Ombudsman indicts Noy over DAP

The Office of the Ombudsman has reversed its earlier ruling clearing former president Benigno Aquino III of criminal liability in connection with the allegedly anomalous implementation of his administration’s Disbursement Acceleration Program (DAP) involving P72 billion in executive funds.

In a statement released yesterday, the ombudsman said its special panel, in a resolution

dated May 22, found probable cause to charge Aquino before the Sandiganbayan with usurpation of legislative powers under Article 239 of the Revised Penal Code.

Hours after the announcement of Aquino’s indictment, President Duterte said the Ombudsman sat on some DAP cases.

“Morales, puro ka laban (you are fond of picking fights). One day I will show to you the DAP, yung hindi niya ginalaw (the one she did not touch),” Duterte said during a gathering of councilors in Iloilo City.

“I will publish it, There’s a new one, after she exits,” he added.

In its March 7, 2017 resolution, the ombudsman only charged former budget secretary Florencio Abad with usurpation of legislative powers in relation to the DAP controversy.

Sought for reaction, Aquino said he has not seen an official copy of the ombudsman’s case against him and that he will study it with his lawyers once they have received a copy.

Abad, for his part, said: “We respect the decision of the ombudsman and will make preparations accordingly.”

Aquino’s spokesperson, lawyer Abigail Valte, said “we’re quite curious to study how the (ombudsman) arrived at a reversal of its decision finding no liability” on the part of the former president.

The ombudsman said the special panel found merit on the joint motion for reconsideration of the complainants led by Bayan Muna party-list Rep. Carlos Isagani Zarate.

The resolution was approved by outgoing Ombudsman Conchita Carpio-Morales on June 14. Morales, an appointee of Aquino, is set to retire on July 26 after completing her seven-year term.

In its new resolution, the ombudsman denied the motion for reconsideration of Abad but on the other hand, partially granted the joint motion for reconsideration of the complainants.

The ombudsman said Abad could not have acted on his own in issuing National Budget Circular 541, which allowed the withdrawal of a total of P72 billion worth of unobligated funds of government agencies under the executive department.

The funds were transferred to agencies outside the executive department for supposed implementation of various infrastructure and other revenue-generating projects.

“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,” the ombudsman resolution read.

The ombudsman was referring to a memorandum dated June 25, 2012, in which Aquino supposedly wrote marginal notes giving his “unqualified approval” to the Department of Budget and Management’s request to consolidate the savings and unutilized funds of various agencies under the executive department, and to withdraw and realign the unobligated balances of these agencies as of June 2012.

“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,” the ombudsman’s ruling said.

“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... 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,” it added.

The ombudsman said Aquino and Abad unlawfully encroached on the powers of Congress by effectively modifying the provisions on savings under 2012 General Appropriations Act (GAA).

The Supreme Court, in 2014, found several acts under DAP as “unconstitutional” – including the declaration of unobligated funds as “savings” and the funds’ cross-border transfer to other offices outside the executive.

Usurpation of legislative powers under Article 239 of the RPC is punishable by minimum of six months to a maximum of six years imprisonment and special disqualification from public office, depending on the discretion of the court.

In a statement issued yesterday, Zarate welcomed the ombudsman’s new ruling but maintained their position in their motion for reconsideration that Aquino and Abad must be also charged with heavier offenses of graft and technical malversation “as both author and architect of the multibillion presidential pork barrel called DAP.”

“We will still study other options to make them accountable,” Zarate said.