FOR: PROHIBITION, CERTIORARI, MANDAMUS AND DECLARATORY RELIEF

G.R. NO. ______________

Republic of the Philippines SUPREME COURT

Manila, Philippines

AUGUSTO L. SYJUCO JR., Ph.D. Petitioner, -versusFLORENCIO B. ABAD, In his capacity as the Secretary of Department of Budget and Management, HON. FRANKLIN MAGTUNAO DRILON In his capacity as the Senate President Of the Republic of the Philippines Respondents. x-------------------------------------------------x

PETITION
COMES NOW, the Petitioner in the above captioned case and to this Honorable Supreme Court, most respectfully state: I. I. PREFATORY STATEMENT

This is a petition for Prohibition, Mandamus and Certiorari under Rule 65 of the Revised Rules of Court coupled with a Petition for Declaratory Relief under Rule 63 of the Revised Rules of Court questioning the creation, implementation, validity and

constitutionality of the Disbursement Acceleration Program (DAP) through the Department of Budget and Management (DBM) under the executive branch of the government. To put forward, our supreme law, the Constitution, cannot be overlooked. It is the Constitution that defines, limits and establishes the fundamental powers of the branches of government. Everyone should be mindful that all other laws, and governmental rules, regulations and policies must conform to the Constitution including the highest official of the land. Irrespective of how genuine and sincere the intention is in running and
Page 1 of 14 PETITION FOR PROHIBITION, CERTIORARI & DECLARATORY RELIEF Augusto Boboy L. Syjuco, Jr.

administering the functions of government. Still, Constitutional parameters must remain to be observed and conformed. II. II. PARTIES TO THE PETITION

Petitioner is of legal age, Filipino, married and a resident of No. 4 Rodriguez St., Sta. Barbara, Iloilo, Philippines where he may be served with notices and other processes of the Honorable Court. He is a law abiding citizen who faithfully pays his taxes as required by law. Respondent Florencio B. Abad is herein impleaded in his capacity as the Secretary of the Department of Budget and Management under the executive branch of the government, who is of legal age, Filipino and holding office at General Solano St., San Miguel, Manila, Philippines 1005 where he may be served with notices and other processes of the Honorable Court. Respondent Franklin Magtunao Drilon is herein impleaded in his capacity as the Senate President of the Republic of the

Philippines and former Chairman of the Finance Committee of the Philippine Senate, who is of legal age, Filipino and holding office at Rm. 525 5th Flr., GSIS Bldg., Financial Center, Roxas Blvd., Pasay City where he may be served with notices and other processes of the Honorable Court. III. III. JUSTICIABLE QUESTION

The present case primarily questions the constitutionality of the creation and implementation of the Disbursement Acceleration Program (DAP) created and implemented by the Department of Budget and Management (DBM) . As pronounced by a litany of our jurisprudence, the power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.

2|Page An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination.1

The case at bar presents a justiciable question. The petitioner herein and all tax payers of this country stand to be directly affected by the illegal appropriation and disbursement of public funds through the Disbursement Acceleration Program. This program has been implemented, being implemented and to be continuously implemented by the respondents with the use of public funds to the damage and prejudice of every tax payer of this country who contributes to the collection and accumulation of public funds. It is for this matter that I question the constitutionality of the said program and submits its proper resolution to the Honorable Supreme Court. IV. LOCUS STANDI OF THE PETITIONER

The petitioner is filing the present case as a tax payer for and in behalf of all tax payers who will be directly affected by the misappropriation of tax payers money remitted to the public funds. As a tax payer, plaintiff has the right to file the present petition since the public interest so requires, such that the issue herein is a matter of transcendental importance, overreaching significance to society and of paramount public interest. V. V. SUBJECT OF THE PETITION

The subject of this petition is the Disbursement Acceleration Program (DAP) created by the respondent Secretary of the Department of Budget and Management (DBM).

G.R. No. 183591 October 14, 2008 THE PROVINCE OF NORTH COTABATO, duly represented by GOVERNOR JESUS SACDALAN and/or VICEGOVERNOR EMMANUEL PIOL, for and in his own behalf, petitioners, vs. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN (GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., the latter in his capacity as the present and duly-appointed Presidential Adviser on the Peace Process (OPAPP) or the so-called Office of the Presidential Adviser on the Peace Process, respondents.

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VI.

STATEMENT OF FACTS

In October 2011, President Benigno Aquino III through his alter-ego, respondent Florencio B. Abad, Secretary of the Department of Budget and Management (DBM)created the socalled Disbursement Acceleration Program (DAP) which according to the DBM is a stimulus package under the Aq uino administration designed to fast-track public spending and pushes economic growth to cover high-impact budgetary programs and projects which will be augmented out of the savings generated during the year and additional revenue sources and in order "to accelerate spending and address low Gross Domestic Product (GDP) growth at that time". According to the DBM, the funds used for programs and projects identified through Disbursement Acceleration Program (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 GovernmentOwned and Controlled Corporations (GOCCs) and Government Financial Institutions (GFIs) and sale of government assets. As stated and admitted by respondent Florencio B. Abad, the creation of the Disbursement Acceleration Program (DAP) is not by virtue of any Executive Order from the President but a creation of the Department of Budget and Management (DBM). The disbursement and release of these budgets are primarily initiated by the DBM and approved by the President without congressional appropriation. As a result of the creation and implementation of the Disbursement Acceleration Program (DAP), a total amount of P137.3 Billion was released as of October 1, 2013. The amount includes the P82.5 Billion released in 2011 and the P54.8 Billion released in the year 2012. These facts are stated and admitted

by no other than the Secretary of DBM himself, respondent Florencio B. Abad. The DBM maintains that Disbursement Acceleration Program (DAP) is created through the Constitutional power of the President to augment savings as provided in Article VI, Section 25 (5) of the 1987 Constitution in relation to Book VI, Chapter 5, Section 49 of the Revised 1987 Administrative Code. 4|Page Article VI, Section 25 (5) of the 1987 Constitution provides: Section 25. xxxx (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. On the other hand, Chapter 5, Book VI, Section 49 of the Revised 1987 Administrative Code provides: Section 49. Authority to Use Savings for Certain Purposes. Savings in the appropriations provided in the General Appropriations Act may be used for the settlement of the following obligations incurred during a current fiscal year or previous fiscal years as may be approved by Secretary in accordance with rules and procedures as may be approved by the President: 1. (1) Claims of officials, employees and laborers who died or were injured in line of duty, including burial expenses as authorized under existing law;

1. (2) Commutation of terminal leaves of employees due to retirement, resignation or separation from the service through no fault of their own in accordance with the provisions of existing law, including unpaid claims for commutation of maternity leave of absence; 1. (3) Payment of retirement gratuities or separation pay of employees separated from the service due to government reorganization; 1. (4) Payment of salaries of employees who have been suspended or dismissed as a result of administrative or disciplinary action, or separated from the service through no fault of their own and who have been subsequently exonerated and reinstated by virtue of decisions of competent authority; 1. (5) Cash awards to deserving officials and employees in accordance with civil service law; 1. (6) Salary adjustments of officials and employees as a result of

5|Page classification action under, and implementation of, the provisions of the Compensation and Position Classification Act, including positions embraced under the Career Executive Service; 7. (7) Peso support to any undertaking that may be entered into by the government with international organizations, including administrative and other incidental expenses; 7. (8) Covering any deficiency in peso counterpart fund commitments for foreign assisted projects, as may be approved by the President; 7. (9) Priority activities that will promote the economic well being of the nation, including food production, agrarian reform, energy development, disaster relief, and rehabilitation. 7. (10) Repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities; 7. (11) Expenses in connection with official participation in trade fairs, civic parades, celebrations, athletic competitions and cultural activities, and payment of expenses for the celebration of regular or special official holidays;

7. (12) Payment of obligations of the government or any of its departments or agencies as a result of final judgment of the Courts; and 7. (13) Payment of valid prior year's obligations of government agencies with any other government office or agency, including government-owned or controlled corporations. Contending that Disbursement Acceleration Program (DAP) is created within the bounds of the aforementioned laws and Constitutional provisions, the DBM made specific allocations from the DAP in favour of Cordillera Peoples Liberation Army amounting to P1.5 Billion, another allocation amounting to P1.8 Billion was given to the Moro National Liberation Front (MNLF) and another P700 Million for assistance to Quezon Province. These are entirely new budget items not included in the General Appropriations Act (GAA) previously authorized by Congress. Another set of allocations from the Disbursement Acceleration Program (DAP) includes more than P1 Billion to Senators in the year 2012 as stated and admitted by respondent Florencio B. Abad. This fact was also confirmed by then Senator Joker Arroyo that P1.12 Billion was allocated to Senators sourced from the Disbursement Acceleration Program (DAP) after the impeachment trial of then Chief Justice Renato Corona.

6|Page Senate President Drilon himself was the PROMOTOR as then Chairman of the Senate Finance Committee, on the use and disbursements from the fictional Development Acceleration Program (DAP) of the amount of One Billion Ten Million Five Hundred Thousand Pesos (Php1,010,500,000.00) allegedly for the Impeachment of Chief Justice Renato Corona. For the record, I reiterate that Mr. Drilon released to himself One Hundred Million Pesos (Php100,000,000.00), or 9.9% of this

fund. Mr. Drilon should forthwith be directed to return that full amount of One Hundred Million Pesos (Php100,000,000.00) as well as be held criminally accountable for the full amount of One Billion Ten Million Five Hundred Thousand Pesos (Php1,010,500,000.00) that he disbursed. ISSUES With the above states set of facts we present the following issues for resolution, to wit: 1. 1. Whether or not the Disbursement Acceleration Program (DAP) as a source of fund is unconstitutional. 1. 2. Whether or not the Disbursement Acceleration Program (DAP) should be enjoined from further implementation for being unconstitutional and illegal. 1. 3. Whether or not administrative and criminal actions should be filed against respondents herein for their wilful and unlawful acts in violation of the Constitution DISCUSSION To loudly speak, the Disbursement Acceleration Program (DAP) is unconstitutional and illegal. There are Three (3) constitutional reasons why the Disbursement Acceleration Program (DAP) should be declared unconstitutional. First, no law was passed and promulgated for the creation of Disbursement Acceleration Program (DAP). Furthermore, no law likewise sanctions the appropriation, disbursement and release of public funds for the implementation of the Disbursement Acceleration Program (DAP). Second, the funds allocated for the Disbursement Acceleration Program (DAP) were taken from the budgets of slow moving projects 7|Page

which were not completed nor performed, hence, are not savings in itself as contemplated by the Constitution. Third, the Disbursement Acceleration Program (DAP) was and is being used to augment new budget allocations or list not approved by the legislature. Section 24, Article 25 of our present Constitution, the 1987 Constitution, provides that and we quote: All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments. Furthermore Section 25, Article VI of the same organic law expressly provides and we quote: 1. 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. 1. 2. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates. 3. 3. The procedure in approving appropriations for the Congress shall strictly follow the procedure for approving appropriations for other departments and agencies. 3. 4. A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein. 3. 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. 3. 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. 8|Page 7. 7. If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed re-enacted and shall remain in force and effect until the general appropriations bill is passed by the Congress. (Emphasis supplied) Clear from the foregoing provisions of our Constitution that all appropriation bills emanate from the House of Representatives belonging to the legislative branch of the government. Under the Constitution, the spending power called by James Madison as "the power of the purse," belongs to Congress, subject only to the veto power of the President. The President may propose the budget, but still the final say on the matter of appropriations is lodged in the Congress.2 As highlighted in the above quoted constitutional provisions 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 are prohibited from passing any law that will authorize any transfer of appropriation. The foremost prohibition imposed by the Constitution is the passing of a law that will authorize any transfer of appropriation. The Constitution further restricts that only items in the general appropriations law allocated for the respective offices of 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 be augmented by its own savings. The savings referred to in this provision which will be used to augment an item in the general appropriations law lined in their respective offices refer to a surplus in the budget after the item allocation has been paid and completed. From the foregoing, we can simplify the restrictions set by the Constitution:

G.R. No. 113105 August 19, 1994 PHILIPPINE CONSTITUTION ASSOCIATION, EXEQUIEL B. GARCIA and A. GONZALES, petitioners, vs. HON. SALVADOR ENRIQUEZ, as Secretary of Budget and Management; HON. VICENTE T. TAN, as National Treasurer and COMMISSION ON AUDIT, respondents.

9|Page 1. 1. All appropriation of funds should be pursuant to a law. 1. 2. No law can be passed authorizing the transfer of any appropriations; 1. 3. No office can augment a budget which is not included in the general appropriations law; 1. 4. An office may only augment a budget under the following conditions: a. a. The budget sought to be augmented is included in the general appropriations law. a. b. The budget augmentation will be taken from the savings of the respective office on budgets already completed or financed. a. c. The savings should come from the budget of the same office seeking to augment their own budget. With the foregoing legal parameters, we will now discuss that the Disbursement Allocation Program (DAP) is unconstitutional and illegal. Firstly, the Disbursement Allocation Program (DAP) was

created by the Department of Budget and Management without any law passed and enacted to support it, in utter violation of the above stated constitutional provisions. This fact was admitted by respondent Florencio B. Abad himself. For this, it can already be struck down as unconstitutional. Secondly, its implementation has completely rendered it unconstitutional. Disbursement Allocation Program (DAP) is an accumulation of public funds appropriated under the R.A. 10147 or 2011 General Appropriations Act (GAA FY 2011). DAP were sourced from savings generated by the executive department of 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 (GFIs), sale of government assets. The terms savings refers to a surplus in budget after the completion or payment of a particular line item budget included in the general appropriations law.

10 | P a g e For Disbursement Allocation Program (DAP), the alleged savings generated by the executive department was not a surplus of budget. The funds funnelled to the Disbursement Allocation Program (DAP) were re-aligned budgets from slow moving items, to items or project which the executive branch deemed appropriate and were not originally used to finance a particular project wherein a surplus was realized. Savings should be funds remaining from already paid and completed projects or line budgets. This is the definition of the

word savings as provided in the above quoted of the provisions of our Constitution. But if the money was never used in the first place, like in the case of Disbursement Allocation Program (DAP) funds, then it cannot be classified as savings. Hence, it is on this equal reason that Disbursement Allocation Program (DAP) creation and implementation is unconstitutional and illegal. Savings as contemplated in appropriations law are funds remaining from already enacted projects. Conversely, when the funds were never used or the project is deferred, it cannot be classified as savings. Thirdly, the appropriations, disbursements and releases of funds under the Disbursement Acceleration Program (DAP) were unconstitutional and illegal for they were released to items not included in the general appropriations law. As specifically provided by our Constitution, augmentation of budget by any offices may only be done by augmenting an existing budget included in the general appropriations law within their respective offices. For the implementation of Disbursement Allocation Program (DAP), the respondents unlawfully appropriated and released funds to an item or project which is not included in the above stated general appropriations law or sanctioned by Congress. Worse was when they released funds to Senators who belong to a different branch of the government, the legislative branch of the government. This is a blatant and gross violation of the Constitution. With the foregoing discussions on the unconstitutionality of the Disbursement Acceleration Program (DAP) from its creation to implementation, it now appears that the Disbursement 11 | P a g e

Allocation Program (DAP) takes the form of a pork barrel for the President which is illegal and unconstitutional. The executive branch of the government created a side-line budget within the budget so as to create a discretionary fund which they can appropriate and release as their whims and desires might dictate. Inevitably, the Disbursement Acceleration Program (DAP) has to be declared unconstitutional and be enjoined from further implementation. Before the declaration of the Disbursement Acceleration Program (DAP) as unconstitutional, however, public funds were already misappropriated for purposes contrary to law and the Constitution. Respondents who caused the illegal appropriation and release of these public funds should be held accountable and liable. It is for this reason that I respectfully submit that Respondents Florencio B. Abad and Franklin Magtunao Drilon be held accountable and liable for their unlawful and unconstitutional acts. RELIEFS SOUGHT After due consideration of the discussions as above stated, the following are the reliefs most respectfully prayed, to wit: 1. Declare the creation and implementation of the Disbursement Acceleration Program (DAP) as unconstitutional and illegal; 2. 2. Order the Department of Budget and Management through its Secretary, Florencio B. Abad, to enjoin from further implementing the Disbursement Acceleration Program (DAP); and 2. 3. Recommend the filing of all necessary criminal and administrative cases against herein Respondents Florencio B. Abad and Franklin Magtunao Drilon for their illegal and unconstitutional acts.

CONCLUSION The prohibition to transfer an appropriation for one item to another is explicit and categorical under the 1987 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, 12 | P a g e 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 within 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 savings from another item in the appropriation of the government branch or constitutional body. "For the love of money is the root of all evil: ..." and money belonging to no one in particular, i.e. public funds, provide 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. Hence any law passed or act committed in violation of the Constitution should be struck down as unconstitutional and should be enjoined from further implementing and committing the said unconstitutional law and illegal act. PRAYER WHEREFORE, premises considered, it is most respectfully prayed of the Honorable Supreme Court that after due

consideration of this Petition an order be issued to: 1. Declare the creation and implementation of the Disbursement Acceleration Program (DAP) as unconstitutional and illegal; 2. 2. Order the Department of Budget and Management through its Secretary, Florencio B. Abad, to enjoin from further implementing the Disbursement Acceleration Program (DAP); and 2. 3. Recommend the filing of all necessary criminal and administrative cases against herein Respondents Florencio B. Abad and Franklin Magtunao Drilon for their illegal and unconstitutional acts. Other reliefs and remedies which are just and equitable under the premises are likewise prayed.

13 | P a g e Respectfully submitted this 5th day of October 2013 in the City of Makati for the City of Manila, Philippines.

AUGUSTO L. SYJUCO JR., Ph.D. Petitioner/Tax Payer No. 4 Rodriguez St., Sta. Barbara, Iloilo City

Copy furnished: SEC. FLORENCIO ABAD Secretary

DEPARTMENT OF BUDGET AND MANAGEMENT General Solano St., San Miguel, Manila Metro Manila, Philippines 1005 By:____________________ Date:_________________ SEN. FRANKLIN MAGTUNAO DRILON Senate Office: Rm. 525 5th Flr., GSIS Bldg., Financial Center, Roxas Blvd., Pasay City By:____________________ Date:_________________ Hon. FRANCIS H. JARDELEZA Office of the Solicitor General 134 Amorsolo St., Legaspi Village, Makati City, 1229 By:____________________ Date:_________________

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