REPUBLIC OF THE PHILIPPINES

SUPREME COURT
MANILA
EN BANC
GRECO ANTONIO US BEDA B. BELGIC:A,
BISHOP REUBEN M. ABANTE and
REV. JOSE L. GONZALEZ,
Petitioners,
-versus-
G.R. No.-------
PRESIDENT BENIGNO SIMEON C:. AQUINO Ill,
THE SENATE OF THE PHILIPPINES, Represented by
SENATE PRESIDENT FRANKLIN M. DRILON,
THE HOUSE OF REPRESENTATIVES, Represented by
SPEAKER FELICIANO BELMONTE, JR.,
THE EXECUTIVE OFFICE, Represented by
EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.,
THE DEPARTMENT OF BUDGET AND MANAGEMENT,
Represented by SECRETARY FLORENC:IO ABAD,
THE DEPARTMENT OF FINANCE, Represented
by SECRETARY CESAR V. PUR! SIMA
and THE BUREAU OF TREASURY, Represented by
ROSALIA V. DE LEON,
Respondents.
X ------------------------------------------------------- X
PETITION
Petitioners, by counsel, respectfully state:
PREFATORY STATEMENT
3
The nation has not recovered from the shock, and
worst, the economic destitution brought about by the
plundering of the Treasury by the deposed dictator and his
cohorts. 1\ provision which allows even the sli!.':htest
possibility of a repetition of this sad experience cannot
remain written in our statute books.
1
1
Demetria vs. Alba (G.R. No. 71977; 27 February 1987).
1
The case of Demetria vs. Alba involved a sweeping grant of power
to the President to realign, not just savings, but funds within the
executive department to any programs or projects therein included in
the general appropriations act. The power of the President under the
Disbursement Acceleration Program (DAP) is almost as sweeping
involving realignment of "unobligated allotments" to any programs or
projects, even those not included in the general appropriations act and
those yet to be implemented.
Ironically, the justification for the DAP is not the bankruptcy of
government coffers but the slow spending by the Executive Department
itself; not economic destitution but the Executive's need to sustain
economic growth - all within the province of the Executive and all
within the President's power to execute. For his own failings -- because
the executive power is vested in the President of the Philippines alone--
Respondent President saw it as sufficient justification to allocate
governmental resources at his whim disregarding in the process
constitutional and statu tory limitations on the spending of public funds.
And this case does not even involve a statute but an executive
practice and policy guideline that gives the President unbridled
discretion on the expenditure of public funds.
If the Pork Barrel System, including the Priority Development
Assistance Fund (PDAF), merges the twin evils of unmitigated power
and lack of accountability "so seamlessly that both political branches are
willingly caught in its unconstitutional embrace- and neither is inclined
to break it"
2
the Disbursement Acceleration Program has
unconstitutionally redefined the functions of the political branches of
governrhent to such extent that the members of the legislatures
perforrrted and is performing executive functions and the executive has
arrogated unto itself the spending power of Congress.
In the guise of savings generated by failure to utilize appropriated
funds, or worse, by impoundment of the budget, the President has
virtually a wide latitude of discretion in expending these savings not
merely to augment "any item in the general appropriations law" but to
fund other projects not part of any item in the budget, including those
projects to be identified by legislators as exemplified by the
disbursements involving the DAP or programs or projects that have yet
to be iniplementecL
2
Petition in Belgica, et aL vs. The Honorable Executive Secretary, G.R. No. 20B566.
2
NATURE AND TIMELINESS OF THE PETITION
This is a Petition for Certiorari under Rule 65 of the Rules of Court
to annul and set aside for being unconstitutional and illegal the
Disbursement Acceleration Program (DAP) of the Respondents started
in October 2011 and continued up to the present, as governed by
National Budget Circular No. 541 dated 18 July 2012.
The DAP is a continuing program of the Respondents and the
disbursement of funds thereunder may safely be presumed in the
regular course of the business of government. Respondent President
himself has been reported to have defended the DAP and rejected calls
to scrap the program.3
Considering the continuation of the DAP, it is inevitable that
public funds will be released in accordance therewith. This
notwithstanding the unconstitutionality of the DAP and the absence of
appropriations or, in cases with existing appropriations, the Jack of
budgetary deficits to be augmented, with respect to the objects of the
expenditures under the DAP.
Petitioners are left with no other recourse except to apply to the
Honorable Court for relief in order to prevent the further illegal
disbursements of public funds that are being made pursuant to
unconstitutional measures.
PAIUIES
Petitioners GRECO ANTONIOUS BEDA B. BELGICA, Bishop
REUBEN ABANTE and Rev. JOSE L. GONZALEZ are of legal age, Filipinos
and residents of the Philippines. Petitioners are bringing this suit as a
taxpaye'rs and citizens of the Philippines. Petitioners may be served
with pleadings, resolutions and other court processes in connection
with this case through their counsel, Roque & Butuyan Law Offices, at
1904 Ante! Corporate Center, 121 Valero Street, Salcedo Village, Makati
City.
As Filipino citizens, Petitioners have the right to sue to enforce
constitutional limits on the political branches of the government as well
as on the spending power of the government being as they are of
paramolmt public interest. This suit is being filed for the observance
and enforcement of the government's obligation to adhere to
constitlitional processes and principles pertaining to the doctrine of
3
separation of powers, the system of checks and balances and spending
powers enshrined in the 1987 Constitution.
As taxpayers, Petitioners have the right and expectation that
public money be used for public purposes, appropriated and disbursed
in accordance with well-defined constitutional and statutory allocation
of power under an effective system of checks and balances. As will been
shown hereunder, the DAP under N a tiona! Budget Circular No. 541
authorizes the spending of government money illegally and
unconstitutionally. Thus, Petitioners are not only bringing this suit
because public money is being illegally disbursed and will continue to
be illegally disbursed, Petitioners are equally suing to end the system of
budgetary appropriation and budgetary measures that allow such illegal
disbursement of public funds.
Respondent President Benigno Simeon C. Aquino, Ill is the
President of the Republic of the Philippines. He is named a respondent
in this case considering that the President, among other heads of
government agencies named therein, is specifically and personally
authorized to "augment any item in the general appropriations law for
their respective offices from savings in other items of their respective
appropriations."
4
The constitntional authority is specifically granted to
the President who alone can act on the matter and may not delegate the
same. Respondent President Aquino may thus be sued in his official
capacity pursuant thereto as an exception to the doctrine of sovereign
immunity from suit. Respondent may be served pleadings, resolutions,
decisions and other processes at Malacafiang Palace, J.P. Laurel Street,
San Miguel, Manila City.
Respondent Senate of the Philippines ("Senate"), represented by
Senate President Franklin M. Drilon, is the upper house of the Congress
of the Philippines granted by the Constitution with, among other
legislative powers, the power of appropriations.
5
It may be served with
pleadings, resolutions, decisions of other court processes at GSIS
Headquarters Building, Financial Center, Roxas Boulevard, Pasay City.
Respondent House of Representatives ("HoR"), represented by
Speaker Feliciano Belmonte, Jr.. is the lower house of the Congress of
the Philippines where appropriation bills, among others, originate
exclusively.
6
It may be served with pleadings, resolutions, decisions or
other court processes at House of Representatives Complex,
Constitution Hills, Quezon City.
4
Section 25 (5), Article VI, 1987 Constitution.
5
Section 24, Article VI, 1987 Constitution.
6
Ibid.
4
Respondent Executive Office ("EO") is an oftlce under the Office of
the President Proper headed at present by Executive Secretary Paquito
S. Ochoa. Among other functions, Respondent directly assists the
President "in the management of the affairs pertaining to the
Government of the Republic of the Philippines"
7
and decides on
"matters not requiring personal presidential attention."
8
Respondent
may be served with pleadings, resolutions, decisions of other court
processes at the Premiere House Guest, Malacaf\ang Palace, J.P. Laurel
Street, San Miguel, Manila City.
Respondent Department of Budget and Management ("DBM"),
represented by Secretary Florencio B. Abad, is one of the departments of
the Executive Branch of the Republic of the Philippines tasked with
assisting the "President in the preparation of the national resources and
expenditure budget"
9
and is responsible for the "formulation and
implementation" of the same and for the "efficient and sound utilization
of government funds and revenues."
10
Respondent may be served with
pleadings, resolutions, decisions and other court processes at its offlce
at General Solano Street, San Miguel, Manila.
Respondent Department of Finance ("DOF") represented by
Secretary Cesar V. Purisima, is one of the departments of the Executive
Branch of the Republic of the Philippines, tasked, among other, with the
custody and management of "all financial resources of the national
government" tl and as supervisor of the implementation of the
"government's resource mobilization efforts" "involving all purlbic
sector resources whether generated by revenues and operations,
foreign and domestic borrowing, sale or privatization of corporations or
assets, or from other sources."lZ Respondent may be served with
pleadings, resolutions and decisions ot other court processes at its office
at DOF Building, BSP Complex, Roxas Boulevard, 1004 Metro Manila.
Respondent Bureau of Treasury ("BTr,"), represented by National
Treasurer Rosalia V. De Leon, is an agency under the Department of
Finance tasked, among others, with the management of the cash
resources of the national government, acts as custodian of the "financial
assets of the of the national government, its agencies and
instrumentalities" and "take charge of the effective management of the
NG's cash receipts and disbursements."13 Respondent may be served
-------- ---
7
Section 27 (1], Chapter 9, Title Ill, Book III, Administrative Code of 1987.
0
Ibid., Section 27 (2).
9
Section 3, Chapter 1, Title XVII, Book IV, Administrative Code of 1987.
10
Ibid., Section 2_
JJ Sec. 3 (4), Chapter l, i'itle II, Boo!< IV, Administrative Code of 1987.
12
Sec. 3(1], Chapter 1, Title II, Book IV, Administrative Code of 1987.
13
See Executive Order No_ 449 entitled Realigning the Organization of the Bureau of
Treasury dated 17 October 1997.
5
with pleadings, resolutions, decisions or other court processes at its
office at Palacio del Gobernador Building, lntramuros, Manila.
STATEMENT OF MATERIAL FACTS
The Disbursement Acceleration Program (DAP) has been justified
as brought about by the need to set up "a mechanism for accelerating
government expenditures, which the Aquino administration started in
October 2011 when slow spending threatened to jeopardize the
country's growth prospects that year."14
In the official webpage of Respondent Department of Budget and
Management ("DBM"), its "Frequently Asked Questions About the
Disbursement Acceleration Program (DAP)"
15
contains the following
justification:
2. What was the context when DAP was introduced?
The DAP was conceptualized in September 2011 and
introduced in October 2011, in the context of the prevailing
underspending in government disbursements for the first
eight months of 2011 that dampened the country's
economic growth. Such government intervention was
needed as key programs and projects, most notably public
infrastructure, were moving slowly. The need to accelerate
public spending was also brought about by the global
economic situation as well as the financial toll of calamities
in that year. While the economy has generally improved in
2012 and 2013, the use of DAP was continued to sustain the
pace of public spending as well as economic expansion.
As per the Respondent DBM, the funds used for the DAP allegedly
came from savings of the government and allegedly in compliance with
the relevant laws
1
6 and the Constitution. Respondent DBM had the
following to say on the sourcing of funds, to wit:
1
4 See Clare Cattleya G. Amador, Assistant Secretary of the Department of Budget and
Management. in her Letter to the Editor of Philippine Daily Inquirer at
htm;JloJii n ion. inquirer. n eJ:LQ 3 409/ db IJ1:.Q!l- da ps-nature-s o_rr rei ng- dis burs_ em en ts :.etc .
15
See httujf.www,dbm.gov.ph /?page_
16
The provisions of the General Appropriations Act ofZOll to 2013 are as follows:
a. Genernl PrQvisions on the Use of Sayings. R.A. l01lJ.GAI!_l'Y.2.!!1l} _
Sec. 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives. the Chief justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to augment any item in this Act from savings in other items of their respective
appro pria ti o ns.
Sec. 60. Meaning of Savings and Augmentation. Savings refer to portions or balances of
6

any programmed appropriation in this Act free from any obligation or encumbrance which
are: (i] still available after the completion or tlnal discontinuance or abandomnent of the
work, activity or purpose for which the appropriation is authorized; (ii) from
appropl"iations balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from appropriations balances
realized from the implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets,
programs and services approved in this Act at a lesser cost
Augmentation implies the existence in this Act of a program, activity, or project with an
appro_l]riation, which upon implementation, or subsequent evaluation of needed resources,
is determined to be deficient. In no case shall a program, activity, or project, be
funded by augmentation from savings or by the use of appropriations authorized
in this Act.
Sec. 61. Priority in the Use of In the use of savings, priority shall be given to the
augmentation of the amounts set aside for compensation, year-end bonus and cash gift,
retirement gratuity, terminal leave benefits, pension of veterans and other
personnel benefits authorized by law, and those expenditure items authorized in agency
special provisions, in Section 16 and in other sections of the General Provisions of this Act
b. ;eneri!LProvisions on the Use ofSavi11g!>,RA 10155(FY2012i!AAl
Sec. 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby
authorized to augment any item in this Act from savings in other items of their respective

Sec. 54-. Meaning of Savings and Aug1nentation. Savings refer to portions or balances of
any programmed appropriation in this Act free from any obligation or encumbrance which
are: [i] still available atter the completion or tlnal discontinuance or abandonment of the
work, activity or purpose for which the appropriation is authorized; (ii) from
appropriations balances arising from unpaid compensation and related costs pertaining to
vacant positions and leaves of absence without pay; and (iii) from appropriations balances
realized from tlle implementation of measures resulting in improved systems and
efficiencies and thus enabled agencies to meet and deliver the required or planned targets,
programs and services approved in this Act at a lesser cost.
Augmentation implies the existence in this Act of a program, activity, or proJect with an
appropriation, which upon implementation or subsequent evaluation of needed resources,
is determined to be deficient. In no case shall a non-existent program, activity, or project, be
flmded by augmentation from savings or by the use of appropriations otherwise authorized
in this Act.
Sec. 55. Priority in the Use of Savings. In the use of savings, priority shall be given to the
augmentation of the amounts set aside for compensation, bonus and cash gift,
retirement gratuity, terminal leave benefits, oldage pension of veterans and other
personnel benefits authorized by law, and those expenditure items authorized in agency
special provisions and in other sections of the General Provisions of this Act.
c. Ge!eral Provision!;i_On the Use of Savings, RA 10352 (FY2013 GilJ)J
Sec. 52. Use of Savings. The President of the Philippines, the Senate President, the Speaker
of the House of Representatives, the Chief justice of the Supreme Court, the Heads of
Constitutional Commissions enjoying fiscal autonomy and the Ombudsman are hereby
authorized to use savings in the their respective appropriations to augment actual
deficiencies incurred the current year in any item of their respective appropriations.
Sec. 53. Meaning of Savings and Augmentation. Savings refer to portions or balances of
any appropriation in this Act free from any obligation or encumbrance which
are: (i] still availahle after the completion or final discontinuance or abandonment of the
work, activity or pmpose for which the appropriation is authorized; (ii) from
appropriations balances arising from unpaid compensation and related costs pertaining to
vacant positions afld leaves of absence without pay; <Hid (iii) from appropriations babnces
realized from the implementation of measures resulting in improved systems and
efficienCies and thus enabled agencies to meet and deliver the required or planned targets,
7
C. Sourcing of Funds for DAP
l. How were funds sourced?
Funds used for programs and projects identified through
DAP were sourced from savings generated by the
government, the realignment of which is subject to the
approval of the President; as well as the Unprogrammed
Fund that can be tapped when government has windfall
revenue collections, e.g., unexpected remittance of
dividends from the GOCCs and Government Financial
Institutions (GF!s ), sale of government assets.
2. Where did savings come from?
Savings were sourced from:
a) the pooling of unreleased appropriations such as
unreleased Personnel Services appropriations which will
lapse at the end of the year, unreleased appropriations of
slow moving projects and discontinued projects per
Zero-Based Budgeting findings; and
b) the withdrawal of unobligated allotments, also for
slow-moving programs and projects, which have earlier
been released to national government agencies.
In line with laws on the use of savings (see below), DBM
ensured that programs and projects funded through DAP
have an appropriation cover; meaning, these are existing
programs and projects in the General Appropriations Act
(GAA) that can be augmented by such savings.
The total expenditure of public funds under the DAP since its
inception and to what these funds were supposedly used have been
summarized by Respondent DBM in its Frequently Asked Questions as
follows:
programs and services ctpproved in this Act at a lesser cost.
Augmentation implies the existence in this Act of a program, activity, or project with all
appropriation, which upon implementation or subsequent evaluation of needed resources,
is determined lobe deficient. In no case shall a non-existent program, activity, or project, be
funded by augmentation from savings or by the use of appropriations otherwise authorized
ill this Act.
Sec. 56. Priority in the Use of Savings. In the use of savings, priority shall be given to the
augmentation of the amounts set aside for compensation, year-end bonus and cash gift,
retirement gratuity, terminal leave benefits. old-age pension of veterans and other
personnel benefits authorized by law, and those expenditure items aullHJrized in agency
special provisions and in other sections of the General Provisions of this Act.
8
B. Amounts and Purposes Funded through DAP
1. How much were the programs and projects funded
through DAP in 2011, 2012, and 2013?
For 2011-2012, a total of P142.23 Billion was released for
programs and projects identified through the DAP, of which
P83.53 Billion is for 2011 and 58.70 Billion is for 2012.
In 2011, the amount was used to provide additional funds
for programs/projects such as healthcare, public works,
housing and resettlement, and agriculture, among others.
While in 2012, these were used to augment tourism road
infrastructure, school infrastructure, rehabilitation and
extension of light rail transit systems, and sitio
electrification, among others.
In 2013, about P15.13 Billion has been approved for the
hiring of policemen. additional funds for the
modernization of PNP, the redevelopment of Roxas
Boulevard, and funding for the Typhoon Pablo
rehabilitation projects for Compostela Valley and Davao
Oriental. (Emphasis supplied)
2. What kind of projects are funded through the DAP?
The programs and projects submitted to the DBM must
meet the following conditions:
a) Fast-moving or quick-disbursing, e.g. the payment of
obligations incurred from premium subsidy for indigent
families in the National Health Insurance Program;
b)Urgent or priority in terms of social and economic
development objectives, e.g. the upgrading of equipment
and facilities for specialty hospitals, rehabilitation of Light
Rail Transit and Metro Rail Transit, and the Disaster Risk
and Exposure I?JAssessmeut and Mitigation (DREAM)
program of DOST;
c) Programs or projects performing well and could deliver
more services to the l?lpublic with the additional funds e.g.
Training for Work Scholarship Program of DOLE-TESDA.
Some of the items funded through the DAP are expenditures
which are mandated by law, such as capital infusion for the
Bangko Sentral ng Pilipinas (R.A. 7653, Section 2) out of the
augmented Budgetary Support to Government
Co rpo rations-Others.
Out of the P142.23 Billion expended for 2011 and 2012, the
amount coursed through legislators amount to the equivalent of nine
9
percent (9%) of the said total amount or approximately P13 Billion as
disclosed in the FAQs, to wit:
3. How much were the programs and projects that were
endorsed by legislators?
The legislators have also endorsed programs and projects
for the social and economic benefit of their constituents,
such as medical assistance and local infrastructure projects.
The proposals were funded through DAP as they are
existing budgetary items in the GAA and compliant with the
conditions stated above.
Of the total DAP approved by OP for 2011-2012 amounting
to a total of P142.23 Billion only 9 percent was released to
programs and projects identified by legislators. These were
not released directly to legislators but to implementing
agencies.
Contrary to the foregoing representations of the Respondents, the
underlying policy for the DAP is governed by a belatedly issued circular
of Respondent DBM dated 18 July 2012 or almost ten (10) months after
the program was started. On said date Respondent DBM issued National
Budget Circular No. 5411
7
(NBC 541).
The provisions of National Budget Circular No. 541 shall be
discussed hereunder in relation to the issues raised in this Petition.
While the circular purportedly covers only the 2011 and 2012 budget,
the pronouncements of the spokespersons of Respondent President on
non-abolition of the DAP, the President's reported refusal to scrap and
on the contrary, even vowed to continue the DAP, plus the absence of
another circular involving the GAA of 2013 can only lead to Circular No.
541 being the basis for the continued enforcement and implementation
of the DAP.
Moreover, the provisiOns of the GAA for 2013 on the use of
savings used by Respondent President in the previous years under the
DAP does not justify the enormous amount under the program unless
projects were purposely proposed in the budget with the intention of
having the same discontinued or abandoned. But then again, these
savings may only be used to augment actual programs or projects with
actual deficiencies. From the pronouncements of the spokespersons of
the President and by some portion of the DAP having been coursed
through many legislators, there is a reasonable probability that these
17
See
;;o lltso n t/ '' n! o Is :;u ances I 2Dl21L!et i o IE!l'lil2 0 f;i u dge t%2 o Glr cuI a r 1 fi!K 5 HlN BC 2QJ2,
!:iLpdi.
10
funds were used for new projects and not merely to augment actual
deficiencies.
18
The coursing of of the DAP funds through legislators and the use
to which such funds were devoted to are exemplified by a recent report
that in 2011, at least six Senators identified projects worth PlOO Million
pesos for each of them under the DAP.19 A sample letter accompanying
the news report reads:
,(,., . '
.. ,._.,.
fRAl<HLOI Jot D!UtQJO
'"'"'"'"''
.__.,,.,- "''''' "'' l m
,; ::.:,,1'1;1
\",,,,,, '"'
.. .. ;:;.:,; I I
li! f<l/ """) i '"'l'" h>{i, . <I'" .ii<:,;l:o,J h'< ,f f."""''-.,
,,,-, ':.' "' OlOB Bl.ll'fDRtm PtUO:f If' 100.0\XUXl<l.OOj !> ,j,," -,
>v. ......
f, . . ,, <.') .\-'""""' h>
bt ill : I
; 1",="1 "'' ,. !"
'<.I.W p,, ,.,
i f:>lTC"
Hence, this Petition.
WOUKl' I

1
_
l/l"<>lSt' h-<1
i l'kxn hM
l
18
See htt!lJ/new;;i.nfQjJllj!lirer.net/ 49Jl215 /unused- funds- from-_governm en t-aggncjg;;,
went-to-abads::]l[Qgrarn . See also http: ((www.gov.ph/2Jl13 /09 /3i)j:;tatemgn.t::the-
secretarv-of-budget -on-the- releases-to-senators/ . Also,
http.J/_l'lwWgov,phl:>ection/brlefing-roomjde)2;lrtment-of-budget:and:nla!1agementJ.
19
See http;i/newsinfo.illquirer.net /505 61M OOm-each- for-6senators-fro]n-dau .
11
GROUNDS
A. THE DISBURSEMENT ACCELERATION PROGRAM AND THE FUND
RELEASES PURSUANT THERETO ARE UNCONSTITUTIONAL INSOFAR
AS IT INVOLVE FUNDS RELEASED PURSUANT TO FUNDING REQUESTS
BY LEGISLATORS FOR BEING IN VIOLATION OF THE SEPARATION OF
POWERS AND THE DOCTRINE OF CHECKS AND BALANCES.
B. THE DISBURSEMENT ACCELERATION PROGRAM OF THE
PRESIDENT COMING FROM PURPORTED SAVINGS ARE
UNCONSTITUTIONAL AND ILLEGAL INSOFAR AS IT INCLUDED FUNDS
NOT FALLING UNDER THE DEFINITION OF SAVINGS IN THE
CONSTITUTIONAL SENSE AND UNDER APPLICABLE THE GENERAL
APPROPRIATIONS ACTS.
C. THE PROVISIONS PERTAINING TO AND THE USE AND RELEASES
UNDER THE DISBURSEMENT ACCELERATION PROGRAM
UNCONSTITUTIONAL AND ILLEGAL INSOFAR AS THESE PERTAINED
TO OR WERE USED TO FUND NEW PROJECTS AND PROGRAMS AND
NOT MERELY FOR THE PURPOSE OF AUGMENTING EXISTING
PROGRAMS AND PROJECTS WITH BUDGETARY DEFICITS.
D. THE PROVISIONS PERTAINING TO AND THE USE AND RELEASES
UNDER THE DISBURSEMENT ACCELERATION PROGRAM OF THE
PRESIDENT ARE ILLEGAL INSOFAR AS THESE PERTAINED TO AND
FUNDED PROGRAMS AND PROJECTS IN VIOLATION OF THE
PRIORITIES LISTED UNDER SECTION 56 OF THE GENERAL
APPROPRIATIONS ACT OF 2013.
E. THE USE OFTHE DAP FUNDS TO AUGMENT THE PROVISIONS OF
THE GENERAL APPROPRIATIONS ACT OF 2013 WHICH ARE IN THE
NATURE OF LUMP SUM DISCRETIONARY APPROPRIATIONS SUCH AS
UNDER TITLE XXXV!Il OF R.A. NO. 10352 ON THE CONTINGENCY
FUND, UNDER TITLE XXXVII ON THE CALAMITY FUND, UNDER TITLE
XLV ON THE UNPROGRAMMED FUND, UNDER TITLE XXXV ON
BUDGETARY SUPPORT FOR GOCCS, THE PRIORITY DEVELOPMENT
ASSISTANCE FUND AND SUCH OTHER SPECIAL PURPOSE FUNDS IS
UNCONSTITUTIONAL FOR BEING CONTRARY TO SECTION 25 (1)
ARTICLE VI OF THE CONSTITUTION IN RELATION TO THE PROVISIONS
OF P.D. NO. 1177 AND THE ADMINISTRATIVE CODE OF 19B7.
12
DISCUSSION
A. THE DISBURSEMENT ACCELERATION PROGRAM AND THE FUND
RELEASES PURSUANT THERETO ARE UNCONSTITUTIONAL INSOFAR
AS IT INVOLVE FUNDS RELEASED PURSUANT TO FUNDING REQUESTS
BY LEGISLATORS FOR BEING IN VIOLATION OF THE SEPARATION OF
POWERS AND THE DOCTRINE OF CHECKS AND BALANCES.
While the GAA of 2011, 2012 and 2013 all have provisions on the
Priority Development Assistance Fund (PDAF) and the manner of its
utilization, the DAP implemented in 2011, 2012 ancl2013 only has NBC
541 as its guideline albeit the Respondents claim that this was issued in
accordance with the laws and the Constitution.
However, with respect specifically to the use of the DAP funds
coursed through funding requests by legislators, there appears to be no
statutory nor administrative basis therefor.
If the PDAF governed by the provisions of the general
appropriations act is already constitutionally objectionable, there is
reason to believe that the use of DAP funds in a manner akin to the use
of PDAF is equally, if not more so, unconstitutional.
The GAA of 2011, 2012 and 2013 are legislative enactments upon
the passage of which there is nothing for the government to do but for
the executive to implement or execute the policy embodied in the laws.
The participation of the legislators was complete upon the passage of
the law. Everything that needs to be done thereafter, except in cases
where Congress exercises its power to override a presidential veto,zo
pertains to the executive department of the government.
In the case of DAP, as in PDAF, it authorized legislators to
participate in the implementation and execution of the law by way of
identification of the programs or projects. On this score, the difference
between DAP and PDAF is that while the PDAF has the provisions of the
GAA to rely on, there is no law or administrative regulation that allows
congressional participation in the expenditure of funds pursuant to the
budget- not even NBC 541.
While such congressional participation in the identification of
programs or projects may be termed as "recommendatory" as in the
case of PDAF as claimed by the executive department, it still does not
detract from the fact that the function being done by a member of
Congress is one pertaining to the executive department especially since
20
Sections 26 & 27, Article VI, 1987 Constitution.
13
the funds earmarked for use under DAP do not pertain to specific
appropriations but constitutes a general fund.
The practice under PDAF, and in this case, the DAP, is an undue
and unjustified legislative encroachment in the realm of the executive
contrary to Section 1 of Article VII of the 1987 Constitution. Said
provision proclaims the basic principle of our government that
"executive power shall be vested in the President of the Philippines."
Alone.
While the President may exercise his executive power through his
subordinates who are subject to his control and supervision, he may not
share his executive power with a member of a coordinate but separate
department of the government who is not subject to his control and
supervision.
Neither can Members of Congress or the judiciary for that matter,
exercise functions that intrude into the executive domain.
This is the essence of the doctrine of separation of powers. Except
in cases of valid delegation of legislative powers, the doctrine of
separation of powers entails a prohibition on one department in sharing
its powers with the other departments and a proscription against
encroachment by one department into the exclusive domains of the
other departments of government.
Respondent President's act of sharing his executive power with
members of the Legislature if only in the identification of projects or
recommendation of programs or projects after, outside of and beyond
the legislative deliberations on the budget and during the execution and
implementation of the general appropriations laws violates the doctrine
of separated powers in the three branches of the government.
In this connection, the discussion in the case of Abakada Gum
Party List vs. Purisima
21
is instructive, to wit:
Where Congress delegates the formulation of rules to
implement the law it has enacted pursuant to sufficient
standards established in the said law, the law must be
complete in all its essential terms and conditions when it
leaves the hands of the legislature. And it may be deemed to
have left the hands of the legislature when it becomes
effective because it is only upon effectivity of the statute
that legal rights and obligations become available to those
entitled by the language of the statute. Subject to the
21 G.R. No. 166715; 14 August 2008.
14
indispensable requisite of publication under the due
process clause, the determination as to when a law takes
effect is wholly the prerogative of Congress. As such, it is
only upon its effectivity that a law may be executed and
the executive branch acquires the duties and powers to
execute the said law. Before that point. the role of the
executive branch, pa1ticularly of the President, is
limited to approvinl! or vetoing the law.
From the moment the law becomes effective. any
provision of law that empowers Congress or any of its
members to play any role in the implementation or
enforcement of the law violates the principle of
separation of powers and is thus unconstitutional.
Under this principle, a provision that requires Congress or
its members to approve the implementing rules of a law
after it has already taken effect shall be unconstitutional, as
is a provision that allows Congress or its members to
overturn any directive or ruling made by the members of
the executive branch charged with the implementation of
the law. (Emphasis supplied)
In the case of DAP, while there is no statutory pmvision on post
enactment legislative participation, the fact that the general
appropriations laws have long left the hands of Congress and were in
fact already being implemented by the executive, any congressional
participation at that stage is already an encroachment in the executive
domain. It is, pursuant to the above-quoted case of Abakacla,
unconstitutional.
Now, in allowing or authorizing the legislators to participate in
the implementation of the general appropriations laws by identifying
the projects and programs that may be funded by the DAP, does such
consent on the part of the President change the character of the act of
the legislators and make the same legal and constitutional?
Most definitely not. As in the case of Abakada, even if the law itself
authorizes the legislators' post enactment participation in the
implementation of the law and such authorization is still
unconstitutional, then with all the more reason it is unconstitutional
when the law does not contain such authorization even if the legislators'
participation is made possible by the initiative or consent of the
President. '
Moreover, the foregoing arrangement creates excessive
entanglement between the executive and the legislature on a matter
that is essentially executive in character. This entanglement has
15
resulted in the blurring of or confusion in the functions of the
implementing agencies and the legislators and with respect to the
allocation of responsibility and legal accountability as exemplified by
the experience involving the PDAF.
In the COA Special Audit Report
22
on the congressional pork
barrel, following are some of the material findings
23
that were contrary
to the special provisions or guidelines on the use of PDAF under the
general appropriations laws, to wit:
On livelihood and other projects:
1. The release of P6.156 Billion to NGOs despite the absence
of an appropriation law or ordinance;
2. The selection of the NGOs "on the basis alone of the
purported endorsement by the sponsoring legislators and not
through public bidding."
3. The implementation of 772 projects by the selected 82
NGOs out of funds transferred by 10 lAs amounting to P6.156
Billion (See Table 15} was not proper and highly irregular
24
as the
NGOs and their suppliers: could not be located or are unknown;
found to have not business permits and registration papers; were
charging their operating expenses such as salaries and
administrative expenses against the PDAF; some of the NGOs are
managed/incorporated by the same persons; submitted list of
beneficiaries whose names were taken from board or bar
examination passers; or incorporated by the legislators
themselves, among others.
For Infrastructure projects:
4. Forty-one projects costing P1.393 Billion were found
deficient by P46.262 Million and were not constructed strictly in
accordance with plans and specifications or included excessive
quantities of reflective pavement studs (RPS) and other
construction materials.
5. Projects constructed in private lots costing P161.498
Million.
zz The Honorable Court is invited to take judicial notice of the COA Special Audit Report No.
2012-03 on Priority Development Assistance Fund and Various Infrastructure including
Local Projects. A copy of the Report may be downloaded from the COA website at
www.coa,gQ.'LJlh .
2
' See pp. 15-19 of the Report.
24
Ibid.
16
6. Excessive contracts amounting to P100.989 Million due to
erroneous application of rates and splitting of contracts.
Aside from the foregoing, more revealing for the purpose of this
Petition are the following claims of implementing agencies
25
, among
others, to wit:
l. Intervention in the implementation of livelihood projects
tended to be more recommendatory in nature or was merely to
facilitate the transfer of funds, as the projects and NGOs were
endorsed by the sponsoring legislators.
2. The National Livelihood Development Corporation
("NLDC") has fully relied on the Office of the Legislators to
supervise and ascertain project implementation.
3. The project implementation is directly participated by the
proponent legislators.
4. Fund transfers or financial assistance were granted upon
the request or direction of the sponsoring legislators. The LGUs
merely acted as initial depository and conduit of the funds.
If despite the guidelines in the general appropriations Jaws on the
use of congressional pork barrel, the implementing agencies, the
Respondent DBM and the legislators were still able, whether by design
or negligence, to perpetrate the foregoing deeds, then there is reason to
be afraid that more than the foregoing can be clone with respect to DAP
funds where there are no guidelines in the participation of the
legislators in the implementation of the program.
On the other hand, aside from the legislative encroachment in the
domain of the executive, the DAP implemented by Respondent
President arrogated unto himself the powers of the Congress to
appropriate public funds. This is evident from the President's directive
under NBC 541 to use the DAP funds "to fund priority pmg1ams and
projects not considered in the 2012 budget but expected to be
started or implemented during the current year." Such directive is
clearly a usurpation of the power of the legislature to appropriate
government funds. Such power did not originate from the House or
Representatives nor did it pass the legislative process under the
Constitution.
2
5 See pp. 19-22 of the Report
17
Equally important, such use of the DAP funds is violative of
Section 29 (1 ), Article Vl of the Constitution which requires that "No
money shall be paid out of the Treasury except in pursuance of an
appropriation made by law." In this case, NBC 541 even contemplates -
even as it acknowledges- the use of DAP funds for programs or projects
not in the current budget but only contemplated by the executive to be
implemented or started within 2012 notwithstanding the absence of an
appropriation therefor.
It is simply a blatant violation of the aforesaid Constitutional
prohibition.
B. THE DISBURSEMENT ACCELERATION PROGRAM OF THE
PRESIDENT COMING FROM PURPORTED SAVINGS ARE
UNCONSTITUTIONAL AND ILLEGAL INSOFAR AS IT INCLUDED FUNDS
NOT FALLING UNDER THE DEFINITION OF SAVINGS IN THE
CONSTITUTIONAL SENSE AND UNDER THE APPLICABLE GENERAL
APPROPRIATIONS ACTS.
The applicable provision of the Constitution on this subject reads:
Sec. 25 (5) No law shall be passed authorizing any
transfer of appropriations; however, the President, the
President of the Senate, The Speaker of the House of
Representatives, the Chief justice of the Supreme Court, and
the heads of Constitutional Commissions may, by law, be
authorized to augment any item in the General
Appropriations law for their respective offices from savings
in other items of their respective appropriations26
The foregoing constitutional provision has been given legislative
interpretation in the GAA of 2013 as follows:
Sec. 52. Use of Savings. The President of the
Philippines, the Senate President, the Speaker of the House
of Representatives, the Chief justice of the Supreme Court,
the Heads of Constitutional Commissions enjoying fiscal
autonomy, and the Ombudsman are hereby authorized to
use savings in their respective appropriations to augment
actual deficiencies incurred for the current year in any item
of their respective appropriations.
Sec. 53. Meaning of Savings and Augmentation.
Savings refer to portions or balances of any programmed
'
6
Article VI, 1987 Constitution.
18
appropriation in this Act free from any obligation or
encumbrance which are: (i) still available after the
completion or final discontinuance or abandonment of the
work, activity or purpose for which the .appropriation is
authorized; (ii) from appropriation balances arising tiom
unpaid compensation and related costs pertaining to vacant
positions and leaves of absences without pay; and (iii) from
appropriation balances realized from the implementation of
measures resulting in improved systems and efficiencies
and thus enabled agencies to meet and deliver the required
or planned targets, programs and services approved in this
Actatalessercost
Augmentation implies the existence in this Act of a
program, activity, or project with an appropriation, which
upon implementation or subsequent evaluation of needed
resources, is determined to be deficient. In no case shall a
non-existent program, activity, or project be funded by
augmentation from savings or by the use of appropriation
otherwise authorized in this Act.
From the foregoing definition of savings, there is nothing
mysterious or complicated with regard to the term as it is known to
ordinary men and women. The term savings refers to the excess money
after all that needs to be funded have been funded or those that needed
to be paid have been paid pursuant to the budget.
It appears, however, that what the government has done, to a large
extent, was to make forced savings to the point of not funding certain
appropriation items under the budget so as to be able to come up with a
larger "savings" for discretionary spending.
This is borne by Respondent's National Budget Circular No. 54127
which provides as its Rationale, the "withdrawal of
allotments of agencies with low levels of obligations as of june 30,
2012, both for continuing and current allotments. This measure will
allow the maximum utilization of available .allotments to fund and
undertake other priority expenditures of the national government."
While the rationale seems vague in its reference to "unobligated
allotments", the purpose of the circular gives a clue as to the real
nature of the move, to wit:
2.0 Purpose
27
See hUll: //www c!brngQY,Jllib.\'!l:
co LZ-.012/N a tiQ!li!l%2 0 OCirculi!rL.!"Jll.C54ljN B.CZill:
.SiLu.Qf.
19
2.1 To provide the conditions and parameters on the
withdrawal of unobligated allotments of agencies as of June
30, 2012 to fund priority andjor fast-moving
programs/projects of the national government;
2.2 To prescribe the reports and documents to be used as
bases on the withdrawal of said unobligated allotments; and
2.3 To provide guidelines in the utilization..m:_reallocation
of the withdrawn allotments. (Emphasis supplied)
The coverage of the circular is especially significant. The circular
states that:
3.1 These guidelines shall cover the withdrawal of
unobligated allotments as of hme 30. 2012 of all
national government agencies (NGAs) charged against
FY 2011 Continuing Appropriation (R.A. No. 10147) and
FY 2012 Current Appropriation (R.A. No. 10155.}
pertaining to:
3.1.1 Capital Outlays (CO);
3.1.2 Maintenance and Other Operating Expenses (MOOE)
related to the implementation of programs and projects, as
well as capitalized MOOE; and
3.1.3 Personal Services corresponding to unutilized pension
benefits declared
as savings by the agencies concerned based on their
updated/validated list of pensioners.
3.2 The withdrawal of unobligated allotments may cover the
identified programs, projects and activities of the
departments/agencies reflected in the DBM list shown as
Annex A or specific programs and projects as may be
identified by the agencies.
Considering that the DAP was implemented as early as October
2011 or three months before the end of the year, it is inconceivahle how
savings could have been generated in the constitutional and statutory
sense since the fiscal year has not yet expired unless these savings were
taken from abandoned projects or programs.
Even so, granting for the sake of argument that the withdrawal of
unobligated allotments for FY 2011 may arguably cover only savings in
the constitutional and statutory sense, the same thing cannot be said of
the withdrawal of unobligated allotments for FY 2012 considering that
it was, at the time of the issuance of the circular in July 2012, just the
20
middle of the year and there is yet much time to spend the allotments in
accordance with the appropriations law.
That the circular covered even those funds which are not legally
considered savings is clear from Guidelines proper of the circular itself.
Section 5.1. thereof provides:
5.1 National government agencies shall continue to
undertake procurement activities notwithstanding the
implementation of the policy of withdrawal of unobligated
allotments until the end of the third quarter, FY 2012. Even
without the allotments, the agency shall proceed in
undertaking the procurement processes (i.e., procurement
planning up to the conduct of bidding but short of awarding
of contract) pursuant to GPPB Circular Nos. 02-2008 and
01-2009 and DBM Circular Letter No. 2010-9.
Thus, even existing programs and projects which are due for
bidding were subjected to the withdrawal of their "unobligated
allotments" and were therefore deprived of funding. That this is so is
evident from the directive to continue with the bidding process but not
to proceed with the award to the winning bidder.
This is further supported by Section 5.4 of the circular which reads:
5.4 All released allotments in FY 2011 charged against ItA.
No. 10147 which remained unobligated as of June 30, 2012
shall be immediately considered for withdrawal. x x x
The release of allotments on the basis of the budget for 2011 means
that the programs or projects have not yet been finally discontinued or
abandoned and may in fact be still undergoing implementation. The
fund then still unused, that is, unobligated, are not yet legally and in the
constitutional sense, savings. To withdraw the funds therefor on the
ground that it is still unobligated is not to use savings but to use
allocations for existing budgetary appropriations.
The very concept of an "unobligated allotment" itself presupposes
the existence of a program or project funded by an appropriation law
whereby the agency charged with the implementation of the program or
project has not yet incurred an obligation with respect thereto. That is
why it is called "unobligated allotment."
This may be gleaned from the definition of "allotment" under
Section 2 (2), Chapter 1, Book VI of the Administrative Code of 1987.
The provision states:
21
(2) "Allotment" refers to an authorization issued by
the Department of Budget to an agency, which allows it to
incur obligation for specified amounts contained in a
legislative appropriation.
Thus, in one fell swoop and by the mere expedient of using the term
"unobligated allotments," Respondents from the executive department
redefined the term "savings" via a mere circular, the constitutional and
legal definition thereof notwithstanding.
Furthermore, such practice of withdrawing "unobligated
allotments" sanctioned by the circular is clearly against the law. The
GAA of 2013 prohibits the retention or deduction of allotments as
follows:
Sec. 66. Prohibition Against Retention or Deduction of
Allotment. Fund releases from appropriations provided in
this Act shall be transmitted intact or in full to the agency
concerned. No retention or deduction as reserves or
overhead shall be made, except as authorized by law, or
upon direction of the President of the Philippines.
The provision under the GAA of2012 is, in a sense, more strict than
the GAA of 20Ll in that it mandated COA to ensure that this prohibition
is obser'ved by the government, to wit:
Sec. 66. Prohibition Against Retention or Deduction of
Allotment. Fund releases from appropriations provided in
this Act shall be transmitted intact or in full to the agency
concerned. No retention or deduction as reserves or
overhead shall be made, except as authorized by law, or
upon direction of the President of the Philippines. The COA
shall ensure compliance with this provision to the extent
that sub-allotments by agencies to their subordinate offices
are in conformity with the release documents issued by the
DBM.
The same provision exists in the GAA of 2 011, to wit:
Sec. 68. Prohibition Against Retention/Deduction of
Allotment. Fund releases from appropriations provided in
this Act shall be transmitted intact or in full to the office or
agency concerned. No retention or deduction as reserves
or overhead shall be made, except as authorized by law, or
upon direction of the President of the Philippines. The COA
shall ensure compliance with this provision to the extent
that sub-allotments by agencies to their subordinate offices
22
are in conformity with the release documents issued by the
DBM.
If the respondents from the executive department cannot even
reduce or deduct from the allotment while the money is still with them,
then, it stands to reason that the prohibition includes the withdrawal of
the allotments so long as it does not acquire the character of savings.
Respondents cannot reduce or retain funds for allotments by the mere
expedient of withdrawing such allotments on the ground that it is
unobligated. The legal maxim that what cannot be done directly cannot
be done indirectly is applicable in this case.
There can thus be no doubt that this practice of the respondents
from the Executive Department is unconstitutional and illegal.
C. THE PROVISIONS PERTAINING TO AND THE USE AND RELEASES
UNDER THE DISBURSEMENT ACCELERATION PROGRAM ARE
UNCONSTITUTIONAL AND ILLEGAL INSOFAR AS THESE PERTAINED
TO OR WERE USED TO FUND NEW PROJECTS AND PROGRAMS AND
NOT MERELY FOR THE PURPOSE OF AUGMENTING EXISTING
PROGRAMS AND PROJECTS WITH BUDGETARY DEFICITS.
What is even more legally repugnant is the use of these unobligated
allotments. While the Constitution requires that the savings may only be
used to "augment any item in the general appropriations law" and the
GAA allows savings to be used to augment programs and projects with
budgetary deficits, the circular - the basis for the Disbursement
Acceleration Program - allows its use even to programs or projects not
existing in the General Appropriations law.
This is gleaned from the provision on the use of the withdrawn
allotments as follows:
5.7 The withdrawn allotment may be:
5.7.1 Reissued for the original programs and projects of the
agencies/OUs concerned, from which the allotments were
withdrawn;
5.7.2 Realigned to cover additional funding for other
existing programs and projects of the agency jOU; or
5.7.3 Used to augment existing programs and projects of
any agency and to fund priority programs and projects
not considered in the 2012 budget but expected to be
started or implemented during the current year.
(Emphasis supplied)
23
It is clear that insofar as "priority programs and projects not
considered in the 2012 budget but expected to be started or
implemented during the current year" are concerned, the expenditure of
funds under the DAP for these projects directly violate the
constitutional injunction that "No money shall be paid out of the
Treasury except in pursuance of an appropriation made by law."2B
The fact that these programs or projects are not part of the current
budget make them ineligible for funding with the use of savings as may
only be used "to augment any item in the general appropriations law for
their respective offices."29
Even its use for existing programs and projects part of the general
appropriations act is questionable insofar there is no budgetary deficit
or deficiency for such program or project.
Thus, an additional funding not just to cover a deficit in the
appropriation for an existing project is still unlawful.
D. THE PROVISIONS PERTAINING TO AND THE USE AND RELEASES
UNDER THE DISBURSEMENT ACCELERATION PROGRAM OF THE
PRESIDENT ARE ILLEGAL INSOFAR AS THESE PERTAINED TO AND
FUNDED PROGRAMS AND PROJECTS IN VIOLATION OF THE
PRIORITIES LISTED UNDER THE GENERAL APPROPRIATIONS LAWS.
No matter how noble the intention of the DAP program is,
Respondents cannot just ignore the law and the constitution.
Respondent cannot and should not be allowed to render inutile the
provision in the GAA of 2013 on the priority in the use of savings. 30
Section 56 reads:
28
Section 29 (1), Article VI, 1987 Constitution.
29
Section 25 (5), Article VI, Constitution.
30 GAA of 2011 states:
Sec. 61. Priority in the Use of Savings. In the use of savings, priority shall be given
to the augmentation of the amounts set aside for compensation, year-end bonus
and cash gift, retirement gratuity, terminal leave benetlts, old-age pension of
veterans and other personnel benefits authorized by law, and those expenditure
items authorized in agency special provisions, in Section 16 and in other sections
of the General Provisions of this Act.
The GAA of ZCII Z states:
Sec. 55. Priority in the Use of Savings. In the use of savings, priority shall be
given to the augmentation of the amounts set aside for compensation, year-end
bonus and cash gift, retirement gratuity, terminal leave benefits, old-age pension
of veterans and other personnel benefits authorized by Jaw, and those expenditure
items authorized in agency special provisions and in other sections of the General
Provisions of this Act.
24
Sec. 56. Priority in the Use of Savings. In the use of
savings, priority shall be given to the augmentation of the
amounts set aside for compensation, year-end bonus and
cash gift, retirement gratuity, terminal leave benefits, old-
age pension of veterans and other personnel benefits
authorized by law, and those expenditure items authorized
in agency special provisions and in other sections of the
General provisions in this Act.
The use of the "unobligated allotments" under the DAP not in
accordance with the foregoing legislative priority, especially the use for
programs and projects not included in the applicable general
appropriations laws is simply, illegal.
The foregoing reasons make the DAP under the present
administration worse than its Marcosian predecessor under Section 44
of Presidential Decree No. 1177 subject matter of the case of Demetria
vs. Alba3
1
. In the said case, the Supreme Court found as repugnant to the
1987 Constitution the blanket authority given to the president under
the law to transfer any funds in the executive department, whether it is
savings or not, to fund other programs or projects included in the
general appropriations act. The Supreme Court ruling states:
The conflict between paragraph 1 of Section 44 of
Presidential Decree No. 1177 and Section 16[5], Article VIII
of the 1973 Constitution is readily perceivable from a mere
cursory reading thereof. Said paragraph 1 of Section 44
provides:
The President shall have the authority to transfer any
fund, appropriated for the different departments,
bureaus, offices and agencies of the Executive
Department, which are included in the General
Appropriations Act, to any program, project or
activity of any department, bureau, or office included
in the General Appropriations Act or approved after
its enactment.
On the other hand, the constitutional provision under
consideration reads as follows:
Sec. 16[5]. No law shall be passed authorizing any
transfer of appropriations, however, the President,
the Prime Minister, the Speaker, the Chief justice of
the Supreme Court, and the heads of constitutional
3I G.R. No. 719"17; 27 February 1987.
25
commissions may by law be authorized to augment
any item in the general appropriations law for their
respective offices from savings in other items of their
respective appropriations.
The prohibition to transfer an appropriation for one
item to another was explicit and categorical under the 1973
Constitution. However, to afford the heads of the different
branches of the government and those of the constitutional
commissions considerable flexibility in the use of public
funds and resources, the constitution allowed the
enactment of a law authorizing the transfer of funds for the
purpose of augmenting an item from savings in another
item in the appropriation of the government branch or
constitutional body concerned. The leeway granted was
thus limited. The purpose and conditions for which
funds may be transferred were specified, i.e. transfer
may be allowed for the purpose of augmenting an item
and such transfer may be made only if there are
from another item in the appropriation of the
.!illvernment branch or constitutional body.
Paragraph 1 of of P.O. No. 1177 unduly
Qver extends said Section.16L51
It empowers __ the President to indiscriminately transfer
fut1ds fromOl1f department, bureau. office or agency of thf
Executive Department to any progran1, project or activity of
any depactment, bureau or _office included in__the General
Appropriations Act or approved after its enactmentwithQl!t
as to _whether or not the funds to be t1:ansferred are
actual!y_savings in the item. from which the same are to be
taken or whether or not the transfer is for the purpose of
augmentingthe item to which said_transfer is to be made. It
daes not only completely disregard the standards set in
the fundamental law, thereby amounting to an undue
delegation of legislative powers, but likewise goes
beyond the tenor thereof. Indeed, such constitutional
infirmities render the provision in question null and void.
"For the love of money is the root of all evil: ... " and
belonging to no one in particular, i.e. public funds,
prcJVide an even greater temptation for misappropriation
and embezzlement. This, evidently, was foremost in the
minds of the framers of the constitution in meticulously
prescribing the rules regarding the appropriation and
disposition of public funds as embodied in Sections 16 and
18 of Article VIII of the 1973 Constitution. Hence, the
26
conditions on the release of money from the treasury [Sec.
18(1)]; the restrictions on the use of public funds for public
purpose [Sec. 18(2)]; the prohibition to transfer an
appropriation for an item to another [See. 16(5) and the
requirement of specifications [Sec. 16(2)], among others,
were all safeguards designed to forestall abuses in the
expenditure of public funds. Paragraph 1 of Section 44 puts
all these safeguards to naught. For, as correctly observed by
petitioners, in view of the unlimited authority bestowed
upon the President, " ... Pres. Decree No. 1177 opens the
floodgates for the enactment of unfunded appropriations,
results in uncontrolled executive expenditures, diffuses
accountability for budgetary performance and entrenches
the pork barrel system as the ruling party may well expand
[sic] public money not on the basis of development
priorities but on political and personal expediency." The
contention of public respondents that paragraph 1 of
Section 44 of P.D. 1177 was enacted pursuant to Section
16(5) of Article Vlll of the 1973 Constitution must perforce
fall tlat on its face. (Emphasis supplied)
Petitioners trust that the Honorable Court will arrive at the same
conclusion that it arrived at in the said case and likewise proclaim:
The nation has not recovered from the shock. and
worst, the economic destitution brought about by the
plundering of the Treasury by the deposed dictator and his
cohorts. A provision which allows even the slightest
possibility of a repetition of this sad experience cannot
remain written in our statute books.
Even if, for the time being, the wielder of such power, Respondent
President Benigno Simeon C. Aquino Ill appears to be a benign entity-
no pun
E. THE USE OF THE DAP FUNDS TO AUGMENT THE PROVISIONS OF
THE GENERAL APPROPRIATIONS ACT OF 2013 WHICH ARE IN THE
NATURE OF LUMP SUM DISCRETIONARY APPROPRIATIONS SUCH AS
UNDER TITLE XXXV!ll OF RA. NO. 10352 ON THE CONTINGENCY
FUND, UNDER TITLE XXXVJI ON THE CALAMITY FUND, UNDER TITLE
XLV ON THE UNPROGRAMMED FUND, UNDER TITLE XXXV ON
BUDGETARY SUPPORT FOR GOCCS, THE PRIORITY DEVELOPMENT
ASSISTANCE FUND AND SUCH OTHER SPECIAL PURPOSE FUNDS IS
UNCONSTITUTIONAL FOR BEING CONTRARY TO SECTION 25 (1)
ARTICLE VI OF THE CONSTITUTION IN RELATION TO THE PROVISIONS
OF P.D. NO. 1177 AND THE ADMINISTRATIVE CODE OF 1987.
27
However, it is in the declaration of unconstitutionality of lump
sum discretionary appropriations that a more accountable, effective and
responsive public spending can be achieved.
Undoubtedly, the abolition of PDAF, DAP and other lump sum
discretionary appropriations, whether via congressional amendment,
the Honorable Court's declaration of unconstitutionality of the
questioned appropriations, by the executive's non-inclusion of the
questioned appropriations in future budgets, or even via the people's
initiative being proposed for such purpose, will be a big step in leading
government budgeting towards a more democratic, less discretionary
and more accountable system.
But if the process stops at that point, all that we may have
achieved is to move the funds from one hand into the other, to transfer
the money from the PDAF to DAP and yet leave the President with
gargantuan funds for what is essentially discretionary spending.
For that will certainly be the effect of the abolition or declaration
of unconstitutionality of the lump sum discretionary funds in the GAA of
2013, the PDAF and DAP included.
Petitioners are not about to let such important milestone in the
country's history go to waste.
Petitioners respectfully submit that insofar as the DAP funds were
used to "augment" provisions of the General Appropriations Act of 2013
that are in the nature of lump sum discretionary appropriations -- such
as under Title XXXVIll on the Contingency Fund, under Title XXXVII on
the Cala'11ity Fund, under Title XLV on the Unprogrammed Fund, under
Title XXXV on Budgetary Support for GOCCs, under Title XLV on the
Priority Development Assistance Fund and such other special purpose
funds - it is illegal and unconstitutional considering that the lump sum
discretilnary appropriations are contrary to Section 25 (1) Article VI of
the Constitution in relation to the Administrative Code of 1987.
The constitutional provision states:
Sec. 25 (1) The Congress may not increase the
appropriations recommended by the President for the
operation of the Government as specified in the budget. The
form, content, and manner of preparation of the budget
shall be prescribed by law. (Emphasis supplied)
While the foregoing authorizes the enactment of a law governing
the "form, content, and manner of preparation of the budget," Section 25
28
(5) and Section 27 (2) both make reference to "item" or "items" m
relation to appropriations, among others.
In the constitutional sense, it may be said that appropriations
come only by way of item or items, subject to the veto power of the
President. But as to what these item or items look like has not been
made clear in the Constitution but was to be "prescribed by law."
Pursuant thereto, the Administrative Code of 1987, specifically
the Book VI thereof on National Government Budgeting, was
promulgated by then President Corazon C. Aquino. Before the
promulgation of the Administrative Code of 1987, the governing law
was Presidential Decree No. 1177 entitled "REVISING THE BUDGET
PROCESS IN ORDER TO INSTITUTIONALIZE THE BUDGETARY
INNOVATIONS OF THE NEW SOCIETY." With the promulgation of the
latter Jaw, the provisions of P.D. No. 1177 inconsistent with the
Administrative Code of 1987 were repealed or modified accordingly.
Under the Administrative Code of 1987, the item or items
mentioned under Section 25 (5) and Section 27 (2) Article VI of the
Constitution has been operationalized to refer to "programs and
projects." The provision
32
of the Administrative Code of 1987 states:
SEC. 23. Content of the General Appropriations Act. - The
General Appropriations Act shall .be presented in the
form of budgetary pmgrams and projects for each
ggency of the government, with the corresponding
fWpropriations for each program and project, including
statutory provisiOns of specific agency or general
applicability. The General Appropriations Act shall not
contain any itemization of personal services which shall be
prepared by the Secretary after enactment of the General
Appropriations Act, for consideration and approval of the
President. (Emphasis supplied)
Section 24 of the same law refers to a prohibition in increasing
"the appropriation of any project or program of any department,
bureau, 'agency or office of the Government" but allows a "reduction in
the proposed appropriation for a project or program."
Thus, for appropriations to be valid, it must relate to either a
"program" or a "project" "for each agency of the government." A
"Program" has been defined as referring "to the functions and activities
-----------
3
' Section 23, Chapter 4, Book VI.
29
necessary for the performance of a maJor purpose for which a
government agency is established."33
On the other hand, a "Project means a component of a program
covering a homogenous group of activities that results in the
accomplishment of an identifiable output."3
4
An example of the operationalization of the foregoing terms is the
budget for the Department of Public Works and Highways for 2013
where the following major programs and projects, with the total
appropriations for each, appear, to wit:
A. PROGRAMS
I. General Administration and
Support
a. General Administration and
Support Services
P1,570,957,000.00
II. Support to Operations P837,460,000.00
a. Policy Formulation, Program Planning and Standards Development
b. Regional Support (Planning and Design, Construction, Maintenance
and Material Quality Control and Hydrology Divisions)
c. Operational Support for the
Maintenance and Repair of Infrastructure Facilities and Other Related
Activities
Ill. Operations
Total Programs
B. PROJECT (s)
P8,762,079,000.00
P11,178,496,000.00
I. Locally-Funded Project (s) P120,614,091,000.00
a. National Arterial and Secondary National Roads and Bridges (with
sub-appiopriations for national Arterial and Secondary for preventive
maintenance, rehabilitation/upgrading and to address Critical
bottlenecks of roads and bridges per district engineering district
nationwide)
b. Flood and Drainage Projects
c. Feasibility Study /Project Development/Preliminary and Detailed
Engineehng
d. Payments of Right-of-Way (ROW) and Contractual Obligations
e. Water Supply jSeptage & Sewerage/Rain Collectors
f. Various Infrastructure Including Local Projects
g. Public" Private Partnership Strategic Support Fund
II. Foreign Assisted Project (s) P15,724,946,000.00
33
Section 2 (12), Chapter 1, Book VI, Administrative Code of 1987.
34
Section 2(13}, Chapter 1, Book VI, Administrative Code of 1987.
30
a. Highways (Roads and Bridges} Projects
b. Flood Control Projects
Total Projects
TOTAL NEW APPROPRIATIONS
P144,339,037,000.00
P155,517,533,000.00
On the other hand, the lump sum discretionary appropriations
contains no programs or projects, merely purposes. The Contingency
Funds provision under the GAA of 2013 contains the following:
XXXVIII. CONTINGENT FUND
Fund subsidies for contingencies--------- Pl,OOO,OOO,OOO
A. PURPOSE (S)
1. Fund Subsidies for Contingencies XXX
Likewise, the Unprogrammed Funds appropriation did not
identify programs and projects but enumerated only the purposes to
which the funds may be devoted, to wit:
XLV. UNPROGRAMMED FUND
For fund requirements in accordance with the purposes
indicated hereunder--------- P117,54B,371,000
A. PURPOSE(S)
1. Budgetary Support to Government-Owned and/or
Controlled Corporations
2. Support to Foreign-Assisted Projects
3. General Fund Adjustments
4. Support for Infrastructure Projects and Social Programs
5. AFP Modernization Program
6. Debt Management Program
7. Payment of Total Administrative Disability Pension
8. People's Survival Fund
The same may be said of the other lump sum discretionary
appropriations where only the purposes to which the funds were to be
used were specified and not specific programs or projects of the
agencies involved.
Thus, these lump sum discretionary appropriations, in so far as
these did not follow the "form, content and manner of preparation of the
budget" for its failure to specify "budgetary programs and projects for
each agency of the government" are unconstitutional and illegal.
31
ALLEGATIONS IN SUPPORT OF PRAYER FOR TEMPORARY
RESTRAINING ORDER
Petitioners replead and incorporate the foregoing discussion and
further state:
As has been amply demonstrated in the foregoing discussion,
Respondents' Disbursement Acceleration Program is unconstitutional
and illegal and the continued release of public funds pursuant thereto
constitutes grave and irreparable injury on the part of Petitioners as
taxpayers, including all other taxpayers, who have the right to expect
that government money be use only for legal and constitutional
purposes.
Considering also that Petitioners are asserting a public right as a
Filipino citizen in the proper observance of the law and the Constitution,
the continued implementation of the DAP likewise violates such public
right being asserted by the Petitioners in this case.
Petitioners are entitled to the reliefs demanded under this
Petition, part of which reliefs is the issuance of a restraining order to
enjoin Respondents from further implementing the DAP and releasing
funds pursuant thereto.
Petitioners are willing to post a bond in the amount to be fixed by
the Honorable Court conditioned on the payment by Petitioners of
damages that may be sustained by Respondents by virtue of the
issuance of the temporary restraining order if the Honorable Court
should finally decided that Petitioner is not entitled thereto.
PRAYER
Premises considered, Petitioners respectfully pray for the
Honorable Court to issue:
1. Immediately upon the filing of the Petition, a Temporary
Restraining Order directing the Respondents to refrain from further
releasing or disbursing public funds under the Disbursement
Acceleration Program and prohibiting them from withdrawing
unobligated allotments from the implementing agencies and/or
requiring the implementing agencies to return unobligated allotments
in their possession;
32
2. Upon due proceedings, to declare as UNCONSTITUTIONAL AND
ILLEGAL, the following:
i. The Disbursement Acceleration Program and
National Budget Circular No. 541;
ii. Any disbursements or releases under the
Disbursement Acceleration Program for fiscal years 2011,
2012 and 2013 insofar as it funded programs or projects
not covered by an existing appropriation under the
al')plicable general appropriations law;
111. Any disbursements or releases under the
Disbursement Acceleration Program for fiscal years 2011,
2012 and 2013 not made for the purpose of augmenting
appropriations for programs and projects with existing
appropriations cover under the applicable general
appropriations Jaw; and
iv. Provisions of the General Appropriations Act of
2013 which are in the nature of lump sum discretionary
appropriations particularly those appropriations uuder
Title XXXVlll on the Contingency Fund, under Title XXXVII
on the Calamity Fund, under Title XLV on the
Unprogrammed Fund, under Title XXXV on Budgetary
Support for GOCCs, under Title XLV on the Priority
Development Assistance Fund and such other special
purpose funds.
3. To order Respondents Department of Budget and Management
and Department of Finance to report to, coordinate and make available
to the Commission on Audit all documents, revenues and assets,
including the proceeds from the sale of government assets and the
dividends remitted to the government, used in the implementation of
the Disbursement Acceleration Program.
Petitioners also pray for other just and equitable relief under the
premises.
33
Makati City, ___ October 2013.
ROQUE & BUTUYAN LAW OFFICES
Counsel for the Petitioners
Ante! Corporate Center
Unit 1904, 19th Floor
121 Valero Street, Salcedo Village
Makati City 1227
Email: maililrom!ebut\D'illLcom
Tel. Nos. 887-4445; 887-3894
Fax No. 887-3B93
By:
H. HARRY L. ROQUE, JR
Roll No. 36976
PTR No. 3692462/18 jan 2013/Makati
IBP Lifetime No. 01749/PPLM
MCLE Exemption No. IV-000513/15 Feb 2013
J:j c ?/);0 )'/ ) , __
JOEL RlJIZ BUTUYAN
Roll No. 36911
PTR No. 3692463 /18 jan 2013- Makati
IBP Lifetime No. 01742/Quezon City
MC:LE Cornp. No. IV-0011417 /]an 11,2013
~ b k 12. , ( ~ ( ) 2 -
iO'CEii R. RA YEL
Roll No. 44106
PTR No. 7651758/11 jan 2013/Quezon City
IBP Lifetime No. 02159/Quezon City
MCLE Comp. No. IV-017519/19 Apr 2013
Copy furnished:
OFFICE OF THE SOLICITOR GENERAL
134 Amorsolo Street, Legaspi Village
Makati City
President Benigno Simeon C. Aquino, Ill
Malacafiang Palace, J.P. Laurel Street
San Miguel, Manila City.
Senate of the Philippines
represented by Senate President Franklin M. Drilon
GSIS Headquarters Building, Financial Center
Roxas Boulevard, Pasay City
House of Representatives
represented by Speaker Feliciano Belmonte, Jr.
House of Representatives Complex
Constitution Hills, Quezon City
The Executive Office
thru Executive Secretary Paquito S. Ochoa
Premiere House Guest, Malacafiang Palace
J.P. Laurel Street, San Miguel
Manila City
Department of Budget and Management
represented by Secretary Florencio B. Abad
General Solano Street, San Miguel
Manila City
Department of Finance
DOF Building, BSP Complex
Roxas Boulevard
1004 Metro Manila
Bureau of Treasury
represented by National Treasurer Rosalia V. De U;on
Palacio del Gobernador Building, lntramuros
Manila City
Explanation
Pursuant to Section I I, Rule 13 of the 1997 Rules of Civil Procedure, the foregoing
pleading served and filed through registered rnail, personal service not being practicable due
to time constraint and lack of personnel. ~ / ,/{_ /:J
Atty/It()ger1f. Rayel
35
VERIFICATION AND CERTIFICATION
AGAINST FORUM SHOPPING
WE, GRECO ANTONIOUS BEDA B. BELGICA, BISHOP REUBEN M.
ABANTE, AND REV. JOSE L. GONZALEZ, all married, Filipinos, of legal age and
with address at cjo Roque & Butuyan Law Offices, 1904 An tel Corporate
Center, 121 Valero Street, Slacedo Village, Makati City, after having duly
sworn, depose and state:
1. We are the Petitioners in the above-captioned case;
2. We have caused the preparation and filing of the said Petition, have
read the allegations therein and certify that the same are true and correct
based on personal knowledge and on documents available to us;
3. We certify that we have not commenced any other action or
proceeding involving the same issues in the Supreme Court, Court of Appeals,
the lower courts or other tribunals or agencies;
4. From the website of the Supreme Court, there are two cases filed and
pending thereat entitled Syjuco vs. Abaci docketed as G.R. No. 209135 and
Luna vs. Secretary Abad docketed as G.R. No. 209136 involving the
Disbursement Acceleration Program and there are unverified newspaper
reports that there is at least one (1) other case filed with the Supreme Court;
5. To the best of our knowledge, and aside from the above-mentioned
cases, there is no other similar pending action or proceeding involving the
same issues before the Supreme Court, Court of Appeals, lower courts and
other tribunals and agencies;
6. Should we learn that a similar action or proceeding has been filed or
is pending before any court, tribunal or proceeding, we undertake to promptly
inform this Honorable Court of such fact within five (5) days from our
knowledge thereof .
. 2 5 o r 2013
Makati City, ____ October 2013.
BISHOP RE
SUBSCRIBED AND SWORN to before __

October 2013,
affiants being known to me through their government issued ID as follows:
Name IDs
Greco Antonious Bed a B. Belgica
Reuben M. Abante
Tax Jdentifkation No. 20138690
Driver's License No. N02-77-010406
Driver's License No. L0-74-008353 Rev. jose L Gonzales
Doc.No.EJL;
Page No. _]J:_;
Book No. :Jt-;
Series of 20 l3
DAP Belgicu Petition/
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