Ombudsman probers order Aquino to comment on DAP appeal
Vince F. Nonato
Investigators of the Office of the Ombudsman have ordered former President Benigno Aquino III to respond to an appeal by progressive activists on the March 3 resolution sparing him from indictment over the outlawed Disbursement Acceleration Program.
Aquino and all the other case parties, including former Budget Secretary Florencio Abad and Undersecretary Mario Relampagos, were directed to submit their comment within 15 days of the receipt of the order, the Ombudsman’s media bureau announced Thursday.
To recall, Ombudsman Conchita Carpio Morales issued a finding of probable cause to charge only Abad for usurpation of legislative powers, as DAP effectively redefined “savings” as provided for by the 2012 General Appropriations Act passed by Congress.
The lack of explanation on why Aquino was absolved of criminal liability was seen as an “attempt to shield” the former President who appointed Morales to the position in 2011.
Complainants led by Bayan Muna Party-list Rep. Carlos Isagani Zarate and former Rep. Neri Colmenares questioned why the Ombudsman ignored Aquino’s own DAP-related issuances in resolving their criminal complaint.
“Glaring is the lack of mention with respect to Aquino,” stated the March 13 motion for reconsideration filed on their behalf by the National Union of People’s Lawyers.
They said Aquino approved DAP in October 2011 and Abad’s request to withdraw and pool the unutilized funds for the first half of 2012.
For them, National Budget Circular No. 541, the issuance cited by the Ombudsman resolution, merely confirmed Aquino’s prior actions and Abad could not have issued it without the president’s approval.
“The Decision, in its attempt to shield Aquino, mentioned only NBC 541 apparently as the only document/act which ‘unduly modified, expanded the meaning of savings under the GAA,’” the appeal stated.
The Supreme Court in July 2014 declared certain budgetary practices under DAP unconstitutional, granting the petition by several personalities including Colmenares.
The outlawed practices 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.
Another anti-DAP petitioner, losing senatorial candidate Greco Belgica, sought Morales’ disbarment on March 24 because of her resolution absolving Aquino for “no reason.”
“By absolving the former president of the crime of usurpation of legislative powers without stating the reason, the Ombudsman only gave more weight to the people’s suspicion that she is biased,” Belgica’s complaint read.
But, only four days later, the SC threw out the disbarment complaint citing the immunity of a sitting Ombudsman, required by the Constitution to have been a lawyer or judge. #
JV Ejercito wants dismissal of calamity fund case
Vince F. Nonato
Senator Joseph Victor Ejercito has sought permission from the Sandiganbayan Sixth Division to seek the dismissal of his technical malversation case for insufficiency of evidence.
In a three-page motion for leave to file demurrer, Ejercito and nine then-San Juan City councilors said state prosecutors have “failed to establish” that they misappropriated P2.1 million in calamity funds to purchase high-powered firearms when he was mayor in 2008.
According to the Ejercito-led motion, there was no diversion or misapplication of public funds because the use of the funds had been authorized by the Sangguniang Panlungsod ordinances that have yet to be invalidated by any court.
“The question to be addressed in proving guilt beyond reasonable doubt on the part of the accused must only be whether or not the use of the public funds for the firearms subject of this case was supported by an appropriation ordinance validly enacted by the Sangguniang Panglungsod,” the motion read.
The motion added that prosecutors “cannot impugn the legality of the Ordinances through a collateral challenge” just to prove the city officials’ criminal liability.
At the same time, the motion said the prosecution failed to show the calamity funds were really spent on the firearms bought from lone bidder HK Tactical Defense System, Inc. (HKTDSI).
The motion also noted that since the payment of the firearms ended up not being charged against the calamity fund at the instruction of the Commission on Audit.
Because of this, no disallowance was made on the payments.
It stated that the prosecution’s own evidence and witnesses, including City Accounting Office officer-in-charge Alicia Barazon and City Treasurer officer-in-charge Leticia Alcober, even confirmed that the cost of the firearms were paid out of the general fund and not the calamity fund.
“Thus, the second element of technical malversation, i.e., that the accused applied the calamity fund to some public use, is absent as there is no proof of such application in the first place,” the motion read.
The motion added that the councilors’ part in enacting the appropriation ordinances cannot be considered a conspiracy because “no proof of any overt act done by accused that will indicate a common intention, plan or design to commit technical malversation.”
Joining Ejercito in questioning the sufficiency of the prosecution’s case were three incumbent city officials: councilors Leonardo Celles and Vincent Rainier Pacheco, and public information officer Grace Pardines.
Also joining the demurrer were former councilors Andoni Miguel Carballo, Vincent Rainer Pacheco, Dante Santiago, Grace Pardines, Francis Keith Peralta, Edgardo Soriano, Jannah Ejercito-Surla, and Joseph Christopher Torralba.
State prosecutors were given 10 days to state why Ejercito and the other accused should not be allowed to challenge the evidence through a demurrer.
While the technical malversation case is still pending trial at the Sixth Division, the court’s Fifth Division in Dec. 22 already granted Ejercito’s demurrer against the separate graft case in connection with alleged procurement anomalies in the award of the contract to HKTDSI. #