Republic of the Philippines OFFICE OF THE OMBUDSMAN

Quezon City

HON. TERRY L. RIDON, representing himself and the Kabataan Party-list, VICTOR VILLANUEVA, representing himself and the YOUTH ACT NOW, DYAN FRANCISCO, representing herself and MATANGLAWIN, JEROME FLORES, representing himself and YOUTH ACT NOW-ATENEO DE MANILA UNIVERSITY, MARY JOY CAPISTRANO, representing herself and the Philippine Collegian, NEILL JOHN MACUHA, representing himself and in his capacity as the University of the Philippines Student Regent, EDUARDO GABRAL, representing himself and the KATIPUNAN KONTRA KORUPSYON, ELIZABETH DANIELLE FODULLA, representing herself and the Manila Collegian, APRIL JOY CAMACHO, representing herself and the PUP CATALYST, MICHELLE LADO, representing herself and the YOUTH ACT NOW- UP OPEN UNIVERSITY, VENCER MARI CRISOSTOMO, representing himself and Anakbayan, EINSTEIN RECEDES, representing himself and the Student Christian Movement of the Philippines, CHARLOTTE VELASCO, representing herself and the League of Filipino Students, MARC LINO ABILA, representing himself and the College Editors Guild of the Philippines, SARAH JANE ELAGO, representing herself and National Union of Students of the Philippines, Complainants,

- versus HONORABLE FLORENCIO B. ABAD, in his official capacity as Secretary of the Department of Budget and Management, Respondent. x--------------------------------------x

FOR: Plunder under Republic Act 7080

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COMPLAINT-AFFIDAVIT

COMPLAINANTS TERRY RIDON, VICTOR VILLANUEVA, DYAN FRANCISCO, JEROME FLORES, MARY JOY CAPISTRANO, NEILL JOHN MACUHA, EDUARDO GABRAL, ELIZABETH DANIELLE FODULLA, APRIL JOY CAMACHO, MICHELLE LADO, VENCER MARI CRISOSTOMO, EINSTEIN RECEDES, CHARLOTTE VELASCO, MARC LINO ABILA, SARAH JANE ELAGO, all of legal age, Filipino, hereby depose and state that:

NATURE OF THE CASE

1. The instant case is a complaint against the Honorable Florencio

B. Abad, for the systematic plunder of government resources during his time

as Secretary of the Department of Budget and Management.

COMPLAINANTS

2. The following are the Complainants in this case:

a. HON. TERRY L. RIDON, representing himself and in his

capacity as National President of Kabataan Party-list, a duly-elected party-

list representing the youth sector in the House of Representatives;

b. VICTOR VILLANUEVA, representing himself and in his

capacity as National Convenor of YOUTH ACT NOW, a nationwide alliance

of youth and student groups against the pork barrel;

c. DYAN FRANCISCO, representing herself and

MATANGLAWIN, a student publication of the Ateneo de Manila University;

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d. JEROME FLORES, representing himself and in his capacity

as convenor of YOUTH ACT NOW- ATENEO DE MANILA UNIVERSITY

chapter;

e. MARY JOY CAPISTRANO, representing herself and the

Philippine Collegian, the official student publication of the University of the

Philippines-Diliman;

f. NEIL JOHN MACUHA, representing himself and in his capacity

as the University of the Philippines Student Regent;

g. EDUARDO GABRAL, representing himself and in his capacity

as convenor of KATIPUNAN KONTRA KORUPSYON, an anti-pork barrel

alliance composed of students of the University of the Philippines, Miriam

College, and the Ateneo de Manila University;

h. ELIZABETH DANIELLE FODULLA, representing herself and

the Manila Collegian, the official student publication of the University of the

Philippines-Manila;

i. APRIL JOY CAMACHO, representing herself and the PUP

CATALYST, the official student publication of the Polytechnic University of

the Philippines;

j. MICHELLE LADO, representing herself and the YOUTH ACT

NOW- UP OPEN UNIVERSITY chapter;

k. VENCER MARI CRISOSTOMO, representing himself and as

National Chairperson of Anakbayan;

l. EINSTEIN RECEDES, representing himself and as

Spokesperson of Student Christian Movement of the Philippines,

m. CHARLOTTE VELASCO, representing herself and as

spokesperson of the League of Filipino Students;

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n. MARC LINO ABILA, representing himself and as National

President of the College Editors Guild of the Philippines,

o. SARAH JANE ELAGO, representing herself and as National

President of the National Union of Students of the Philippines;

3. The aforementioned complainants may be reached and

served with processes by this Honorable Office through the Office of Cong.

Terry L. Ridon, at Room 616, North Wing, House of Representatives,

Batasan Hills, Quezon City.

RESPONDENT

4. RESPONDENT FLORENCIO B. ABAD is a public official

currently serving as the Secretary of the Department of

Budget and Management.

FACTUAL BASIS FOR PLUNDER

A. RESPONDENT, IN CONNIVANCE WITH OTHER

GOVERNMENT OFFICIALS, SYSTEMATICALLY

MISAPPROPRIATED, CONVERTED, MISUSED, AND

MALVERSED PUBLIC FUNDS THROUGH THE

DISBURSEMENT ACCELERATION PROGRAM (DAP).

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5. On July 1, 2014, the Supreme Court of the Philippines

promulgated a decision in the consolidated petitions of

Araullo, et al. vs. Aquino, et al., G.R. No. 209287, Syjuco

vs. Abad, G.R. No. 209135, Luna vs. Abad, et al., G.R. No.

209136, Villegas vs. Ochoa, et al., G.R. No. 209155,

PHILCONSA, et al. vs. Department of Budget and

Management, et al., G.R. No. 209164, IBP vs. Abad, G.R.

No. 209260, Belgica, et al. vs. Aquino, et al., G.R. No.

209442, COURAGE, et al. vs. Aquino, et al., G.R. No.

209517, and VACC vs. Ochoa, et al., G.R. No. 209569.

6. The said petitions assailed the constitutionality of the

Disbursement Acceleration Program (DAP), National

Budget Circular (NBC) No. 541, and related issuances of

the Department of Budget and Management implementing

the DAP.

7. In its resolution of the consolidated petitions, the Supreme

Court, through Associate Justice Lucas P. Bersamin,

declared as illegal and unconstitutional, for being in

violation of Section 25(5), Article VI of the 1987 Constitution

and the doctrine of separation of powers, the following acts

and practices under the DAP, NBC No. 541, and related

executive issuances:

a. The withdrawal of unobligated allotments from the

implementing agencies, and the declaration of the

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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.

8. Further, the Court declared 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.

9. It should be noted that the DAP, which was ostensibly a

program designed to promote economic growth by way of

accelerated government spending, is the brainchild of

herein respondent, having been conceptualized,

developed, and implemented by him during his term as

Secretary of the Department of Budget and Management

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under the current administration of President Benigno S.

Aquino III.

10. As observed by the Supreme Court in the aforementioned

decision dated 1 July 2014 (attached integrally to this

complaint as Annex A), 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.1

11. In addition to various subsequent memoranda to the

President seeking authority to pool savings and fund

proposed projects under the DAP, respondent issued NBC

No. 541 on July 18, 2012, which was likewise declared

illegal and unconstitutional by the Supreme Court.2

12. At this juncture, it is important to note that in ruling on the

unconstitutionality of DAP, the Supreme Court extensively

discussed the doctrine of operative fact, which recognizes

the existence of the law or executive act prior to the

determination of its unconstitutionality as an operative fact

that produced consequences that cannot always be

erased, ignored or disregarded. However, the Supreme

Court also noted that the doctrine of operative fact only

covers programs, activities, and projects (PAPs) that can

1Araullo, et al. vs. Aquino, et al., G.R. No. 209287. 2 Supra.

8

no longer be undone, and whose beneficiaries relied in

good faith on the validity of the DAP, but cannot apply to

the authors, proponents and implementors 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.3 (Emphasis added.)

13. In his Separate Opinion on the DAP ruling (attached to this

petition as Annex B), Associate Justice Arturo Brion

further elucidated that respondent Abad may in fact

established the DAP knowingly aware that it is tainted with

unconstitutionality. Justice Brion stated his observations,

to wit

As a lawyer and with at least 12 years of experience behind him as a

congressman who was even the Chairman of the House

Appropriations Committee, it is inconceivable that he did not know the

illegality or unconstitutionality that tainted his brainchild. Consider,

too, in this regard that all appropriation, revenue and tariff bills

emanate from the Lower House so that the Chair of the Appropriations

Committee cannot but be very knowledgeable about the budget, its

processes and technicalities. In fact, the Secretary likewise knows

budgeting from the other end, i.e., from the user end as the DBM

Secretary. Armed with all these knowledge, it is not hard to

believe that he can run circles around the budget and its

3 ANNEX A. Araullo, et al. vs. Aquino, et al., G.R. No. 209287.

9

processes, and did, in fact, purposely use this knowledge for the

administrations objective of gathering the very sizeable funds

collected under the DAP.4 (Emphasis added)

14. It should also be noted that Janet Lim-Napoles, in an

affidavit dated May 12, 2014 submitted to the Department

of Justice (DOJ) (integrally attached to this petition as

Annex C), has claimed that respondent was her mentor,

having taught her how to use non-government

organizations (NGOs) in maximizing her earnings in

transactions involving the Priority Development Assistance

Funds (PDAF) of lawmakers.

15. In the said sworn affidavit, Napoles stated, to wit

Around 2000, I was introduced to then Congressman Florencio Abad

by Mr. Manuel Jarmin. We met at the Japanese Restaurant in Edsa

Shangri-la Plaza Hotel. In that meeting, he told me about a project

worth 10 million pesos. He showed me the Special Allotment Release

Order (SARO) then explained to me what it was for. Before the

meeting ended, I handed him Php 2 Million Pesos. When the Notice

of Cash Allocation (NCA) was released, I gave him another Php 2

Million Pesos. Afterwards, when we talked about the implementation,

he asked me if I had an NGO. When I told him I did not have an NGO,

he told me he would take care of it. From what I recall, he used

4 Araullo, et al. vs. Aquino, et al., G.R. No. 209287 (Brion, J., concurring and dissenting).

10

Batanes Electric Cooperative to implement the project. After some

time, he returned the Php 4 Million Pesos I gave him with an added

Php 2 Million Pesos more. That is when I started to transact using

the PDAF.5

16. There have also been reports that Napoles was likewise a

recipient of DAP funds, through projects undertaken by her

NGOs which were funded by realigned and augmented

disbursements under the DAP.

17. The scope of respondents transgressions against the

public treasury is staggering. As noted by the Supreme

Court:

As of 2013, a total of P144.4 billion worth of PAPs

(projects, activities, or programs) were implemented

through the DAP. Of this amount, P82.5 billion were

released in 2011 and P54.8 billion in 2012.

x x x

The records show, indeed, that funds amounting to

P143,700,000.00 and P250,000,000.00 were transferred

under the DAP respectively to the COA and the House of

Representatives.6

5 Lim-Napoles, Janet. May 12th 2014 Affidavit, Annex C, p. 5. 6 Araullo, et al. vs. Aquino, et al., G.R. No. 209287.

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18. Under the direction and leadership of respondent,

hundreds of billions of pesos in public funds were

systematically misappropriated, converted, misused, and

malversed through the DAP.

THE CHARGE

19. Under Republic Act 7080, Plunder is committed as follows:

d. By any public officer who, by himself or in connivance with

members of his family, relatives by affinity or consanguinity,

business associates, subordinates or other persons;

e. The offender amasses, accumulates or acquires ill-gotten

wealth, defined as any asset, property, business enterprise or

material possession, directly or indirectly through dummies,

nominees, agents, subordinates and/or business associates;

f. The offense is committed through a combination or series of

overt criminal acts, to wit:

i. Through misappropriation, conversion, misuse, or

malversation of public funds or raids on the public

treasury;

ii. By receiving, directly or indirectly, any commission, gift,

share, percentage, kickbacks or any other form of

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pecuniary benefit from any person and/or entity in

connection with any government contract or project or by

reason of the office or position of the public officer

concerned;

iii. By the illegal or fraudulent conveyance or disposition of

assets belonging to the National Government or any of

its subdivisions, agencies or instrumentalities or

government-owned or -controlled corporations and their

subsidiaries;

iv. By obtaining, receiving or accepting directly or indirectly

any shares of stock, equity or any other form of interest

or participation including promise of future employment

in any business enterprise or undertaking;

v. By establishing agricultural, industrial or commercial

monopolies or other combinations and/or implementation

of decrees and orders intended to benefit particular

persons or special interests; or

vi. By taking undue advantage of official position, authority,

relationship, connection or influence to unjustly enrich

himself or themselves at the expense and to the damage

and prejudice of the Filipino people and the Republic of

the Philippines.

g. The aggregate amount or total value of at least Fifty Million

Pesos (P50,000,000.00).

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20. All the elements of Plunder exist in the instant case.

21. First, the Respondent is a public official currently serving

as the Secretary of the Department of Budget and

Management.

22. Second, the Respondent systematically misappropriated,

converted, misused, and malversed public funds through

his executive issuances and the programs implemented by

him as Secretary of the Department of Budget and

Management.

23. Third, the aggregate amount of plundered funds exceed

Fifty Million Pesos, amounting to no less than One Hundred

Forty Four Point Four Billion Pesos (P144,400,000,000.00)

as of 2013.

24. Fourth, the offense is committed through a combination or

series of overt acts as follows:

a. The misappropriation, conversion, misuse or malversation of

public funds, together with other government officials, through

the DAP, by illegally realigning and augmenting the budgets for

various projects implemented by different departments of the

Executive Branch, in violation of the relevant General

Appropriations Acts.; and

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b. The misappropriation, conversion, misuse or malversation of

public funds, together with other government officials, by

illegally transferring funds under the DAP to the COA and the

House of Representatives, in violation of Section 25(5), Article

VI of the 1987 Constitution.

INDIVIDUAL ACTS RE-PLEADED AS CAUSE FOR INDICTMENT FOR

VIOLATION OF THE ANTI-GRAFT AND CORRUPT PRACTICES ACT

AND RELEVANT PROVISIONS OF THE REVISED PENAL CODE

25. In the alternative, the above-described individual acts

indicative of the overall scheme or conspiracy to commit

plunder are likewise re-pleaded for the purpose of charging

the Respondent for violation of the relevant provisions of

the Anti-Graft and Corrupt Practices Act, the Code of

Conduct and Ethical Standards for Public Officials and

Employees, and the Revised Penal Code.

26. We are executing the instant Complaint Affidavit in order to

charge the Respondent for Violation of R.A. No. 7080 or, in

the alternative, the Anti-Graft and Corrupt Practices Act, the

Code of Conduct and Ethical Standards for Public Officials

and Employees, and the Revised Penal Code.

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IN WITNESS WHEREOF, we have signed this complaint-affidavit this day

of 8 July 2014 in Quezon City, Philippines.

HON. TERRY RIDON VICTOR VILLANUEVA

Affiant Affiant

NEILL JOHN MACUHA DYAN FRANCISCO

Affiant Affiant

JEROME FLORES MARY JOY CAPISTRANO

Affiant Affiant

ELIZABETH FODULA APRIL JOY CAMACHO

Affiant Affiant

EDUARDO GABRAL VENCER MARI CRISOSTOMO

Affiant Affiant

CHARLOTTE VELASCO EINSTEIN RECEDES

Affiant Affiant

MARC LINO ABILA SARAH JANE ELAGO

Affiant Affiant

MICHELLE LADO

Affiant

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VERIFICATION and Certificate of Non-Forum Shopping

WE, TERRY RIDON, VICTOR VILLANUEVA, DYAN FRANCISCO, JEROME

FLORES, NEILL JOHN MACUHA, EDUARDO GABRAL, MARY JOY

CAPISTRANO, ELIZABETH FODULA, APRIL JOY CAMACHO, MICHELLE

LADO, VENCER MARI CRISOSTOMO, EINSTEIN RECEDES, CHARLOTTE

VELASCO, MARC LINO ABILA, SARAH JANE ELAGO, having been duly sworn

to, in accordance with law, hereby depose that:

1. We are the complainants in the above-entitled case;

2. We have caused its preparation;

3. We have read the contents of this complaint and declare the same

to be true to the best of our knowledge and belief;

4. We have not filed any similar case with any other Court, Tribunal,

Quasi-Judicial body or government agency;

5. If we should learn that a similar action or claim has been filed or is

pending we shall report such fact within five (5) days from the

discovery to this Honorable Office.

SUBSCRIBED AND SWORN TO BEFORE ME this 8 July 2014 at Quezon City

by the following persons who exhibited to me the following ID cards:

AFFIANTS ID TYPE ID NO.

1. Terry Ridon Drivers License N0403000452 2. Victor Villanueva Passport EB3545662 3. Dyan Francisco School ID 114495 4. Jerome Flores School ID 131622 5. Neil John Macuha School ID 2008-03685 6. Eduardo Gabral School ID 2010-78015 7. Mary Joy Capistrano School ID 201078735 8. Elizabeth Fodula School ID 2012-41646 9. April Joy Camacho School ID 2010-00555-MN-O 10. Michelle Lado School ID 2012-81050 11. Vencer Crisostomo Drivers License N0206003943 12. Einstein Recedes TIN ID 286-133-667 13. Charlotte Velasco School ID 2011-05260 14. Marc Lino Abila LPU Alumni Assoc ID 2009-12683 15. Sarah Jane Elago Passport EB3190854

Doc. No. Page No. Book No. Series of 2014.