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1 I think their case was chosen to represent all the nine cases is because Araullos case is the only one who brought to the Courts attention NBC No.
541 (Adoption of Operational Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June 30).
2 G.R. No. 209135 (Syjuco) October 7, 2013; G.R. No. 209136 (Luna) October 7, 2013; G.R. No. 209164 (PHILCONSA) October 8, 2013); G.R. No.
209155 (Villegas) October 16, 2013; G.R. No. 209260 (IBP) October 16, 2013; G.R. No. 209287 (Araullo) October 17, 2013; G.R. No. 209442 (Belgica)
Financing public goals and activities was an idea that existed from the creation of the State
To protect the people, the territory and sovereignty, the government must perform vital functions that
require public expenditures
The Philippine Budget System is greatly influenced by western public financial institutions (Spain and US
colonized us before)
Jones Law (1916) [Budget Office within Department of Finance] 1935 Constitution (budget policy, procedure
established, strengthened by EO 25 Budget Commission) + CA No. 246 (1 st budget law line item budget
framework) RA No. 992 Congress introduces performance-budgeting and enhanced the role of the Budget
Commission 1973 Constitution PD 1177 and 1405 (the latter created the Ministry of Budget) EO 711 (Office
of Budget and Management - OBM) EO 292 (DBM)
3 Personal comment: As I remember, what usually happens is the Appropriations Committee and Sub-Committee Chairmen will sponsor the budget
before the plenary (i.e., help defend it) and this is usually done per agency (i.e., a session for DOTC, then DBM, then DepEd etc.). The sponsoring
congressman usually knows what the other congressmen will look for in the agency budget and will usually advise the agency to prepare to include
additional projects (congressional insertions) requested by the other congressmen or prepare to defend certain projects that the plenary may criticize or
ask the agency to explain. The sponsoring congressman more often than not also requests for his/her own insertion in the agency budget as well.
Projects are added and/or deleted, budgets cut and/or added during the deliberations.
documents.
The DBM may issue Non-Cash Availment Authority (NCAA) (for non-cash disbursements) and Cash
Disbursement Ceiling (CDC) for departments with overseas operations to allow the use of income collected
by their foreign posts for their operating requirements
DISBURSEMENT
This is the final step of the budget execution phase, where government monies are actually spent. The
Modified Disbursement Scheme is mostly used, where disbursements of national government agencies
chargeable against the Treasury are made through government servicing banks, such as the Land Bank of the
Philippines.
The budget process, of course, does not end when government agencies spend public funds: each and every
peso must be accounted for to ensure that is used properly, contributing to the achievement of socio-economic
goals.
June 25, 2012, September 4, 2012, December 19, 2012, May 20, 2013, and September 25, 2013 Identical requests for authority to pool savings (all approved by PNoy)
NBC No. 541 says:
President has authorized withdrawal of unobligated allotments of agencies with low levels of
obligations as of June 30, 2012 both for continuing and current allotments
Covers:
1. Capital Outlays
2. MOOE
3. PS
The withdrawal of unobligated allotments may cover unidentified programs, projects, activities of
the department/ agencies reflected in the DBM list
Listed funds that were exempted
NGAs shall continue to undertake procurement activities short of award notwithstanding the
implementation of the withdrawal policy until the end of the third quarter (September) (in laymans
terms: you can go on buying things, but just dont award it to the winning bidder yet. Wait for
funds, there will be money, dont worry)
If agencies cannot provide budget accountability reports in time, the DBM will use the agencys
latest report available as basis for the withdrawal of allotment (since this is not updated
All released allotments in FY 2011 which remained unobligated as of June 30, 2012 shall be
immediately considered for withdrawal
Withdrawn allotments may be:
Reissued for the original programs and projects of the agencies/ OUs concerned, from
which the allotments were withdrawn (take note of this it means they arent really
savings in the strictest sense since they can still be used for the same project i.e. the
project has not been abandoned or discontinued or completed)
Realigned to cover additional funding for other existing programs and projects
Used to augment existing programs and projects of ANY agency and to fund priority
programs and projects NOT CONSIDERED IN THE 2012 budget but expected to be
started or implemented in the current year
PROCEDURAL ISSUES
YES. COURT SAYS ALL PETITIONS UNDER RULE 65 ARE PROPER REMEDIES
(CERTIORARI, PROHIBITION AND MANDAMUS)
The remedies of certiorari and prohibition are broader in scope and reach and may be issued
to correct errors of jurisdiction as well as set right, undo, and restrain any act of grave abuse
of discretion amounting to excess or lack of jurisdiction by any branch or instrumentality of
Government even if the latter does not exercise judicial, quasi-judicial or ministerial
functions.
This is expressly authorized by Section 1, Rule 65 of the rules of court.
Thus, petitions for certiorari and prohibition are appropriate remedies to raise constitutional
issues and to review and/or prohibit or nullify the acts of legislative and executive officials
In addition, the fact that funds have been allocated or utilized give rise to an actual
controversy
Respondents claim that since DAP has been discontinued, the challenges are now moot and
academic. The Court says: the discontinuing of DAP did not moot the challenges to its
constitutionality. because it falls under all exceptions for mootness to be disregarded: (1)
there was a grave violation of the constitution, (2) the case involves a paramount public
interest, (3) the constitutional issue raised here requires formulation of controlling principles to
guide the Bench, the Bar and the public and (4) this case is capable of repetition yet evading
review (there is nothing to stop the DBM from re-implementing DAP).
II.
SUBSTANTIVE ISSUES
B. WHETHER OR NOT DAP, NBC 541 AND ALL OTHER EXECUTIVE ISSUANCES IMPLEMENTING
DAP VIOLATE SECTION 25(5) ARTICLE VI OF THE 1987 CONSTITUTION 5:
4 No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
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.
THIS REQUISITE IS NOT MET. GAA OF 2011 AND 2012 LACKED VALID (FAITHFUL
TO THE CONSITUTION) PROVISIONS TO AUTHORIZE TRANSFER OF FUNDS
UNDER THE DAP, HENCE THE TRANSFERS WERE UNCONSTITUTIONAL.
Section 25(5) is not a self-executing provision and must have a law implementing it.
Generally this is the GAA.
A reading of the 2011 and 2012 GAAs show that its provisions were textually unfaithful
(hehe) to the Constitution for not carrying the phrase for their respective offices 6 and
literally allowed the transfer of funds from savings to augment any item in the GAAs even
if the item belonged to another office and thus contravene the Constitution
Thus these provisions cannot be used by the Executive to claim authority to transfer
appropriations.
The missing phrase was inserted in the 2013 GAA, however, even with a valid law for the
authorization of transfer of funds, there are still two more requisites to be met
(2)
SECOND REQUISITE: THE FUNDS TO BE TRANSFERRED ARE SAVINGS
GENERATED FROM THE APPROPRIATIONS OF THEIR RESPECTIVE OFFICES
WHERE THERE ACTUALLY SAVINGS?
6 Section 25(5) of the Constitution says: 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.
2011 GAA says: Section 59. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to
augment any item in this Act from savings in other items of their respective appropriations.
2012 GAA says: Section 53. Use of Savings. The President of the Philippines, the Senate President, the Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, the Heads of Constitutional Commissions enjoying fiscal autonomy, and the Ombudsman are hereby authorized to
augment any item in this Act from savings in other items of their respective appropriations.
Lets say the DOTC wants to buy a lot of trains. Congress gives them 300 Billion for this,
which is a ballpark figure (this is an estimate since you cant really know how much you
need to buy trains nowadays but you have to give a figure during budget preparation so
its in your budget.)
To buy the trains, DOTC has to pass through public bidding (this usually how
Government buys things, they dont just get money and buy anytime they want, they
have to pass through competitive bidding and give it to the lowest bidder). By law,
when you advertise that opportunity to bid, you have to prepare an Approved Budget for
the Contract (ABC). This sets the ceiling amount on how much the bidders will bid. They
cannot bid above this. If they do, they get disqualified. The ABC is always culled from
market study how much are trains in the market? The market says, around 250 Billion.
The difference between the 300B (appropriation authorized by Congress) and the
250B (actual amount allotted for the appropriation) are the savings that OSG
meant.
So you advertise: inviting bidders for 250Billion contract for trains! Bidders bid
competitively. The lowest bidder wins which is, say around 100Billion. You now have
actual savings of 150Billion (250 Approved Budget for the Contract -100 Billion Contract
amount).
If youre more confused now, please forget what I just said. :))))
THIS REQUISITE IS NOT MET AS SOME OF THE SAVINGS POOLED UNDER DAP
WERE ALLOCATED TO PAPS THAT WERE NOT COVERED BY ANY
APPROPRIATION IN THE PERTINENT GAA. This means that the Executive seemed to
be specifying the PAPs where the money shall be spent which is the power of the purse
that resides in Congress alone.
An example was the Disaster Risk, Exposure, Assessment and Mitigation (DREAM)
Project under the DOST which when broken down did not have an item for personnel
services and capital outlays, only for MOOE.
Aside from transferring funds to the DREAM project exceeding by almost 300%, DAP
allotted funds for personnel services and capital outlays which Congress did not
appropriate for in the first place.
AGAIN, PROOF OF NON-COMPLIANCE TO THIS REQUISITE ARE THE CROSS
BORDER AUGENTATIONS FROM SAVINGS WHICH ARE CLEARLY PROHIBITED BY
THE CONSTITUTION. SECTION 25(5) ARTICLE VI ONLY ALLOWS AUGMENTATION
WITHIN THE RESPECTIVE OFFICES STATED THEREIN.
During the oral arguments, Secretary Abad stated the following instances wherein crossborder transfers/ augmentations transpired:
(1) Request from the House of Representatives for e-library funds (Legislative
Library and Archives Building/ Congressional e-library) (they lacked 43 Million).
The HoR were constrained to finish this project because COA informed them
that failure to do so will cause serious deterioration of the building and
equipments therein. They wrote to the President requesting for an
augmentation of that item, which was granted.
(2) Request from the Commission on Audit for their good governance programs.
The COA needed IT equipment and consultants and litigators to help with their
audit work and they requested funds form the Executive Department. When
the President saw that it was important for the Commission to be provided
those equipment, the request was granted.
(3) President made available to the Commission on Elections the savings of his
department upon their request for funds.
DBM avers that there are three instances wherein unprogrammed funds can be availed
of:
(1) Revenue collections exceeded original revenue targets proposed in the BESF
submitted by the president to congress
(2) New revenues were collected or realized from sources not originally considered
in the BESF
(3) Newly approved loans for foreign assisted projects secured
NO. THE RELEASE OF UNPROGRAMMED FUNDS WERE NOT IN ACCORD WITH
THE GAAS. THE COURT RULES THAT THERE ARE ONLY TWO INSTANCES WHEN
THE UNPROGRAMMED FUNDS CAN BE RELEASED (WHICH ARE BOLSTERED
BY THE TEXTS IN THE 2011 AND 2012 GAA AND MORE CLEARLY BY GAA 2013)8
The controversy arises due to the difference in the interpretation of the phrase revenue
collections must exceed the original revenue targets. DBM construes this as to refer
only to the collections for each source of revenue in the BESF, the condition is
complied as long as one source of revenue exceeds its target.
The petitioners, on the other hand (and the Court sides with them on this) take the
phrase to mean the total revenue collections must exceed the total revenue target
in the BESF.
This requirement should be construed in light of the purpose of the unprogrammed
funds as standby appropriations to support additional expenditures. In the even that
the revenue collections exceed targets, the government shall have more than enough to
cover additional expenditures thus the unprogrammed funds can be dispensed with
and disbursed.
Following the DBMs definition would create fake surplus since exceeding targets in
one revenue stream did not necessarily mean that the government indeed had
exceeded revenue targets as a whole.
(2)
(3)
PRINCIPLE OF PUBLIC ACCOUNTABILITY
Petitioners insist that DAP is repugnant to this principle because the legislators
relinquished the power of appropriation to the Executive and exhibited a reluctance to
inquire into DAPs legality
COURT: WE HAVE HELD THAT DAP AND ITS IMPLEMENTING ISSUANCES WERE
POLICIES AND ACTS THAT THE EXECUTIVE COULD PROPERLY ADOPT AND DO
IN THE EXECUTION OF GAAs to the extent that they sought to implement
strategies to ramp up and accelerate the economy of the country.
COURT: THE DOCTRINE OF OPERATIVE FACT SHALL APPLY. A blanket TRO should
not be applied.
It is said that a legislative or executive act is declared void for being unconstitutional
cannot give rise to any right or obligation. But the Court asks: should we not recognize
the need to except from the rigid application of the rule the instances in which the
void law or executive act produced an almost irreversible result? This is answered
by the doctrine of operative fact.
This doctrine recognizes the existence of the law or act prior to the determination of its
constitutionality as an operative fact that produced consequences that cannot always be
erased. The past cannot always be erased by a new judicial declaration.
This doctrines application to DAP proceeds from equity and fair play.
The Court cites the following cases to support its position:
O Hacienda Luisita, Inc. v. Presidential Agrarian Reform Council
Prior to the declaration of unconstitutionality of the said executive act,
certain acts or transactions were made in good faithwhich cannot be
just set aside or invalidated by its subsequent invalidation.
O Tan v. Barrios court held that despite invalidity of military courts over civilians,
certain operative facts should be acknowledged to have existed so as not to
trample upon the rights of the accused
O Olaguer v. Military Commisssion
The operative fact doctrine is not confined to statutes and rules and regulations, but can
also be applied by analogy to decisions made by the President or agencies under the
executive department. In the interest of justice and equity, this doctrine can be applied
liberally and in a broad sense to encompass said decisions of the executive branch. It
can be applied to acts and consequences resulting from the reliance not only on a law or
executive act which is quasi-legislative in nature but also on decision or orders from the
executive branch which were later nullified. This Court is not mindful that such acts and
consequences must be recognized in the higher interest of justice, equity and fairness.
DAP yielded undeniable positive results that enhanced the economic welfare of the
country. Not applying this doctrine would result in the undoing of worthy results such as
infrastructure and would result in the most undesirable wastefulness.
Justice Brion: Operative fact can only apply to the PAPs that can no longer be undone
whose beneficiaries relied in good faith on the validity of the DAP but not to the authors,
proponents, and implementors of DAP unless there are concrete findings of good faith in
their favor by the proper tribunals.
DISPOSITIVE PORTION
The Court PARTIALLY GRANTS the petitions for certiorari and prohibition; and DECLARES the following acts and
practices under the Disbursement Acceleration Program, National Budget Circular No. 541 and related executive
issuances UNCONSTITUTIONAL for being in violation of Section 25(5), Article VI of the 1987 Constitution and the
doctrine of separation of powers, namely:
(a) The withdrawal of unobligated allotments from the implementing agencies, and the declaration of
the withdrawn unobligated allotments and unreleased appropriations as savings prior to the end of
the fiscal year and without complying with the statutory definition of savings contained in the General
Appropriations Acts;
(b) The cross-border transfers of the savings of the Executive to augment the appropriations of other
offices outside the Executive; and
(c) The funding of projects, activities and programs that were not covered by any appropriation in the
General Appropriations Act.
The Court further DECLARES VOID the use of unprogrammed funds despite the absence of a certification by the
National Treasurer that the revenue collections exceeded the revenue targets for non-compliance with the
conditions provided in the relevant General Appropriations Acts.
DOCTRINE
Doctrine of Operative Fact
Separation of Powers
Power of the Purse (Congress)
RELEVANCE TO THE LESSON
Provisions on Appropriation were discussed, particularly the ones cited below.
PROVISION
Section
25(5)
Article VI of the
1987 Constitution
WHAT IT SAYS
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.
Section
29(1)
Article VI of the
Constitution
OTHER NOTES
Pretty infographics are also available in the Budget ng Bayan website of the DBM (its a website specifically
designed for citizens who want to know more about our national budget and how its made:
http://budgetngbayan.com/the-budget-cycle/). Please do check it out! If you want a PDF copy of the budget
cycle, its also uploaded in the GDrive
The documents and the seven (7) evidence packets submitted by the OSG are as follows:
DOCUMENTS
o A certified copy of the Memorandum for the President dated June 25, 2012 (Omnibus Authority to
Consolidate Savings/Unutilized Balances and their Realignment);
o Circulars and orders, which the respondents identified as related to the DAP, namely:
NBC No. 528 dated January 3, 2011 (Guidelines on the Release of Funds for FY 2011);
NBC No. 535 dated December 29, 2011 (Guidelines on the Release of Funds for FY
2012);
NBC No. 541 dated July 18, 2012 (Adoption of Operational Efficiency Measure
Withdrawal of Agencies Unobligated Allotments as of June 30, 2012);
NBC No. 545 dated January 2, 2013 (Guidelines on the Release of Funds for FY 2013);
DBM Circular Letter No. 2004-2 dated January 26, 2004 (Budgetary Treatment of
Commitments/Obligations of the National Government);
COA-DBM Joint Circular No. 2013-1 dated March 15, 2013 (Revised Guidelines on the
Submission of Quarterly Accountability Reports on Appropriations, Allotments,
Obligations and Disbursements);
NBC No. 440 dated January 30, 1995 (Adoption of a Simplified Fund Release System in
the Government).
o A breakdown of the sources of savings, including savings from discontinued projects and unpaid
appropriations for compensation from 2011 to 2013
o
A report on releases of savings of the Executive Department for the use of the
Constitutional Commissions and other branches of the Government, as well as the fund
releases to the Senate and the Commission on Elections (COMELEC).
DISSENTS:
DEL CASTILLO, J.:
DAP, under NBC 541 is only partially unconstitutional. The following were NOT violations of the law or the
Constitution:
1. The President validly ordered slow-moving projects to be discontinued or abandoned, pursuant to his power to
permanently stop expenditure under Sec 38 of the Administrative Code.
Sec 38: Except as otherwise provided in the GAA and whenever in his judgement the
public interest so requires, the President upon notice of the head of office concerned, is
authorized to suspend or otherwise stop further expenditure of funds allotted for any agency,
or any other expenditure authorized in the GAA, except for personal services appropriations
used for permanent officials and employees.
The burden of proof rests on the petitioners to show that the permanent stoppage of expenditure on slow-moving
projects does not meet the public interest standard under section 38.
Petitioners failed to clearly and convincingly show:
o that the DAP was a mere subterfuge by the govt to frustrate the legislative will as expressed in the GAA
o the discontinued slow-moving projects were not actually slow-moving and the discontinuance was
motivated by malice or ill will
o no actual and legitimate public interest was served by the DAP
2. Provisions in the GAA giving Maintenance and Other Operating Expenses (MOOE) and Capital Outlays (CO) a
period of two years simply means the work or activity may be pursued within the aforesaid period. It does not
prevent the President from discontinuing such projects if public interest so requires.
GAA provision on the availability for release and obligation of the appropriations relative to the MOOE and CO for
a period of two years is not a ground to declare the DAP invalid because the power of the President to
permanently stop expenditure under sec 38 of the administrative code is not expressly abrogated by this
provision.
3. It is inaccurate to state that the unobligated allotments were indiscriminately declared as savings, considering
that there was a legitimate state interest involved in ordering their withdrawal.
Burden of proof was on petitioners to show that such State interest failed to comply with the public interest
standard in Sec 38.
4. Augmentations of projects is allowed as per Sec 25(5), Art VI of the Consti, and sheer magnitude of the
augmentation is not a ground to declare such augmentation unconstitutional.
Even if Congress appropriated only P1.00 for a particular project in the Appropriations of the Executive
Department, and the Executive generated savings in the amount of P1Billion, it is theoretically possible to use that
money for the one peso project.
The Court cannot speculate by the sheer magnitude of the augmentations that a constitutional breach occurred.
Substantial augmentations in this particular case, without more, cannot be declared unconstitutional absent
showing a grave abuse of discretion.
5. There was no unlawful release of the Unprogrammed Funds through the DAP.
Certain provisos in the 2011, 2012, and 2013 GAAs were exceptions to the general rule that unprogrammed
funds may only be released when the revenue collections exceeded the original revenue targets.
Even if the revenue collections do not exceed the original revenue targets, funds from the Unprogrammed Funds
can still be released.
6. Unprogrammed Funds does not equate to savings.
The Executive Department never claimed that the Unprogrammed Funds are savings. What it stated is that the
funds released from the Unprogrammed Funds were one of the sources of funds for DAP.
All funds released under the DAP have a corresponding appropriation cover. They were released pursuant to a
legitimate work, activity or purpose for which they were authorized.
Petitioners failed to prove that Unprogrammed Funds were released to finance projects that did not fall under
specific items on the GAA provision on the Unprogrammed Fund.
There is no basis as of yet to rule that the UNprogrammed Fund was unlawfully released.
CONCURS WITH EVERYTHING ELSE.