REPUBLIC OF THE PHILIPPINESSupreme CourtManila, Philippines
AILEEN JOY PADILLAMARY PAULINE HILADO(San Beda Alabang School of
Law)
Petitioners,
-versus-G.R. No. _________________Petition for Certiorari
THE EXECUTIVE OFFICE, Represented byEXECUTIVE SECRETARY PAQUITO
N.OCHOA JR.,THE DEPARTMENT OF BUDGET AND MANAGEMENT,Represented by
SECRETARY FLORENCIO ABAD
Respondents.x------------------------------------------------------------------------------------------------x
PETITION FOR CERTIORARIPETITIONERS, AILEEN JOY PADILLA AND MARY
PAULINE HILADO, by counsel, unto this Honorable Court respectfully
state that:
PREFATORY STATEMENTThe Disbursement Acceleration Program (DAP)
is a stimulus package under the Aquino administration designed to
fast track public spending and push economic growth, covering
high-impact budgetary programs and projects which are augmented out
of the savings generated during the year and additional revenue
sources (Official Gazette, 2013). Though the Aquino administration
claims that the Disbursement Acceleration Programs purpose is to
aid in efforts towards building the nations economy, its actual
utilization is the subject of great scrutiny. The DAP proves to be
a controversial issue as it continues to receive mixed reactions
from people. Some argue that its emergence is not appropriate in
this period of disarray which had the government pointing fingers
at others on the issue on corruption, letting the light dance on
Janet Napoles to blame as well as other senators, namely Senators
Jinggoy Estrada, Bong Revilla and Juan Ponce Enrile. The DAP came
to public knowledge since it also involved misallocation of public
funds- this time by the Aquino administration. Allegedly, the DAP
involved the Malacaang releasing millions of pesos to pay the
senators which voted in favor of former Chief Justice Renato
Coronas conviction last year. It was used to bribe our legislators
(as first mentioned by Senator Jinggoy Estrada in this privilege
speech) for our presidents own political agenda. To quote Senator
Estrada, remember- when you are pointing a finger at somebody, four
other fingers are pointing right back at you: this quotation shows
to be of great relevance to the situation at hand, as the
administration exposes itself in all of its flaws and
corruption.Veering from the issue on corruption, we come to a
question: is the Disbursement Acceleration Program constitutional
or not? Several agencies and individuals have assailed the
constitutionality of the DAP, such as the Supreme Court and
Senators Miriam Defensor-Santiago and Joker Arroyo. The Palace, in
its defense, said it was constitutional, citing Section 25 (5),
Article VI of the 1987 Constitution which states: 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
appropriations. It further cited several provisions in Executive
Order No. 292, specifically Sections 38 (authority to use savings
in appropriations to cover deficits) and 49 (authority to use
savings for certain purposes) of Chapter 5, Book VI of the 1987
Administrative Code and Republic Acts 10147, 10155, 10352 and 10325
(General Provisions on the Use of Savings; Unprogrammed Funds). But
we beg to disagree with the Palace and concur with the Supreme
Court, Senators Miriam Defensor-Santiago, Joker Arroyo and many
others who assailed its constitutionality. A deeper look at the
facts would unveil that the DAP is unconstitutional.
NATURE AND PURPOSE OF THE PETITIONThis is a Petition, under Rule
65 of the Rules of Court, for certiorari. The Petition prays that
this Honorable Court issue:1. A judgment declaring
creation/establishment and implementation of the Disbursement
Acceleration Program (DAP) by the respondent Department of Budget
and Management / Florencio Abad and their functionaries, agents or
instrumentalities unconstitutional, illegal and void; and
respondents are prohibited from further doing/acting or
funding/disbursing on any matter arising from, connected with or
related to the unconstitutional and unlawful DAP;2. A judgment
prohibiting/enjoining the recipients/beneficiaries of the DAP funds
from using funds received and return the balance of unspent funds
to the National Treasurer;3. Ordering and directing the National
Bureau of Investigation (NBI) and/or Chief of Staff of the Armed
Forces of the Philippines and/or Director General of the Philippine
National Police, designated on motion of petitioners, to seize the
funds, assets or properties acquired thru the use of the DAP funds
and turn over the same to the National Treasurer;4. Ordering the
NBI and/or the Office of the Solicitor General (OSG) to file
charges against all persons who participated in the establishment
of DAP and in the release and use of funds and the
recipients/beneficiaries who conspired and to report to the Court
Administrator, status of actions undertaken pursuant to this
Decision on a quarterly basis; and5. Ordering the Integrated Bar of
the Philippines (IBP) to request the assistance and cooperation of
associations of lawyers whose membership are also members of the
IBP assist the Department of Justice (DOJ), National Bureau of
Investigation and the Office of the Solicitor General to prosecute
public functionaries/parties who are accountable and/or to file
civil and criminal cases for the recovery of public funds that were
squandered and make a quarterly report to the Supreme Court of the
status of the cases filed.THE PARTIESThe Petitioners Petitioner
Aileen Joy Padilla is a Filipino citizen of legal age, single and
with residence at Lot 5, Block 5, Sandpiper Lane, Southville
Village, Pilar, Las Pias City. Petitioner Mary Pauline Hilado is
also a Filipino citizen of legal age, single and with residence at
#16 J.J. Jingco Street, Philamlife Village, Las Pias City. The
petitioners file this case as a real party in interest and, as a
class suit in their capacity as citizens, for themselves and in
behalf of all citizens similarly situated. The petitioners file
this Petition for themselves and other organizations and individual
citizens who are similarly situated but are so numerous that it is
impracticable to bring them all before the Honorable Court. The
RespondentsPublic respondent Paquito N. Ochoa, Jr. is the incumbent
Executive Secretary. He is sued in his official capacity as a
public official. Respondent Ochoa may be served summons and other
processes at his office at Malacaang Palace, Manila. Public
respondent Executive Secretary is primarily charged with the duty
of issuing and implementing the questioned Program. Public
respondent Florencio B. Abad is the incumbent Secretary of Budget
and Management and also the department executive of the Department
of Budget and Management. He is also sued in his official capacity
as a public official. Respondent Abad may be served summons and
other processes at his office at Malacaang Palace, Manila. Public
respondent Secretary of Budget and Management is responsible for
taking the savings of cabinet departments and agencies of
government, and creating what he himself has called the
Disbursement Acceleration Program or DAP.
BASIS OF THE PETITIONThe Petition invokes the Honorable Courts
exercise of its sacred constitutional obligation to determine
whether or not there was a grave abuse of discretion amounting to
or excess of jurisdiction on the part of any branch or
instrumentality of the government (Article VII, Section 1 of the
1987 Constitution). The Petition is filed as there is no remedy of
appeal and neither is there available to petitioners any other
plain, speedy and adequate remedy, administrative or otherwise, in
the ordinary course of law.The Petition seeks the issuance of the
writ of certiorari on the basis of the following:GROUNDS FOR
GRANTING THE PETITIONThe Disbursement Acceleration Program is null
and void for being unconstitutional as it violates the following
provisions of the 1987 Constitution of the Republic of the
Philippines:
1.) Section 25 of Article VI(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
appropriations.(6) Discretionary funds appropriated for particular
officials shall be disbursed only for public purposes to be
supported by appropriate vouchers and subject to such guidelines as
may be prescribed by law.
2.) Section 29 of Article VI(1) No money shall be paid out of
the Treasury except in pursuance of an appropriation made by
law.(2) No public money or property shall be appropriated, applied,
paid, or employed, directly or indirectly, for the use, benefit, or
support of any sect, church, denomination, sectarian institution,
or system of religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except when such priest,
preacher, minister, or dignitary is assigned to the armed forces,
or to any penal institution, or government orphanage or
leprosarium.
The Executive, in issuing the assailed program and in
implementing it, acted with grave abuse of discretion amounting to
lack or excess of jurisdiction as they transgressed clear
constitutional guarantees and parameters of governmental
powers.JURISDICTIONAL ALLEGATIONSPursuant to Section 1, Rule 65 of
the Rules of Court, the petitioners hereby certify, as shown by the
attached affidavits, that, it has not commenced any action
involving the same issues before the Supreme Court, the Court of
Appeals, or different divisions thereof, or before any other
tribunal or agency, and that to the best of its knowledge, no such
action or proceeding is pending in the Supreme Court, the Court of
Appeals, or different divisions thereof, or any other tribunal or
agency. The petitioner also certifies that should it hereafter
learn that a similar action or proceeding has been filed or is
pending in the Supreme Court, the Court of Appeals, or different
divisions thereof, or any other tribunal or agency, it undertakes
to promptly inform the aforesaid courts and other tribunal or
agency thereof, within five (5) days therefrom.
STATEMENT OF MATERIAL FACTS1. The DAP was conceptualized in
September 2011 and introduced in October 2011, in the context of
the prevailing underspending in governmentdisbursements for the
first eight months of 2011 that dampened the countrys economic
growth. 2. It was approved by President Benigno Aquino III on
October 12, 2011, upon the recommendation of the Development Budget
Coordination Committee and the Cabinet Clusters.3. Senator Miriam
Defensor- Santiago said that DAP is illegal as it was not contained
in the 2011 or 2012 budgets. She added that the alleged savings
were used to augment new budget items which were not previously
authorized by Congress. As DAP funds were taken from slow-moving
projects, Santiago said that no savings were generated thus the DAP
is illegal. Santiago and former senator Joker Arroyo said that as
DAP is illegal, it could be a ground for Aquino's impeachment. 4.
The program was involved in a controversy when the said lump-sum
fund controlled by Malacaang from which P50 million to P100 million
was given to each senator who voted for the conviction in 2012 of
then Chief Justice Renato Corona at his impeachment trial. 5. The
Palace published the Constitutional and legal bases for the
Disbursement Acceleration Program (DAP) on October 5, 2013 through
the Official Gazette. 6. Several petitions have been filed against
the DAP at the Supreme Court. The last petition was filed on
November 8, 2913 which came from the Volunteers Against Crime and
Corruption (VACC) which said the DAP violated the constitutional
provision stating that appropriation laws should come from
Congress. Nine petitions have been filed so far questioning the
DAP.
ISSUEThe main issue in this petition is whether or not the
respondents committed grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing and implementing the
Disbursement Acceleration Program.The resolution of this principal
issue depends, in turn, on the resolution of the constitutional
issues raised at the outset of this petition, to wit:1. Is the
Disbursement Acceleration Program null and void for being
unconstitutional as it violates Section 25 of Article VI, which
provides that the injunction that the President may, by law, be
authorized to augment any item in the general appropriations law
for their respective offices from savings in other items in their
respective appropriations?2. Is it null and void for being
unconstitutional as it violates Section 29 of Article VI, which
provides that no money shall be paid out of the treasury except in
pursuance of an appropriation made by law? The petitioners
respectfully submit that, in issuing and implementing the
questioned Program, the Executive acted with grave abuse of
discretion amounting to lack or excess of jurisdiction and violated
the clear provisions of the 1987 Constitution. The respondents
implementation of such void and unconstitutional Program is a
continuing commission of grave abuse of discretion amounting to
lack or excess of jurisdiction and a clear transgression of the
Constitution. Such unlawful implementation of the unconstitutional
issuances must, perforce, be stopped and the respondents and all
others acting on the basis of the Disbursement Acceleration Program
must be directed to strictly comply with the mandates of the
Constitution.
DISCUSSIONThe following establishes the petitioners legal
personality to impugn the validity of the Disbursement Acceleration
Program.PETITIONERS HAVE THE REQUISITE STANDING TO INSTITUTE THE
PRESENT ACTIONPetitioners respectfully submit that, being a matter
of transcendental importance, this Honorable Court must take
cognizance of this case and brush aside procedural requirements in
order to perform its Constitutional duty to determine whether or
not there has been grave abuse of discretion amounting to a lack or
excess of jurisdiction on the part of any branch or instrumentality
of the government. As Mr. Justice Isagani A. Cruz declared in his
dissenting opinion in the case of Guazon v. De Villa, It is not
only the owner of the burning house who has a right to call the
firemen. Everyone has the right and responsibility to prevent the
fire from spreading even if he lives in the other block.At the
outset, it bears emphasis that in Chavez v. PEA-Amari, this
Honorable Court categorically stated:The petitioner has standing to
bring this suit because the petition seeks to compel Public Estates
Authority to comply with its constitutional duties. There are two
constitutional issues involved here. First is the right of citizens
to information on matters of public concern. Moreover, the petition
raises matters of transcendental importance to the public. In
Chavez v. PCGG, the Court upheld the right of a citizen to bring a
taxpayer's suit on matters of transcendental importance to the
public, thus "Besides, petitioner emphasizes, the matter of
recovering the ill-gotten wealth of the Marcoses is an issue of
'transcendental importance to the public.' He asserts that ordinary
taxpayers have a right to initiate and prosecute actions
questioning the validity of acts or orders of government agencies
or instrumentalities, if the issues raised are of 'paramount public
interest,' and if they 'immediately affect the social, economic and
moral well-being of the people.'Moreover, the mere fact that he is
a citizen satisfies the requirement of personal interest, when the
proceeding involves the assertion of a public right, such as in
this case. He invokes several decisions of this Court which have
set aside the procedural matter of locus standi, when the subject
of the case involved public interest.Legaspi v. Civil Service
Commission, while reiterating Taada, further declared that 'when a
mandamus proceeding involves the assertion of a public right, the
requirement of personal interest is satisfied by the mere fact that
petitioner is a citizen and, therefore, part of the general
'public' which possesses the right.'Further, in Albano v. Reyes, it
is said that while expenditure of public funds may not have been
involved under the questioned contract for the development,
management and operation of the Manila International Container
Terminal, 'public interest [was] definitely involved considering
the important role [of the subject contract] . . . in the economic
development of the country and the magnitude of the financial
consideration involved.'We conclude that, as a consequence, the
disclosure provision in the Constitution would constitute
sufficient authority for upholding the petitioner's standing.
Similarly, the instant petition is anchored on the right of the
people to information and access to official records, documents and
papers a right guaranteed under Section 7, Article III of the 1987
Constitution. Petitioner, a former solicitor general, is a Filipino
citizen. Because of the satisfaction of the two basic requisites
laid down by decisional law to sustain petitioner's legal standing,
i.e. (1) the enforcement of a public right (2) espoused by a
Filipino citizen, we rule that the petition at bar should be
allowed."We rule that since the instant petition, brought by a
citizen, involves the enforcement of constitutional rights to
information and to the equitable diffusion of natural resources
matters of transcendental public importance, the petitioners have
the requisite locus standi.
DISCUSSION OF THE UNCONSTITUTIONALITY OF DISBURSEMENT
ACCELERATION PROGRAMThe Disbursement Acceleration Program was not
provided for by the General Appropriations Act, which is the only
mechanism for allocation of funds to be used by the government,
prepared each year by the Congress and only approved by the
president. The Palaces citation of Article VI, Section 25 (5) of
the 1987 Constitution was misconstrued in the sense that the DAP
was created by Pres. Benigno Aquino through the Department of
Budget and Management, who had no power to do so, as appropriations
are only made by the legislative branch. The DBM or Office of the
President may not amend GAAs because such is a privilege reserved
for Congress alone Moreover, a former senatorial candidate, Greco
Belgica, asked the Supreme Court to declare the DAP as
unconstitutional. In his 26-page petition, he wrote that, The DAP
directly violates this constitutional prohibition. The Philippine
Constitution Association, also known as Philconsa, also filed a
petition to declare the Disbursement Acceleration Program to be
unconstitutional. In their petition, they argued that since the DAP
was implemented by DBM and not by Congress, it was not a law. DAP
is therefore void. All appropriations/disbursements/actions founded
or emanating from DAP are invalid. DAP is unconstitutional and
unlawful. The DAP is the 'magic wand' that transmogrifies public
funds, they said. There was no law passed authorizing the DAP or
the funds thereof; Section 29 of Article VI of the 1987
Constitution further states that all appropriation, revenue or
tariff bills, bills authorizing increase of the public debt, bills
of local application and private bills shall originate exclusively
from the House of Representatives, but the Senate may propose or
concur with amendments. It is clearly stated in this provision that
the concept of the DAP, as an appropriation (being sourced from
public funds), should have originated from the House of
Representatives. Further rebutting Section 25 (5) of Article VI of
the 1987 Constitution, it is plainly stated that the President,
among those stated, has the authority to augment any item in the
general appropriations law, which comes from the savings in other
items of their respective appropriations; the President did not
augment an item in the general appropriations law, he made his own
item without any law to authorize it. Also, thefunds for the
program were taken from uncompleted and unperformed projects, which
do not constitute at all savings, contrary to what the Palace
claims. It must be remembered that as defined in the general
appropriations law, savings are funds remaining from already
enacted projects ora surplus in budget after the completion or
payment of a particular line item budget included in the general
appropriations law. Fr. Joaquin Bernas, a constitutional expert,
shares the same opinion, stating that the DAP is unconstitutional
because the law limits the president to realign savings only in
existing budget items. The transfer of the DAP funds from the
executive branch to the legislative branch is simply a prohibited
transfer of appropriations. What Congress cannot do directly, the
President of the Philippines cannot do indirectly. The DAP is
another prime example that the Chief Executive is given wide
latitude and unbridled discretion in how discretionary funds such
as the Malampaya Fund and Presidential Social Funds are disbursed.
Records also show that the DAP was not at all listed in the general
appropriations for the years 2011 (the time it was created) and
2012, but P82.5 billion released in 2011 and P54.8 billion
disbursed in 2012 under the DAP. The use of the DAP for bribing
senators into convicting former Chief Justice Corona was also
illegal in its very sense and uncalled for. Is it not that the
funds are to be used for public purposes, not for those seated in
the governments own interests or agenda? If reason be given that
such act was done in good faith and for the general welfare of the
people of the Philippines, still, is it not that it is unnecessary?
Such act is brimming with private political agenda which is a grave
abuse of discretion on the part of the administration. Even the
Palace now admits that the DAP is problematic (Communications
Secretary Ricky Carandang, as cited by the Philippine Daily
Inquirer, October 5, 2013). Economist Benjamin Diokno also stated
for the record that contrary to the claim of the Palace, the DAP
did not aid in the creation of jobs. Former Iloilo Representative,
August Syjuco Jr., also took a stand against DAP and filed a
petition to declare it unconstitutional. According to him, DAP
cannot be considered saving as DBM claims because it was sourced
from remaining funds from completed projects or line projects. "But
if the money was never used in the first place, like in the case of
DAP funds, then it cannot be classified as savings. Hence, it is on
this equal reason that DAP creation and implementation is
unconstitutional and illegal," Syjuco's petition reads.Strictly
construing the provisions of the 1987 Constitution, it is as clear
as daylight that the Disbursement Acceleration Program is
unconstitutional since it was not created by the Congress and its
funds were not included in the general appropriations bill and do
not fall under the definition of savings provided for by law. The
language of the law clearly states that any augmentation must be
for an item in the general appropriations law; and must be for
their offices. As such, any augmentations from saving from the OP
can only be spent by the OP and cannot be given to the lawmakers.
Moreover, the purpose of augmentation should be for that of the
particular expenses in the appropriations law and not for any other
purpose. Jurisprudence supports this interpretation as cited in the
case of Demetria vs. Alba.
PRAYERWHEREFORE, premises considered, Petitioners most
respectfully pray of the Honorable Court the following:1. That this
petition be given due course;2. A judgment declaring null and void,
for being unconstitutional, the Disbursement Acceleration Program3.
A judgment commanding the respondents and all persons acting on the
basis of the Disbursement Acceleration Program to cease from
implementing the said Program.4. A judgment prohibiting/enjoining
the recipients/beneficiaries of the DAP funds from using funds
received and return the balance of unspent funds to the National
Treasurer;5. A judgment ordering the Integrated Bar of the
Philippines (IBP) to request the assistance and cooperation of
associations of lawyers whose membership are also members of the
IBP assist the DOJ, National Bureau of Investigation (NBI) and OSG
to prosecute public functionaries/parties who are accountable
and/or to file civil and criminal cases for the recovery of public
funds that were squandered and make a quarterly report to the
Supreme Court of the status of the cases filed.RESPECTFULLY
SUBMITTED.Manila, November 15, 2013
San Beda Alabang College of Law8 Don Manolo Blvd., Alabang Hills
VillageAlabang, 1770 Muntinlupa CityP.O Box 402 Ayala Alabang
VERIFICATION AND CERTIFICATION AGAINST FORUM SHOPPING
We, Aileen Joy Padilla and Mary Pauline Hilado, Filipino
citizens, of legal age, do hereby state that: We are the
petitioners in the case filed for Petition for Certiorari. We have
read its contents and affirm that they are true and correct to the
best of our own personal knowledge; We hereby certify that there is
no other case commenced or pending before any court involving the
same parties and the same issue and that, should We learn of such a
case, We shall notify the court within five (5) days from my
notice.IN WITNESS THEREOF, We have signed this instrument on 15
November 2013.
AILEEN JOY PADILLA Petitioner
MARY PAULINE HILADOPetitioner