MANILA, Philippines (3rd UPDATE) – Former budget secretary Florencio Abad will be charged with usurpation of legislative power for the implementation of the Disbursement Acceleration Program (DAP), parts of which were declared unconstitutional by the Supreme Court (SC).

Ombudsman Conchita Carpio Morales said in a statement on Tuesday, March 7, that there is probable cause to file charges against Abad for his issuance of National Budget Circular (NBC) No. 541, which paved the way for the release of P72 billion under DAP.

Morales said Abad “unlawfully encroached on the powers of the Congress” when he authorized the creation and then the implementation of DAP during the Aquino administration.

The SC, in 2014, declared 3 DAP schemes as unconstitutional:

1. The creation of savings prior to the end of the fiscal year and the withdrawal of these funds for implementing agencies
2. The cross-border transfers of the savings from one department to another
3. The allotment of funds for projects, activities, and programs not outlined in the General Appropriations Act (GAA)

Morales said Abad effectively modified the provisions on savings in the 2012 GAA when he issued the circular that created DAP.

“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 is an act of usurpation. This is contrary to law,” Morales said.

Abad was also found guilty of simple misconduct and ordered suspended for 3 months. But because he is no longer holding office, he was ordered to pay a fine equivalent to 3 months’ worth of salary.

Aquino cleared

The complaint, which was filed by the group of Bayan Muna Representative Carlos Zarate, included graft charges not only against Abad but also against former president Benigno Aquino III.

But these were dismissed by the Ombudsman.

According to the Ombudsman, to be charged with graft, an official must have acted with “manifest partiality, evident bad faith, and inexcusable negligence” and the act must have caused the government “undue injury.”

The Ombudsman said neither was applicable for both Abad and Aquino.

“The adoption of the DAP was motivated by a good purpose to spur economic growth and boost the national economy,” Morales said.

The Ombudsman also noted that even the SC said that DAP “yielded undeniably positive results.”

Citing the SC decision on DAP two years ago, the Ombudsman said the program’s contribution to the economy could be quantified by the public infrastructure, roads, bridges, housing units, hospitals, and classrooms which have been built since.

The resolution, however, does not explain why Aquino was not similarly charged with Abad for usurpation of legislative power.

Abad’s response

In a statement on Tuesday, Abad said he respects the Ombudsman’s decision and welcomes that the graft charges were dismissed.

“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 former budget chief said.

“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,” he added.

Abad said he is already consulting his legal advisers on his next steps. “As always, I look forward to the quick and fair resolution of this matter,” he said.

Lack of jurisdiction

Meanwhile, the Ombudsman did not resolve the administrative charges filed against Aquino for “lack of jurisdiction.”

According to Morales’ resolution, Aquino is “an official removable only by impeachment” so he is not covered by the authority of the Ombudsman.

“In another vein and at all events, the administrative charges were filed after Aquino ceased to be a public official, hence, outside the administrative jurisdiction of this office,” read the resolution.

To put it simply, Zarate’s group filed multiple criminal charges and administrative charges against Abad and Aquino, but only the usurpation charges against Abad prospered.

Zarate told Rappler in a phone interview that they will file a motion for reconsideration before the Office of the Ombudsman.

“Because if there is probable cause to charge Abad, all the more reason that there is probable cause to indict Aquino. Our Constitution does not bar the Ombudsman from investigating even a sitting president,” Zarate said. – Rappler.com