Republic of the Philippines

Quezon City
Bayan Muna REP. CARLOS
Alyansang Makabayan (BAYAN)
Secretary General RENATO M.
National Chairperson BENJAMIN
VALBUENA, Confederation For
Advancement of Government
Volunteers Against Crime and
PANER, Kilusang Magbubukid ng
Pilipinas (KMP) Secretary General
Secretary General JOAN MAE
Damayang Mahihirap (KADAMAY)
National Chairperson, GLORIA
ARELLANO, and Philippine Heart
Center Employees AssoctionAlliance
- versus -

Case No. _________

Secretary of the Department of
Budget and Management (DBM),


We, the Complainants, are Filipino citizens, taxpayers, and all
of legal age, after having been sworn in accordance with law, hereby
depose and state that:

The Complainants are the following:
i. Carlos Isagani Zarate is the representative from
Bayan Muna Party-list for the 17th Congress, with
office address at Room 210, Northwing Building,
House of Representatives, Quezon City.
ii. Renato M. Reyes, Jr. is the Secretary General
of Bagong Alyansang Makabayan (BAYAN), with
office address at No. 1 Maaralin St., Brgy.
Central, Quezon City.
iii. Benjamin Valbuena is the National Chairperson
of the Alliance of Concerned Teachers (ACT),
with office address at 2nd Floor, Teachers’
Building, Mines corner Dipolog Streets, Vasra,
iv. Ferdinand Gaite is the President of the
Confederation For Unity, Recognition and
Advancement of Government Employees
(COURAGE), with office address at 118 Scout
Rallos, Brgy. Sacred Heart, Quezon City.
v. Dante LA. Jimenez is the Founding
Chairman/President of the Volunteers Against
Crime and Corruption (VACC), with office
address at VACC Unit 610, 6th Floor, Corporate
Center, 131 West Ave., Quezon City.
vi. Mae P. Paner, of the Juana Change Movement,
with residence at 1885A, Asuncion Street,
Santiago Village, Makati City.
vii. Antonio Flores is the Secretary General of the
Kilusang Magbubukid ng Philipinas (KMP), with
office address at 217- B, Alley 1, Road 7, Proj.
6, Quezon City.


viii. Joan Mae Salvador is the Secretary General of
Gabriela, with office address at No. 35 Scout
Delgado Street, Brgy. Laging Handa, Quezon
ix. Gloria G. Arellano is the Natioal Chairperson of
Kalipunan ng Damayang Mahihirap (KADAMAY),
with address at 890 Labano Street, Napicor,
Mangahan, Pasig City.
x. Bonifacio S. Carmona, Jr. Is the President of
the Philippine Heart Center Employees
Association-Alliance of Health Workers, with
address at B32, L4, Harmony Hills II Subd.,
Loma de Gato, Marilao, Bulacan.

The Respondents are the following:
i. Benigno Simeon S. Aquino III was the
President of the Republic of the Philippines from
June 30, 2010 until June 30, 2016. He held office
at the Office of the President, Malacañan Palace
Compound, J. P. Laurel St., San Miguel, Manila.
As private citizen, Respondent Aquino is publicly
known to hold residence at No. 25 Times Street,
West Triangle, Quezon City.
ii. Florencio Abad was the Secretary of the
Department of Budget and Management from
June 30, 2010 until June 30, 2016. He held office
at the Department of Budget and Management,
General Solano St., San Miguel, Manila, which is
his last known address and/or at Basco,

We charge Respondents Benigno Simeon C. Aquino III and
Florencio B. Abad of committing and having committed crimes,
offenses and administrative infractions including but not limited to the
i. For the crime of illegal use of public funds or
property or technical malversation defined
under the Revised Penal Code,1 in relation to

Article 220. Illegal use of public funds or property. — Any public officer who
shall apply any public fund or property under his administration to any public use
other than that for which such fund or property were appropriated by law or
ordinance shall suffer the penalty of prision correccional in its minimum period or

Section 80, Chapter 7, Book VI of Executive
Order 292, which penalizes misuse of
government funds or property,2 for their act of
misappropriating public funds to programs, and
projects, in conspiracy with one another, through
the Disbursement Acceleration Program (DAP).
ii. For the crime of usurpation of legislative
powers defined under the Revised Penal Code3,
for their implementation of the DAP, which
resulted in the diversion of funds appropriated by
the 2011, 2012, and 2013 General Appropriation
Acts (GAA) to programs, activities, and projects
(PAPs) they themselves identified and approved,
from October 2011 to 2016, thereby supplanting
the will of Congress with that of their own and
repealing these GAAs and suspending their
execution with respect to the items affected.
iii. Section 3 (e)4 of Republic Act No. 3019 or the
Anti-Graft and Corrupt Practices Act for causing
undue injury to complainants and the various


a fine ranging from one-half to the total value of the sum misapplied, if by reason
of such misapplication, any damage or embarrassment shall have resulted to the
public service. In either case the offender shall also suffer the penalty of
temporary special disqualification.
If no damage or embarrassment to the public service has resulted, the penalty
shall be a fine from 5 to 50 per cent of the sum misapplied.

Section 80. Misuse of Government Funds and Property.—Any public official
or employee who shall apply any government fund or property under his
administration or control to any use other than for which such fund or property is
appropriated by laws, shall suffer the penalty imposed under the appropriate
penal laws.

Art. 239. Usurpation of legislative powers. — The penalties of prision
correccional in its minimum period, temporary special disqualification and a fine
not exceeding 1,000 pesos, shall be imposed upon any public officer who shall
encroach upon the powers of the legislative branch of the Government, either by
making general rules or regulations beyond the scope of his authority, or by
attempting to repeal a law or suspending the execution thereof.

Section 3. Corrupt practices of public officers. — In addition to acts or
omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
(e) Causing any undue injury to any party, including the Government, xxx

sectors of the public they represent, including the
government, in the discharge of their official
administrative functions through evident bad faith
or gross inexcusable negligence, as a result of
the implementation of the DAP.
iv. Grave Misconduct,5 Conduct Prejudicial to the
Best Interest of the Service,6 and Gross
Dishonesty,7 all emanating from the same facts
and circumstances alleged herein from which the
Respondents’ crimes and offenses arise.
The ultimate facts constituting the elements of technical
malversation, usurpation of legislative powers, graft and corruption,
including administrative issuances which served as the bases for the
DAP; how it served as a mechanism to declare forced savings and
fund programs, activities, and projects (PAPs); and the role of
Respondents Aquino and Abad are amply discussed in Araullo, et al.
v. Aquino et al. (G.R. No. 209287, July 1, 2014 and February 3,
2015)8 (Araullo hereafter),which are hereby adopted and incorporated
as part of this Complaint.

Rosas v. Montor, G.R. No. 204105, October 14, 2015: “Misconduct is defined
as ‘a transgression of some established and definite rule of action, more
particularly, unlawful behavior or gross negligence by a public officer.’ It becomes
grave misconduct when it ‘involves any of the additional elements of corruption,
willful intent to violate the law or to disregard established rules, which must be
established by substantial evidence.’ A person charged with grave misconduct
may be held liable for simple misconduct if the misconduct does not involve any
of the additional elements to qualify the misconduct as grave. The charge of
gross misconduct is a serious charge that warrants the removal or dismissal of a
public officer or employee from service together with the accessory penalties,
such as cancellation of eligibility, forfeiture of retirement benefits, and perpetual
disqualification from reemployment in government service.”

Abos v. Borromeo IV, A.M. No. P-15-3347, July 29, 2015: “Conduct prejudicial
to the best interest of service, on the other hand, is defined by Largo v. Court of
Appeals as any misconduct ‘which need not be related or connected to the public
officers['] official functions [but tends to tarnish] the image and integrity of his/her
public office.’”

Eduarte v. Ibay, A.M. No. P-12-3100, November 12, 2013: “We defined
dishonesty as the disposition to lie, cheat, deceive or defraud; untrustworthiness;
lack of integrity; lack of honesty, probity or integrity in principle; and lack of
fairness and straightforwardness.”

Attached herein is the Certified True Copy of the Main Decision penned by
Justice Bersamin dated July 1, 2014 as ANNEX “A”. Likewise attached herein
is a copy of the Resolution dated February 3, 2015 disposing of the motions for
reconsiderations filed in the case, as ANNEX “B”.

In Governor Enrique T. Garcia, Jr., v. Office of the
Ombudsman, et al.,9 the Supreme Court ruled that the Ombudsman
gravely abused its discretion when it disregarded an Audit
Observation Memorandum (AOM) in ruling that there was no
probable cause for violation of Republic Act No. 3019. This AOM, as
ruled by the Supreme Court in the aforecited case, contained factual
and legal findings as to the presence of the elements of the crime and
the probable guilt of the therein accused public official.
The Ombudsman, the Supreme Court ruled, has the duty to
determine probable cause by taking essential facts and evidence into
consideration—including those already discovered by the COA. It
should also avoid issuing rulings that amount to a patent violation of
the Constitution, law, and existing jurisprudence.10
An AOM of the COA is thus declared sufficient to be a basis for
a finding of probable cause. In the same vein, a decision of the
Supreme Court—which has the force and effect of a law—should
likewise be considered sufficient to hold that the crimes in this charge
have been committed and that Respondents are probably guilty
The High Court in Araullo described DAP’s creation and
implementation under the hands of Respondents Aquino and Abad as
How the Administration’s economic managers conceptualized
and developed the DAP, and finally presented it to the
President remains unknown because the relevant documents
appear to be scarce.
The earliest available document relating to the genesis of the
DAP was the memorandum of October 12, 2011 from Sec.
Abad seeking the approval of the President to implement
the proposed DAP. The memorandum, which contained a list
of the funding sources for P72.11 billion and of the proposed
priority projects to be funded, reads:

G.R. No. 197567, 19 November 2014.




DATE: OCTOBER 12, 2011
Mr. President, this is to formally confirm your
approval of the Disbursement Acceleration Program
totaling P72.11 billion. We are already working with all
the agencies concerned for the immediate execution of
the projects therein.
The memorandum of October 12, 2011 was followed by
another memorandum for the President dated December 12,
2011 requesting omnibus authority to consolidate the
savings and unutilized balances for fiscal year 2011.
Substantially identical requests for authority to pool savings and
to fund proposed projects were contained in various other
memoranda from Sec. Abad dated June 25, 2012,
September 4, 2012, December 19, 2012, May 20, 2013, and
September 25, 2013. The President apparently approved
all the requests, withholding approval only of the proposed
projects contained in the June 25, 2012 memorandum, as
borne out by his marginal note therein to the effect that the
proposed projects should still be “subject to further
In order to implement the June 25, 2012 memorandum, Sec.
Abad issued NBC No. 541 (Adoption of Operational
Efficiency Measure – Withdrawal of Agencies’ Unobligated
Allotments as of June 30, 2012).
As can be seen, NBC No. 541 specified that the unobligated
allotments of all agencies and departments as of June 30,
2012 that were charged against the continuing
appropriations for fiscal year 2011 and the 2012 GAA (R.A.
No. 10155) were subject to withdrawal through the
issuance of negative SAROs, but such allotments could be
either: (1) reissued for the original PAPs of the concerned

agencies from which they were withdrawn; or (2) realigned
to cover additional funding for other existing PAPs of the
concerned agencies; or (3) used to augment existing PAPs
of any agency and to fund priority PAPs not considered in
the 2012 budget but expected to be started or implemented
in 2012. Financing the other priority PAPs was made
subject to the approval of the President. Note here that
NBC No. 541 used terminologies like “realignment” and
“augmentation” in the application of the withdrawn unobligated
Taken together, all the issuances showed how the DAP
was to be implemented and funded, that is — (1) by
declaring “savings” coming from the various departments
and agencies derived from pooling unobligated allotments
and withdrawing unreleased appropriations; (2) releasing
unprogrammed funds; and (3) applying the “savings” and
unprogrammed funds to augment existing PAPs or to
support other priority PAPs.11
On behalf of Aquino and Abad, co-respondents in the Araullo
case, the Office of the Solicitor General filed with the Supreme Court
“Evidence Packets”12 bearing NBC No. 541 as well as other
memoranda and communications13 issued under the DAP throughout
the three years of its implementation. The same are attached to this
complaint. The Evidence Packets included, among others, the
sources of funds brought under the DAP and the uses of such funds
per project or activity pursuant to DAP.14
10. The DAP releases, as found by the Supreme Court, are as
As of 2013, a total of P144.4 billion worth of PAPs were
implemented through the DAP.
Of this amount P82.5 billion were released in 2011 and P54.8
billion in 2012.15

Araullo. Emphases supplied, citations omitted.


Attached herein as ANNEX “C” series.


Attached herein as ANNEX “D” series.


Seventh Evidence Packet, Annex “C-6” herein.


Araullo. Citations omitted.


11. During the hearing16 conducted by the Senate Committee on
Finance on 24 July 2014, Respondent Abad admitted that
Respondent Aquino and he declared under the DAP a total of P237.5
Billion in savings. Under oath, he detailed these forced savings from
2010 to 2013 as well as their sources:
SEN. BINAY. Tapos you mentioned ho na may savings na 237
billion. Puwede ho ba kayong mag-enumerate kung saan galing
itong 237 billion?
MR. ABAD. Well, ang pinakamalaking pinanggagalingan ng
savings ay iyong savings sa personnel, iyong tinatawag
ma [sic] Miscellaneous Personnel Benefit Fund. Nandito ho
sa analysis na ginawa ng Department of Finance.
SEN. BINAY. Ito ho iyong pension and gratuity?
MR. ABAD. Hindi lamang iyon. Iyong pension kasi, isang
bahagi lamang iyan. Ang MPBF, halimbawa, kasi ang ginawa
ho naming patakaran, kung halimbawa mangailangan ang
DepEd ng 40,000 teachers, ang ginagawa namin hinahawakan
muna namin iyong pera kasi ang practice noon, pag binigay mo
lahat iyong pera pero hindi pa sila nag-hire ng—halimbawa,
ang pera, ang sweldo para mula Enero hanggang Disyembre
pero Marso na hindi pa sila nagha-hire, minsan iyong pera nirerealign at ginagamit sa iba. Kaya amin po munang nililikom
iyan at inilalagay sa Miscellaneous Personnel Benefit Fund.17
SEN. BINAY. Iyong retirement ho, kasama din ho dito, tama ho
MR. ABAD. Iba ho iyong pension and guaranty fund. Iba hong
special purpose fund ho iyon. Iba hong special purpose fund
ho iyon, iba pa sa MPBF.
SEN. BINAY. So, magkano ho ang nakuha dito?


Attached herein as ANNEX “E” is an excerpt of the transcript of the said
hearing, which excerpt contain pages 1-6, 116-120.

The Aquino administration, beginning 2012, used the MPBF—a Special
Purpose Fund under the administration of the DBM—to centralize funds for
unfilled and newly created positions for all agencies with the DBM. Respondent
Abad here described the centralization of funds for Teacher I items which are
appropriated in Congress in the MPBF, to be released by DBM to the
Department of Education only upon submission of the latter of proof that the
teaching items will be actually filled.

MR. ABAD. Ito ho. Doon ho sa unreleased personal services,
sa loob ho noong tatlong taon, umabot ho ng hundred—
SEN. BINAY. Secretary, siguro can we do it on a yearly basis?
Actually, katulad noon di ba you said may 237 billion. Ito ho ba
in a span of three years or baka ho puwede ninyong sabihin
kunwari 2011, ilang savings ho iyong nakuha ninyo, 2012,
SEN. BINAY. So, sige ho. Noong 2011, magkano ho iyong
savings na nakuha ninyo? Out of the 237 billion, magkano ho
dito iyong savings and what is the source?
MR. ABAD. Halimbawa ho, iyong unreleased Personal
Services, sa 2010, umabot ho siya ng 36.3 billion; sa 2011,
umabot ho siya ng 35.97 billion; sa 2012, umabot ho siya
ng 42.4 billion; at sa 2013, 31.2 billion.
SEN. BINAY. Ano ho ang total bale?
MR. ABAD. One hundred forty-five point nine seven two
SEN. BINAY. So, kung idi-deduct ho natin sa 237 billion, saan
pa ho hinugot iyong balanse.
MR. ABAD. Iyon naman iba galing sa MOOE iyong sa mga
overhead or support to operations funds. Halimbawa, noong
2010 umabot iyan ng 17.75 billion; noong 2011, 11.8 billion;
noong 2012, 12.6 billion; at noong 2013, 4.1 billion.
At iyong huling pinanggalingan ng savings ay iyong
savings from Capital Outlays at noong 2010, 9.5 billion;
noong 2011, 11.9 billion; noong 2012, 11.74 billion; at
noong 2013, 12.12 billion. So, kung atin pong susumahin
iyong PS, MOOE, Capital Outlay na savings, umabot ho
siya ng 237.507894.18


ANNEX “E”, pages 117-120



In sum, Abad admitted the sources of the DAP as:
























TOTAL 145.972




13. Faced with several petitions assailing the constitutionality of the
DAP, the Supreme Court in July 2014, after conducting oral
arguments and requiring the submission of the parties’ respective
memoranda, promulgated Maria Carolina Araullo, et al. v. Benigno
Simeon Aquino III, through which it declared the DAP as
unconstitutional. Condensed, the Court ruled that “[u]nreleased
appropriations and withdrawn unobligated allotments under the
DAP were not savings, and the use of such appropriations
contravened Section 25(5), Article VI of the 1987 Constitution”
on the following reasons:
“GAAs of 2011 and 2012 lacked valid provisions to
authorize transfers of funds under the DAP; hence,
transfers under the DAP were unconstitutional”
“There were no savings from which funds could be
sourced for the DAP”
“No funds from savings could be transferred under
the DAP to augment deficient items not provided in the
14. The Court also ruled that “[c]ross-border augmentations
from savings were prohibited by the Constitution” and that the
so-called “savings” pooled under the DAP were allocated to
“non-existent programs, activities, or projects” or PAPs that
were not covered by any appropriations in the pertinent GAAs.

The dispositive portion of Araullo reads:
WHEREFORE, 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
16. Upon motions for reconsideration filed by both petitioners and
respondents, the Court promulgated a Resolution dated 3 February
2015 which reiterated the unconstitutionality of the DAP and the legal
bases therefor, only clarifying several matters on good faith:
We do not doubt the existence of the presumptions of “good
faith” or “regular performance of official duty”, yet these
presumptions are disputable and may be contradicted and
overcome by other evidence. Many civil actions are oriented
towards overcoming any number of these presumptions, and a
cause of action can certainly be geared towards such effect.
The very purpose of trial is to allow a party to present evidence
to overcome the disputable presumptions involved.19


Hereinafter, Araullo on reconsideration (2015)


What then are the elements constitutive of the foregoing
charges outlined above and the supporting facts and circumstances
in relation to the pertinent law and jurisprudence that point to
Respondents Aquino and Abad’s liability and responsibility?

The elements of technical malversation are:
a. The offender is a public officer.
b. He or she applies any public fund or property to any
public use other than that for which such fund or
property were appropriated by law or ordinance.
c. The public fund or property misapplied was under his
or her administration.20

18. It should be noted that unlike malversation under Article 217 of
the Revised Penal Code, technical malversation does not require that
the offender be an accountable officer over the funds or property
subject of the malversation. This follows from the plain text of Article
220 and the Court’s ruling in Rolando P. Dela Cuesta v. The
Sandiganbayan and The People of the Philippines.21
19. Jurisprudence also states that neither criminal intent nor good
faith is relevant in technical malversation:
[C]riminal intent is not an element of technical malversation.
The law punishes the act of diverting public property earmarked
by law or ordinance for a particular public purpose to another
public purpose. The offense is mala prohibita, meaning that the
prohibited act is not inherently immoral but becomes a criminal
offense because positive law forbids its commission based on
considerations of public policy, order, and convenience. It is
the commission of an act as defined by the law, and not the
character or effect thereof, that determines whether or not the
provision has been violated. Hence, malice or criminal intent is
completely irrelevant.22

Article 220, Revised Penal Code. Also, L.B. Reyes, The Revised Penal Code,
Book II, 12th ed.

G.R. Nos. 164068-69, 19 November 2013


Arnold James M. Ysidoro v. People of the Philippines, G.R. No. 192330, 14
November 2012.

20. This is also implicit in the text of Article 220, which requires a
diversion of funds or property from an appropriation to a different
purpose, or in other words, from one public use to another. As the
Court has held, the act of an accused in technical malversation, “no
matter how noble or miniscule the amount diverted, constitutes the
crime.”23 Nonetheless, as the diversion involves several billions of
taxpayers’ money, there certainly was no nobility or good faith in such
acts of the Respondents.
21. The first element of technical malversation is undisputed to be
present in this case, for both Respondents Aquino and Abad.
22. A reading of Article 220 reveals that the second element has
three components, namely, (i) the act of misapplication or diversion of
funds is attributable to the respondents, (ii) the fact of diversion, and
(iii) the fact that the funds diverted were already appropriated by law
or ordinance.
23. That DAP is attributable to the Respondents is likewise both of
public knowledge and undisputed, based on (1) admissions before
the Supreme Court during the deliberations for Araullo and before the
public as to their authorship of the DAP24 and (2) documents
submitted to the Court, which were admitted as bases for the ruling
that DAP amounted to an unconstitutional tinkering by the Executive
with funds appropriated by law.
24. Common to the DAP issuances are telltale marks of
Respondents Aquino’s and Abad’s conspiratorial authorship of DAP:
statements such as “this is to formally confirm your
approval of the Disbursement Acceleration Program”;

marginal notes in Aquino’s handwriting;

Aquino’s initials next to several items in some of the
several boxes are marked “APPROVED,” also in Aquino’s
handwriting; and




In numerous public statements including Aquino’s National Address on the
Supreme Court’s decision on DAP, also available at, last accessed on July 6, 2016.

Aquino and Abad’s signatures at the end of each

25. The fact of criminal diversion has already been ruled upon by
the Supreme Court, which described the DAP as a withdrawing and
pooling mechanism for forced savings—that is, “(1) by declaring
‘savings’ coming from the various departments and agencies
derived from pooling unobligated allotments and withdrawing
unreleased appropriations; (2) releasing unprogrammed funds; and
(3) applying the ‘savings’ and unprogrammed funds to augment
existing PAPs or to support other priority PAPs.”25
26. In the first step, Respondents Aquino and Abad, through their
issuances, removed the funds earmarked for several PAPs. In the
third, they diverted the same to other items in the GAAs or to other
PAPs not in the GAAs but which they declared as priority. These
acts constitute criminal diversion, plain and simple, since time
immemorial and even prior to the Araullo ruling.
27. In addition, the cross-border transfers and the funding of
non-existent PAPs, which the Court found as unconstitutional acts
under the DAP, both take for granted the fact of DAP-induced
movement of appropriated funds from one public purpose to another.
28. The third component of the second element requires that the
subject of the technical malversation be earmarked funds.26
29. An examination of the Evidence Packets as well as Respondent
Abad’s admissions before the Senate as to the sources of the DAP
will fully reveal that it targeted legislatively earmarked and
appropriated public funds for withdrawal and diversion. For
instance, the 12 October 2011 memorandum, the “genesis” of the
DAP, lists the sources of the first applications of the DAP:
A. Fund Sources for the Acceleration Program
Fund Sources

FY 2011

30,000 Unreleased Personnel
Services (PS)
appropriations which




De la Cuesta.


Declare as
savings and

Services (PS)

will lapse at the end of
FY 2011 but may be
pooled as savings and
realigned for priority
programs that require
immediate funding
appropriations (slow
moving projects and
programs for
Supported by the GFI

FY 2011


FY 2010


FY 2010


appropriations (slow
moving projects and
programs for
discontinuance) and
savings from Zerobased Budgeting

FY 2011
items for


FY 2011 Agency
Budget items that can
be realigned within the
agency to fund new
disbursing projects
DPWH-3.981 Billion
DA – 2.497 Billion
DOT – 1.000 Billion
DepEd – 270 Million


authorize its
for the 2011

Approve and
authorize its
for the 2011
With prior
approval from
the President
to declare as
savings and
authority to
for priority


30. The Seventh Evidence Packet contains a comprehensive list of
the sources of DAP funds, their proceeds, and the appropriation
laws or General Appropriations Acts which appropriated them.

31. It is obvious from the above list, the Seventh Evidence Packet,
and from similar lists contained in all the issuances that followed the
October 12 memorandum, that Respondents Aquino and Abad
diverted appropriations, that is, portions of the Treasury or
public funds that have been set aside by the legislature for some
public purpose.27
32. It should be noted that Personal Services (PS), Maintenance
and Other Operating Expenses (MOOE), and Capital Outlay (CO)
are allotment classes, meaning they are authorized to be released,
via a general or special appropriations act, from the National
Treasury to certain purposes specified by the legislature. The PS
are “provisions for the payment of salaries, wages and other
compensation (e.g., merit, salary increase, cost-of-living-allowances,
honoraria and commutable allowances) of permanent, temporary,
contractual, and casual employees of the government. The MOOE
refers to “expenditures to support the operations of government
agencies such as expenses for supplies and materials; transportation
and travel; utilities (water, power, etc.) and the repairs, etc.” The CO
refers to appropriations for the purchase of goods and services, the
benefits of which extend beyond the fiscal year and which add to the
assets of the Government, including investments in the capital stock
of GOCCs and their subsidiaries.”28
33. The last element of technical malversation requires that the
public fund or property misapplied be under the administration of
the offender.
34. Respondent Aquino as President entered office after vowing to
faithfully and conscientiously fulfill his duties as Chief Executive,
preserve and defend its Constitution, and execute the laws.29
35. During his term, Respondent Aquino was an accountable
public officer for purposes of a prosecution under Title Seven of the
Revised Penal Code.30 Being the Chief Executive, he was the single
most accountable official responsible for the proper implementation
of all the laws of the land—including the Constitution—and the single
most accountable official during the budget execution stage, most

Section 2 (1), Chapter 1, Book VI of Executive Order 292


Glossary of Terms, usually published as part of the Budget of Expenditures
and Sources of Financing, one of the volumes of the annual General
Appropriations Acts. Also, Section 2 of EO 292.

Section 5, Article VII of the Constitution


Crimes Committed by Public Officers


importantly as regards the General Appropriations Act or the annual
national budget. Furthermore, he is the principal of DBM Secretary
Abad, the one expressly mandated by the Administrative Code to
implement the national budget.
36. On the other hand, Respondent Abad’s authority and
responsibility as the Secretary of Budget and Management were to
exercise the mandate of his Department and to discharge its powers
and functions.31 This mandate is spelled out in Chapter 1, Title XVII
of the Administrative Code:
SECTION 2. Mandate.—The Department shall be
responsible for the formulation and implementation of the
National Budget with the goal of attaining our national
socio-economic plans and objectives.
The Department shall be responsible for the efficient and
sound utilization of government funds and revenues to
effectively achieve our country’s development objectives.
SECTION 3. Powers and Functions.—The Department of
Budget and Management shall assist the President in the
preparation of a national resources and expenditures budget,
preparation, execution and control of the National Budget,
preparation and maintenance of accounting systems
essential to the budgetary process, achievement of more
economy and efficiency in the management of government
operations, administration of compensation and position
effectiveness and review and evaluation of legislative proposals
having budgetary or organizational implications.32

The Court stressed this mandate in Araullo:
c.3. Budget Execution
With the GAA now in full force and effect, the next step is the
implementation of the budget. The Budget Execution Phase
is primarily the function of the DBM, which is tasked to
perform the following procedures, namely: (1) to issue the
programs and guidelines for the release of funds; (2) to prepare
an Allotment and Cash Release Program; (3) to release
allotments; and (4) to issue disbursement authorities.


Section 6, Chapter 2, Book IV of Executive Order No. 292 or the Administrative
Code of the Philippines.

Emphases supplied.


The implementation of the GAA is directed by the
guidelines issued by the DBM.
38. Reading together their Constitutional and legal mandates, it can
be gleaned that Respondents Aquino and Abad were, effectively,
the two people, above of all officers having duties related to the
budget, who have the duty and power of administration over
public funds, most importantly, the annual national budgets. As
Respondent Abad’s principal and the Chief Executive, Respondent
Aquino was ultimately responsible in “the implementation of the
National Budget” and “the efficient and sound utilization of
government funds and revenues.”33
39. Considering the restrictions of the Constitution on transfer of
appropriations and savings, as held by the Court in Araullo,
Respondents Aquino and Abad had absolutely no room to
construe their mandate under EO 292 as ground to supplant their
judgment over that of Congress as to what PAPs will “attain our
national socio-economic plans and objectives” and “effectively
achieve our country’s development objectives.”
40. In other words, the Constitution forbids the Respondents, for
the longest time, unless in restrictively exceptional cases which the
Supreme Court has said do not apply to their acts, to withdraw funds
away from the PAPs decided by Congress—such as the salaries and
bonuses of government employees and the pension of retirees—and
divert them to PAPs of their own choosing—such as roadworks for
Respondent’s Aquino’s home province of Tarlac and additional pork
barrel for legislators.34
41. Therefore, Respondents Aquino and Abad should be
prosecuted for technical malversation, as all the elements thereof are
42. The elements of the crime of usurpation of legislative powers
a. The offender is a public officer.

Sections 2 and 3, Chapter 1, Title XVII of EO 292.


“PDAF (Various Other Local Projects)” and “Various Other Local Projects” are
listed as DAP proceeds in most of the DAP tranches

b. He or she encroaches upon the legislative branch of
the government:
i. by making general rules or regulations beyond
the scope of his or her authority, or
ii. by attempting to repeal a law or suspending the
execution thereof.35
43. As previously stated, the first element is present, against both
Respondents Aquino and Abad.
44. The second element is likewise present, given that the Court
has already ruled as to the fact of withdrawal of funds as “savings”
without compliance with the legal and constitutional requisites. As
categorically stated by the Court, “The withdrawal and transfer of
unobligated allotments and the pooling of unreleased appropriations
were invalid for being bereft of legal support.”36
45. As for the sourcing of DAP funds from “unprogrammed funds”
or the standby appropriations provided in the GAAs for 2011, 2012,
and 2013, the Court said that such use did not comply with the
prerequisites for their release37 and was not for the purposes
specified in these laws.38
46. Each act of withdrawal of funds effectively repealed the
Constitution, and the 2010, 2011, 2012, and 2013 GAAs with respect
a. the items affected, as their funding were illegally
b. the definition of savings and augmentation provided by
these GAAs;
c. the period of availability of appropriations:
i. two years for MOOE and CO under the 2011
GAA and

Reyes, Luis B., The Revised Penal Code, Book II, 13th ed., 1997, p. 406




The Araullo 2014 Decision and 2015 Resolution. Chief of these requisites is
that unprogrammed funds may only be released upon proof that the aggregate
revenue collection has already exceeded the aggregate revenue target.

The Araullo 2014 Decision



ii. one year for all allotment classes in the 2013
the provisions of the GAAs on the use of
unprogrammed funds;
the constitutional prohibition on transfer of
the constitutional prohibition on cross border transfers;
the constitutional prohibition on funding non-existent
among others.

47. It must be clarified that while the Court declared that the
President can adopt and implement the DAP as a program or an
administrative system of prioritizing spending, and that in that sense,
“the Executive did not usurp the power vested in Congress under
Section 29(1), Article VI of the Constitution,”39 it drew the line
between the DAP as a program and the unconstitutional acts
Respondents Aquino and Abad committed thereunder, namely
the acts mentioned in the dispositive portion of Araullo.
48. A program or an administrative system of prioritizing spending
CANNOT BE a license to commit Technical Malversation, Usurpation
of Legislative Powers, among other crimes or offenses, Grave
Misconduct, Conduct Prejudicial to the Best Interest of the Service
and Gross Dishonesty and to violate Section 3(e) of Republic Act No.
3019. Acts or omissions that constitute the elements of these and
other crimes and offenses cannot be subsumed under and justified by
a program or an administrative system of prioritizing spending.
49. It should also be stressed that the Court made no finding on the
good faith of Respondents Aquino and Abad, or lack thereof, as
clarified in the February 2015 Resolution in the Araullo case. Indeed,
no such finding can be had by the Supreme Court during a certiorari
case for constitutionality, as good faith is a non-issue in such a
proceeding and a matter of fact to be declared as proven only after
trial by a court of competent jurisdiction.
50. Hence, Respondents Aquino and Abad should be prosecuted
for usurpation of legislative powers, as all the elements thereof are





51. As Respondent Abad admitted, the bulk or around 61.5% of the
total “savings” declared under the DAP were funds for Personnel
Services. This means that funds meant for new plantilla positions in
government; salaries, benefits, and bonuses; retirement pension, and
others were illegally diverted to the PAPs that he and Respondent
Aquino identified and approved.
52. In the concrete sense, the DAP reduced the funds intended
for the salaries and benefits of government personnel—for three
years and to the tune of P145.972 Billion. The DAP slashed the
funds that could have been spent to hire teachers, nurses, doctors,
and other personnel who could have aided in the delivery of
government service, and who could have eased the workload of
those already in the civil service.
53. In addition, damage to the public service proceeds from the
mere fact of violation of separation of powers and the unlawful
diminution of funds for the PAPs declared by Congress as
necessary for public service and national development.
54. There is therefore enough ground to find damage resulting to
the public service, which will warrant the higher fine of 50% to
100% of the funds subjected to technical malversation.
55. The following are the essential elements of violation of Sec. 3
(e) of RA 3019:
1. The accused must be a public officer discharging
administrative, judicial or official functions;
2. He must have acted with manifest partiality, evident bad faith or
inexcusable negligence; and
3. That his action caused any undue injury to any party, including
the government, or giving any private party unwarranted
benefits, advantage or preference in the discharge of his

Consigna vs. PP, GR No. 175750-51, April 2, 2014


56. Again, the first element obtains in this case. It is settled that, for
the period alleged herein, Respondents Aquino and Abad discharged
official and administrative functions, being the main authors and
implementors of the DAP. For one, they signed and implemented the
DAP memoranda on their authority as President and budget
57. The second element likewise obtains herein. The acts of
Respondents Aquino and Abad, as enumerated and exhaustively
discussed in Araullo, expose their evident bad faith or inexcusable
58. It should be stressed that Aquino already knew beforehand
that his acts of tinkering with the annual GAAs and fiscal
dictatorship are contrary to the Constitution and a grave sin to the
principles of separation of powers, transparency, and good
governance. To quote from his own Explanatory Note in Senate Bill
312141 which Respondent Aquino filed in 2009:
[A]s the “power of the sword” belongs to the President,
“the power of the purse” resides in Congress.
In practice however, the President still wields
considerable control over public spending through the
exercise of budget impoundment.
x x x [T] presidential prerogative has been misused and
abused, and has emasculated Congress’ authority to
check the President’s discretionary power to spend public
funds. In effect, the President seems to a have a vast
and unbridled control over the national budget.
This bill seeks to increase congressional oversight and to
limit executive influence over specific appropriations in
the General Appropriations Act.

59. While his Explanatory Note mentions only impoundment, his bill
as a whole sought to control rescission, reservation, and deferral of
releases, all of which are similar to the unconstitutional acts
committed through the DAP.
60. At the very least, Respondents Aquino and Abad, who had
been top government officials for decades already at the time that

Attached herein as ANNEX “F”.


they authored and implemented the DAP, cannot feign ignorance of
the illegality of their acts.
61. Finally, the acts of Respondents Aquino and Abad, have
caused undue injury to the public service, as discussed above.
62. Being the authors and implementors of DAP, Respondents
Aquino and Abad cannot raise the presumption of regularity in the
performance of official functions in light of the conclusive and clear
clarificatory confirmation or affirmation by the Supreme Court in
Araullo that the implementation of DAP contravened the Constitution
and the various GAAs. This presumption has thus been clearly
rebutted by Araullo and there can no longer be any doubt as to the
unlawfulness and illegality of Respondent’s acts.
63. Respondent Aquino could neither raise the defense of good
faith. As discussed in the preceding section, Aquino’s full awareness
of the unconstitutionality and illegality of the acts he and
Respondent Abad were committing in a span of three years is evident
from a bill that he filed when he was still a senator. On 4 March
2009, he filed Senate Bill No. 312142 entitled The Budget
Impoundment Control Act, which sought to prohibit the rescission,
reservation, or deferral of releases, all of which were implemented in
some form or another under the DAP.
64. In Senate Bill No. 3121, he labeled these actions, which were
prevalent under the watch of his economics teacher, then-President
Gloria Macapagal Arroyo, as “misused and abused, and has
emasculated Congress’ [sic] authority to check the President’s
discretionary power to spend public funds. In effect, the President
seems to have a vast and unbridled control over the national budget.”
65. Clearly, as early as 2009, Respondent Aquino knew of the
illegality and unconstitutionality of this mechanism in the Philippine
66. Respondents have yet to fully account for the diversion of the
already appropriated public funds, and for this they must also be held
criminally and administratively liable. Failure to Render Accounts is




itself a crime under the Revised Penal Code43 and the Government’s
auditing codes. But more importantly, without prejudice to the
IMMEDIATE initiation and filing of the criminal Informations for
Technical Malversation, Usurpation of Legislative Powers and
violation of Section 3(e) of RA 3019 and the decision on the
Respondents’ administrative culpability for Grave Misconduct,
Conduct Prejudicial to the Best Interest of the Service and Gross
Dishonesty, the accounting may yet reveal the Respondents’ OTHER
greater and harsher criminal and administrative liabilities. (Some say
that the DAP was used to finance the destruction of others and the
growth in the careers of some. All these point to the importance of
accounting for the use of the DAP)
67. This complaint is not a debate about the Respondents’
statesmanship and brinkmanship in their administration of the
peoples’ money as accountable and responsible officers. It is about
the pure and simple criminal diversion of public funds that have
already been appropriated, to projects or programs that did not pass
Congress’ power over the purse, which in the process caused undue
hardships and prejudice to the Filipino civil servants and the Filipino
people as a whole. Let us unmask what the Respondents have done
and show to them and other public officers who may wish to follow
their crooked path – that no matter how dense, pompous and
bombastic the words they employ to conceal their nefarious ends,
they will – at the right time especially when the cloak of unbridled
power fades and veil of immunity is shed – be caught, charged,
prosecuted and convicted for the plain and simple criminal acts or
omissions they do.
68. Complainants execute this complaint-affidavit to attest to the
truth of the foregoing and to cause the institution of the corresponding
criminal complaints against Respondents for technical malversation
and usurpation of legislative powers, violation of the Anti-Graft and
Corrupt Practices Act as well as grave misconduct, conduct
prejudicial to the best interest of the service, and gross dishonesty.


Art. 218. Failure of accountable officer to render accounts. Any public
officer, whether in the service or separated therefrom by resignation or any other
cause, who is required by law or regulation to render account to the [Commission
on Audit], or to a provincial auditor and who fails to do so for a period of two
months after such accounts should be rendered, shall be punished by prision
correccional in its minimum period, or by a fine ranging from 200 to 6,000 pesos,
or both.

IN WITNESS WHEREOF, we have hereunto set our hands on
this 8 day of July 2016 in Quezon City.











Subscribed and sworn to before me this 8th day of July 2016 in
Quezon City. This is to certify that the affiants personally appeared
before me and verified that they executed this affidavit-complaint, has
read the same and that the contents thereof are true and correct of
their own knowledge and information and based on the available



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