Ombudsman Conchita Carpio Morales has found probable cause to charge former Secretary Florencio Abad of the Department of Budget and Management with violation of Article 239 (Usurpation of Legislative Powers) of the Revised Penal Code. The charge stems from Abad’s unlawful issuance of National Budget Circular (NBC) No. 541 to carry out the implementation of the controversial Disbursement Acceleration Program (DAP) involving P72 billion. NBC No. 541 authorizes the withdrawal of unobligated allotments of agencies with low levels of obligations as of 30 June 2012.
In addition, Abad was found guilty of Simple Misconduct and ordered suspended for three months. However, considering his separation from the service, the penalty is convertible to a fine equivalent to his salary for three months.
The cases arose from the complaint filed by Representative Carlos Isagani Zarate, Renato Reyes, Benjamin Valbuena, Dante LA Jimenez, Mae Paner, Antonio Flores, Gloria Arellano and Bonifacio Carmona, Jr.
During the investigation, the Ombudsman found that by issuing NBC No. 541, Abad unlawfully encroached on the powers of Congress by effectively modifying the provisions on savings of the 2012 General Appropriations Act (GAA).
According to Ombudsman Morales, “NBC No. 541 provided the principal bases for the withdrawal of unobligated allotments which were declared as savings and used to fund PAPs (programs, activities and projects) under the DAP. The issuance of this circular is an act of usurpation. This is contrary to law.”
It will be recalled that in 2014, the Supreme Court declared unconstitutional the following acts committed in pursuance of the DAP: (1) withdrawal of unobligated allotments from the implementing agencies; and the declaration of the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of the fiscal year without complying with the statutory definition of savings contained in the GAA; and (2) the cross-border transfers of the savings of the Executive to augment the appropriations of other offices outside the executive.
Under Article 239 of the RPC, the penalties of prision correccional in its minimum period, temporary special disqualification, shall be imposed upon an executive or judicial officer who shall encroach upon the powers of the legislative branch of the Government, either by making general rules or regulations beyond the scope of his authority, or by attempting to repeal a law or suspending the execution thereof.###