Araullo, pettiotioner V.

Aquino III, Respondent

G.R. 209237

Feb 3, 2015

Facts:When President Benigno Aquino III took office, his administration noticed the
sluggish growth of the economy. The World Bank advised that the economy needed a
stimulus plan. Budget Secretary Florencio “Butch” Abad then came up with a program
called the Disbursement Acceleration Program (DAP).

The DAP was seen as a remedy to speed up the funding of government projects. DAP
enables the Executive to realign funds from slow moving projects to priority projects
instead of waiting for next year’s appropriation. So what happens under the DAP was
that if a certain government project is being undertaken slowly by a certain executive
agency, the funds allotted therefor will be withdrawn by the Executive. Once
withdrawn, these funds are declared as “savings” by the Executive and said funds will
then be reallotted to other priority projects. The DAP program did work to stimulate
the economy as economic growth was in fact reported and portion of such growth was
attributed to the DAP (as noted by the Supreme Court).

Other sources of the DAP include the unprogrammed funds from the General
Appropriations Act (GAA). Unprogrammed funds are standby appropriations made by
Congress in the GAA.

Meanwhile, in September 2013, Senator Jinggoy Estrada made an exposé claiming that
he, and other Senators, received Php50M from the President as an incentive for voting
in favor of the impeachment of then Chief Justice Renato Corona. Secretary Abad
claimed that the money was taken from the DAP but was disbursed upon the request of
the Senators.
This apparently opened a can of worms as it turns out that the DAP does not only
realign funds within the Executive. It turns out that some non-Executive projects were
also funded; to name a few: Php1.5B for the CPLA (Cordillera People’s Liberation Army),
Php1.8B for the MNLF (Moro National Liberation Front), P700M for the Quezon
Province, P50-P100M for certain Senators each, P10B for Relocation Projects, etc.
This prompted Maria Carolina Araullo, Chairperson of the Bagong Alyansang Makabayan,
and several other concerned citizens to file various petitions with the Supreme Court
questioning the validity of the DAP. Among their contentions was:
DAP is unconstitutional because it violates the constitutional rule which provides that
“no money shall be paid out of the Treasury except in pursuance of an appropriation made
by law.”

Secretary Abad argued that the DAP is based on certain laws particularly the GAA
(savings and augmentation provisions thereof), Sec. 25(5), Art. VI of the
Constitution (power of the President to augment), Secs. 38 and 49 of Executive
Order 292 (power of the President to suspend expenditures and authority to use
savings, respectively).

Issues:

I. Whether or not the DAP violates the principle “no money shall be paid out of the
Treasury except in pursuance of an appropriation made by law” (Sec. 29(1), Art. VI,
Constitution).

II. Whether or not the DAP realignments can be considered as impoundments by the
executive.
III. Whether or not the DAP realignments/transfers are constitutional.

IV. Whether or not the sourcing of unprogrammed funds to the DAP is constitutional.

V. Whether or not the Doctrine of Operative Fact is applicable.

HELD:

I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely
a program by the Executive and is not a fund nor is it an appropriation. It is a program
for prioritizing government spending. As such, it did not violate the Constitutional
provision cited in Section 29(1), Art. VI of the Constitution. In DAP no additional funds
were withdrawn from the Treasury otherwise, an appropriation made by law would
have been required. Funds, which were already appropriated for by the GAA, were
merely being realigned via the DAP.
II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to
the President’s power to refuse to spend appropriations or to retain or deduct
appropriations for whatever reason. Impoundment is actually prohibited by the GAA
unless there will be an unmanageable national government budget deficit (which did
not happen). Nevertheless, there’s no impoundment in the case at bar because what’s
involved in the DAP was the transfer of funds.

III. No, the transfers made through the DAP were unconstitutional. It is true that the
President (and even the heads of the other branches of the government) are allowed
by the Constitution to make realignment of funds, however, such transfer or
realignment should only be made “within their respective offices”. Thus, no cross-
border transfers/augmentations may be allowed. But under the DAP, this was violated
because funds appropriated by the GAA for the Executive were being transferred to the
Legislative and other non-Executive agencies.

Further, transfers “within their respective offices” also contemplate realignment of

funds to an existing project in the GAA. Under the DAP, even though some projects
were within the Executive, these projects are non-existent insofar as the GAA is
concerned because no funds were appropriated to them in the GAA. Although some of
these projects may be legitimate, they are still non-existent under the GAA because
they were not provided for by the GAA. As such, transfer to such projects is
unconstitutional and is without legal basis.
On the issue of what are “savings”

These DAP transfers are not “savings” contrary to what was being declared by the
Executive. Under the definition of “savings” in the GAA, savings only occur, among other
instances, when there is an excess in the funding of a certain project once it is
completed, finally discontinued, or finally abandoned. The GAA does not refer to
“savings” as funds withdrawn from a slow moving project. Thus, since the statutory
definition of savings was not complied with under the DAP, there is no basis at all for
the transfers. Further, savings should only be declared at the end of the fiscal year. But
under the DAP, funds are already being withdrawn from certain projects in the middle
of the year and then being declared as “savings” by the Executive particularly by the
DBM.

IV. No. Unprogrammed funds from the GAA cannot be used as money source for the
DAP because under the law, such funds may only be used if there is a certification from
the National Treasurer to the effect that the revenue collections have exceeded the
revenue targets. In this case, no such certification was secured before unprogrammed
funds were used.

V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior
to it being declared as unconstitutional by the Supreme Court, is applicable. The DAP
has definitely helped stimulate the economy. It has funded numerous projects. If the
Executive is ordered to reverse all actions under the DAP, then it may cause more harm
than good. The DAP effects can no longer be undone. The beneficiaries of the DAP
cannot be asked to return what they received especially so that they relied on the
validity of the DAP. However, the Doctrine of Operative Fact may not be applicable to
the authors, implementers, and proponents of the DAP if it is so found in the
appropriate tribunals (civil, criminal, or administrative) that they have not acted in good
faith.