Ombudsman to charge PNoy, Abad over DAP controversy


By Czarina Nicole Ong

Barely over a month before she steps down from office, Ombudsman Conchita Carpio Morales has found probable cause to indict former President Benigno Aquino III and former Budget Secretary Florencio Abad for usurpation of legislative powers over the Disbursement Accelaration Program (DAP) controversy.

Former President Benigno Aquino III and former Budget Secretary Florencio Abad (ALI VICOY / MANILA BULLETIN) Former President Benigno Aquino III and former Budget Secretary Florencio Abad

The violation of Article 239 of the Revised Penal Code stemmed from the unlawful issuance of National Budget Circular (NBC) No. 541, which implemented the P72 million DAP.

Through DAP, government agencies are allowed to withdraw unobligated amounts even without the approval of Congress or Senate. This was a replacement of the Priority Development Assistance Fund (PDAF), which was used in several high-profile scams.

However, the Ombudsman's May 22, 2018 resolution stated that "a re-evaluation of the case establishes that the individual actions of respondent Aquino and respondent-movant Abad showed a joint purpose and design to encroach on the powers of Congress by expanding the meaning of savings to fund programs, activities and projects under the DAP."

"Abad’s act of issuing NBC 541 cannot be viewed in a vacuum. The evidence on record shows that an exchange of memoranda between and precipitated its issuance. Verily, without the approval of the said memoranda by respondent Aquino, NBC 541 would not have been issued,” it added.

According to Morales' resolution, Aquino "specified his unqualified approval" of the DAP in two instances.

First was when Aquino granted the "omnibus authority to consolidate fiscal year 2012 savings/unutilized balances and its realignment" and the next was the "grant of authority to withdraw unobligated balances of national government agencies for slow-moving projects/expenditures as of 30 June 2012 and its realignment."

In both instances, Abad sought for Aquino's approval and it was "knowingly" given by the former president. "His approval prompted the issuance of NBC 541 which directed the withdrawal of unobligated allotments and unreleased appropriations and their declaration as savings, which is contrary to law," the resolution stated.

Aquino should have looked into each item on the memorandum before signifying his approval, the Ombudsman said.

"An examination of the Memorandum would show that respondent Aquino made marginal notes on several expenditure items and on the approval page. Such marginal notes show meaningful discussion between respondents and not mere reliance of a superior on a subordinate. Thus, respondent Aquino cannot rely on the Arias doctrine,” the resolution added.

The Office of the Ombudsman - Special Panel acted on the complaint filed by Carlos Isagani Zarate, Renato Reyes, Benjamin Valbuena, Dante LA Jimenez, Mae Paner, Antonio Flores, Gloria Arellano and Bonifacio Carmona, Jr.

The Ombudsman junked the motion for reconsideration filed by Abad. On the other hand, Aquino was asked to comment on the MR of Abad. He can still file his own MR should he wish.

To recall, the Supreme Court declared as unconstitutional back in 2014 the acts committed in pursuance of the DAP. These are the withdrawal of unobligated allotments from the implementing agencies and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year without complying with the statutory definition of savings contained in the General Appropriations Act.

The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive Branch was also declared unconstitutional.

If found guilty, Aquino and Abad will be slapped with the penalty of prision correccional in its minimum period - six months and one day. The maximum period is six years.

Temporary special disqualification shall also be imposed upon an executive or judicial officer who shall encroach upon the powers of the legislative branch of the government, either by making general rules or regulations beyond the scope of authority, or by attempting to repeal a law or suspending the execution thereof, according to Article 239 of the RPC.

For his part, Abad said in a statement that they will come up with a response to the indictment. "We respect the decision of the Ombudsman and will make preparations accordingly," Abad said.