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DISBURSEMENT ACCELERATION PROGRAMCONSTITUTIONAL LAW - 1JUDGE DANTE CORMINAL

SAVINGS- refers to portions or balances of any programmed appropriation in this Act free from any obligation and encumbrances which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized.

AUGMENTATION- implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation or subsequent evaluation of needed resources, is determined to be deficient.

Allotement-refers to an authorization issued by the Department of Budget to an agency, which allows it to incur obligations for specified amounts contained in a legislative appropriation.

SUSPEND-means to cause to stop temporarily; to set aside or make temporarily inoperative; to defer to a later time on specified conditions; to stop temporarily; to discontinue or to cause to be intermitted or interrupted.

DEFINITION OF TERMS:STOP- means to cause to give up or change a course of action; to keep from carrying out a proposed action, to bring or come to an end.

IMPOUNDMENT- refers to the refusal by the president, for whatever reason, to spend funds made available by the congress.What is DAP?

Disbursement Acceleration Program or DAP- is a program designed by the Department of Budget and Management to ramp up spending after sluggish disbursements had caused the growth of gross domestic product (GDP) to slow down.The DAP were usually taken from:1. Unreleased appropriations under Personnel Services;2. Unprogrammed funds3. Carry-over appropriations unreleased from the previous year; and4. Budgets for slow-moving items or projects that had been realigned to support faster disbursing projectsDBM listed the following as the legal bases for the DAPs use of savings namely:Section 25(5), Article VI of the 1987Section 49 (Authority to use Savings for certain purposes) and Section 38(Suspension of expenditure Appropriations), Chapter 5, Book VI of Executive Order (EO) No. 292 ( Administrative Code of 1987); and the General Appropriations Acts of 2011,2012,2013 (GAAs)

As for the use of unprogrammed funds under the DAP, the DBM cited as the legal bases the special provisions on unprogrammed fund contained in the GAAs of 2011,2012 and 2013.-At the core of the controversy is the contravention of DAP in Section 29(1) of Article VI of the 1987 constitution, a provisionof the fundamental law that firmly ordains that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

-precipitated the controversy was on September 25,2013 when Sen. Jinggoy Ejercito Estrada revealed that some senators, including himself ,had been allotted an additional P 50 million each as incentive for voting for in favour of the impeachment of of Chef Justice Executive Renato C. Corona-Nine petitions assailing the constitutionality of the DAP were filed .Controversy

ISSUES-Procedural IssueA. Whether or not certiorari,prohibition, and mandamus are proper remedies to assail the constitutionality and validity of the DAP, NBC no. 541 and all other executive issuances allegedly implementing the DAP. Subsumed in this issues are whether there is a controversy ripe for judicial determination, and the standing of petitioners.Procedural IssueA. The petitions under Rule 65 are proper remediesAll the petitions are filed under Rule 65 of the Rules of Court, and include applications for the issuance of writs of preliminary prohibitory injunction or temporary restraining orders. RULING The respondents arguments and submissions on the procedural issue are bereft of merit.

Requisites for the exercise of judicial review are:

1. There must be an actual case or justiciable controversy before the court

2. The question before the court must be ripe.

Requisites for the exercise of the power of judicial review were complied with:

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, so that a declaration thereon would be of no practical use or value.

-The Court cannot agree that the termination of the DAP as a program was a supervening event that effectively mooted these consolidated cases. Verily, the Court had in the past exercised its power of judicial review despite the cases being rendered moot and academic by supervening events like: 1. When there was a grave violation of the Constitution2. When the case involved a situation of exceptional character and was of paramount public interest.3. When the constitutional issue raised required the formulation of controlling principles to guide the Bench, the Bar and the Public4. When the case was capable of repetition yet evading review.3. The person challenging the act must be a proper party.4. The issue constitutionality must be raised at the earliest opportunity and must be the very lis mota of the case. Legal Standing or locus standi, as a requisite for the exercise of judicial review, refers to a right of appearance in a court of justice on a given question.

Except for PHILCONSA, the petitioners have invoked their capacities as taxpayers who, by averring that issuance and implementation of the DAP and its relevant issuances involved the illegal disbursements of public funds, have in interest in preventing the further dissipation of public funds. The petitioners in

Araullo and Beglica also assert their right as citizens to sue for the enforcement and observance of the constitutional limitations on political branches on the Government

PHILCONSA-legal standing to bring upon constitutional issues.

Luna- in his additional capacity as a lawyer

IBP- its avowed duty to work for the rule of law and of paramount importance of the question in this action, not to mention its civic duty as the official association of all lawyers in this country

Transcendental Importance Overview of the Budget

Origin of the Budget SystemBudget

b. Evolution of the Philippine Budget System

c. The Philippine Budget Cycle

Four Phases comprises the Philippine Budget process:-Budget Preparation-Budget Legislation-Budget Execution-Accountability

SUBSTANTIVE ISSUESSUBSTANTIVE ISSUES2. Nature of DAP as a fiscal plan

DAP was a program designed to promote economic growth

b. History of the implementation of the Dap, and source of funds

-Memorandum for the President (October 12, 2011)-Memorandum for the President (December 12, 2011)-National Budget Circular No. 541 (July 18, 2012)

c. DAP was not an appropriation measure; hence no approUnreleased appropriations and withdrawn unobligated allotment under the DAP were not savings, and the use of such appropriation contravened Section 25(5), Article VI of the 1987 Constitution

Although executive discretion and flexibility are necessary in the execution of the budget, any transfer of appropriated funds should conform to Section 25(5), Article VI of the Constitution.Section 25(5), Article VI of the Constitution No law shall be passed authorizing any transactions; however, the President, President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitution Commissions may, by law, be authorized to augment any item in the general appropriation law for their respective offices from savings in other items of their respective appropriations.

Requisites for the valid transfer of appropriated funds under Section 25(5), Article VI of the 1987 Constitution.

The transfer of appropriated funds, to be valid under Section 25(5), supra, must be made upon a concurrence of the following requisites, namely:There is a law authorizing the President, the President of the Senate, the Speaker of the House of the Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions to transfer funds within their respective offices.The funds to be transferred are savings generated from the appropriations for their respective offices; andThe purpose of the transfer is to augment an item in the general appropriations law for their respective offices.

1 First Requisites GAAs of 2011 and 2012 lacked valid provisions to authorize transfer of funds under the DAP; hence, transfers under the DAP were unconstitutional.

Did the GAAs expressly authorize the transfer of funds?

The provisions of the 2011 and 2012 GAAs were cited by the DBM as justification for the use of savings under the DAP.In the 2011 GAA, the provision that gave the President and the other high officials the authority to transfer funds was Section 59, as follows: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.

2 Second Requisites There were no savings from which funds could be sourced for the DAP.

Were the funds used in the DAP actually savings?

The definition of savings in the GAAs, particularly for the 2011, 2012 and 2013, reflected this interpretation and made it operational, viz:Savings refer to the portions or balances of any programmed appropriation in this Act free from any obligation or encumbrances which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related cost pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at lesser cost.

ON THE AUHORITY TO WITHDRAW UNOBLIGATED ALLOTMENTS It may be emphasized that the allotments to withdrawn will be based on the list of slow moving projects to be identified by the agencies and their catch up plans to be evaluated by the DBM

The NBC (National Budget Circular) No. 541 did not set in clear terms the criteria for the withdrawal of unobligated allotments, viz: Worse, NBC No. 541 immediately considered for withdrawal all released allotments in 2011 charged against the 2011 charged against the 2011 GAA that had remained unobligated based on the following considerations, to wit:

3 Third Requisites No funds from savings could be transferred under the DAP to augment deficient items not provided in the GAA.

The GAAs for 2011, 2012 and 2013 set as a condition for augmentation that the appropriation for the PAP item to be augmented be deficient, to wit;xxx Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation, or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this act.

Fourth Requisites Cross-border augmentations from savings were prohibited by the constitution.

By 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 may be authorized to augment any item in the GAA for their respective offices, Section 25(5), supra, has delineated borders between their offices, such that funds appropriated foe one office are prohibited from crossing over to another office even in the guise of augmentation of a deficient item or items. Regardless of the variant characterizations of the cross-border transfers of funds, the plain text of section 25(5), supra, disallowing cross-border transfer was disobeyed. Cross-border transfer, whether as augmentation, or as aid, were prohibited under Section 25(5), supraDECISION

4. Sourcing the DAP from unprogrammed funds the despite original revenue targets not having been exceeded was invalid (page 77)

Funding under the DAP were also sourced from unprogrammed funds provided in the GAAs for 2011, 2012, and 2013.

Unprogrammed Fundswere not brought under DAP as savings, but as separate sources of funds;its release and use were not subject to the restrictions under Section 25(5), supraEvidence Packets by the OSG have confirmed that the unprogrammed funds were treated as separate sources of funds.

Release and use of unprogrammed funds were still subject to restrictions (GAAs precisely specified the instances when the unprogrammed funds could be released and the purposes for which they could be used)Petitioners point out that the release of the unprogrammed funds was illegal (revenue collection must exceed revenue targets)

Respondents disagree holding that the release and use of the unprogrammed funds under the DAP were in accordance with the pertinent provisions of the GAAs.DBM avers three instances where unprogrammed funds could be availed of while BESF envisioned only two. (These two instances was bolstered by the texts of the Special Provisions of the 2011 and 2012 GAAs)

Provisos in both 2011 and 2012 provisions to the effect that collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund gave the authority to use such additional revenues for appropriations funded from the unprogrammed funds.

In contrast, the texts of the provisos with regard to additional revenues generated from newly-approved foreign loans were clear to the effect that the perfected loan agreement would be in itself sufficient basis for the issuance of a SARO to release the funds but only to the extent of the amount of the loan. (In such instance, the revenue collections need not exceed the revenue targets to warrant the release of the loan proceeds, and the mere perfection of the loan agreement would suffice.)

This meant that the collection of additional revenues did not warrant the release of the unprogrammed funds.

Hence, the basic condition that the revenue collections should exceed the revenue targets must still be complied with in order to justify the release of the unprogrammed funds.

The present controversy on the unprogrammed funds was rooted in the correct interpretation of the phrase revenue collections should exceed the original revenue targets.

Petitioners take the phrase to mean that total revenue collections must exceed the total revenue target stated in the BESF.

Respondents understand the phrase to refer only to the collections for each source of revenue as enumerated in the BESF, with the condition being deemed complied with once the revenue collections from a particular source already exceeded the particular target.

Respondents submitted certifications from the BTr and Department of Finance pertaining to only one identified source of revenue (the dividends from the shares of stock held by the Government in government-owned and controlled corporations) to justify the release of unprogrammed funds for 2011, 2012 and 2013.

The certifications reflected that by collecting dividends amounting to Php 23.8 billion in 2011, Php 19.419 billion in 2012, and Php 12.438 billion in 2013 the BTr had exceeded only the Php 5.5 billion in target revenues in the form of dividends from stocks in each of 2011 and 2012 and only the Php 10 billion in target revenues in the form of dividends from stocks in 2013.

Given the tenor of the certifications, the unprogrammed funds were thus not yet supported by the corresponding resources. (Revenue targets should be considered as a whole and not individually; otherwise we would be dealing with artificial revenue surpluses.)

The requirement that revenue collections must exceed revenue target should be understood to mean that the revenue collections must exceed the total of the revenue targets stated in the BESF.

Moreover, to release the unprogrammed funds simply because there was an excess revenue as to one source of revenue would be an unsound fiscal management measure because it would disregard the budget plan and foster budget deficits, in contravention of the Governments surplus budget policy.

The DAP is further violative of the Equal Protection Clause, the system of checks and balances, and the principle of public accountability.

DAP violated the Equal Protection Clause:

OSG: The allegations about Senators and Congressman being unaware of the existence and implementation of the DAP, and about some of them having refused to accept such funds were unsupported with relevant data.

Equal Protection, checks and balances, and public accountability challenges the DAP practiced undue favoritism in favor of select legislators in contravention of the Equal Protection Clause

OSG: The supposed discrimination in the release of funds under the DAP could be raised only by the affected Members of Congress themselves.

no reasonable classification was used in distributing the funds under the DAP; and that the senators who supposedly availed themselves of said funds were differently treated as to the amounts they respectively received

OSG: The claim that the Executive discriminated against some legislators on the ground alone of their receiving less than the others could not of itself warrant a finding of contravention of the Equal Protection Clause.

DAP violated the system of checks and balances

DAP was repugnant to the principle of public accountability

it nullifies the void law or executive act but sustains its effectsit provides an exception to the general rule that a void or unconstitutional law produces no effectits use must be subjected to great scrutiny and circumspection, and it cannot be invoked to validate an unconstitutional law or executive act, but is resorted to only as a matter of equity and fair playit applies only to cases where extraordinary circumstances exist, and only when the extraordinary circumstances have met the stringent conditions that will permit its applicationWe find the doctrine of operative fact applicable to the adoption and implementation of the DAP.Its application to the DAP proceeds from equity and fair playthe consequences resulting from the DAP and its related issuances could not be ignored or could no longer be undoneThe implementation of DAP resulted into the use of savings pooled by the Executive to finance the PAPs that were not covered in the GAA, or that did not have proper appropriation covers, as well as to augment items pertaining to other departments of the Government in clear violation of the Constitution.Doctrine of Operative Fact To declare the implementation of the DAP unconstitutional without recognizing that its prior implementation constituted an operative fact that produced consequences in the real as well as juristic worlds of the Government and the Nation is to be impractical and unfair.The other side of the coin is that it has been adequately shown as to be beyond debate that the implementation of the DAP yielded undeniably positive results that enhanced the economic welfare of the country.Nonetheless, as Justice Brion has pointed out, the doctrine of operative fact does not always apply, and it is not always the consequence of every declaration of constitutional invalidity.the doctrine of operative fact can apply only to PAPs that can no longer be undone, and whose beneficiaries relied in good faith on the validity of the DAPit cannot apply to the authors, proponents and implementers of the DAP, unless there are concrete findings of good faith in their favor by the proper tribunals determining their criminal, civil, administrative and other liabilities

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. 541and 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.SEPARATE OPINION ON THE UNCONSTITUTIONALITY OF DAPAssociate Justice Antonio T. CarpioI. Introduction Consolidated special civil actions for certiorari and prohibitionPetitioners (Augusto L. Syjuco, Jr., Ph.D., et al.) as taxpayers and Filipino citizens Challenging the constitutionality of the Disbursement Acceleration Program (DAP), National Budget Circular No. 541 and Other Executive IssuancesRespondents are the President, the Department of Budget and Management Secretary Florencio Abad, et al. Grounds for Assailing Constitutionality of DAP by PetitionersThere is no law passed for the creation of the DAP, contrary to Section 29, Article VI of the Constitution;The realignment of funds which are not savings, the augmentation of non-existing items in the General Appropriations ACT (GAA), and the transfer of appropriations from the Executive branch to the Legislative branch and constitutional bodies all violate Section 25(5), Article VI of the ConstitutionArgument of the RespondentsRespondents as represented by the OSG argued that no law is required for the creation of the DAP, which is a fund management system, and the DAP is a constitutional exercise of the Presidents power to augment or realign.

Sources of DAPUnder NBC 541, the sources of DAP funds are as follows:Unobligated allotments as of June 30, 2012 of all national government agencies (NGAs) charged against FY 2011 Continuing Appropriation Act (R.A. 10147) and FY 2012 Current Appropriation (R.A. No. 10155), pertaining to:Capital OutlaysMaintenance and Other Operating Expenses (MOOE) related to the implementation of programs and projects, as well capitalized MOOE; andPersonal Services corresponding to unutilized pension benefits.Unprogrammed Fund in the GAAs

Justice Carpios OpinionSection 60, Section 54, and Section 53 of the 2011, 2012, and 2013 GAAs define savings as follows:Savings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are:Still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized;From appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; andFrom appropriations balances realized from the implementations of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.

Justice Carpios OpinionFrom the definition, savings must be portions or allowances from any programmed appropriation free from any obligation or encumbrance which means there is no contract obligating payment out of such portions or balances of the appropriation.

Further, it can be contemplated that the 1st source of savings are excess funds after the completion of the work, activity, or project or when there is final discontinuance of the work, activity, or projectJustice Carpios OpinionFunds left after temporary discontinuance of work, activity or project under Section 38, Chapter 5, Book VI of the Administrative Code of 1987 as contended by respondents cannot be considered as savings because what can qualify are those only under Section 60, Section 54, and Section 53 of the General Provisions of the 2011, 2012, and 2013 GAAs.Thus, the President though given the authority to temporarily suspend further expenditure of funds allotted for any agency, or any other expenditures authorized in the GAA in case of anomalies cannot realign such funds because they are not savings. There must be final discontinuance for it to be considered as savings.

Unobligated Allotments are not SavingsThe DAP and NBC 541 directed the withdrawal of unobligated allotments of agencies with low level of obligations, MOOE and Capital Outlays as of June 30, 2012 to augment or fund priority and/or fast moving programs/projects of the national government.

Justice Carpios OpinionIn his opinion, the unobligated allotments of agencies with low-level of obligations as of June 30, 2012 are not savings as defined in the GAAs, with the exception of MOOE from January to June 2012, excluding Mandatory Expenditures and Expenditures for Business-type Activities because there are still ample time to obligate the funds thru the conduct of public bidding.The realignment of these funds to augment items in the GAAs patently contravenes Section 25(5), Article VI of the Constitution.Thus, such realignment under the DAP, NBC 541 and other Executive Issuances related to DAP is clearly unconstitutionalJustice Carpios OpinionIn his opinion, the withdrawal of unobligated allotments for MOOE and Capital Outlays as of June 30, 2012 violates the General Provisions of the 2011 and 2012 GAAs particularly Section 65 and Section 63, respectively which prescribe a two-year life span for such expenditures because the President cannot validly declare Capital Outlays and future MOOE as savings in the middle of the fiscal year, long before the two-year period when such funds can still be obligated thru a public bidding.Thus, the realignment under the DAP of unobligated Capital Outlays as of June 30, 2012, as well as the realignment of MOOE allocated for the second semester of the fiscal year, violates Section 25(5),Art. VI of the Constitution, and is therefore unconstitutional.

Unlawful Release of the Unprogrammed FundUnprogrammed Fund as one of the sources of DAP can be released only under the condition set under the provisions of the 2011, 2012 and 2013 GAAs when the revenue collections, as certified by the National Treasurer, must exceed the original revenue targets submitted by the President to Congress.However, the certifications submitted by the OSG do not state that the revenue collections exceeded the original revenue targets as submitted by the President to Congress.

Justice Carpios Opinion The DBM miserably failed to show any excess revenue collections during the period the DAP was implemented.Thus, this is in clear violation of the provisions of the GAAs for non-complying of the express condition and such use of the Unprogrammed Fund under DAP is unlawful or void.

DAP prohibits CROSS-BORDER TRANSFERSBudget Secretary Florencio Abad expressly admitted the existence of cross-border transfers of funds when they granted to the requests of the following (citing two instances):House of Representatives to fund around 43 Million pesos to complete their e-library building to avoid from serious deterioration, andCommission on Audit to finance its information technology equipment as well as hire consultants and litigators for the speedy and convenient conduct of their audits as well as review of financial reports of many agenciesDAP also Augmented PDAFThe Memorandum of the President dated December 12, 2011 stated that correspond to completed or discontinued projects may be pooled, among others, to augment deficiencies under the Special Purpose Funds which include PDAF in the amount of 6.5 Billion pesos.In his opinion, the transfer of DAP funds in the amount of 6.5 Billion to augment the unconstitutional PDAF is also unconstitutional because it is an augmentation of an unconstitutional appropriation.

OSGs ContentionThe OSG submits that in relation to the DAP, the President made available to the Commission on Audit, House of Representatives, and the Commission on Elections the savings of his department upon their request for funds, but it was those institutions that applied such savings to augment items in their respective appropriations.

Justice Carpios Opinion The OSGs arguments are obviously untenable. Section 25(5), Art. VI of the Constitution does not distinguish whether the recipient entity requested or did not request additional funds from the Executive branch to augment items in the recepient entitys appropriations.The Constitution clearly prohibits the President from transferring appropriations of the Executive branch to other branches of government or to constitutional bodies for whatever reason. Congress cannot even enact a law allowing such transfers.

Justice Carpios Opinion The fundamental policy of the Constitution is against transfer of appropriations even by law, since this juggling of funds is often a rich source of unbridled patronage, abuse and interminable corruption. Moreover, the cross-border transfer of appropriations to constitutional bodies impairs the independence of the constitutional bodies.

No Presidential Power of ImpoundentSection 38, Chapter V, Book VI of the Administrative Code of 1987 cannot be used by the President to stop permanently the expenditure of unobligated appropriated funds because that would amount to a Presidential power to impound funds appropriated in the GAA.The President has no power to impound unobligated funds in the GAA for two reasons:The GAA once it becomes law cannot be amended by the President and an impoundment of unobligated funds is an amendment of the GAA since it reverses the will of the Congress;The Constitution gives the President the power to prevent unsound appropriations by Congress only through his line item veto power, which he can exercise only when the GAA is submitted to him by Congress for approval.

Justice Carpios Opinion If the court allows the President to impound the funds appropriated by Congress under a law, then the constitutional power of Congress to override the Presidents veto becomes inutile and meaningless.Under our Constitutional scheme, the Presidents line item veto is the checking mechanism to unsound congressional appropriations, not any implied power of impoundment which certainly does not exist in the Constitution.

Doctrine of Operative FactAn unconstitutional act confers no rights, imposes no duties, and affords no protection. (Chavez v. Judicial and Bar Council)The exception to this rule is the Doctrine of Operative Fact. The doctrine of operative fact is applicable only if nullifying the effects of the unconstitutional law or administrative issuance will result to injustice or serious prejudice to the public or innocent third parties. So, innocent contractors who built the school houses funded by DAP in good faith can invoke this doctrine while it would not apply for DAP funds used to augment PDAF of members of Congress whose identified projects were in fact non-existent or anomalously implemented.Thus, only those whose who merely relied in good faith on the illegal or unconstitutional act, without any direct participation in the commission of the illegal or unconstitutional act, can invoke the doctrine.

ConclusionAssociate Justice Carpio voted to declare the following acts and practices under the Disbursement Acceleration Program and the National Budget Circular No. 541 dated July 18, 2012 UNCONSTITUTIONAL for violating Section 25(5), Article VI of the Constitution:Transfers of appropriations from the Executive to the Legislature, the Commission on Elections and the Commission on Audit;

ConclusionDisbursements of unobligated allotments for MOOE as savings and their realignment to other items in the GAAs, where the MOOE that are the sources of savings are appropriations for months still to lapse;Disbursements of unobligated allotments for Capital Outlay as savings and their realignment to other items in the GAA, prior to the last two months of the fiscal year if the period to obligate is one year, or prior to the last two months of the second year if the period to obligate is two years; and

ConclusionDisbursements of unobligated allotments as savings and their realignment to items or projects not found in the GAA.In addition, the use of the Unprogrammed Fund without the certification by the National Treasurer that the revenue collections for the fiscal year exceeded the revenue target for that year is VOID for being contrary to the express condition for the use of the Unprogrammed Fund under the GAAsSEPARATE OPINION

Associate Justice Arturo D. BrionFollowing the lead of J. Antonio Carpio, submittal of original separate opinion on April 2014, duing the courts Baguio Session after the promised ponencia was not issued. Two reasons were compelled: (1) the Court failed to meaningfully consider the petitioners prayer for a Temporary Restraining Order (TRO); delay intervened until it was too late to consider whether or would not a TRO would be issued; (2) no dilly-dallying, together with the closely-related Priority Development Assistance Fund (PDAF) case, the present DAP case is a part of the countrys biggest scandal and, on its own, precedent-setting case with profound impact on the nation involving funds amounting to almost p150 Billion or almost 15 times the PDAF case, entanglement with the PDAF; personalities at the very highest level in both Executive and Legislative Departments, and the demonstration of lack of respect for the public funds, institutions and the Constitution. Separate from these circumstances, many principles underlying the Republic are at stake. Among them are the regime of rules of law; the system of checks and balances and the separation of powers that indicate the health of the constitutionalism and democracy in the country; the stability of the government in light of the possible effect that the ruling, either way, will have on the institutions and officials involved; and the moral values and the level of trust of the people.

ISSUESProcedural Issue:Whether or not certiorari, prohibition, and mandamus are proper remedies to assail the constitutionality and validity of the Disbursement Acceleration Program (DAP), National Budget Circular (NBC) no. 541, and all other executive issuances allegedly implementing the DAP,. Subsumed in this issue are whether there is a controversy ripe for judicial determination, and the standing of the petitioners.Substantive Issues:Whether or not the DAP violates Sec 29, Art VI of the 1987 Constitution, which provides: No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.Whether or not the DAP, NBC No. 514 and all other executive issuances allegedly implementing the DAP violate Sec 25(5), Art VI of the 1987 Constitution insofar as:) They treat the unreleased appropriations and unobligated allotments withdrawn from the government agencies as savings as the term is issued in Sec 25(5), in relation to the provisions of the GAAs of 2011, 2012 and 2013;) They authorize the disbursement of funds for projects or programs not provided in the GAAs for the Executive Department, and;) They augment discretionary lump sum appropriations in the GAAs.Whether or not the DAP violates (1) the Equal Protection Clause, (2) the system of checks and balances, and (3) the principle of the public accountability enshrined in the 1987 Constitution considering that it authorizes the release of funds upon the request of the legislators.Whether or not factual and legal justification exists to issue a temporary restraining order to restrain the implementation of the DAP, NBC No. 541, and all other executive issuances implementing the DAP. In its Consolidated Comment, the OSG raised the matter of unprogrammed funds in order to support its argument regarding the Presidents power to spend. During the oral arguments, the propriety of releasing unprogrammed funds to support projects under the DAP was considerably discussed. The petitioners in G. R. No. 2019442 (Belgica) dwelled on unprogrammed funds in their respective memoranda. Hence, an additional issue for the oral arguments is stated as follows:Whether or not the release on unprogrammed funds under the DAP was in accord with the Constitution.

POSITION

The DAP is unconstitutional. Specifically, he holds that:The Court has jurisdiction to hear and decide the petitions under its expanded power of the judicial review, as provided under Sec 1, Art VIII of the Constitution and as explained below;The DAP violates the principles of checks and balances anf the separation of powers that the 1987 Constitution integrates into budgetary process;The DAP violates the constitutional prohibitions against the transfer of appropriations and against the transfer of funds from one branch of the government to another, both under Sec 25 (5) of the Art VI of the Constitution; andThe DAP violates the special conditions for the release of the Unprogrammed Fund.Further, he generally agree with the ponentes conclusion regarding the applicability of the operative fact doctrine, subject to the details discussed in this Opinion.

BACKGROUND

The DAP. Like the PDAF, involved the implementation of the national budget nut focused largely on how the Executive implemented the General Appropriations Act (GAA). As in the PDAF, the charges involved the unconstitutional intrusion by one branch of government (the Executive) into the exclusive prerogatives of another (the Legislative) in the budgetary process.

The present petitioners charge that the DAP was used as the means to allow the Executive to intrude into the legislative budgetary process, thereby subverting and rendering useless the appropriations Congress made under the GAA. In short, through the DAP, the Executive effectively exercised the power of appropriation exclusively reserved by the Constitution to Congress.

The DAP, in parallel with the PDAF but going the other way, allegedly allowed the Executive to disregard the GAA so that the latter could determine the projects, activities and plans (PAPs) where national funds would be deployed and spent, creating thereby a budget independently determined by the Executive within the congressionally- determined budget.

For ease of presentation, this Concurring and Dissenting Opinion shall proceed under the following structure:

Factual AntecedentsThe DAP and its OriginsOn September 28, 2013, Secretary Abad released an official statement, through the DBM website, explaining that the amounts released to Senators on top of their regular PDAF allocations towards the end of 2012 were part of a fund he called the DAP. He claimed that these releases were, in fact, not the first time that releases from DAP were made to fund project requests from legislators because the DAP had been in existence since the latter part of 2011. In the course of hearing these petitions, the respondents submitted evidence packets explaining the DAP came into existence and how it operated. Thus, authoritatively and with sufficient factual bases discuss these points.

MEMORANDUMThe Memoranda from Secretary Abad to the PresidentThe President approved these requests.

Subsequently, Secretary Abad sent to the President another Memorandum dated December 12, 2011, requesting for omnibus authority to consolidate savings/ unutilized balances in the fiscal year (FY) 2011 corresponding the completed or discontinued projects and their realignment.

In yet another Memorandum dated June 25, 2012 , Secretary Abad asked the President for the grant of authority: (i) to consolidate savings/ unutilized balances in FY 2012 corresponding the unfilled positions and completed the discontinued projects; and (ii) for the withdrawal and pooling of the available and unobligated balances, for both continuing and current allotments, of national government agencies as of June 30, 2012.

Among the priority projects identified was the construction of the Legislative Library and Archive Building/ Congressional E- Library with the House of Representatives as the identified agency.On June 27, 2012, the President also approved this requestConsistent with these memoranda, on July 08, 2012, the DBM issued National Budget Circular (NBC) No. 541, entitled Adoption of Operational Efficiency Measure Withdrawal of Agencies Unobligated Allotments as of June 30, 2012.

Per the Presidents directive dated June 27, 2012, NBC No. 541 authorized Secretary Abad to withdraw the unobligated allotments of agencies that had low level of obligations as of June 30, 2012. These unobligated allotments referred to two kinds of allotments: one is the continuing allotment that is charged against the GAA for FY 2011, and the other is the current allotment that is charged against the GAA of FY 2012.

Based on the earlier memoranda, NBC No. 541, the DAP funds were sourced from : (1) savings generated by the government, as well as (ii) the Unprogrammed Fund. The savings were sourced from:

Unreleased appropriations for unfilled positions which will lapse at the end of the year;Available balances from the completed or discontinued projects;Unreleased appropriations of slow- moving projects and discontinued projects;Withdrawn unobligated allotments which have earlier been released to NGA.

In May 20, 2013 MemorandumThe President likewise granted this request.

Based on the antecedents, the petitioners claim that the DAP is unconstitutional for violating Section 25, paragraph 5, and Section 29, paragraph 1, Article VI, as well as Section 17, Article VII of the 1987 Constitution.

DISCUSSION

Preliminary Matters-The Courts expanded power of judicial review

Section 1, Article VIII, of the 1987 Constitution reads:Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, AND to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government.Under these terms, the present Constitution not only integrates the traditional definition of judicial power, but introduces as well a completely new power and duty to the Judiciary.

-Prima facie showing of grave abuse of discretion

The lack of audit findings does not negate the grave abuse of discretion

-Transcendental importance of the issues presented by the petitions

The Court should find it significant that it was from the COA Chairperson herself lends credence to the respondents claim that NBC No. 541 is not really the face of the DAP. NBC No. 541 only formalized what the Executive had been doin even prior to the issuance.Secretary Abads official, public and unrefuted statement that part of the releases of DAP funds in 2012 was based entirely on letter of requests submitted to us by the Senators should neither escape the Courtss attention nor should the Court gloss over it.

-Justiciability and Political Questions

Justiciability refers to the fitness on propriety of undertaking the judicial review of particular matters or cases; it describes the character of the issues that are inherently susceptible of being decided on grounds recognized by law. -The Courts boundary-keeping role in times of political upheaval

Substantive Matters

Definition of terms:Augmentation implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.

Impoundment refers to the refusal by the President, for whatever reason, to spend funds made available by Congress. It is failure to spend of obligate budgetary authority of any type. The President may conceivably impound appropriated funds in order to avoid wastage of public funds without ignoring legislative will (routine impoundments) or because he disagrees with congressional policy (policy impoundments).

The DAP violates the principles of checks and balances and the separation of powers that the 1987 Constitution integrated in the budgetary process

The DAP violates the principles of checks and balances and the separation of powers that the 1987 Constitution integrated in the budgetary processa.) The principle of separation of powers and checks and balances in the budgetary process

2. How the DAP violates these principles

a.) The power to augment is a very narrow exception to the general prohibition against the transfer of appropriations

b.) The need for actual savings before the power to augment may be exercised

c.) Savings cannot be used to fund programs and projects not appropriated by Congress

d.) Additional limitations imposed by Congress under the GAA

DEFINITION OF SAVINGSSavings refer to portions or balances of any programmed appropriation in this Act free from any obligation or encumbrance which are:Still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized;From appropriations balances arising from the unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; andFrom appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus, enabled agencies to meet and deliver the required or planned targets, programs, and services approved in this Act at a lesser cost.

Two-year period within which appropriations for Capital Outlay and Maintenance and other Operating Expense (MOOE) may be spent

General prohibition against impoundment of releases

e.)The sources of DAP funds cannot qualify as savingsUnobligated allotmentsFunds allotted for particular appropriations may only be used to augment other items in the GAA when there are actual savings. The DAP, by pooling funds together to fast-track priority projects of the government, violated this critical requirement as the sources of DAP funds cannot qualify as savings1 .final discontinuance or abandonment2. use of section 38 as justification

f.) The DAP violates the prohibition against impoundmentg.) Qualifications to the Presidents flexibilities in budget executionh.) The DAP, in funding items not found in the GAA violated the Constitution

3. The DAP violates the special conditions for the release of the Unprogrammed Fund in the 2011 and 2012 GAAs

4.The operative fact doctrine: concept, limits and applications to the DAPs unconstitutionality

Concurring and DissentingAssociate Justice Mariano C. Del CastilloPROVISION AND PRINCIPLE

Article VI, Section 25(5) of the Constitution provides: 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 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.

The requisites must concur:There must be a law authorizing the head of offices to transfer savings for augmentation purposes, There must be savings from an item/s in the appropriations of the office,There must be an item requiring augmentation in the appropriations of the office, and The transfer of savings should be from one item to another of the appropriations within the same office.

In sum, the power to augment under Article VI, Section 25(5) of the Constitution serves two principal purposes: (1) negatively, as an integral component of the system of checks and balances under our plan of government and (2) positively, as a fiscal management tool for the effective and efficient use of public funds to promote the common good. For these reasons, as preliminarily intimated, the just resolution of this case hinges on the balancing of two paramount State interests: (1) the prevention of abuse or misuse of the power to augment, and (2) the promotion of the general welfare through the power to augment.

DEFINITION OF TERMSAUTHORITY TO AUGMENTSAVINGS- refers to portions or balances of any programmed appropriation in this Act free from any obligation and encumbrances which are: (i) still available after the completion or final discontinuance or abandonment of the work, activity or purpose for which the appropriation is authorized; (ii) from appropriations balances arising from unpaid compensation and related costs pertaining to vacant positions and leaves of absence without pay; and (iii) from appropriations balances realized from the implementation of measures resulting in improved systems and efficiencies and thus enabled agencies to meet and deliver the required or planned targets, programs and services approved in this Act at a lesser cost.Requisites must be met:The appropriation must be a programmed appropriation in the GAA;The appropriation must be free from any obligation or encumbrances;The appropriation must still be available after the completion or final discontinuance or abandonment of the work, activity or purposes for which the appropriation is authorized.

AUGMENTATION- implies the existence in this Act of a program, activity, or project with an appropriation, which upon implementation or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity or project, be funded by augmentation from savings or by the use of appropriation otherwise authorized by this Act.

Requisite must concur:

The program, activity, or project to be augmented by savings must be a program, activity, or project in the GAA;The program, activity, or project to be augmented by savings must refer to a program, activity, or project within or under the same office from which the savings were generated;Upon implementation or subsequent evaluation of needed resources, the appropriation of the program, activity, or project to be augmented by the savings must be shown to be deficient.

POWER TO FINALLY DISCONTINUE OR ABANDON THE WORK, ACTIVITY OR PURPOSE FOR WHICH THE APPROPRIATION IS AUTHORIZED

POWER OF THE PRESIDENT TO SUSPEND OR OTHERWISE STOP

BOOK VI, Chapter V, Section 38 of the Administrative Code:Section 38. Suspension of Expenditure of Appropriations- except as otherwise provided in the General Appropriation Act and whenever in his judgment the public interest so requires, the President, upon notice to the head of the office concerned, is authorized to suspend or otherwise stop further expenditure of funds allotted for any agency, or any other expenditure authorize in the General Appropriation Act, except for personal services appropriations used for permanent officials and employees.SUSPEND means to cause to stop temporarily; to set aside or make temporarily inoperative; to defer to a later time on specified conditions; to stop temporarily; to discontinue or to cause to be intermitted or interrupted.STOP means to cause to give up or change a course of action; to keep from carrying out a proposed action, to bring or come to an end.

ISSUESSECTION 2. Definition of Terms. (2) Allotement refers to an authorization issued by the Department of Budget to an agency, which allows it to incur obligations for specified amounts contained in a legislative appropriation.When read in relation to the above definition of allotment, the phrase funds allotted in section 38, therefore, refers to both unobligated and obligated allotments for, precisely, an unobligated allotment refers to an authorization to incur obligations issued by the Department of Budget and Management(DBM). The laws says to suspend or otherwise stop further expenditure of funds allotted for any agency without qualification, and not to suspend or otherwise stop further expenditure of obligated allotments for any agency. The power of the President to suspend or to permanently stop expenditure in section 38 is, thus, broad enough to cover both unobligated and obligated allotments.------ Section 38. does not authorize withdrawal of unobligated allotments but only refers to obligated allotments and (4) Section 38 only refers to project that has already begun.

BOOK VI, Chapter V, Section 2(2) of the Administrative Code:Was the withdrawal of the unobligated allotments from the slow-moving projects under Section 5 of NBC 541, equivalent to the final discontinuance or abandonment of these slow-moving projects which gave rise to savings under the GAA?

Relevant provisions of NBC 541 state:

5.4 All released allotments in FY 2011 charged against R.A No. 10147 which remained unobligated as of June 30, 2012 shall be immediately considered for withdrawal. This policy is based on the following considerations:5.4.1 The departments/agencies approved priority programs and projects are assumed to be implementation-ready and doable during the given fiscal year; and5.4.2 The practice of having substantial carryover appropriations may imply that the agency has a slower-than-programmed implementation capacity or [that the] agency tends to implement projects within a two-year timeframe.

5.7 The withdrawn allotment may be:5.7.1 Reissued for the original programs and projects of the agencies/ OUs concerned, from which the allotment were withdrawn;5.7.2 Realigned to cover additional funding for other existing programs and projects of the agency/OU; or5.7.3 Used to augment existing program 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 during the current year.

Did the president validly order the final discontinuance or abandonment of the subject slow-moving projects pursuant to his power to permanently stop expenditure under Section 38 of the Administrative Code?

The challenged act enjoys the presumption of constitutionality. The burden of proof rests on petitioners to show that the permanent stoppage of expenditure on slow-moving projects does not meet the public interest standard under Section 38. At the very least, the move by the Executive Department to solve the systemic problems in the implementation of its projects shows good faith in seeking to abide by the appropriations set by Congress in the GAA.

The power to permanently stop further expenditure under Section 38 and, hence, finally discontinue or abandon a work, activity or purpose vis--vis the two-year availability for release of appropriations under the GAA.

The power to permanently stop expenditure under Section 38 and the prohibition on impoundment under Sections 64 and 65 of the GAA.

Section 38. Suspension of Expenditure of Appropriations except as otherwise provided in the General Appropriations Act and whenever in his judgment the public interest so requires, the President, upon notice to 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.Section 64. Prohibition against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded through retention or deduction unless in accordance with the rules and regulations to be issued by the DBM: Provided, that all the funds appropriated for the purposes, programs, projects, and activities authorized under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33(3), Chapter 5, Book VI of E.O. No. 292Section 65. Unmanageable National Budget Deficit. Retention or deduction of appropriations authorized in this Act shall be effected only in cases where there is an unmanageable National Government budget deficit.

Sourcing of Funds for DAP

Funds used for programs and projects through DAP were sourced from savings generated by the government, the reallocation 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 divided from the GOCCs and Government Financial Institutions (GFIs), sale of government assets.

Section 38, insofar as it allows the president to permanently stop expenditures, is a valid legislative grant of the power of impoundment to the President.

The power to finally discontinue or abandon a work, activity or purpose in the GAA vis--vis section 38.

The enormous powers of the President to: (a) permanently stop expenditures under Section 38 and (b) to finally discontinue or abandon a work activity or purpose under the GAA definitions of savings.

On the use unreleased appropriations under DAP

On the augmentation of project activity or program( PAP) not covered by any appropriations in the pertinent GAAs

On CROSS-BORDER TRANSFER OF SAVINGS

On the Unprogrammed Fund

Unprogrammed Fund under the 2011, 2012, 2013 GAAs, respectively state.

2011 GAA (Article XLV):Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to section 22, Article VII of the Constitution, including savings generated from programmed appropriations for the year: PROVIDED, That collections arising from sources not considered in the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans agreement for the foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds: PROVIDED, FURTHERMORE, That if there are savings generated from the programmed appropriations for the first two quarters of the year, the DBM may, subject to the approval of the President release the pertinent appropriations under the Unprogrammed Fund corresponding to only fifty percent (50%) of the said savings net of revenue shortfall: PROVIDED, FINALLY, That the release of the balance of the total savings from programmed appropriations for the year shall be subject to fiscal programming and approval of the President2012 GAA (Article XLVI)Release of Fund. The amounts authorized herein shall be released only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to congress pursuant to section 22, Article VII of the Constitution: PROVIDED, That collections arising from sources not considered the aforesaid original revenue targets may be used to cover releases from appropriations in this Fund: PROVIDED, FURTHER, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.

2013 GAA (Article XLV)

Release of Fund. The amounts authorized herein shall be release only when the revenue collections exceed the original revenue targets submitted by the President of the Philippines to Congress pursuant to Section 22, Article VII of the Constitution, including collections arising from sources not considered in the original revenue targets, as certified by the Btr: PROVIDED, That in case of newly approved loans for foreign-assisted projects, the existence of a perfected loan agreement for the purpose shall be sufficient basis for the issuance of a SARO covering the loan proceeds.

On the applicability of the OPERATIVE FACT DOCTRINE

CONCLUSION

The Disbursement Acceleration Program is Partially Granted and it is Partially Unconstitutional:Section 5.4, and 5.7 of National Budget Circular No. 541 are VOID insofar as they (1) allowed the withdrawal of unobligated allotments from slow-moving projects which were not finally discontinued or abandoned, and (2) violating the definition of savings under the 2011, 2012 and 2013 general appropriations acts.

The admitted cross-border transfers of savings from the Executive Department, on the one hand, to the Commission on Audit, House of the Representatives and Commission on Elections, respectively, on the other, are VOID for violating Article VI, Section 25(5) of the constitution.

The phrase to find priority programs and projects not considered in the 2012 budget but expected to be started or implemented during the current year in Section 5.7.3 of National Budget Circular No. 541 is VOID for contravening Article VI, section 29(1) of the constitution and Section 54 of the 2012 General Appropriations Act.

Separate Concurring OpinionAssociate Justice Estela M. Perlas-BernabeACCORDINGLY, I concur with the ponencia that the following acts andd/ or practices taken under the Disbursement Allocation Program, implemented through National Budget Circular No. 541 and other related executive issuances, are UNCONSTITUTIONAL.

a.) the withdrawal of unobligated allotments from the implementing agencies not considered as savings of the Executive to augment appropriations of other offices outside the executive, and the augmentation of the items without any existing appropriation others to the extent that the acts and/or practices violated Section 25(5) of the 1987 Philippine Constitution.

b.) the use of the Unprogrammed Fund despite the absence of any proof that the general condition for its use under the relevant GAAs, i.e, revenue collections were in excess of the original revenue targets, was complied with and without any justification that the exceptive conditions for such use did concur.CONCURRING OPINION

Associate Justice MARVIC MARIO VICTOR F. LEONEN

I concur the result.I agree that the means and practices covered by the Disbursement Acceleration Program as articulated in National Budget Circular No. 541 and in related executive issuances and memoranda are unconstitutional. We declare these principles for guidance of bench and bar considering that the petitions were mooted. The application of these principles to the 116 expenditures contained in the evidence packet submitted by the Solicitor General as well as the application of the doctrine of operative fact should await proper appraisal in the proper forum.

Included in fiscal responsibilities is the duty to prevent irregular, unnecessary, excessive, or extravagant expenses.Thus:

Section 33. Prevention of irregular, unnecessary, excessive, or extravagant expenditures of funds or uses. Of property; power to disallow such expenditures. The Commission shall promulgate such auditing and accounting rules and regulations as shall prevent irregular, unnecessary, excessive, or extravagant expenditures or uses of government funds or property.

FINAL NOTE

ACCORDINGLY for guidance of the bench and bar, I vote to declare the following acts and practices under the Disbursement Acceleration Program (DAP); National Budget Circular No. 541 dated July 18, 2012; and related executive issuance as unconstitutional:(a) any implementation of section 5.7.3 insofar as it relates to activities not related to any existing appropriation item even if in anticipation of future projects; (b) any augmentation by the President of items appropriated for offices outside the executive branch; any augmentation of any item, even within the executive department, which is sourced from funds withdrawn from activities which have not yet been (1) completed, (2) finally discontinued, or (3) abandoned; and(d) any use of unprogrammed funds without all the conditions in the General Appropriations Act being present.Let a copy of this decision be served on all the other officers covered in Article VI, Section 25(5) of the 1987 Constitution for their guidance.The evidence packets submitted by respondents should also be transmitted to the Commission on Audit for their appropriate action.

FROM: TEAM DAPTEAM DAP MEMBERS:ERIC ELPAMARNELLE NICOLASJUN PEREZCARMIL PLATILIAN CABRAJALESARNIEL ATIENZAFREIZL ROSALEJOSMARIETTA L. JUANITEJIM SULAPASEDSA BANTILANDECISIONSEPARATE OPINIONCONCURRING AND DISSENTING OPINIONCONCURRING