented in evidence, and the three senators will be asked to submit their counteraffidavits. After summary proceedings, the prosecutor will then issue a resolution on whether to dismiss the cases against them, or to file the cases in court.
In criminal law, there is a general rule called the Penal Code, and there are various special laws, each with its own set of rules. One of these special laws is R.A. No. 7086, also known as the 1991 Anti-Plunder Act. It provides that any public officer facing criminal prosecution that is pending in court, shall be suspended from office. Thus, if the prosecutor decides to file the case in court, the senator or representative who is accused of plunder will immediately be suspended from Congress.
Once the case is filed in court, the first thing that the judge will do will be to conduct a so-called bail hearing to determine if the evidence is strong against the accused, in which case they will not be entitled to bail. If the evidence of guilt is strong, the accused lawmakers will have to stay in jail during the course of the trial.
The law defines plunder as the acquisition of ill-gotten wealth in the total value of at least P75 million. It is committed both by the public officer and by any person who participated with him. Plunder is punished by life imprisonment and perpetual disqualification from holding any public office. In the imposition of penalties, the degree of participation and attendance of mitigating and extenuating circumstances shall be considered by the court. For example, if the accused is over 70 years old, his age would be considered a mitigating circumstance. In the case of a convict who is at least 70 years old, he can apply with President Aquino for pardon on the ground that his continued imprisonment would be inimical to his health. Otherwise, the penalty for life imprisonment does not appear to have any definite extent or duration. (People v. Baguio, 196 SCRA 459 ).
When last December 2012, I exposed the odious abuses of the Senate President’s pork barrel, he and his equally vicious ally, a former policeman, could not even answer me on the issues, but together flagellated me with personal insults. Because both are non-educable, they refused to debate on principles, choosing instead to attack me with personalities, and refused to let the truth get in the way of their scurrilous efforts to destroy me.
Just last Friday, September 6, the online version of a popular newspaper carried the latest in a series of suspicious articles purporting to be news reports, and carrying the bylines of members of the corrupt media. The story twisted the facts to make it appear that I am implicated in the pork barrel scam. Fortunately, my staff called the management of the newspaper, and the fake story was promptly deleted from the internet.
These stories which very obviously engage in character assassination against me can only be funded by my arch enemy. He is a man who has grown so old in government corruption that I believe he was a waiter during the Last Supper. I challenged him to a public debate, but instead, he has chosen to go underground by hiring media hacks to invent stories against me. I will not answer their cheap lies. Instead, I dedicate to my enemies this poem:
I’m rubber, you’re glue;
Whatever you say bounces off me
And sticks to you.
My advice to this old man is: Get a sex life!
As a citizen of our republic, like you, I demand justice! And I demand justice now! Justice delayed is justice denied. Let justice be done, though the heavens fall,though the world perish. This scandal will be one of the most bloodcurdling crimes in Philippine political history. It should be known as Enrilegate.
If we allow the pork barrel scandal merely to agitate our passions and then let it dissipate into a whitewash by imposing penalties only on little people, that would be a travesty of justice. We have now reached a point of political epiphany, when we accept that we have allowed the crooks in Congress to fool all of the Filipino people all the time, until now. If we allow this antigraft momentumto fade, we lose all hope of good governance. But if we do as justice demands, as the Bible says, goodness and kindness will follow us all the days of our lives.
The years of feasting and gorging on the pork barrel bonanza by the crooks are over. Now, life is proving once again that crime does not pay. That is why I continue to fight these porcine, unctuous, villainous, evil people. As a laureate of the Magsaysay Award for Government Service, I continue to fight back, because as the poet said, I shall not pass this way again:
Thru this toilsome world, alas!
Once and only once I pass;
If a kindness I may show,
If a good deed I may do
To a suffering fellow man,
Let me do it while I can.
No delay,for it is plain
I shall not pass this way again.