Upon careful review of the documents contained in the seven evidence packets [presented in the Disbursement Acceleration Program case], 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 [General Appropriations Acts, the national budget legislation].
— Supreme Court decision on the DAP, July 2014
WE are not amused, but we are not surprised. Ex-President Benigno Aquino III’s handpicked Ombudsman Conchita Carpio Morales has predictably exonerated him and lightly charged his former budget secretary, Florencio Abad, for their P157-billion Disbursement Acceleration Program (DAP), the biggest malversation in Philippine history.
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.)
The DAP malversation
Now, as the above-quoted Supreme Court decision on the DAP clearly stated, the program allocated funds to undertakings not in any of the General Appropriations Acts or national budget laws for the years in which the money was allotted.
In short, under the program, public funds went to expenditures not covered by any law.
This is the paramount offense committed in the Aquino-Abad DAP, not misdeclaring savings or transferring Executive Department funds to agencies outside it (more on those other offenses later).
DAP violated not just the Revised Penal Code by allotting funds in ways not authorized by law, but the Constitution itself, particularly Article VI, Section 29 (1): “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.”
By allocating DAP funds to “PAPs that were not covered by any appropriations in the pertinent GAAs,” Aquino and Abad violated a rule that even the lowest-paid government employee knows: If there’s no budget for something — “walang badyet” — you can’t spend on it.
Now, two years and eight months after the Supreme Court ordered her to probe and charge DAP’s authors, Ombudsman Morales finds none liable for the offense cited by her former fellow magistrates: allocating DAP funds to unbudgeted expenditures.
Not Abad, who ordered some 1,900 DAP allocations drafted, and endorsed them for approval. Not Aquino, who, Abad himself said, approved every DAP allocation. If they didn’t author DAP, who did?
This Morales ruling must not be allowed to stand. Otherwise, anyone else who allocates public funds to expenditures not covered by any budget allocation, in clear violation of the Constitution and the Revised Penal Code, is off the hook.
Morales must be held accountable
The Supreme Court must call Ombudsman Morales to account, for the sake of basic budgetary discipline and integrity. And Congress should consider impeaching her for this clear breach of public trust in failing to perform her duty of prosecuting unlawful acts of public officials.
The Ramon Magsaysay Foundation and the Ateneo de Manila University should take back their awards to Morales. By favoring the man who appointed her, plus the architect of DAP malversation, she has rendered herself undeserving of the government service accolades bestowed by both institutions.
To make it seem that she complied with the Supreme Court directive, Morales charged Abad with usurping legislative power by wrongly declaring as savings the unobligated allotments of national agencies before the fiscal year had ended, in violation of GAA provisions defining savings.
That is just one of three DAP violations, as ruled by the Supreme Court, to wit:
“… the following acts and practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive issuances [are declared]unconstitutional for being in violation of Section 25(5), Article VI of the 1987 Constitution and the doctrine of separation of powers, namely:
“(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year and without complying with the statutory definition of savings contained in the General Appropriations Acts;
“(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the Executive; and
“(c) The funding of projects, activities and programs that were not covered by any appropriation in the General Appropriations Act.”
The case for impeachment
Those building a case for Morales’s impeachment would have no shortage of actions and omissions showing negligence, if not undue favor.
She could have easily investigated the misallocation of DAP funds to unbudgeted expenditures by asking Supreme Court staff to send her the list of DAP-funded programs and projects with no budgetary allocation, as the court had found.
Then Morales should have asked Abad to cite budgetary provisions authorizing those expenditures. Each item he could not back up is one count of technical malversation.
Another celebrated scandal Morales could have easily probed, but never did, is the 2011 disappearance of 2,000-plus cargo containers. By checking Customs release papers for the boxes, she could have charged with negligence or worse the officials who kept letting containers out after hundreds had vanished.
Then there’s the 2004 fertilizer fund scam, for which hard evidence had been gathered in Senate hearings in 2007, and the pork barrel scandal, with a computer hard drive listing suspect grafters and their nefarious deals. In both scams, she has yet to charge many legislators in the Aquino camp, while moving fast against opposition stalwarts.
The previous Ombudsman was impeached for purportedly favoring former President Gloria Arroyo. Conchita Carpio Morales has done far worse.