Petition for Certiorari Revised

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. _________________ 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. x------------------------------------------------------------------------------------------------x

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, “rememberwhen 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