A GROUP of lawyers on Tuesday challenged the Office of the Ombudsman for clearing former President Benigno Aquino III from graft and technical malversation raps in connection with the implementation of the P72-billion Disbursement Acceleration Program.
The National Union of Peoples' Lawyers, represented by its secretary-general Ephraim Cortez. said Aquino must be held accountable not only for graft and malversation, but also for the crime of usurpation of legislative powers.
"Hopefully, the Ombudsman will see the wisdom in complainants' arguments. It cannot be the case that the Supreme Court declares something as unlawful and yet no one will be punished as a necessary consequence. Definitely, the main creators or authors of the DAP should be held to account. The balance of public accountability and good governance should be corrected by a grant of Complainants' motion for reconsideration," Cortez said.
In its motion, the group said the Ombudsman erred for failing to find probable cause in its March 3 decision after it absolved Aquino, former Budget secretary Florencio Abad and former Budget secretary Mario Relampagos for graft and technical malversation since they did not “apply” public funds to other public purposes.
“The issuance and approval of memoranda and budget circular, in a strict sense, cannot be equated with application of public funds under the statute,” the Ombudsman's decision read.
The Ombudsman, however, indicted Abad for usurpation of legislative powers in violation of Article 239 over the unlawful issuance of the National Budget Circular No. 541 that was used to carry out the DAP.
Also, Abad was found guilty of simple misconduct and ordered suspended for three months.
Cortez, however, argued that Aquino and Abad were guilty of graft and 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,” the NUPL's motion for reconsideration read.
The group questioned Ombudsman Conchita Carpio Morales' position that Aquino and Abad did not act with “evident bad faith or gross inexcusable negligence in implementing the authority to transfer funds to augment deficient items in the General Appropriations Act.”
Abad illegally encroached on the powers of Congress when he modified the provisions on savings of the 2012 GAA NBC No. 541 to authorize the Department of Budget and Management to withdraw “unobligated allotments of agencies with low levels of obligations as of June 30, 2012, both for continuing and current allotments.”
According to the NUPL, Aquino approved the DAP issuances, and because of such, he “directly participated in the commission of the offense."
Abad must also be held responsible for grave misconduct, and not just simple misconduct, the complainants said.
“Abad’s very act of authoring the various DAP issuances shows willful intent to violate the law or disregard of established rules," the motion read.
In February 2015, the Supreme Court affirmed the DAP's unconstitutionality.
It upheld that a significant portion of the DAP, which was created to speed up public spending, violated Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers of the executive and legislative branches.