P-Noy cleared; Abad, usec face DAP probe

MANILA, Philippines - President Aquino has been cleared of criminal liability by the Office of the Ombudsman in his administration’s implementation of the Disbursement Acceleration Program (DAP), parts of which were declared unconstitutional in 2014 by the Supreme Court.

But the ombudsman said yesterday it found sufficient basis for a preliminary investigation of Budget Secretary Florencio Abad and Undersecretary Mario Relampagos.

President Aquino was “absolved” after fact-finding by the ombudsman determined that the charges against him do not amount to an impeachable offense and should thus be dismissed.

The ombudsman’s Field Investigation Office (FIO) said only Abad and Relampagos should be held liable for technical malversation of public funds.

Fact-finding investigators also said both officials should be held liable for administrative offenses in relation to their role in the utilization of DAP funds amounting to P31.9 billion from 2011 to 2012.

A preliminary investigation would give Abad and Relampagos a chance to answer accusations before charges are filed against them with the Sandiganbayan.

Ombudsman Conchita Carpio-Morales has created a special panel of lawyers to conduct the probe.

Under Article 220 of the Revised Penal Code, technical malversation is committed by a public officer when he or she disburses public funds or property for a purpose other than what is dictated by law or ordinance.

FIO investigators said Abad and Relampagos authorized the DAP sourced from pooled savings as “a plan to boost disbursements” and “to jumpstart the implementation” of the government’s expenditure program.

As authorized, projects were identified based on their “multiplier impact on the economy and infrastructure benefit, beneficial effect on the poor and translation into disbursements.”

But the ombudsman said documents noted irregularities in the cross border DAP transfer transactions to the Commission on Audit (COA) and the House of Representatives.

From the total P31.9-billion DAP funds, records show that P250 million was released to the House for the construction of legislative library and archive building/congressional e-library which was “not among those approved by the President.”

In addition, P143.7 million was released to the COA to augment the latter’s Information Technology infrastructure program and the hiring of additional litigation experts as per approved Special Allotment Release Order (SARO).

Investigation showed that Abad prepared and signed all memoranda and issuances concerning DAP implementation, while Relampagos signed the corresponding SAROs to COA and the House.

The ombudsman’s investigation was based on separate complaints filed by former Iloilo congressman Augusto Syjuco Jr., Greco Belgica and Kabataan party-list Rep. Terry Ridon.

Fund misuse

Morales said her office is also studying another report on the alleged misuse of P900 million in Malampaya funds that were diverted to the Department of Agrarian Reform (DAR) during the Arroyo administration and which ended up with bogus non-government organizations linked to alleged pork barrel scam mastermind Janet Lim-Napoles.

The officials accused in the Malampaya case include Arroyo and former DAR secretary Nasser Pangandaman and other officials of the department.

The ombudsman revealed to lawmakers the DAP probe on Aquino and Abad last Sept. 1 during a hearing on her agency’s 2016 budget by the House committee on appropriations chaired by Davao City Rep. Isidro Ungab.

Sought for comment then, Abad said, “It’s the process of the ombudsman and we respect it. We will cooperate. We do want to put a closure to this issue.”

He said the Supreme Court has upheld in the DAP cases the “doctrine of operative fact, meaning that what we did was constitutional, legal and regular, and we implemented the economic stimulus program in good faith.”

“In fact, the Supreme Court declared that DAP benefited the country. We stand by our position that DAP was an urgent and appropriate response to the then under-spending problem that was slowing down the economy,” Abad said.

“The resulting uptick in spending and growth validated our position,” he said.

“We also commit to align, as we have already done, our savings, augmentation and realignment policies along with SC decision,” he added.

The budget chief noted that “there was no insinuation of graft” in the tribunal’s ruling.

He pointed out that the ombudsman has not yet sought any comment from them.

“This is just the fact-finding stage. If they go to preliminary investigation, that’s when they will require us to comment,” Abad, who is a lawyer, said.

The SC stopped the DAP economic stimulus program in 2014 after declaring at least four practices under it as unconstitutional. The tribunal did not declare DAP itself as unconstitutional.

Probe welcomed

Meanwhile, the DBM said in a statement it welcomes the ombudsman’s investigation into the DAP issue.

“Not only will the inquiry enable the parties to present their views on all remaining issues involving DAP, we likewise trust that the ombudsman will conduct the investigation with the soundest judgment,” the DBM said in a statement.

“The Supreme Court itself observed that DAP was instrumental in accelerating public spending, and in such a manner that allowed the country to achieve significant economic progress,” the DBM said.

“It is also worth noting that DAP is not a novel program. Its implementation only followed precedents set by previous presidents and their respective budget secretaries,” it added.

The DBM also said it wished to “clarify certain terms relevant to the investigation” like “technical malversation.” It said the term does not suggest that the individuals in question committed acts of graft or corruption or used public funds for their personal gain or benefit.

“Certainly, the inquiry is not a matter of whether individuals had stolen from public coffers,” the DBM stated.

“The inquiry involves the application of excess or unutilized public funds to existing priority government projects and programs that require additional funding,” it pointed out.

“The investigation seeks to determine whether these uses of public funds constitute technical malversation, where public funds are used for a public purpose that differed – in a very technical sense – from the original plan,” it said.

Allowed under GAA

The DBM also said the use of the funds to augment deficient items of appropriations were authorized under the General Appropriations Act and other laws.

“We must also remind our people that despite several news reports, the final Supreme Court decision on DAP did not declare the program unconstitutional.”

The DBM also stressed that the Supreme Court ruling emphasized that “the doctrine of operative fact holds sway over the implementation of DAP.” This means “the program’s authors, sponsors and implementers must be presumed to have acted in good faith and with regularity in the performance of their official duties.”

The DBM also noted that DAP is “not a novel program” and that its implementation only followed precedents set by previous administrations.

“Finally, the positive impact of DAP on the Philippine economy – in line with the program’s purpose –must not be overlooked,” it said.

“The Supreme Court itself observed that DAP was instrumental in accelerating public spending, and in such a manner that allowed the country to achieve significant economic progress,” the DBM statement read.

“The DBM will of course cooperate with the Office of the Ombudsman in the course of their investigation. We look forward as well to the inquiry’s swift and fair conclusion.” With Delon Porcalla, Prinz Magtulis