Araullo vs. Aquino - Leonen
Araullo vs. Aquino - Leonen
G.R. No. 209287: Maria Carolina P. Araullo, et al., petitioners vs. Benigno
Simeon C. Aquino III, et al., respondents; G.R. No. 209135: Augusto L.
Syjuco, Jr., petitioner vs. Florencio B. Abad, et al., respondents; G.R. No.
209136: Manuelito R. Luna, petitioner vs. Secretary Florencio Abad, et al.,
respondents; G.R. No. 209155: Atty. Jose Malvar, Villegas, Jr., petitioner
vs. The Honorable Executive Secretary Paquito N. Ochoa, Jr., et al.,
respondents; G.R. No. 209164: Philippine Constitution Association
(PHILCONSA), et al., petitioners vs. Department of Budget and
Management and/or Hon. Florencio B. Abad, respondents; G.R. No.
209260: Integrated Bar of the Philippines (IBP), petitioner vs. Secretary
Florencio Abad of the Department of Budget and Management (DBM),
respondent; G.R. No. 209442: Greco Antonious Beda B. Belgica, et al.,
petitioners vs. President Benigno Simeon C. Aquino III, et al., respondents;
G.R. No. 209517: Confederation for Unity, Recognition and Advancement
of Government Employees (COURAGE), et al., petitioners vs. Benigno
Simeon C. Aquino, III, et al., respondents; G.R. No. 209569: Volunteers
Against Crime and Corruption (VACC), petitioner vs. Paquito N. Ochoa, Jr.,
et al., respondents.
Promulgated:
_February 3, 2015
x---------------------------------------------------------------------------CONCURRING OPINION
LEONEN,J.:
Concurring Opinion
7
8
Concurring Opinion
15
Concurring Opinion
agency. With the amount withheld, the President may also ensure that the
other appropriations items are fully funded as authorized in the general or in
any supplemental appropriations act.
This flexibility is subject to several constitutional constraints. First,
he can only spend for a project, activity, or program whose expenditure is
authorized by law. 16 Second, he cannot augment any appropriations item
within his department unless it comes from savings.17
III
Withheld unobligated allotments
are not necessarily savings
Savings is a term that has a constitutionally relevant meaning. The
constitutional meaning of the term savings allows Congress to further refine
its details.
To underscore the power of Congress to authorize appropriations
items, the Constitution prohibits their augmentation. There is no authority to
spend beyond the amounts set for any appropriations item. 18 Congress
receives information from the executive as to the projected revenues prior to
passing a budget. Members of Congress deliberate on whether they will
agree to the amounts allocated per project, activity, or program and thus, the
extent of their concurrence with the priorities set by the President with the
latters best available estimates of what can happen the following year. The
authorities that will eventually spend the amounts appropriated cannot
undermine this congressional power of authorization.
However, the Constitution itself provides for an exception.
Appropriated items may be augmented but only from savings and only if the
law authorizes the heads of constitutional organs or departments to do so.19
It is in this context that savings gains constitutional relevance.
From a constitutional perspective, I view savings as related only to
the privilege to augment. As a constitutional concept, it cannot be endowed
with a meaning that will practically undermine the constitutional grant of
power to Congress to limit and authorize appropriations items. There must
be a reasonable justification for the failure of the spending authority to spend
the amount declared as savings from an appropriated item. This reasonable
16
17
18
19
Concurring Opinion
Concurring Opinion
25
26
See the definition of savings under the general provisions of the General Appropriations Act in a given
year.
The Government Accounting and Auditing Manual (GAAM) was issued pursuant to Commission on
Audit Circular No. 91-368 dated December 19, 1991. The GAAM is composed of three volumes:
Volume I Government Auditing Rules and Regulations; Volume II Government Accounting; and
Volume III Government Auditing Standards and Principles and Internal Control System. In 2002,
Volume II of the GAAM was replaced by the New Government Accounting System as per
Commission on Audit Circular No. 2002-002 dated June 18, 2002.
Concurring Opinion
J. Leonen, concurring opinion in Araullo v. Aquino, G.R. No. 209287, July 1, 2014
<http://sc.judiciary.gov.ph/jurisprudence/2014/july2014/209287_leonen.pdf> [Per J. Bersamin, En
Banc].
Concurring Opinion
Concurring Opinion
IV
Appropriation covers does not always
justify proper augmentation
Fundamental to a proper constitutional exercise of the prerogative to
augment is the existence of an appropriations item.29
But it is not only the existence of an appropriation item that will make
augmentation constitutional. It is likewise essential that it can be clearly and
convincingly shown that it comes from legitimate savings in a constitutional
and statutory sense.30 In other words, having appropriation covers to the
extent of showing that the item being funded is authorized is not enough.
For each augmentation, the source in savings must likewise be shown.31
This is why constitutional difficulties arose in the kind of pooled
funds done under the Disbursement Allocation Program (DAP). There was
the wholesale assertion that all such funds came from savings coming from
slow moving projects.
This is not enough to determine whether the
requirements of constitutionality have been met. For there to be valid
savings of every centavo in the pooled funds, there must be a showing (a)
that the activity has been completed, finally discontinued and abandoned;32
and (b) why such activity was finally discontinued and abandoned and its
consistency with existing statutes. 33 Pooled funds make it difficult, for
purposes of this determination, to make this determination. DAP may be the
mechanism to ensure that items that needed to be augmented be funded in
order to allow efficiencies to occur. However, this mechanism should be
grounded and limited by constitutional acts. The source of the funds in the
pool called DAP should be shown to have come from legitimate savings in
order that it can be used to augment appropriations items.
28
29
30
31
32
33
J. Leonen, concurring opinion in Araullo v. Aquino, G.R. No. 209287, July 1, 2014 <
http://sc.judiciary.gov.ph/jurisprudence/2014/july2014/209287_leonen.pdf> 1518 [Per J. Bersamin,
En Banc].
CONST., art. VI, sec. 25(5).
CONST., art. VI, sec. 25(5).
CONST., art. VI, sec. 25(5).
Rep. Act No. 10155, GAA Fiscal Year 2012, General Provisions, sec. 54. See also Rep. Act No.
10352, GAA Fiscal Year 2013, General Provisions, sec. 53 and Rep. Act No. 10147, GAA Fiscal Year
2011, General Provisions, sec. 60.
See also 1 GOVERNMENT ACCOUNTING AND AUDITING MANUAL Book III, Title 3, art. 2, secs. 162
166; Exec. Order No. 292, book VI, ch. 5, sec. 38.
Concurring Opinion
10
Concurring Opinion
11
1,865,000,000.00
266,950,000.00
251,270,000.00
2,383,220,000.00
Concurring Opinion
12
DBM that the Supreme Court was withdrawing its request to realign the
P100 million intended for the Manila Hall of Justice to the budget of the
Judiciary. These two instances show both cross-border transfers on the
part of the Supreme Court(a) the augmentation of an item in the
Executive from funds in the Judiciary; and (b) the transfer of funds from
the Executive to the Supreme Court, whether or not for purposes of
augmentation.
83. With all due respect, this is by no means a disapprobation of
the Honorable Court. But it does serve to highlight the fact that the
Honorable Courts practice was based on an understanding of the
constitutional provision that coincides with the governments.38 (Citations
omitted)
38
39
40
Id. at 2628.
See J. Carpio, separate opinion, pp. 910.
CONST., art. VII, sec. 17.
Concurring Opinion
13
41
42
The City of Manila v. Entote, 156 Phil. 498, 510511 (1974) [Per J. Muoz Palma, First Division],
citing Morales v. Paredes, 55 Phil. 565, 567 [Per J. Ostrand, En Banc], states: A remark made, or
opinion expressed, by a judge, in his decision upon a cause, incidentally or collaterally, and not
directly upon the question before him, or upon a point not necessarily involved in the determination of
the cause, is an obiter dictum and as such it lacks the force of an adjudication and is not to be regarded
as such.
(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.
Concurring Opinion
14
The Office of the Solicitor General points out that this court is
mistaken in ruling that:
[R]evenue collections must exceed the total of the revenue targets
stated in the Budget for Expenditures and Sources of Financing (BESF)
before expenditures under the Unprogrammed Fund can be made. 43
(Citation omitted)
Concurring Opinion
15
However, this is not the only special provision for this appropriations
item.
A
Use of savings in programmed funds
for purposes enumerated for Unprogrammed Funds
The article on Unprogrammed Funds is generally the appropriations
item that allows expenditures from income arising from collected revenues
exceeding those targeted. Starting from the General Appropriations Act of
2012, the applicable laws consistently no longer included the clause,
including savings generated from programmed appropriations for the
year, found in the General Appropriations Act of 2011 from the common
first special provision. This manifests the clear intention that none of the
savings from programmed appropriation will be used for any of the
purposes enumerated in the article on Unprogrammed Funds. These
purposes are:
1. Budgetary Support to Government-Owned and/or Controlled
Corporations
2. Strategic Government Reforms
3. Support to Foreign-Assisted Projects
4. General Fund Adjustments
5. Support for Infrastructure Projects and Social Programs
6. Support for Pre-School Education
7. Collective Negotiation Agreement
8. Payment of Total Administrative Disability Pension48
47
48
Rep. Act No. 10147, GAA Fiscal Year 2011, art. XLV. Similar provisions are found in art. XLVI of
Rep. Act No. 10155, GAA Fiscal Year 2012 and art. XLV of Rep. Act No. 10352, GAA Fiscal Year
2013. In the 2014 GAA, the purposes and specific allocations are found in art. [X]LVI, Annex A and
the special provisions are in art. XLVI of Rep. Act No. 10633, GAA Fiscal Year 2014. For FY 2011,
total Unprogrammed Funds authorized was 66.9 B; in 2012, 152.8 B; in 2013, 117.6 B; and in
2014, 139.9.
In the 2012 GAA, only four (4) of the eight (8) purposes enumerated in the 2011 GAA were retained.
The 2012 GAA also introduced two (2) purposes not contemplated in the 2011 GAA. The authorized
purposes in the 2012 GAA were:
1. Budgetary Support to Government-Owned and/or Controlled Corporations
2. Support to Foreign-Assisted Projects
3. General Fund Adjustments
4. Support for Infrastructure Projects and Social Programs
5. Disaster Risk Reduction and Management
Concurring Opinion
16
Thus, apart from the first special provision, the ninth provision states:
9. Use of Income. In case of deficiency in the appropriations for
the following business-type activities, departments, bureaus, offices and
agencies enumerated hereunder and other agencies as may be determined
by the Permanent Committee are hereby authorized to use their respective
income collected during the year. Said income shall be deposited with the
National Treasury, chargeable against Purpose 4 - General Fund
Adjustments, to be used exclusively for the purposes indicated herein or
such other purposes authorized by the Permanent Committee, as may be
required until the end of the year, subject to the submission of a Special
6. Debt Management Program
The 2013 GAA retained the four (4) purposes retained by the 2012 GAA from the 2011 GAA and
reinstated a fifth purpose from the 2011 GAA. It retained one (1) of the two (2) purposes introduced
by the 2012 GAA and introduced two new purposes. The authorized purposes in the 2013 GAA were:
1. Budgetary Support to Government-Owned and/or Controlled Corporations
2. Support to Foreign-Assisted Projects
3. General Fund Adjustments
4. Support for Infrastructure Projects and Social Programs
5. AFP Modernization Program
6. Debt Management Program
7. Payment of Total Administrative Disability Pension
8. Peoples Survival Fund
The 2014 GAA retained all the purposes indicated in the 2013 GAA and added three (3) others. The
authorized purposes in the 2014 GAA were:
1. Budgetary Support to Government-Owned and/or Controlled Corporations
2. Support to Foreign-Assisted Projects
3. General Fund Adjustments
4. Support for Infrastructure Projects and Social Programs
5. AFP Modernization Program
6. Debt Management Program
7. Risk Management Program
8. Disaster Relief and Mitigation Fund
9. Reconstruction and Rehabilitation Program
10. Total Administrative Disability Pension
11. Peoples Survival Fund
Concurring Opinion
17
SOURCE OF
INCOME
________________________
__________________
ENVIRONMENT AND
NATURAL
RESOURCES
National Mapping
and Resource
Information
Authority
FINANCE
Bureau of Customs
FOREIGN AFFAIRS
Office of the
Secretary
JUSTICE
National Bureau of
Investigation
TRANSPORTATION
AND
COMMUNICATIONS
Land Transportation
Office
_______________________
49
PURPOSE
Rep. Act No. 10147, GAA Fiscal Year 2011, art. XLV, Unprogrammed Fund, Special Provision(s)
(compare with provisions in the rest of the GAAs). Exec. Order No. 292 (1987), book VI, ch. 5, sec.
35, contains the procedure for expenditures from Lump Sum Appropriations, thus:
SECTION 35. Special Budgets for Lump-Sum Appropriations.Expenditures from lump-sum
appropriations authorized for any purpose or for any department, office or agency in any annual
General Appropriations Act or other Act and from any fund of the National Government, shall be
made in accordance with a special budget to be approved by the President, which shall include but
shall not be limited to the number of each kind of position, the designations, and the annual salary
proposed for which an appropriation is intended. This provision shall be applicable to all revolving
funds, receipts which are automatically made available for expenditure for certain specific purposes,
aids and donations for carrying out certain activities, or deposits made to cover to cost of special
services to be rendered to private parties. Unless otherwise expressly provided by law, when any
Board, head of department, chief of bureau or office, or any other official, is authorized to appropriate,
allot, distribute or spend any lump-sum appropriation or special, bond, trust, and other funds, such
authority shall be subject to the provisions of this section.
In case of any lump-sum appropriation for salaries and wages of temporary and emergency laborers
and employees, including contractual personnel, provided in any General Appropriation Act or other
Acts, the expenditure of such appropriation shall be limited to the employment of persons paid by the
month, by the day, or by the hour.
Concurring Opinion
18
50
Rep. Act No. 10147, GAA Fiscal Year 2011, art. XLV (compare with similar provisions in GAAs for
2012, 2013, 2014).
The counterpart provision in the 2012 GAA reads:
4. Use of Excess Income. Agencies collecting fees and charges as shown in the FY 2012 Budget
of Expenditures and Sources of Financing (BESF) may be allowed to use their income realized
and deposited with the National Treasury, in excess of the collection targets presented in the
BESF, chargeable against Purpose 3 General Fund Adjustments, to augment their respective
current appropriations, subject to the submission of a Special Budget pursuant to Section 35,
Chapter 5, Book VI of E.O. No. 292; PROVIDED, That said income shall not be used to augment
Personal Services appropriations including payment of discretionary and representation expenses.
Implementation of this section shall be subject to guidelines issued by the DBM.
The counterpart provision in the 2013 GAA reads:
4. Use of Excess Income. Departments, bureaus and offices authorized to collect fees and charges
as shown in the FY 2013 BESF may be allowed to use their income realized and deposited with
the National Treasury, in excess of the collection targets presented in the BESF, chargeable
against Purpose 3-General Fund Adjustments, to augment their respective current appropriations,
subject to the submission of a Special Budget pursuant to Section 35, Chapter 5, Book VI of E.O.
No. 292: PROVIDED, That said income shall not be used to augment Personal Services
appropriations including payment of discretionary and representation expenses.
Implementation of this provision shall be subject to the guidelines issued by the DBM.
The counterpart provision in the 2014 GAA reads:
5. Use of Excess Income. Departments, bureaus and offices authorized to collect fees and charges
as shown in the FY 2014 BESF may be allowed to use their income realized and deposited with
the National Treasury: PROVIDED, That said income shall be in excess of the collection targets
presented in the BESF: PROVIDED, FURTHER, That it shall be chargeable against Purpose 3:
PROVIDED, FURTHERMORE, That it shall only be used to augment their respective current
appropriations during the year: PROVIDED, FINALLY, That said income shall not be used to
augment Personnel Services appropriations including payment of discretionary and representation
expenses.
Releases from said income shall be subject to the submission of a Special Budget pursuant to
Section 35, Chapter 5, Book VI of E.O. No. 292.
Implementation of this provision shall be subject to the guidelines issued by the DBM.
Concurring Opinion
19
Rep. Act No. 10147, GAA Fiscal Year 2011, art. XLV, Special Provision(s)(1).
Concurring Opinion
20
Concurring Opinion
21
Concurring Opinion
22
54
Rep. Act No. 10147, GAA Fiscal Year 2011, art. XLV, Special Provision(s)(11). Similar provisions
are found in art. XLVI of Rep. Act No. 10155, GAA Fiscal Year 2012, art. XLV of Rep. Act No.
10352, GAA Fiscal Year 2013, and art. XLVI of Rep. Act No. 10633, GAA Fiscal Year 2014.
Concurring Opinion
23
(b)
(c)
/'