Brillantes culpably violated the Constitution – thrice

GOTCHA - Jarius Bondoc - The Philippine Star

Comelec chairman Sixto Brillantes Jr. violated the Constitution in giving himself and the six commissioners intelligence funds last Feb. He also broke the fundamental law in buying land in behalf of the poll body in 2012. His legal brilliancy self-proclaimed, Brillantes presumably knew what he was doing was wrong. He could be impeached for such culpability.

Malacañang disclosed Brillantes’s P30-million intelligence fund last week in the course of defending the commissioners’ pocketing of a prior P10 million. Deputy presidential spokesperson Abigail Valte said the P30 million was “realigned” from the Comelec’s budget savings in 2012. Brillantes had sought and got presidential clearance for the fund juggling.

The realignment went against the express provisions of the General Appropriations Act (GAA) of 2012. That budget law specifically forbade the Comelec from thenceforth having intelligence funds.

The prohibition was inserted during the budget hearings in late 2011 by Sen. Franklin Drilon, head of the Senate finance committee. He had then just finished a probe of fund abuses by government-owned and -controlled corporations. Unearthed were the pocketing of confidential and/or intelligence funds by GOCC heads. Example: P18 million at the Clark Development Corp. in 2010. Also just concluded was an inquiry into the military comptroller’s “conversions” of unused personnel funds into multimillion-peso pabaon (going-away cash gifts) for retiring chiefs. No longer would the malpractices be allowed.

Only security and policing agencies were to have intelligence funds starting with the 2012 budget. Specifically to be debarred from then on, the press quoted Drilon, were the Comelec, Public Attorney’s Office, Office of the Solicitor General, Office of the Presidential Adviser on the Peace Process, Presidential Commission on Good Government, National Telecoms Commission, and the Judiciary.

Brillantes thus was explicitly prohibited from converting the Comelec’s savings into intelligence funds.

Specifically, Brillantes broke the Constitution’s Article VI (The Legislative Department), Section 25-(5), which states: “No law shall be passed authorizing the transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

No law has been enacted to let Brillantes augment the intelligence budgeting of his constitutional commission. The GAA of 2012 in fact disallowed him from doing so.

Brillantes cannot invoke the Comelec’s “fiscal autonomy.” Article IX (Constitutional Commissions, Common Provisions), Section 5 is not applicable. For all it means is that his agency’s approved budget shall be automatically and regularly released, not subject to delay by the budget department.

Brillantes’s securing of a presidential approval does not exculpate him either. If at all, it shows a lawyer’s attempts to pass blame on a non-lawyer.

Ex-commissioner Gus Lagman exposed last week the misuse of Comelec intelligence funds. He said he was given two checks for P1.25 million in late 2011. In Mar. 2012 he was advised by the agency’s finance chief to sign a one-page report of concocted expenditures, and the money would be his to pocket. Appalled, he returned the P1.25 million.

It was part of a P10-million “intelligence fund” to which the six commissioners were “entitled” P1.25 million each, with Brillantes as chairman getting double, P2.5 million.

Brillantes has acknowledged receiving that amount. Presumably he has taken too his P7.5-million share of the subsequent P30 million released last Feb.

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Another “savings” anomaly was committed earlier. Sometime in 2012 Brillantes negotiated to purchase land for P1.2 billion from the Philippine Retirement Authority. During the hearings in late 2012 for the GAA of 2013, he admitted to the Senate having paid an advance of P250 million. The money supposedly came from the Comelec’s P3.5-billion savings in 2011.

That again was a culpable violation of the Constitution’s Article VI, Section 25-(5). For, Brillantes had no authority from any congressional enactment to buy land for his agency from savings. There was no provision in the GAA of 2012 for the land acquisition.

As a constitutional commission, the Comelec may use its savings to augment only approved or existing programs. Like, if it has provisions of P1 million in salaries for 100 new recruits, but actually hires only 50, it can use the savings of P500,000 to augment ongoing projects, say, voter education.

No way may Brillantes cook up any expenditure at whim, like P1.2 billion for real estate, with a whopping P250-million down payment. The Constitution and the yearly GAAs contain checks and balances against fund abuses.

Brillantes has scuttled the P1.2-billion land deal. He said last Nov. that he did so on the Ombudsman’s advice that he could be breaking the Constitution (see http://www.philstar.com/headlines/2012/11/14/866395/comelec-stops-payments-p19-b-pra-property).

But then, discontinuing the purchase does not absolve Brillantes. For he already gave away P250 million without congressional consent.

Brillantes was piqued with Sen. Alan Peter Cayetano’s questioning that made him confess to the P250-million indiscretion. The latter had wanted to know if there was hanky-panky. Drilon said then that if Brillantes was removed from office for culpable violation of the Constitution, criminal prosecution could follow for technical malversation of public funds, with jail time.

Members of constitutional commissions can only be ousted by impeachment. Aside from breach of Constitution, the other grounds are graft and corruption, bribery, treason and other high crimes, and betrayal of public trust.

Brillantes is under fire for a series of blunders and fund anomalies related to the automation of Election 2013.

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In wangling Malacañang consent of his P30-million intelligence fund, Brillantes needed justification. Valte said Brillantes’s stated reasons was “for intelligence and counter-intelligence activities and gathering of information relative to the activities of certain groups, individuals and technology experts suspected of conducting overt and covert operations to sabotage the results of the upcoming elections.”

The “technology experts” are likely the members of AES (Automated Election Systems) Watch, who have been critical of the Comelec’s use of unreliable, expensive voting machines. Brillantes at one point had called them “election saboteurs,” but gave no specifics of their alleged heinous offenses. After the election of May 13 he also said that, for making life difficult for him, he would get even with them by naming their supposed orchestrator. He has not done so.

The AES Watch has challenged Brillantes to make public his intelligence gatherings, if any. He has remained quiet. Perhaps he knows that he had treaded on illegal grounds — violation of civil liberties. The Bill of Rights guarantees freedom of speech and redress of grievance; and the security of persons, houses, papers, and effects.

Brillantes culpably has violated those rights with his P30 million.

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Catch Sapol radio show, Saturdays, 8-10 a.m., DWIZ (882-AM).

E-mail: jariusbondoc@gmail.com

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