Top 6 reasons why Ombudsman can indict Aquino, Abad over DAP

indict Aquino
Copies of Bayan Muna’s motion for reconsideration, calling for Aquino’s indictment over DAP, being received at the Office of the Ombudsman March 13, 2017. (Contributed Photo / Bulatlat)

“Ignorance of the law, feigned or otherwise, is not an excuse.”


MANILA – True to his promise, Bayan Muna Rep. Carlos Isagani Zarate together with other complainants filed on March 13 their Motion for Reconsideration with the Office of the Ombudsman. They are calling for the indictment of former President Benigno Simeon Aquino III and former Budget Secretary Florencio Abad for Technical Malversation and Violation of the Anti-Graft law in having authored and implemented a fund-sourcing mechanism for their pet projects from national budget via the Disbursement Acceleration Program.

The motion for reconsideration is the Bayan Muna’s response to the March 3 decision of the Office of the Ombudsman. In it, the Ombudsman finds probable cause to indict Florencio Abad for usurpation of legislative powers and substantial evidence against him for simple misconduct. The Office of the Ombudsman ordered Abad’s suspension for three months without pay (although he is no longer with the government). The Office of the Ombudsman dismissed the criminal and administrative charges leveled against former President Aquino by Bayan Muna and other complainants.

Bayan Muna et al. are seeking reconsideration of the Office of the Ombudsman’s dismissal of charges against Aquino and reconsideration also of the Ombudsman’s findings that Abad merely committed simple misconduct. It is actually grave, said the group seeking accountability of Aquino and Abad.

‘The P142.23-B DAP unconstitutionally spent by the Aquino government is much bigger compared to the P10-B allegedly robbed from people’s money via pork barrel scam.’ – Bayan-Metro Manila (Bulatlat File Photo by M. Salamat, July 1, 2014/

Rep. Zarate said Aquino and Abad should be indicted for technical malversation because as public officers in charge of the national budget, they authored the DAP and committed the illegal transfers of funds.

Rep. Zarate reiterated that Aquino should be held equally accountable for the crime of Usurpation of Legislative Powers, for which Abad was the only one indicted by the anti-graft body. He reasoned that Aquino, like Abad, was a former legislator. Aquino and Abad signed and approved the DAP documents, which Zarate said was a violation of the Congress’ power of the purse.

“Hindi naman pwedeng ang pangunahing nagpatupad ng krimen ang siya pang di napaparusahan.Magiging walang katuturan ang kasong ito. (It should not be the case that the person mainly responsible for the crime was not penalized. It does not give justice to the case.) It would only further the state of impunity in the budget system of our government,” said Rep. Zarate.

A quick look into Bayan Muna’s motion for reconsideration reveals the following bases for asking the Office of the Ombudsman to also indict Aquino over DAP

1. DAP is an illegal use of public fund/property (Art. 220 of RPC), different from malversation of public funds (under Art. 217)

Within the context of technical malversation, the Office of the Ombudsman’s March 3 decision erroneously cited a wrong case and wrong article of law in attempting to define what is an accountable public officer. Bayan Muna said under Article 220 of the Revised Penal Code (RPC), the first element of technical malversation is present for both Aquino and Abad.

Article 220 of the RPC defines an illegal use of public funds or property this way: “Any public officer who shall apply any public fund or property under his administration to any public use other than for which such fund or property were appropriated by law or ordinance.”

2. Aquino and Abad are the most accountable officers over public funds based on their mandates according to the 1987 Constitution and the Administrative Code.

They are not mere “policy-makers” whose participation in the DAP scheme can be dismissed as such because their very formulation and implementation of DAP proved that they were the administrators of the entire national budget.

3. Aquino and Abad are clear masterminds of the (DAP) crime

The Office of the Ombudsman’s decision itself wrote that Aquino and Abad “directed the application of funds” after they declared as savings the unobligated allotments and unreleased appropriations in the budget.

Bayan Muna said Aquino and Abad’s directing the said funds showed they are in fact the “clear masterminds of the crime.”

4. Presence or lack of authority to transfer funds does not negate the crime, it only affects the penalties for it

Whether or not Aquino and Abad had rights to transfer funds affects only the application of penalties to the crime they committed (i.e. can extenuate penalties), but it does not negate the crime itself.

5. Ombudsman decision silent on actual fund diversion under DAP

There was an actual diversion of public funds to other purposes, based on the Supreme Court’s Araullo decision, but as the third present element in the technical malversation case of Aquino and Abad, the Office of the Ombudsman’s March 3 decision did not offer any discussion on it.

6. Whether you’re a president or ordinary folk, ignorance of the law should not be an excuse

Bayan Muna and the rest of DAP complainants disagreed with the implied perspective adopted by the Office of the Ombudsman to excuse Aquino and Abad from having shown bad faith or gross inexcusable negligence. Bayan Muna said Aquino, in implementing an authority to transfer funds, already knew as early as 2009 how the national budget is susceptible to abuse by the president.

They asked the Ombudsman why it did not consider Aquino’s prior knowledge of that.

Bayan Muna insisted that “We must ascribe the highest standards to our public officials; that we must not take them for stupid or ignorant until proven otherwise.” As to the Office of the Ombudsman decision to look the other way in determining Aquino and Abad’s bad faith or negligence, just because… ‘DAP was motivated by a good purpose,’ Bayan Muna said that similar to the ordinary people, the president and his alter egos are presumed to know the law, and so, “ignorance, feigned or otherwise, is not an excuse.” (

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