By: Vince F. Nonato / @VinceNonato INQPhilippine Daily Inquirer / 01:19 AM October 26, 2016
Former President Benigno Simeon Aquino lll. INQUIRER FILE PHOTO/JOAN BONDOC
Former President Benigno Aquino III has asked the Office of the Ombudsman to dismiss a complaint against him over the controversial Disbursement Acceleration Program (DAP), saying an earlier Supreme Court decision that outlawed certain budgetary practices was not enough to criminally charge him for graft.
In a 28-page counteraffidavit he recently filed, Aquino said his accusers failed to show the actions he committed to warrant prosecution for graft, technical malversation, and usurpation of legislative powers.
DAP was a mechanism used by the Department of Budget and Management in 2011 to accelerate spending and boost the economy.
But the Supreme Court in 2015 declared that certain budgetary practices under DAP as unconstitutional. These include the cross-border transfer of funds and the declaration of savings before the end of the fiscal year in order to realign them for items not contained in the budget law passed by Congress.
Aquino said the Supreme Court’s ruling in the case could not serve as the basis for the DAP case because it only clarified “constitutional boundaries” on budgetary powers.
He said the high court’s decision was meant to serve as reference for future budgetary actions and not penalize the officials who implemented the DAP.
The ruling “was a pronouncement that clarified in general terms constitutional rules and principles involving the budget. It cannot be construed as amounting to a specific finding of criminal liability,” Aquino said.
Metes and bounds
“The Supreme Court merely set out—for future reference—the metes and bounds of the President’s exercise of the power to augment, nothing more,” he said.
He argued the SC decision did not touch on the issue of the liabilities of the authors, proponents and implementing of DAP.
The complaint also failed to satisfy the elements of each criminal charge, Aquino said.
He argued he could not also be held liable for technical malversation under Article 220 of the Revised Penal Code, which prohibits the use of funds for purposes other those than specifically stated in the appropriations law.
Aquino said that savings were no longer technically funds “appropriated by law or ordinance,” as they have already ceased being appropriated for a specific purpose once they are declared to be savings.
Lack of understanding
“Complainants’ allegation… that I ‘diverted appropriations’ is based on a complete lack of understanding of the difference between ‘appropriations’ and ‘savings,’” Aquino said, adding that he was not an an “accountable officer” who had actual control of the funds as part of his official duty.
Congress also did not allocate the funds for the Office of the President, and therefore by their nature could not apply to savings and unprogrammed funds used under DAP.
Aquino denied usurping the powers of Congress when he used savings to augment deficient items in the budget. He said this was a function of the executive branch spelled out in the Constitution, which allowed the President some budgetary flexibility.