MANILA — Former President and now House Representative Gloria Macapagal-Arroyo is facing a new graft complaint before the Office of the Ombudsman over her alleged misuse of P38 billion worth of Malampaya funds.

Two consumer groups, National Association of Electricity Consumers for Reforms, Inc. (NASECORE) and Boses ng Konsyumer Alliance, Inc. (BKAI), on September 28 filed 96 counts of graft and 96 counts of malversation against Arroyo.

Citing a 2017 Commission on Audit special audit report, they claimed Arroyo made “improper” disbursements of P38.807 billion out of the P173.28 billion Malampaya funds by diverting their use to other purposes allegedly not intended by a Marcos-era decree that created it.

Presidential Decree No. 910, issued by former President Ferdinand Marcos, Sr. on March 22, 1976, established the Energy Development Board.

The board was given the authority to enter into service contracts like the Camago-Malampaya Natural Gas Project in Palawan, and to use all fees and revenues from the service contracts and agreements as a special fund “to be used to finance energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.”

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NASECORE and BKAI said Arroyo “deliberately twisted” the interpretation of the provision when she authorized the Department of Budget and Management to use the Malampaya funds for purposes like agricultural and irrigation programs, calamity rehabilitation projects, relocation and housing projects, infrastructure projects, transportation projects, national security rehabilitation and improvement projects, “Pantawid Pasada” program and other projects not related to the purpose of PD 910.

Arroyo also issued Executive Order No. 848 on October 13, 2009 which, according to the petitioners, omitted the purpose of PD 910 for “energy resource development and exploration programs and projects of the government” and instead mentioned only “purposes as may be directed by the president.”

“In short, the Malampaya fund became a discretionary fund of the Office of the President and disbursements therefrom became subject of the whims and caprice of the respondent wihout regard to the purpose and policy of Presidential Decree No. 910,” the complaint said.

Petitioners cited a November 19, 2013 ruling by the Supreme Court which declared unconstitutional the phrase “such other purposes as may be hereafter directed by the President” under section 8 of PD 910.

“Truth be told, the declared unconstitutionality of the aforementioned phrase is but an assurance that the Malampaya Funds would be used — as it should be used — only in accordance with the avowed purpose and intention of PD 910,” the Supreme Court held.

In December 2016, the Office of the Ombudsman, under then-Ombudsman Conchita Carpio-Morales, had cleared Arroyo of a plunder complaint over the disbursement of P900-million Malampaya funds allegedly distributed through “pork barrel scam queen” Janet Lim Napoles’ bogus NGOs.

But petitioner Petronilo Ilagan, who represents NASECORE, said those charges — 192 criminal charges in total, all of which are pending before the Sandiganbayan — are different from the new complaint they filed.

The complaint accused Arroyo of being a principal by indispensable cooperation in the commission of graft under section 3(e) of the Anti-Graft and Corruption Practices Act and malversation under Article 217 of the Revised Penal Code.

“Here, Respondent Gloria Macapagal-Arroyo’s acts of issuing Executive Order No. 848 and deliberately removing therein the primary intent of the creation of the Special Fund under Presidential Decree No. 910, are considered acts though may not be considered as actual commission of these crimes, nonetheless considered as acts without which the commission would not have been accomplished,” it said.

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Section 3(e) of the Anti-Graft and Corruption Practices Act prohibits public officials from causing undue injury to any party or giving a private party unwarranted benefit, advantage or preference in the discharge of official functions through manifest partiality, evident bad faith or gross inexcusable negligence.

Art. 217 of the Revised Penal Code, on the other hand, punishes a public officer who had custody of funds who misappropriated or consented to the misappropriation.

Arroyo's lawyer Ferdinand Topacio said they had yet to receive any official copy of the complaint, "so we cannot make any specific comments as of this time."

"Suffice it to state that based on newspaper reports, the complainant admits that the funds concerned were used for public purposes. Therefore, in accordance with settled legal principles, Pres. Arroyo has done no wrongdoing during her term," Topacio said in a statement.

"We are confident that these charges will be proven false, in the same manner that other accusations made before them have been shown to be baseless. We trust in the justice system, and we shall answer the charges in due time," he added.

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