MANILA - (3rd UPDATE) The Ombudsman on Tuesday cleared former President Benigno "Noynoy" Aquino III and DBM undersecretary Mario Relampagos from charges over the alleged illegal implementation of the P72-billion Disbursement Acceleration Program (DAP) in 2011, 2012, and 2013.
Former budget secretary Florencio Abad was the only official found liable in the supposed illegal implementation of DAP.
The Ombudsman dismissed the administrative charges against Aquino for lack of jurisdiction, since the complaint was filed after his term as president. Relampagos was meanwhile cleared from administrative charges for lack of merit.
But in its 45-page decision, the Ombudsman found probable cause to charge Abad with usurpation of legislative powers before the Sandiganbayan.
Usurpation of legislative powers is a crime, where an executive or judicial officer either made general rules beyond the scope of his authority, and attempted to repeal or suspended the execution of a law.
The crime carries a penalty of imprisonment ranging from six months and one day to six years.
Abad was also found guilty of simple misconduct, and ordered suspended for three months. Since he is no longer in office, he must pay a penalty equivalent to three months of salary.
Meanwhile, Abad said he welcomes the dropping of graft, corruption, and technical malversation charges against him and respects the Ombudsman decision altogether.
"I respect the Ombudsman's decision, and welcome the fact that her office has dropped the graft, corruption, and technical malversation charges against me. It is as I have always said: although the DAP was ruled as partly unconstitutional, the Supreme Court itself acknowledged that the program helped boost the country's economy when it was most needed. The Ombudsman's decision also affirms the truth that I did not personally benefit from implementing the DAP. I never used public funds for my own gain, and I never will,” Abad said.
The former legislator and budget secretary said he will consult with his counsel on the filing of appropriate response.
"I am consulting my legal advisers on the appropriate course of action following this development. As always, I look forward to the quick and fair resolution of this matter," he said.
THE MEANING OF 'SAVINGS'
Based on the Ombudsman's investigation, it was found that Abad unlawfully encroached on the powers of Congress by effectively modifying the provisions on savings of the General Appropriations Act (GAA).
The Ombudsman said Abad "unduly modified" and expanded the meaning of "savings" under the GAA when he issued National Budget Circular (NBC) No. 541 on July 18, 2012 to carry out implementation of DAP.
This circular directed the withdrawal of unobligated allotments of national government agencies with low levels of obligations as of June 30, 2012.
The Ombudsman reiterated that modification of the definition of "savings" was a "power reserved to Congress."
"NBC No. 541 provided the principal bases for the withdrawal of unobligated allotments which were declared as savings and used to fund PAPs (programs, activities and projects) under the DAP.
The issuance of this circular was an act of usurpation, and was "contrary to law," Ombudsman Conchita Carpio Morales said in the decision.
The Ombudsman also said "the withdrawn unobligated allotments were declared as "savings" without complying with the 2012 GAA -- that they fall within any of the three instances when savings may be realized.
In 2014, the Supreme Court declared the unconstitutionality of the following acts committed in pursuance of DAP:
Withdrawal of unobligated allotments from the implementing agencies; 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 GAA; and cross-border transfer of the savings of the Executive to augment the appropriations of other offices outside the executive.
In a Memorandum date October 12, 2011, Abad sought Aquino's approval to implement DAP, a stimulus package designed to fast-track public spending and push economic growth by prioritizing high-impact budgetary programs and projects, to be augmented out of the savings generated during the year and additional revenue sources.
On the same date, Aquino approved the program.
GRAFT COMPLAINTS DISMISSED
The technical malversation and graft complaints against Aquino, Abad, and Relampagos have been dismissed, since "they cannot be indicted for technical malversation since they did not "apply" public funds to other purposes," Ombudsman said.
"The issuance and approval of memoranda and budget circulars, in a strict sense, cannot be equated with application of public funds under statute," the Ombudsman added.
Ombudsman failed to find elements of graft in their actions on DAP, like action of manifest partiality, evident bad faith, or inexcusable negligence, which caused injury to any party, including the government or gave any party unwarranted benefits, advantage or preference.
"It cannot be said that respondents acted with their either evident faith or gross inexcusable negligence in implementing the authority to transfer funds to augment deficient items in the GAA," the Ombudsman decision read.
"Generally, the adoption of the DAP was motivated by a good purpose to spur economic growth and boost the national economy. Considering that objective, it cannot likewise be said that they acted without care or with conscious indifference to consequences insofar as other persons may be affected."
The cases arose from the complaint filed by Bayan Muna Rep.Carlos Zarate, Renato Reyes, Benjamin Valbuena, Dante Jimenez, Mae Paner, Antonio Flores, Gloria Arellano, and Bonifacio Carmona, Jr. on July 8, 2016. Prior to this, the Ombudsman already found probable cause to investigate Abad in 2015.