Ombudsman indicts ex-President Aquino over DAP case

Acting on the motions for reconsideration filed by the parties, Ombudsman Conchita Carpio Morales found probable cause to indict former President Benigno Simeon Aquino III for Usurpation of Legislative Powers under Article 239 of the Revised Penal Code (RPC) over the controversial Disbursement Acceleration Program (DAP).

By Resolution dated 22 May 2018 which was approved by the Ombudsman on 14 June 2018, the Special Panel partially granted the Motion for Reconsideration filed by complainant-movants Carlos Isagani Zarate, Renato Reyes, Benjamin Valbuena, Dante LA Jimenez, Mae Paner, Antonio Flores, Gloria Arellano and Bonifacio Carmona, Jr.

In the same Resolution, the Special Panel denied the Motion for Reconsideration filed by Department of Budget and Management (DBM) ex-Secretary Florencio Abad, thus affirming Abad’s earlier criminal indictment for the same offense and his administrative liability.

The charge stems from the unlawful issuance of National Budget Circular (NBC) No. 541 to implement the DAP involving P72 billion, which authorized the withdrawal of unobligated allotments of agencies with low levels of obligations as of 30 June 2012.

The 22 May 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 [Aquino] and [Abad] precipitated its issuance. Verily, without the approval of the said memoranda by respondent Aquino, NBC 541 would not have been issued,” stated the Ombudsman Resolution.

The Ombudsman Resolution explained that in the Memorandum dated 25 June 2012, “respondent Aquino, by marginal notes, specified his unqualified approval on the following requests: (1) grant of omnibus authority to consolidate fiscal year 2012 savings/unutilized balances and its realignment; and (2) grant of authority to withdraw unobligated balances of national government agencies for slow-moving projects/expenditures as of 30 June 2012 and its realignment.”

The Resolution stated that Aquino had the authority and the duty to look into each item on the memorandum before signifying his approval.

“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.

“It is thus clear that respondent-movant Abad sought the approval of respondent Aquino on both the request for authority to pool savings to fund the DAP and the request for omnibus authority to pool savings/unutilized balances. In both instances, respondent Aquino knowingly gave his approval. 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 pointed out.

It will be recalled that in 2014, the Supreme Court declared unconstitutional the following acts committed in pursuance of the DAP: (1) 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; and (2) the cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive Branch.

Under Article 239 of the RPC, the penalties of prision correccional in its minimum period and temporary special disqualification shall 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. OMBUDSMAN