REPUBLIC OF THE PHILIPPINES

Supreme Court
Manila, Philippines

AILEEN JOY PADILLA

MARY PAULINE HILADO
(San Beda Alabang School of Law)
Petitioners,

-versus- G.R. No. 876123

Petition for Certiorari

THE EXECUTIVE OFFICE, Represented by

EXECUTIVE SECRETARY PAQUITO N.OCHOA JR.,
THE DEPARTMENT OF BUDGET AND MANAGEMENT,
Represented by SECRETARY FLORENCIO ABAD
Respondents.

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PETITION FOR CERTIORARI

PETITIONERS, AILEEN JOY PADILLA AND MARY PAULINE HILADO,

by counsel, unto this Honorable Court respectfully state that:

PREFATORY STATEMENT

The 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 Program’s purpose is to aid in efforts towards building
the nation’s 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 Malacañang releasing
millions of pesos to pay the senators which voted in favor of former Chief Justice
Renato Corona’s conviction last year. It was used to bribe our legislators (as first
mentioned by Senator Jinggoy Estrada in this privilege speech) for our president’s
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 PETITION

This 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; and

5. 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 PARTIES

The 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
Piñas 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 Piñas 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 Respondents

Public 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 Malacañang 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
Malacañang 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 PETITION

The Petition invokes the Honorable Court’s 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 PETITION

The 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 ALLEGATIONS
 Pursuant 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 FACTS

1. 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.

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 Malacañang 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.
 ISSUE

The 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.

DISCUSSION

The following establishes the petitioners’ legal personality to impugn the validity of
the Disbursement Acceleration Program.

PETITIONERS HAVE THE REQUISITE STANDING TO INSTITUTE THE

PRESENT ACTION

Petitioners 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 Tañada, 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 PROGRAM
The 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 Palace’s 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, the funds 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 or a 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 government’s 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.

PRAYER
WHEREFORE, 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 Program
3. 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 Law

8 Don Manolo Blvd., Alabang Hills Village
Alabang, 1770 Muntinlupa City
P.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 HILADO

Petitioner