Ombudsman finds probable cause to indict Noynoy, Abad over DAP

The Office of the Ombudsman has found probable cause to indict former President Benigno Aquino III and former Budget Secretary Butch Abad for alleged usurpation of powers in connection with the Disbursement Acceleration Program (DAP) controversy.

In a statement on Wednesday, the Ombusdman said Aquino and Abad will be charged for usurpation of legislative powers under Article 239 of the Revised Penal Code before the Sandiganbayan upon the approval of Ombudsman Conchita Carpio Morales on June 14.

Both may each face a maximum prison sentence of six years if proven guilty.

The Ombudsman was acting on the motions for reconsideration filed by Bayan Muna Party-list Representative Carlos Zarate, Bayan secretary general Renato Reyes, Volunteers Against Crime and Corruption founding chairman Dante Jimenez, Mae Paner, Antonio Flores, Gloria Arellano and Bonifacio Carmona Jr. that was partially granted by the Ombudsman.

The complaints earlier appealed that Aquino and Abad be further charged with graft and technical malversation.

Morales, in effect, overturned her earlier order dismissing the criminal case against Aquino. The case of Abad, however, remains after the anti-graft body junked his motion for reconsideration on the indictment order. 

Abad, LP statements

Aquino, through his spokesperson Abigail Valte, questioned the findings of the Ombudsman even if the camp of the former president has yet to receive a copy of the resolution.

"We are yet to receive a copy of the Ombudsman’s decision. We’re quite curious to study how the Office arrived at a reversal of its previous decision finding no liability on the part of Former President Aquino,” Valte said in a text message.

Abad, meanwhile, said he respects the Ombudsman decision and "will make preparations accordingly."

For its part, Aquino and Abad's political party, Liberal Party, said the former president will show "before all court and until the very end of the process" that he did not commit any illegal act.

"He will respect the process, as he expects that his reasoning be also given due course," the LP said in a statement.

The LP reiterated that the DAP was "crafted with the intention to deliver the services and infrastructure needed by the people and guided by the laws available to the executive."

"This is why former President Aquino gave his nod to the program," it added.

Malacañang welcomed the Ombudsman's resolution.

"Let justice be done!" presidential spokesperson Harry Roque Jr. said in a message to reporters.

NBC 541

The case stemmed from the alleged unlawful realignment of government savings by virtue of National Budget Circular (NBC) No. 541 to stimulate the economy during Aquino's term as president.

NBC 541, which sanctions the DAP, allows the Department of Budget and Management (DBM) to withdraw “unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for continuing and current allotments.” 

In 2014, the Supreme Court declared as unconstitutional some practices under DAP.

This includes the withdrawal of unobligated allotments, declaration of these allotments as savings prior to the end of the fiscal year, and cross-border transfers of funds outside the executive branch.

Aquino had insisted that there was an insufficient ground to charge him for implementing the DAP, saying he was "motivated solely on good faith and a desire to improve the operational efficiency of the government."

However, the Ombudsman said a review of the evidence shows that NBC No. 541 would not have been issued without the approval of Aquino as shown on the exchange of memoranda between the former chief executive and Abad.

"A re-evaluation of the case establishes that the individual actions of respondent Aquino and respondent-movant Abad showed a joint purpose and design to encroach on the powers of Congress by expanding the meaning of savings to fund programs, activities and projects under the DAP,” the resolution read.

“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,” it added.

Marginal notes

The Ombudsman said a memorandum dated June 25, 2012 shows Aquino's "unqualified approval" on the DBM requests to consolidate and realign savings, and be given authority to withdraw unobligated balances of national government agencies for slow-moving expenditures.

It added Aquino, through his marginal notes, was in the loop when Abad issued the circular.

“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 said.

The Ombudsman further said Abad clearly had the approval of Aquino on his requests to pool unutilized balances of government agencies and their savings to fund the DAP.

"In both instances, respondent Aquino knowingly gave his approval. 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,” the Ombudsman said.

Aquino can still file a motion for reconsideration on the indictment order, according to the Ombudsman.

This would be the second case against Aquino at the Sandiganbayan if the charge pushes through. He is already facing charges of graft and usurpation of official function at the Fourth Division in connection with the encounter in Mamasapano, Maguindanao in 2015 that killed 44 police commandos.

The SC issued a temporary restraining order on the case in February and enjoined the Ombudsman from dismissing the homicide charges against Aquino.  — with Virgil Lopez/KBK/RSJ/MDM, GMA News