• DAP: The Ombudsman vs the Supreme Court

    Ricardo Saludo

    Ricardo Saludo

    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.”


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    1. Get Morales out. She filed charges against Abad and exonerated Aquino who approved of what Abad did? Where is the logic of this?

      Get her out. She has no place in our system.

    2. That is only on the Philippines, it seems the Ombudsman file cases to individual they know that the Supreme court will cleared out hearing after hearing – ex GMA, and they will not file cases to an individual that the Supreme Court will found out guilty beyond reasonable doubt – loke PNOY.

    3. isidro c. valencia on

      It is only a matter of technicalities. What matter most is: Were there anomalies in spending the funds? Were the funds used judiciously and in accordance with COA’ standards?

      • Hijo, under the GAA, funds can only be spent based on budgetary allocations. Pag wala sa allocation yan at sa iba mo ginamit ang pera, technical malversation yan. It is immaterial whether the process of spending on the non-budgeted program conforms to COA standards. Ibig bang sabihin na pag may P100M na budgeted para sa isang kalsada pero di mo ginamit ang pera para duon and instead used it to build a bridge, pwede yun dahil yun proseso ng pag bidding ng pagawa ng tulay conforms to COA standards?

      • Al Moranas Jr. on

        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.” Utoy, this is not a matter of technicalities here, it is a clear provision of the constitution which does not need any further interpretation or clarification.

    4. dating kriminal on

      Spending few agency’s surplus money by giving them to other agencies that need the money to operate and survive, without approval from congress is technical malversation. Some groups have filed impeachment complaints against Aquino when he was still sitting as President, but it did not materialize and was voted against in the Lower House because neither Abad nor PNoy took the money for themselves, but distributed to other government agencies that in need of budget. Why people invest too much time and resources trying to crucify the former President? Abad only got a slap on the wrist and the Ombudsman cannot find any evidence to prosecute Aquino. Is this too difficult to understand? We should get over it and move on because there are more important issues need to be taken care of.

      • pag wala sa budget or gaa ang gastos, technical malversation yon. hindi mo yata binasa na mabuti ang sinabi ni makabenta. ultimo sc sinabi na ilegal ang dap

      • Ipinagtatanggol mo so BSAquino III kahit di mo naiintindihan ang ginawa nyang illegal na pag manipulate nya sa govt budget , Sya ang nag-approve ng lahat na ginawa ni Abad at mga staff member nya at ginamit nya ang pera pangsuhol sa mga Congressmen at Senador para ma-impeach si CJ Renato Corona, dahil si Corona ang SC justice naq nag- approve na ibigay sa mahihirap na poor farmers of Hacienda Luisita ang lupa na dapt ay ibinigay sa kanila noon pa ( CJ Corona just followed the law based on the agreement stated where the farmers will be the beneficiaries of the many thousand hectares of land after 10 years of tilling the said land (Hacienda Luisita).Those poor farmers had to die fighting for their right and you will advise people to move on and ignore the heinous crime they did. he was impeached illegally by the Kangaroo court -those Senators and Congreemen who received the millions of money that supposedly spent for the improvement of the life of many poor Filipinos.

    5. We have Morales, sitting as the Ombudsman, seeing no wrong in the DAP approved by Aquino. She absolves Aquino of doing anything wrong. 95% of the PH people believe the DAP was clearly illegal as stated by the SC. 100% of the people know that Aquino approved it. We have an Ombudsman not working for the people.

      • Agree 100%. What’s troubling is, the majority of us can only watch as this corruption remains in office. It’s painful to watch yet so difficult to turn a blind eye, especially those we see who thinks they are above the law, insulting our intelligence as if we don’t know any better. Whatever is written on paper or the facade they bring forward, deep down I know they feel deep deep shame, enough to kill their conscience dead.

    6. Now that BSAQuino III is out of office as President, he lost his immunity from any lawsuit that will be brought against himby the people of the Republic of the Philippines and therefore the Ombudsman Morales can no longer protect her” adopted son” from any lawsuits..More power to the people of the Rep of the Philippines. selective justice must not prevail.,

    7. Senility is creeping to that old justice of the AC and now Ombudsman that she forgets the basic elements of technical malversation. She should be impeached as soon as possible.

    8. 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.
      This has been common knowledge after it was declared unconstitutional back in 2015.
      Takes the Supreme Court 3 years to declare the Dap was spent without congressional approval.


      :Let wait a couple more years and maybe someone will actually do something about it.

      Guaranteed it wont be Ombudsman Morales who charges and convicts any of the Liberal Party.

    9. When Ombudsman Morales mentioned that Aquino is corrupt-free last December, even without yet any complaint filed against noynoy at the Office of the Ombudsman, this is already an indication that Morales signified that she will dismiss any cases that will be filed against aquino.

      • That was probably their agreement when Noynoy appointed Morales. Dismiss any case that will be filed against me and I will appoint you Ombudsman. Further, declare me corrupt-free and you can ask for the moon.