Abad on criminal raps: Acts before DAP ruling valid

Former Budget Secretary Florencio Abad has invoked the presumption of good faith in defending himself against progressive activists’ criminal complaint with the Office of the Ombudsman over the controversial Disbursement Acceleration Program (DAP).

In a 116-page counter-affidavit recently received by the complainants and obtained by the Inquirer, Abad said the Supreme Court’s February 2015 decision declaring certain budgetary practices under DAP as unconstitutional should not be applied retroactively for the purpose of determining criminal liabilities.

Seeking the dismissal of the complaint, Abad said he and former President Benigno Aquino III should not be prosecuted for technical malversation, graft, and usurpation of legislative powers, because acts committed before the SC issued its ruling should be presumed valid.

DAP is a budgeting mechanism launched by the Department of Budget and Management (DBM) in 2011 purportedly in order to accelerate spending and boost the economy.

But the Supreme Court made its final decision on February 2015 declaring certain budgetary practices under DAP to be unconstitutional. Such acts include the cross-border transfer of funds and the declaration of savings before the end of the fiscal year in order to realign them for items not contained in the budget law passed by Congress.

If officials are held liable for actions only nullified later on, Abad said “public servants would be paralyzed and prevented from discharging their functions by the yet amorphous threat of criminal prosecution (or, worse, persecution).”

Public officials would be afraid to “gamble with their lives and liberties” in making decisions, and the uncertainty would discourage decisiveness and “stifle the creativity needed to find innovative solutions” in governing the country, he said.

“This Honorable Office must similarly recognize that we cannot and should not be retroactively condemned as criminals for acts in good faith which were valid when performed,” Abad told the Ombudsman.

No criminal intent

Abad also argued that DAP involved novel issues, and “a mistake in a difficult question of law negates criminal intent.”

He said that he did not usurp legislative powers, because he was fulfilling DBM’s tasks of issuing guidelines for the release of the funds, releasing allotments, and issuing disbursement authorities.

“It fell upon me, as the President’s alter ego in relation to his duty to maintain the sound and efficient management of the government’s financial resources, to formulate a policy for the implementation of this authority,” Abad saidd.

He said even the SC agreed with the government’s position that the adoption of DAP was pursued by the executive under its role as the “main actor” in the budget execution stage, and that Congress did not need to legislate DAP.

Abad added that the SC’s ruling that the declaration of “savings” under DAP was invalid does not mean technical malversation was committed. Technical malversation is the illegal use of funds for purposes other than those they were allocated for in the budget law.

Abad cited that the executive branch of government has the discretion in implementing the budget law, and explained that Congress’ role in the process was only to “authorize” spending.

Under DAP, the executive branch of government was only exercising its “the exclusive constitutional prerogative” to actually spend the amounts or continue or abandon certain projects and programs under the appropriations law, he said.

Should a project be abandoned, Abad argued that there is no technical malversation.

He pointed out that, technically, “savings did in fact, materialize, and therefore, the funds ceased to be appropriated for that purpose and could be spent for another purpose.”

Abad also said he was not an “accountable officer” who could be held liable for technical malversation, because his role in implementing DAP primarily involves policy-making. “I merely set out the authority to spend, but did not do the spending myself,” he said.

At the same time, Abad said the progressive activists’ claims that funds meant for certain projects have been unlawfully diminished are ”utterly speculative, baseless, and bereft of any semblance of merit.”

He said the complainants relied only on conjectures when they said funds meant to hire more government personnel was reduced under DAP.

Progressive activists filed the 26-page complaint for technical malversation, usurpation of  legislative powers, and graft and corruption on July 8, a week after Aquino completed his term on June 30 and lost his presidential immunity.

Complainants include: Bayan Muna Rep. Carlos Zarate, Bagong Alyansang Makabayan (Bayan) secretary-general Renato Reyes, Volunteers Against Crime and Corruption chairman Dante Jimenez, social activist Mae Paner (also known as Juana Change), Alliance of Concerned Teachers chair Benjamin Valbuena, Confederation for Unity, Recognition and Advancement of Government Employees president Ferdinand Gaite, Kilusang Magbubukid ng Pilipinas secretary-general Antonio Flores, Gabriela secretary-general Joan Mae Salvador, Kadamay chair Gloria Arellano, and Philippine Heart Center Employees Association-Alliance of Health Workers president Bonifacio Carmona Jr.

As reported by the Inquirer last week, Aquino in his separate 28-page counter-affidavit argued the SC ruling does not serve as enough basis to indict him for criminal charges. –ATM