SOMEBODY’s not telling the truth.
On Monday, Ombudsman Conchita Carpio Morales said, in so many words, that she found no evidence to charge former President Benigno Aquino 3rd over the illegal Disbursement Acceleration Program.
“They want Aquino’s head,” the retired Supreme Court justice said. “We go by the evidence. If the evidence is there, if it’s rearing its ugly head, why should we not file the case? But if the evidence does not merit the determination of probable cause, why should we go to court?”
Morales added, referring to threats by critics to oust her: “They can file an impeachment complaint. I’m not going to be coerced into filing a case against someone, when I believe the evidence does not call for it.”
And she saw no evidence to charge Aquino, whom she cleared of any offense relating to the DAP in her report last month on complaints filed against him and his Budget Secretary Florencio Abad. In its July 2014 ruling declaring the DAP unconstitutional, the Supreme Court also ordered Morales to probe the program and charge its “authors.”
While the Ombudsman found no basis to charge Aquino, her former colleagues did unearth evidence of criminal offense in the ₱157-billion DAP, which could be approved by no other official but Aquino as president.
What the high court found but Morales didn’t
In their unanimous DAP decision, the Supreme Court stated: “Upon careful review of the documents contained in the seven evidence packets, we conclude that the ‘savings’ pooled under the DAP were allocated to PAPs [programs and projects]that were not covered by any appropriations in the pertinent GAAs.”
The evidence packets were documents presented in the DAP case. The “savings” are unspent funds originally allocated to programs and projects authorized by law, but realigned under the DAP to other expenditures.
GAAs are the General Appropriations Acts or national budgets enacted by Congress, the required legal basis for all public spending, as expressly stipulated in Article VI, Section 29 (1) of the Constitution: “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”
To put the Supreme Court’s statement in layman’s terms, the justices said that based on seven envelopes of DAP evidence, they came to the conclusion that unspent funds amassed under DAP were allocated to expenditure items not found in relevant budgets, that is, the GAAs covering the years when the DAP-funded expenditures were made.
Last time we checked, spending public funds of any kind without any proper budgetary authorization constitutes the criminal offense of malversation. If the money was spent for personal benefit, it was simple malversation. If it was allocated to government programs and projects not authorized by law, it was technical malversation.
According to the Revised Penal Code, Article 220, technical malversation is committed by “Any public officer who shall apply any public fund or property under his administration to any public use other than that for which such fund or property were appropriated by law or ordinance.”
Put simply, anyone causing state funds to be spent for public use in ways not authorized by statute, commits technical malversation. It is punishable by “prision correccional in its minimum period [six months]or a fine ranging from one-half to the total of the sum misapplied.” (Plain malversation, which uses government money for personal use, is a graver crime warranting many years in prison and much heftier fines.)
So, on the one hand, we have the Honorable Justices of the Supreme Court unanimously declaring that DAP funds were spent on unbudgeted items, based on seven envelopes of evidence.
And on other hand, their former colleague, Ombudsman Morales, insists she found no evidence of wrongdoing by Aquino after investigating the DAP.
Who’s telling the truth here?
Did the Supreme Court misread the evidence in the seven envelopes? Did Morales misconstrue those papers, or never bothered to get them? Or did she disregard that evidence just to get Aquino off the hook?
Is it so hard to pick up seven envelopes?
Perhaps current Budget Secretary Benjamin Diokno can resolve the matter. He has offered new evidence on the DAP for the Office of the Ombudsman to evaluate.
At her April 25 press conference defending her DAP report, Morales disclosed: “In light of the statement of Mr. Diokno that they have unearthed documents that probably have a bearing on the DAP, the field investigation office today sent a letter to Mr. Diokno to furnish us any documents which they believe have a bearing on the DAP.”
The new DAP material hopefully includes the “seven evidence packets” cited by the Supreme Court and perhaps never seen or checked by the OMB.
And since Secretary Diokno’s department is now helping out, perhaps it can provide a list of DAP expenditures that, as the Supreme Court concluded, “were not in any of the pertinent GAAs.”
For every unauthorized program or project on which DAP funds were spent or allocated, its authors can be charged with one count of technical malversation. There were reportedly about 1,900 budget allocations endorsed by Abad and approved by Aquino.
Even if just one-tenth of those expenditures were not authorized by any budget, that would be 190 counts of technical malversation, carrying a minimum penalty of 190 half-years in prison, or 95 years, for the authors.
And who were those DAP authors, if not the budget secretary who asked the President to approve the fund allocations, and the Chief Executive who granted the approvals?
Now, who’ll make a bet that even after getting all that new DAP evidence, including the seven packets cited by
the highest court in the land, the Honorable Ombudsman will still declare that she finds zero evidence to charge Aquino?
After all, just last December, she said of the man who appointed her: “You have to give it to him. He is corrupt-free.”