Probers tell Aquino, Abad to reply to DAP raps
Former President Benigno Aquino III was ordered to comment on the appeal filed by the complainants against him for his alleged liability in connection with the Disbursement Acceleration Program (DAP).
The Special Panel of Investigators under the Office of the Ombudsman ordered Aquino and his budget secretary Florencio “Butch” Abad to comment on the motion for reconsideration assailing the Ombudsman’s March decision clearing Aquino of liability.
Aquino and Abad were given 15 days to comment upon receipt of the order.
In its motion for reconsideration, the National Union of Peoples’ Lawyers (NUPL) said the Ombudsman erred in not finding probable cause against Aquino and Abad for technical malversation under the Revised Penal Code and violations of Section 3(e) of the Anti-Graft and Corrupt Practices Act.
The DAP was a system of realigning savings to other agencies in a bid to stimulate the economy. It was perceived as President Aquino’s pork barrel fund. The Supreme Court declared unconstitutional some practices under DAP.
NUPL said the Ombudsman erred in dismissing the technical malversation complaint against Aquino and Abad for their being mere “policy makers” of the DAP and not “accountable public officers.”
Technical malversation under the Revised Penal Code is a criminal offense against public officers who applies any public fund or property under his or her administration for any public use other than for which such fund or property were appropriated by law or ordinance.
“The roles of Aquino and Abad could not be discounted as mere ‘policy makers’ of the DAP scheme. Rather, the policy direction chosen by respondents are the raison d’être of the DAP,” NUPL said.
“Thus, it is error for the Honorable Office of the Ombudsman to dismiss their participation as mere ‘policy makers;’ their acts are evidence to the fact that they are indeed the administrators of the entire national budget,” it added.
NUPL also appealed the Ombudsman’s finding that Aquino and Abad “did not apply public funds to other public purposes” and that “the issuance and approval of memoranda and budget circulars, in a strict sense, cannot be equaled with application of public funds under the statute.”
NUPL said there was a logical leap in the Ombudsman’s decision, because while it denied the second element of technical malversation of applying the public fund to some other public use, the Ombudsman ruled that “respondents declared unobligated allotments and unreleased appropriations as ‘savings’ and directed the application of these funds to programs, projects and activities different from those listed in the General Appropriations Act.”
“Thus, while claiming that Aquino and Abad did not ‘apply’ public funds, the Decision nevertheless admits that Respondents directed their application. Herein lies the flaw in the assailed Decision’s logic,” NUPL said.
NUPL said the Ombudsman also erred in finding the declaration of savings under DAP as irrelevant in the finding of probable cause for technical malversation because premature declaration of savings does not consummate the offense.
“Premature declaration of savings is merely the first step in the consummation of the offense of Technical Malversation, which was consummated upon application of the public fund,” NUPL said.
NUPL also found irrelevant the Ombudsman’s finding that Aquino and Abad had “legal authority to transfer funds” under the Administrative Code and the 2011 and 2012 General Appropriations Act, which contained provisions that “gave the President blanket authority to approve the use of any savings in the regular appropriations in the GAAs for programs, projects and activities of any department, office or agency…”
NUPL said existence of legal authority was not an essential element of the crime of technical malversation.
“By directing the application of public funds, Aquino and Abad are the clear masterminds or authors of the crime. They are thus principals by direct participation in the crime of technical malversation,” NUPL said.
The NUPL also appealed the dismissal of the graft case against Aquino and Abad by the Ombudsman, which found no evident bad faith or gross inexcusable negligence because the DAP was “motivated by a good purpose to spur economic growth and boost the national economy.”
NUPL said it did not agree with the Ombudsman’s finding that there was no bad faith on the part of Aquino because when he was still a senator he filed a bill seeking to limit executive influence on the General Appropriations Act and that Aquino knew before hand that “acts of tinkering with the annual GAA and fiscal dictatorship are contrary to the Constitution.”
“On the contrary, complainants ascribe the highest standards to them, especially to the Chief Executive,” NUPLsaid.
Lastly, NUPL also noted that the Ombudsman did not even mention Aquino’s name in dismissing the complaint for usurpation of legislative powers, of which only Abad was indicted.
The Ombudsman indicted Abad for the offense due to his issuance of National Budget Circular 541, which “expanded the meaning of savings under the GAA” which was “beyond his authority since this is a power reserved to Congress.”
“The decision made an exhaustive discussion as to the existence of probable cause for the crime of usurpation of legislative powers as against respondent Abad. However glaring is the lack of mention with respect to Aquino,” NUPL said.
This despite the fact that the Ombudsman in its decision “points to the role of Aquino in the commission of this particular offense,” NUPL said, citing the facts of the case such as the approval by Aquino of the DAP.
“Aquino, by approving the various DAP issuances, directly participated in the commission of the offense,” NUPL said.
NUPL also appealed the Ombudsman’s indictment against Abad of simple misconduct, maintaining that Abad should have been administratively liable for grave misconduct due to Abad’s authorship of the DAP which shows his “willful intent to violate the law.”
It added that since Abad was indicted for usurpation of legislative powers, “the same necessarily qualifies his misconduct as grave.” CBB/rga
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