By Mario Ferdinand Ayano Pasion, CPA, MA, PhD

The author is not a lawyer but merely uses logic to “solve” the impeachment problem. First of all, it must be remembered that if there was no allegedly “unconstitutional” transfer of funds from the Office of the President (OP) into the Office of the Vice President (OVP), as alleged in the petition filed with the Supreme Court by former Constitutional Commission Member Christian Monsod, among others, there would have been nothing that the OVP would have spent and, therefore, no allegation of any impeachable offense on the part of the Vice President.

It is the transfer of funds from the OP to the OVP which MAY be a culpable violation of the Constitution, but this act of the OP MAY also not even be something that is “culpable” or “deserving blame” and, likewise, MAY not be impeachable at all because this is not a high crime but merely a malum prohibitum, with no involvement of any immorality or moral turpitude at all.

In the news article written by Joahna Lei Casilao of the GMA Integrated News entitled, “Lawmakers, ex-solons file petition vs. OVP’s P125-M confidential funds” published on December 11, 2023 it is reported that:

According to the petition, the release of the confidential funds to the OVP in 2022 without congressional authorization violated Section 1, Article 6 of the 1987 Constitution, which states that “legislative power shall be vested in the Congress of the Philippines.”

“While it is true that the Chief Executive has some discretion and flexibility in the budget execution stage, this power must only be exercised within the bounds set by the Constitution and the appropriate laws,” it read.

The petitioners cited Section 25(2) and Section 25(6) of Article 6, which they said bar the president from creating confidential funds out of the Contingent Fund. 

They also cited Section 25(5) as preventing the president from moving any portion of the Contingent Fund as a “transfer to” any agency.

Further, the petitioners said that the OVP has no grounds to maintain that the P125 million are confidential funds as there was no item placed under confidential expense under the congressional appropriation of the OVP.

“In other words, there was no appropriation—or any congressional fiat to spend a certain amount for a particular purpose—for confidential expenses in 2022, yet Respondent Duterte caused the obligation and disbursement of P125 Million as confidential funds,” they said.

The petitioners said that due to this, every payment made for confidential expenses should be illegal and every public official and private individual who received the payment should be held liable for full restitution.

“Any insistence that the P125 million was spent for payment of informants or rental safehouse, for instance, renders the responsible officers vulnerable to these liabilities,” the petitioners said.

Now, in the field of law, there is the so-called “prejudicial question.”

A prejudicial question is a legal principle where a civil case must be resolved before a related criminal case can move forward. This situation arises when the decision in the civil case will significantly influence the determination of the accused’s guilt or innocence in the criminal case. It can be argued that if the OP did not “unconstitutionally” transfer the said funds to the OVP, no criminal case against the OVP would have been filed.

In a prejudicial question, the civil and criminal cases must be closely linked, with the civil case involving facts that are essential to the criminal case. Therefore, before determining if there is any criminal act on the part of the Vice President and her Office’s officers and staff, the case in the Supreme Court on whether or not the transfer of funds from the OP to the OVP is constitutional or not, must first have a final and executory ruling from the highest court of the land.

The civil case filed by former Constitutional Commissioner Monsod, et al., must first be resolved before the criminal case (impeachment against the Vice President involving a high crime or several high crimes) can continue.

The outcome of the civil case in the Supreme Court, it may be argued, is indeed decisive in determining the guilt or innocence of the accused in the criminal case because if there was no “unconstitutional” transfer of funds from the OP to the OVP, there would have been no alleged crime “committed by the Vice President” and her Office’s officers and staff, at all.

It is, of course, acceptable by most, if not, by all, that the civil and criminal cases are typically heard by different courts – in this case – the question of constitutionality of the transfer of funds from the OP to the OVP must first be ruled upon with finality by the Supreme Court.  And, it may be argued, that this final ruling of the Supreme Court in this transcendental matter, must first exist before the Senate, acting as the Impeachment Court, can proceed with its trial.

Therefore, if a prejudicial question is found to exist, the criminal case (involving a high crime or several high crimes) in the Impeachment Court must necessarily be suspended until the civil case (involving the constitutionality of the transfer of funds from the OP  to the OVP) is resolved with a final and executory decision by the Supreme Court.

For a simple and clear example, in a case of alleged bigamy, if there is a dispute about the validity of a previous marriage, a civil case to annul that marriage may be necessary first. If the civil court rules that the earlier marriage was invalid, the charge of bigamy might no longer stand, leading to the dismissal of the criminal case.

The concept of a prejudicial question helps avoid conflicting rulings from different courts and promotes fairness by ensuring that the facts are first clarified in the civil case.

The theory of the author, therefore, and no one must necessarily agree with him, is that the Supreme Court must first be given the opportunity to come up with a final and executory ruling on the petition of former Constitutional Commissioner Monsod, et al., before the Senate, acting as the Impeachment Court, can proceed in its trial of the case involving the Vice President.  Consequently, the other theory of the author, and again, no one must necessarily agree with him, is that if the OVP simply returns the amount involved, probably with interest (not just the principal amount involved), then the “unconstitutional” act of the President or the OP would “disappear” and, hence, no high crime or impeachable offense can be filed, in the first place, against the Vice President and the said Impeachment Court must, therefore, dismiss the impeachment case against the latter.

The final theory of the author, which no one must necessarily agree with, is that even if the assailed transfer of funds of the OP to the OVP is declared as “unconstitutional” by the Supreme Court, the mere act by the Vice President or the OVP to return the money involved, with interest, to the OP, will already render the impeachment case against the Vice President as moot and academic and no trial by the Senate, acting as the Impeachment Court, shall continue and the aforementioned Court must necessarily dismiss the case against the Vice President, and declare the end of the existence of the said Court — the “root of the problem” or the “poisoned tree of the fruit” having  been “cured” already.

Then, we can again have the Uni-Team and, more importantly, UNITY, or at least an improvement in the national unity situation of our nation, that will be good for the over-all “health” of the wealth and resources of our country, especially in terms of the production and consumption of goods and services; and our people’s general well-being; and that will, likewise, have the positive impact of soothing and allaying the fears of existing, and would-be, foreign and local investors’ trust in our economy.

The author is the Chairman of the Nationalist Filipinos’ Movement or “NAT FIL”.

 

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