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Former
President
BENIGNO
SIMEON C. AQUINO III, and
FLORENCIO
ABAD,
Former
Secretary of the Department of
Budget and Management (DBM),
Respondents.
x---------------------------------------------x
COMPLAINT AFFIDAVIT
We, the Complainants, are Filipino citizens, taxpayers, and all
of legal age, after having been sworn in accordance with law, hereby
depose and state that:
1.
3.
We charge Respondents Benigno Simeon C. Aquino III and
Florencio B. Abad of committing and having committed crimes,
offenses and administrative infractions including but not limited to the
following:
i. For the crime of illegal use of public funds or
property or technical malversation defined
under the Revised Penal Code,1 in relation to
1
Article 220. Illegal use of public funds or property. 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 shall suffer the penalty of prision correccional in its minimum period or
3
a fine ranging from one-half to the total value of the sum misapplied, if by reason
of such misapplication, any damage or embarrassment shall have resulted to the
public service. In either case the offender shall also suffer the penalty of
temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penalty
shall be a fine from 5 to 50 per cent of the sum misapplied.
2
Rosas v. Montor, G.R. No. 204105, October 14, 2015: Misconduct is defined
as a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer. It becomes
grave misconduct when it involves any of the additional elements of corruption,
willful intent to violate the law or to disregard established rules, which must be
established by substantial evidence. A person charged with grave misconduct
may be held liable for simple misconduct if the misconduct does not involve any
of the additional elements to qualify the misconduct as grave. The charge of
gross misconduct is a serious charge that warrants the removal or dismissal of a
public officer or employee from service together with the accessory penalties,
such as cancellation of eligibility, forfeiture of retirement benefits, and perpetual
disqualification from reemployment in government service.
6
Abos v. Borromeo IV, A.M. No. P-15-3347, July 29, 2015: Conduct prejudicial
to the best interest of service, on the other hand, is defined by Largo v. Court of
Appeals as any misconduct which need not be related or connected to the public
officers['] official functions [but tends to tarnish] the image and integrity of his/her
public office.
7
Attached herein is the Certified True Copy of the Main Decision penned by
Justice Bersamin dated July 1, 2014 as ANNEX A. Likewise attached herein
is a copy of the Resolution dated February 3, 2015 disposing of the motions for
reconsiderations filed in the case, as ANNEX B.
5
5.
In Governor Enrique T. Garcia, Jr., v. Office of the
Ombudsman, et al.,9 the Supreme Court ruled that the Ombudsman
gravely abused its discretion when it disregarded an Audit
Observation Memorandum (AOM) in ruling that there was no
probable cause for violation of Republic Act No. 3019. This AOM, as
ruled by the Supreme Court in the aforecited case, contained factual
and legal findings as to the presence of the elements of the crime and
the probable guilt of the therein accused public official.
6.
The Ombudsman, the Supreme Court ruled, has the duty to
determine probable cause by taking essential facts and evidence into
considerationincluding those already discovered by the COA. It
should also avoid issuing rulings that amount to a patent violation of
the Constitution, law, and existing jurisprudence.10
7.
An AOM of the COA is thus declared sufficient to be a basis for
a finding of probable cause. In the same vein, a decision of the
Supreme Courtwhich has the force and effect of a lawshould
likewise be considered sufficient to hold that the crimes in this charge
have been committed and that Respondents are probably guilty
thereof.
DAPS CREATION AND IMPLEMENTATION
8.
The High Court in Araullo described DAPs creation and
implementation under the hands of Respondents Aquino and Abad as
follows:
How the Administrations economic managers conceptualized
and developed the DAP, and finally presented it to the
President remains unknown because the relevant documents
appear to be scarce.
The earliest available document relating to the genesis of the
DAP was the memorandum of October 12, 2011 from Sec.
Abad seeking the approval of the President to implement
the proposed DAP. The memorandum, which contained a list
of the funding sources for P72.11 billion and of the proposed
priority projects to be funded, reads:
MEMORANDUM FOR THE PRESIDENT
9
10
Ibid.
6
xxxx
SUBJECT: FY 2011 PROPOSED DISBURSEMENT
ACCELERATION
PROGRAM
(PROJECTS
AND
SOURCES OF FUNDS)
DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your
approval of the Disbursement Acceleration Program
totaling P72.11 billion. We are already working with all
the agencies concerned for the immediate execution of
the projects therein.
xxx
The memorandum of October 12, 2011 was followed by
another memorandum for the President dated December 12,
2011 requesting omnibus authority to consolidate the
savings and unutilized balances for fiscal year 2011.
xxx
Substantially identical requests for authority to pool savings and
to fund proposed projects were contained in various other
memoranda from Sec. Abad dated June 25, 2012,
September 4, 2012, December 19, 2012, May 20, 2013, and
September 25, 2013. The President apparently approved
all the requests, withholding approval only of the proposed
projects contained in the June 25, 2012 memorandum, as
borne out by his marginal note therein to the effect that the
proposed projects should still be subject to further
discussions.
In order to implement the June 25, 2012 memorandum, Sec.
Abad issued NBC No. 541 (Adoption of Operational
Efficiency Measure Withdrawal of Agencies Unobligated
Allotments as of June 30, 2012).
xxx
As can be seen, NBC No. 541 specified that the unobligated
allotments of all agencies and departments as of June 30,
2012 that were charged against the continuing
appropriations for fiscal year 2011 and the 2012 GAA (R.A.
No. 10155) were subject to withdrawal through the
issuance of negative SAROs, but such allotments could be
either: (1) reissued for the original PAPs of the concerned
7
12
13
14
15
16
18
12.
MOOE
CO
TOTAL
2010
36.3
17.75
9.5
63.55
2011
35.97
11.8
11.9
59.67
2012
42.4
12.6
11.74
66.74
2013
31.2
4.1
12.12
47.42
TOTAL 145.972
46.25
45.26
237.482
19
Article 220, Revised Penal Code. Also, L.B. Reyes, The Revised Penal Code,
Book II, 12th ed.
21
22
20. This is also implicit in the text of Article 220, which requires a
diversion of funds or property from an appropriation to a different
purpose, or in other words, from one public use to another. As the
Court has held, the act of an accused in technical malversation, no
matter how noble or miniscule the amount diverted, constitutes the
crime.23 Nonetheless, as the diversion involves several billions of
taxpayers money, there certainly was no nobility or good faith in such
acts of the Respondents.
21. The first element of technical malversation is undisputed to be
present in this case, for both Respondents Aquino and Abad.
22. A reading of Article 220 reveals that the second element has
three components, namely, (i) the act of misapplication or diversion of
funds is attributable to the respondents, (ii) the fact of diversion, and
(iii) the fact that the funds diverted were already appropriated by law
or ordinance.
23. That DAP is attributable to the Respondents is likewise both of
public knowledge and undisputed, based on (1) admissions before
the Supreme Court during the deliberations for Araullo and before the
public as to their authorship of the DAP24 and (2) documents
submitted to the Court, which were admitted as bases for the ruling
that DAP amounted to an unconstitutional tinkering by the Executive
with funds appropriated by law.
24. Common to the DAP issuances are telltale marks of
Respondents Aquinos and Abads conspiratorial authorship of DAP:
a.
statements such as this is to formally confirm your
approval of the Disbursement Acceleration Program;
b.
c.
Aquinos initials next to several items in some of the
memoranda;
d.
several boxes are marked APPROVED, also in Aquinos
handwriting; and
23
Ibid.
24
e.
Aquino and Abads signatures at the end of each
memorandum.
25. The fact of criminal diversion has already been ruled upon by
the Supreme Court, which described the DAP as a withdrawing and
pooling mechanism for forced savingsthat is, (1) by declaring
savings coming from the various departments and agencies
derived from pooling unobligated allotments and withdrawing
unreleased appropriations; (2) releasing unprogrammed funds; and
(3) applying the savings and unprogrammed funds to augment
existing PAPs or to support other priority PAPs.25
26. In the first step, Respondents Aquino and Abad, through their
issuances, removed the funds earmarked for several PAPs. In the
third, they diverted the same to other items in the GAAs or to other
PAPs not in the GAAs but which they declared as priority. These
acts constitute criminal diversion, plain and simple, since time
immemorial and even prior to the Araullo ruling.
27. In addition, the cross-border transfers and the funding of
non-existent PAPs, which the Court found as unconstitutional acts
under the DAP, both take for granted the fact of DAP-induced
movement of appropriated funds from one public purpose to another.
28. The third component of the second element requires that the
subject of the technical malversation be earmarked funds.26
29. An examination of the Evidence Packets as well as Respondent
Abads admissions before the Senate as to the sources of the DAP
will fully reveal that it targeted legislatively earmarked and
appropriated public funds for withdrawal and diversion. For
instance, the 12 October 2011 memorandum, the genesis of the
DAP, lists the sources of the first applications of the DAP:
A. Fund Sources for the Acceleration Program
Fund Sources
FY 2011
Unreleased
Personal
Amount
Description
(In
million
Php)
30,000 Unreleased Personnel
Services (PS)
appropriations which
25
Araullo.
26
De la Cuesta.
15
Action
Requested
Declare as
savings and
approve/
Services (PS)
Appropriations
FY 2011
Unreleased
Appropriations
482
FY 2010
Unprogrammed
Fund
12,336
FY 2010
Carryover
Appropriation
21,544
Unreleased
appropriations (slow
moving projects and
programs for
discontinuance) and
savings from Zerobased Budgeting
Initiative
FY 2011
Budget
items for
realignment
7,748
FY 2011 Agency
Budget items that can
be realigned within the
agency to fund new
fast
disbursing projects
DPWH-3.981 Billion
DA 2.497 Billion
DOT 1.000 Billion
DepEd 270 Million
TOTAL
authorize its
use
for the 2011
Disbursement
Acceleration
Program
Approve and
authorize its
use
for the 2011
Disbursement
Acceleration
Program
With prior
approval from
the President
in
November
2010
to declare as
savings and
with
authority to
use
for priority
projects
For
information
72.110
31. It is obvious from the above list, the Seventh Evidence Packet,
and from similar lists contained in all the issuances that followed the
October 12 memorandum, that Respondents Aquino and Abad
diverted appropriations, that is, portions of the Treasury or
public funds that have been set aside by the legislature for some
public purpose.27
32. It should be noted that Personal Services (PS), Maintenance
and Other Operating Expenses (MOOE), and Capital Outlay (CO)
are allotment classes, meaning they are authorized to be released,
via a general or special appropriations act, from the National
Treasury to certain purposes specified by the legislature. The PS
are provisions for the payment of salaries, wages and other
compensation (e.g., merit, salary increase, cost-of-living-allowances,
honoraria and commutable allowances) of permanent, temporary,
contractual, and casual employees of the government. The MOOE
refers to expenditures to support the operations of government
agencies such as expenses for supplies and materials; transportation
and travel; utilities (water, power, etc.) and the repairs, etc. The CO
refers to appropriations for the purchase of goods and services, the
benefits of which extend beyond the fiscal year and which add to the
assets of the Government, including investments in the capital stock
of GOCCs and their subsidiaries.28
33. The last element of technical malversation requires that the
public fund or property misapplied be under the administration of
the offender.
34. Respondent Aquino as President entered office after vowing to
faithfully and conscientiously fulfill his duties as Chief Executive,
preserve and defend its Constitution, and execute the laws.29
35. During his term, Respondent Aquino was an accountable
public officer for purposes of a prosecution under Title Seven of the
Revised Penal Code.30 Being the Chief Executive, he was the single
most accountable official responsible for the proper implementation
of all the laws of the landincluding the Constitutionand the single
most accountable official during the budget execution stage, most
27
28
30
31
Emphases supplied.
18
34
PDAF (Various Other Local Projects) and Various Other Local Projects are
listed as DAP proceeds in most of the DAP tranches
19
Reyes, Luis B., The Revised Penal Code, Book II, 13th ed., 1997, p. 406
36
Araullo
37
The Araullo 2014 Decision and 2015 Resolution. Chief of these requisites is
that unprogrammed funds may only be released upon proof that the aggregate
revenue collection has already exceeded the aggregate revenue target.
38
d.
e.
f.
g.
h.
47. It must be clarified that while the Court declared that the
President can adopt and implement the DAP as a program or an
administrative system of prioritizing spending, and that in that sense,
the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution,39 it drew the line
between the DAP as a program and the unconstitutional acts
Respondents Aquino and Abad committed thereunder, namely
the acts mentioned in the dispositive portion of Araullo.
48. A program or an administrative system of prioritizing spending
CANNOT BE a license to commit Technical Malversation, Usurpation
of Legislative Powers, among other crimes or offenses, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service
and Gross Dishonesty and to violate Section 3(e) of Republic Act No.
3019. Acts or omissions that constitute the elements of these and
other crimes and offenses cannot be subsumed under and justified by
a program or an administrative system of prioritizing spending.
49. It should also be stressed that the Court made no finding on the
good faith of Respondents Aquino and Abad, or lack thereof, as
clarified in the February 2015 Resolution in the Araullo case. Indeed,
no such finding can be had by the Supreme Court during a certiorari
case for constitutionality, as good faith is a non-issue in such a
proceeding and a matter of fact to be declared as proven only after
trial by a court of competent jurisdiction.
50. Hence, Respondents Aquino and Abad should be prosecuted
for usurpation of legislative powers, as all the elements thereof are
present.
39
Ibid.
21
56. Again, the first element obtains in this case. It is settled that, for
the period alleged herein, Respondents Aquino and Abad discharged
official and administrative functions, being the main authors and
implementors of the DAP. For one, they signed and implemented the
DAP memoranda on their authority as President and budget
secretary.
57. The second element likewise obtains herein. The acts of
Respondents Aquino and Abad, as enumerated and exhaustively
discussed in Araullo, expose their evident bad faith or inexcusable
negligence.
58. It should be stressed that Aquino already knew beforehand
that his acts of tinkering with the annual GAAs and fiscal
dictatorship are contrary to the Constitution and a grave sin to the
principles of separation of powers, transparency, and good
governance. To quote from his own Explanatory Note in Senate Bill
312141 which Respondent Aquino filed in 2009:
[A]s the power of the sword belongs to the President,
the power of the purse resides in Congress.
In practice however, the President still wields
considerable control over public spending through the
exercise of budget impoundment.
xxx
x x x [T] presidential prerogative has been misused and
abused, and has emasculated Congress authority to
check the Presidents discretionary power to spend public
funds. In effect, the President seems to a have a vast
and unbridled control over the national budget.
This bill seeks to increase congressional oversight and to
limit executive influence over specific appropriations in
the General Appropriations Act.
59. While his Explanatory Note mentions only impoundment, his bill
as a whole sought to control rescission, reservation, and deferral of
releases, all of which are similar to the unconstitutional acts
committed through the DAP.
60. At the very least, Respondents Aquino and Abad, who had
been top government officials for decades already at the time that
41
42
Ibid.
24
itself a crime under the Revised Penal Code43 and the Governments
auditing codes. But more importantly, without prejudice to the
IMMEDIATE initiation and filing of the criminal Informations for
Technical Malversation, Usurpation of Legislative Powers and
violation of Section 3(e) of RA 3019 and the decision on the
Respondents administrative culpability for Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Gross
Dishonesty, the accounting may yet reveal the Respondents OTHER
greater and harsher criminal and administrative liabilities. (Some say
that the DAP was used to finance the destruction of others and the
growth in the careers of some. All these point to the importance of
accounting for the use of the DAP)
67. This complaint is not a debate about the Respondents
statesmanship and brinkmanship in their administration of the
peoples money as accountable and responsible officers. It is about
the pure and simple criminal diversion of public funds that have
already been appropriated, to projects or programs that did not pass
Congress power over the purse, which in the process caused undue
hardships and prejudice to the Filipino civil servants and the Filipino
people as a whole. Let us unmask what the Respondents have done
and show to them and other public officers who may wish to follow
their crooked path that no matter how dense, pompous and
bombastic the words they employ to conceal their nefarious ends,
they will at the right time especially when the cloak of unbridled
power fades and veil of immunity is shed be caught, charged,
prosecuted and convicted for the plain and simple criminal acts or
omissions they do.
68. Complainants execute this complaint-affidavit to attest to the
truth of the foregoing and to cause the institution of the corresponding
criminal complaints against Respondents for technical malversation
and usurpation of legislative powers, violation of the Anti-Graft and
Corrupt Practices Act as well as grave misconduct, conduct
prejudicial to the best interest of the service, and gross dishonesty.
43
BENJAMIN VALBUENA
FERDINAND GAITE
MAE P. PANER
ANTONIO FLORES
GLORIA G. ARELLANO
CERTIFICATION
Subscribed and sworn to before me this 8th day of July 2016 in
Quezon City. This is to certify that the affiants personally appeared
before me and verified that they executed this affidavit-complaint, has
read the same and that the contents thereof are true and correct of
their own knowledge and information and based on the available
records.
26