Aquino, Abad sued for technical malversation over DAP

(2nd update) Former president Benigno Aquino III and former Budget secretary Butch Abad on Friday were sued before the Ombudsman for technical malversation, usurpation of legislative powers, and graft and corruption over their role in the outlawed Disbursement Acceleration Program (DAP).

READ: SC affirms ruling vs DAP

Volunteers Against Crime and Corruption (VACC) chairman Dante Jimenez, Bayan Muna Rep. Carlos Zarate and Bagong Alyansang Makabayan (Bayan) Secretary General Renato Reyes filed the complaint against Aquino and Abad over the DAP, a savings impounding mechanism declared unconstitutional by the Supreme Court. The DAP was a system of realigning savings to stimulate the economy.

The DAP was considered by critics as the pork barrel under the Aquino administration. The legislative pork Priority Development Assistance Fund was scrapped by the Supreme Court at the height of the so-called pork barrel scam.

Jimenez, a complainant, said Aquino and Abad should be held liable for technical malversation for diverting DAP funds for pet projects of the president.

READ: Carpio, Brion want Aquino, Abad held liable for DAP

He added that the two should also be held liable for usurpation of legislative powers for usurping the powers of the purse of Congress.

“They acted as if they’re Congress… Technical malversation because they diverted funds, those for personal services supposedly gagamitin (going to be used) for savings. They took the law in their hands,” Jimenez said.

In a statement, Zarate said the two should also be charged with graft and corruption for causing undue injury to government.

“The DAP was nothing more than the presidential pork barrel taken from forced savings then realigned for pet projects of the President,” Zarate said.

“It was not a stimulus program as many of the projects approved by Aquino had nothing to do with stimulating the economy,” he added.

Zarate said funds from DAP were also used to bribe lawmakers to impeach the late chief justice Renato Corona.

Reyes added that the complaint was filed in time for the expiration of Aquino’s immunity from suit after his term, in the aftermath of the failed impeachment complaint against him filed by the militant groups.

“The Liberal Party-dominated chamber did not give the impeachment complainants a chance to present evidence on the culpability of Aquino. It is only now that Aquino is no longer in power that we are able to revive our push for accountability,” Reyes said.

READ: House junks impeach raps vs Aquino

In a statement, Atty. Abigail Valte, Aquino’s deputy spokesperson when he was president, begged off from commenting without reading the complaint first.

“Former President Aquino has not yet received a copy of the complaint filed by Bayan, and we cannot comment on its contents at the present time,” Valte said.

She said the complaint lodged by Bayan was not unexpected after its militant members staged a rally at Aquino’s residence in Times Street and disrupted his homecoming last June 30 when Aquino left Malacañang and ended his six-year term as president.

“This action from Bayan is neither surprising nor unexpected. As soon as PNoy stepped down, they mobilized to rally at his Times Street home, unwilling to extend to him a peaceful homecoming. Unsatisfied, they mobilized again the next day, deliberately provoking the policemen assigned there in the hope of manufacturing violence to boost media coverage of their shenanigans,” Valte said.

She said the complaint was part of the militant group’s “continuing harassment of a president who refused to be cowed by their chest-beating during his entire term.”

For his part, Abad said in a text message that he would wait for a copy of the complaint before making a statement.

“I still have to read the complaint filed by the Makabayan et al. But I am certain we will soon get a notice from the Ombudsman to respond to the complaint. That will be the more opportune time to make a statement,” Abad said.

According to the complaint, Abad and Aquino should be charged for the anomalous use of DAP funds as the authors of the system of impounding government savings to other projects not earmarked in the General Appropriations Act (GAA), or the national budget approved by Congress for the year.

The complaint said Abad and Aquino signed memoranda approving the release of DAP funds and the cross border transfer of these savings to other priority projects of their own choosing.

According to the Supreme Court decision in declaring DAP unconstitutional, at least P144.4 billion worth of projects, programs and activities were implemented through DAP in 2013. Of this amount, P82.5 billion were released in 2011 and P54.8 billion in 2012.
The complaint quoted Abad during the Senate inquiry on the controversy as saying that the DAP funds were sourced from savings in the following budgetary items – personal services (P145.972 billion), maintenance and other operating expenses (P46.25 billion), capital outlay (P45.26 billion), for a total of P237.482 billion DAP funds from 2010 to 2013.
The complaint alleged that DAP funds were also used to fund roadworks in Aquino’s home province Tarlac, and to finance the pork barrel projects of legislators.

“The Constitution forbids the respondents, for the longest time… to withdraw funds away from the programs, projects and activities (PAPs) decided by Congress – such as the salaries and bonuses of government employees and the pension of retirees – and divert them to PAPs of their own choosing – such as roadworks for respondent Aquino’s home province of Tarlac and additional pork barrel for legislators,” the complaint read.

The complainants said the two should be held liable for usurpation of legislative powers “which resulted in the diversion of funds appropriated by the 2011, 2012 and 2013 GAA to programs, activities and projects they themselves identified and approved … thereby supplanting the will of Congress with that of their own…”

The complainants also said the two caused undue injury to government in the alleged diversion of DAP funds worth P145.972 billion of savings from personal services which could have been used for the salaries and benefits of government personnel.

“As respondent Abad admitted, the bulk or around 61.5 percent of the total savings declared under DAP were funds for personnel services. This means the funds meant for new plantilla positions in government; salaries, benefits, and bonuses, retirement pension, and others were illegally diverted to the programs, projects and activities that he and Aquino identified and approved,” the complaint read.

“The DAP slashed the funds that could have been spent to hire teachers, nurses, doctors and other personnel who could have aided in the delivery of government service, and who could have eased the workload of those already in the civil service,” it added.

Abad and former budget undersecretary Mario Relampagos were already being investigated by the Ombudsman for technical malversation over the use of DAP funds. Relampagos also faces multiple graft charges before the Sandiganbayan over the pork barrel scam.

In September last year, Ombudsman Conchita Carpio Morales approved the fact-finding investigation of the Ombudsman field investigation office which found irregularities involving DAP funds in cross border transfers to the Commission on Audit (COA) and the House of Representatives for the years 2011 and 2012.

READ: Ombudsman to probe Abad over DAP

The Ombudsman then did not order an investigation on Aquino, who as president was immune from suit while in office.

The Ombudsman investigators found the two liable because it was Abad who prepared and signed memoranda and issuances on the DAP implementation while Relampagos signed the special allotment release orders to COA and the House of Representatives.

Under Article 220 of the Revised Penal Code, the crime of technical malversation is committed by a public officer who disburses public funds or property for a purpose different from which they were originally appropriated by law or ordinance.

Under Article 239 of the Revised Penal Code, the crime of usurpation of legislative powers is committed by a public officer who encroach upon the powers of the legislative branch of the Government, either by making general rules or regulations beyond the scope of his or her authority, or by attempting to repeal a law or suspending the execution thereof.

Graft meanwhile is a criminal offense of causing undue injury to government while giving undue advantage to a party in a government transaction.

Allegations that DAP funds were used to bribe the lawmakers during Corona’s impeachment trial first floated when Senator Jose “Jinggoy” Estrada in a Sept. 2013 privilege speech said he was bribed P50 million to convict the chief justice.

Corona in 2012 was impeached on false declarations of wealth.

Corona, who battled diabetes, died of cardiac arrest on April 29. He was 67.

READ: Former SC Chief Justice Corona dies; he was 67

In July 2014, some practices under DAP were declared unconstitutional by the Supreme Court, such as the cross-border transfers of funds and the withdrawal of unobligated funds as savings in the middle of the year. It was criticized as Aquino’s pork barrel.

Those declared unconstitutional are the following: withdrawing unobligated allotments of agencies with low levels of obligations as of June 20, 2012, both for continuing and current allotments; 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 and without complying with the statutory definition of savings contained in the GAA; cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive;  funding of projects, activities and programs that were not covered by any appropriation in the GAA;  the use of unprogrammed funds despite the absence of a certification by the National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the conditions provided in the relevant GAA. IDL