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Republic of the Philippines

Supreme Court
Baguio City

EN BANC

LAWYERS AGAINST MONOPOLY AND POVERTY (LAMP), represented by its Chairman

G.R. No. 164987

Present: and counsel, CEFERINO PADUA, Members, ALBERTO ABELEDA, JR., ELEAZAR ANGELES, GREGELY FULTON ACOSTA, VICTOR AVECILLA, GALILEO BRION, ANATALIA BUENAVENTURA, EFREN CARAG, PEDRO CASTILLO, NAPOLEON CORONADO, ROMEO ECHAUZ, ALFREDO DE GUZMAN, ROGELIO KARAGDAG, JR., MARIA LUZ ARZAGA-MENDOZA, LEO LUIS MENDOZA, ANTONIO P. PAREDES, AQUILINO PIMENTEL III, MARIO REYES, EMMANUEL SANTOS, TERESITA SANTOS, RUDEGELIO TACORDA, SECRETARY GEN. ROLANDO ARZAGA, Board of Consultants, JUSTICE ABRAHAM SARMIENTO, SEN. AQUILINO

CORONA, C.J., CARPIO, VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ,

PIMENTEL, JR., and BARTOLOME FERNANDEZ, JR., Petitioners,

MENDOZA, SERENO, REYES, PERLAS-BERNABE, JJ.

- versus

THE SECRETARY OF BUDGET AND MANAGEMENT, THE TREASURER OF THE PHILIPPINES, THE COMMISSION ON AUDIT, and THE PRESIDENT OF THE SENATE and the SPEAKER OF THE HOUSE OF REPRESENTATIVES in representation of the Members of the Congress, Respondents.

Promulgated:

April 24, 2012 x ---------------------------------------------------------------------------------------- x

DECISION

MENDOZA, J.:

For consideration of the Court is an original action for certiorari assailing the constitutionality and legality of the implementation of the Priority Development Assistance Fund (PDAF) as provided for in Republic Act (R.A.) 9206 or the General Appropriations Act for 2004 (GAA of 2004). Petitioner Lawyers Against Monopoly and Poverty (LAMP), a group of lawyers who have banded together with a mission of dismantling all forms of political, economic or social monopoly in the country, [1] also sought the issuance of a writ of preliminary injunction or temporary restraining order to enjoin respondent Secretary of the Department of Budget and Management (DBM) from making, and, thereafter, releasing budgetary allocations to individual members of Congress as pork barrel funds out of

PDAF. LAMP likewise aimed to stop the National Treasurer and the Commission on Audit (COA) from enforcing the questioned provision. On September 14, 2004, the Court required respondents, including the President of the Senate and the Speaker of the House of Representatives, to comment on the petition. On April 7, 2005, petitioner filed a Reply thereto.[2] On April 26, 2005, both parties were required to submit their respective memoranda. The GAA of 2004 contains the following provision subject of this petition:
PRIORITY DEVELOPMENT ASSISTANCE FUND For fund requirements of priority development programs and projects, as indicated hereunder 8,327,000,000.00 Xxxxx Special Provision 1. Use and Release of the Fund. The amount herein appropriated shall be used to fund priority programs and projects or to fund the required counterpart for foreign-assisted programs and projects: PROVIDED, That such amount shall be released directly to the implementing agency or Local Government Unit concerned: PROVIDED, FURTHER, That the allocations authorized herein may be realigned to any expense class, if deemed necessary: PROVIDED FURTHERMORE, That a maximum of ten percent (10%) of the authorized allocations by district may be used for procurement of rice and other basic commodities which shall be purchased from the National Food Authority.

Petitioners Position According to LAMP, the above provision is silent and, therefore, prohibits an automatic or direct allocation of lump sums to individual senators and congressmen for the funding of projects. It does not empower individual Members of Congress to propose, select and identify programs and projects to be funded out of PDAF. In previous GAAs, said allocation and identification of projects were the main features of the pork barrel system technically known

as Countrywide Development Fund (CDF). Nothing of the sort is now seen in the present law (R.A. No. 9206 of CY 2004).[3] In its memorandum, LAMP insists that [t]he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the pork barrel system.[4] In other words, [t]he omission of the PDAF provision to specify sums as allocations to individual Members of Congress is a casus omissus signifying an omission intentionally made by Congress that this Court is forbidden to supply.[5] Hence, LAMP is of the conclusion that the pork barrel has become legally defunct under the present state of GAA 2004.[6] LAMP further decries the supposed flaws in the implementation of the provision, namely: 1) the DBM illegally made and directly released budgetary allocations out of PDAF in favor of individual Members of Congress; and 2) the latter do not possess the power to propose, select and identify which projects are to be actually funded by PDAF. For LAMP, this situation runs afoul against the principle of separation of powers because in receiving and, thereafter, spending funds for their chosen projects, the Members of Congress in effect intrude into an executive function. In other words, they cannot directly spend the funds, the appropriation for which was made by them. In their individual capacities, the Members of Congress cannot virtually tell or dictate upon the Executive Department how to spend taxpayers money.[7] Further, the authority to propose and select projects does not pertain to legislation. It is, in fact, a non -legislative function devoid of constitutional sanction,[8] and, therefore, impermissible and must be considered nothing less than malfeasance. The proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, which is the only function given to the Congress by the Constitution. Verily, the power of appropriation granted to Congress as a collegial body, does not include the power of the Members thereof to individually propose, select and identify which projects are to be actually implemented and funded - a function which essentially and exclusively pertains to the Executive Department.[9] By allowing the Members of Congress to receive direct allotment from the fund, to propose and identify projects to be funded and to perform the actual spending of

the fund, the implementation of the PDAF provision becomes legally infirm and constitutionally repugnant. Respondents Position For their part, the respondents[10] contend that the petition miserably lacks legal and factual grounds. Although they admit that PDAF traced its roots to CDF,[11] they argue that the former should not be equated with pork barrel, which has gained a derogatory meaning referring to government projects affording political opportunism.[12] In the petition, no proof of this was offered. It cannot be gainsaid then that the petition cannot stand on inconclusive media reports, assumptions and conjectures alone. Without probative value, media reports cited by the petitioner deserve scant consideration especially the accusation that corrupt legislators have allegedly proposed cuts or slashes from their pork barrel. Hence, the Court should decline the petitioners plea to take judicial notice of the supposed iniquity of PDAF because there is no concrete proof that PDAF, in the guise of pork barrel, is a source of dirty money for unscrupulous lawmakers and other officials who tend to misuse their allocations. These facts have no attributes of sufficient notoriety or general recognition accepted by the public without qualification, to be subjected to judicial notice. This applies, a fortiori, to the claim that Members of Congress are beneficiaries of commissions (kickbacks) taken out of the PDAF allocations and releases and preferred by favored contractors representing from 20% to 50% of the approved budget for a particular project. [13] Suffice it to say, the perceptions of LAMP on the implementation of PDAF must not be based on mere speculations circulated in the news media preaching the evils of pork barrel. Failing to present even an iota of proof that the DBM Secretary has been releasing lump sums from PDAF directly or indirectly to individual Members of Congress, the petition falls short of its cause. Likewise admitting that CDF and PDAF are appropriations for substantially similar, if not the same, beneficial purposes, [14] the respondents invokePhilconsa v. Enriquez,[15] where CDF was described as an imaginative and innovative process or mechanism of implementing priority

programs/projects specified in the law. In Philconsa, the Court upheld the authority of individual Members of Congress to propose and identify priority projects because this was merely recommendatory in nature. In said case, it was also recognized that individual members of Congress far more than the President and their congressional colleagues were likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project. The Issues The respondents urge the Court to dismiss the petition for its failure to establish factual and legal basis to support its claims, thereby lacking an essential requisite of judicial reviewan actual case or controversy. The Courts Ruling To the Court, the case boils down to these issues: 1) whether or not the mandatory requisites for the exercise of judicial review are met in this case; and 2) whether or not the implementation of PDAF by the Members of Congress is unconstitutional and illegal. Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the issue of constitutionality must be the very lis mota of the case.[16] An aspect of the case-or-controversy requirement is the requisite of ripeness. In the United States, courts are centrally concerned with whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another concern is the evaluation of

the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it.[17] In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers. According to LAMP, the practice ofdirect allocation and release of funds to the Members of Congress and the authority given to them to propose and select projects is the core of the laws flawed execution resulting in a serious constitutional transgression involving the expenditure of public funds. Undeniably, as taxpayers, LAMP would somehow be adversely affected by this. A finding of unconstitutionality would necessarily be tantamount to a misapplication of public funds which, in turn, cause injury or hardship to taxpayers. This affords ripeness to the present controversy. Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative or executive action. The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of legal rights susceptible of judicial resolution. For LAMP, this is the right torecover public funds possibly misapplied by no less than the Members of Congress. Hence, without prejudice to other recourse against erring public officials, allegations of illegal expenditure of public funds reflect a concrete injury that may have been committed by other branches of government before the court intervenes. The possibility that this injury was indeed committed cannot be discounted. The petition complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say that there indeed exists a definite, concrete, real or substantial controversy before the Court. Anent locus standi, the rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case such that he has sustained, or will sustained, direct injury as a result of its

enforcement.[18] The gist of the question of standing is whether a party alleges such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.[19] In public suits, the plaintiff, representing the general public, asserts a public right in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other person, and could be suing as a stranger, or as a citizen or taxpayer. [20] Thus, taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional law.[21] Of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid statute.[22] Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers suits is established. Thus, in the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an invalid or unconstitutional law, LAMP should be allowed to sue. The case of Pascual v. Secretary of Public Works[23] is authority in support of the petitioner:
In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. [11 Am. Jur. 761, Emphasis supplied.]

Lastly, the Court is of the view that the petition poses issues impressed with paramount public interest. The ramification of issues involving the unconstitutional spending of PDAF deserves the consideration of the Court, warranting the assumption of jurisdiction over the petition. Now, on the substantive issue. The powers of government are generally divided into three branches: the Legislative, the Executive and the Judiciary. Each branch is supreme within its

own sphere being independent from one another and it is this supremacy which enables the courts to determine whether a law is constitutional or unconstitutional.[24] The Judiciary is the final arbiter on the question of whether or not a branch of government or any of its officials has acted without jurisdiction or in excess of jurisdiction or so capriciously as to constitute an abuse of discretion amounting to excess of jurisdiction. This is not only a judicial power but a duty to pass judgment on matters of this nature.[25] With these long-established precepts in mind, the Court now goes to the crucial question: In allowing the direct allocation and release of PDAF funds to the Members of Congress based on their own list of proposed projects, did the implementation of the PDAF provision under the GAA of 2004 violate the Constitution or the laws? The Court rules in the negative. In determining whether or not a statute is unconstitutional, the Court does not lose sight of the presumption of validity accorded to statutory acts of Congress. In Farias v. The Executive Secretary,[26] the Court held that:
Every statute is presumed valid. The presumption is that the legislature intended to enact a valid, sensible and just law and one which operates no further than may be necessary to effectuate the specific purpose of the law. Every presumption should be indulged in favor of the constitutionality and the burden of proof is on the party alleging that there is a clear and unequivocal breach of the Constitution.

To justify the nullification of the law or its implementation, there must be a clear and unequivocal, not a doubtful, breach of the Constitution. In case of doubt in the sufficiency of proof establishing unconstitutionality, the Court must sustain legislation because to invalidate [a law] based on x x x baseless supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it.[27] This presumption of constitutionality can be overcome only by the clearest showing that there was indeed an infraction of the Constitution, and only when such a conclusion is

reached by the required majority may the Court pronounce, in the discharge of the duty it cannot escape, that the challenged act must be struck down.[28] The petition is miserably wanting in this regard. LAMP would have the Court declare the unconstitutionality of the PDAFs enforcement based on the absence of express provision in the GAA allocating PDAF funds to the Members of Congress and the latters encroachment on executive power in proposing and selecting projects to be funded by PDAF. Regrettably, these allegations lack substantiation. No convincing proof was presented showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend them according to their sole discretion. Not even a documentation of the disbursement of funds by the DBM in favor of the Members of Congress was presented by the petitioner to convince the Court to probe into the truth of their claims. Devoid of any pertinentevidentiary support that illegal misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous Members of Congress, the Court cannot indulge the petitioners request for rejection of a law which is outwardly legal and capable of lawful enforcement. In a case like this, the Courts hands are tied in deference to the presumption of constitutionality lest the Court commits unpardonable judicial legislation. The Court is not endowed with the power of clairvoyance to divine from scanty allegations in pleadings where justice and truth lie.[29] Again, newspaper or electronic reports showing the appalling effects of PDAF cannot be appreciated by the Court, not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence.[30] Hence, absent a clear showing that an offense to the principle of separation of powers was committed, much less tolerated by both the Legislative and Executive, the Court is constrained to hold that a lawful and regular government budgeting and appropriation process ensued during the enactment and all throughout the implementation of the GAA of 2004. The process was explained in this wise, in Guingona v. Carague:[31]
1. Budget preparation. The first step is essentially tasked upon the Executive Branch and covers the estimation of government revenues, the determination of budgetary priorities and activities within the constraints imposed by available revenues and

by borrowing limits, and the translation of desired priorities and activities into expenditure levels. Budget preparation starts with the budget call issued by the Department of Budget and Management. Each agency is required to submit agency budget estimates in line with the requirements consistent with the general ceilings set by the Development Budget Coordinating Council (DBCC). With regard to debt servicing, the DBCC staff, based on the macro-economic projections of interest rates (e.g. LIBOR rate) and estimated sources of domestic and foreign financing, estimates debt service levels. Upon issuance of budget call, the Bureau of Treasury computes for the interest and principal payments for the year for all direct national government borrowings and other liabilities assumed by the same. 2. Legislative authorization. At this stage, Congress enters the picture and deliberates or acts on the budget proposals of the President, and Congress in the exercise of its own judgment and wisdom formulates an appropriation act precisely following the process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law. xxx 3. Budget Execution. Tasked on the Executive, the third phase of the budget process covers the various operational aspects of budgeting. The establishment of obligation authority ceilings, the evaluation of work and financial plans for individual activities, the continuing review of government fiscal position, the regulation of funds releases, the implementation of cash payment schedules, and other related activities comprise this phase of the budget cycle. 4. Budget accountability. The fourth phase refers to the evaluation of actual performance and initially approved work targets, obligations incurred, personnel hired and work accomplished are compared with the targets set at the time the agency budgets were approved.

Under the Constitution, the power of appropriation is vested in the Legislature, subject to the requirement that appropriation bills originate exclusively in the House of Representatives with the option of the Senate to propose or concur with amendments.[32] While the budgetary process commences from the proposal submitted by the President to Congress, it is the latter which concludes the exercise by crafting an appropriation act it may deem beneficial to the nation, based on its own judgment, wisdom and purposes. Like any other piece of legislation, the appropriation act may then be susceptible to objection from the branch tasked to implement it, by way of a Presidential veto. Thereafter, budget execution comes under the domain of the Executive branch which deals with the operational aspects of the cycle including the

allocation and release of funds earmarked for various projects. Simply put, from the regulation of fund releases, the implementation of payment schedules and up to the actual spending of the funds specified in the law, the Executive takes the wheel. The DBM lays down the guidelines for the disbursement of the fund. The Members of Congress are then requested by the President to recommend projects and programs which may be funded from the PDAF. The list submitted by the Members of Congress is endorsed by the Speaker of the House of Representatives to the DBM, which reviews and determines whether such list of projects submitted are consistent with the guidelines and the priorities set by the Executive.[33] This demonstrates the power given to the President to execute appropriation laws and therefore, to exercise the spending per se of the budget. As applied to this case, the petition is seriously wanting in establishing that individual Members of Congress receive and thereafter spend funds out of PDAF. Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld inPhilconsa. This remains as valid case law. The Court sees no need to review or reverse the standing pronouncements in the said case. So long as there is no showing of a direct participation of legislators in the actual spending of the budget, the constitutional boundaries between the Executive and the Legislative in the budgetary process remain intact. While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress. Again, all presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt; that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency

of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted.[34] There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately, the petition must fail based on the foregoing reasons. WHEREFORE, the petition is DISMISSED without pronouncement as to costs.

SO ORDERED.

JOSE CATRAL MENDOZA Associate Justice

WE CONCUR:

RENATO C. CORONA Chief Justice

ANTONIO T. CARPIO JR. Associate Justice

PRESBITERO J. VELASCO, Associate Justice

TERESITA J. LEONARDO-DE CASTRO Associate Justice

ARTURO D. BRION Associate Justice

DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice

MARIANO C. DEL CASTILLO Associate Justice

ROBERTO A. ABAD Associate Justice

MARTIN S. VILLARAMA, JR. Associate Justice

JOSE PORTUGAL PEREZ Associate Justice

MARIA LOURDES P. A. SERENO Associate Justice

BIENVENIDO L. REYES Associate Justice

ESTELA M. PERLAS-BERNABE Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

RENATO C. CORONA Chief Justice

[1]

Rollo, p. 7.

[2] [3]

Id. at 113-117. Id. at 9. [4] Id. at 10. [5] Id. at 163. [6] Id. at 152. [7] Id. at 154. [8] Id. [9] Id. at 156. [10] The Office of the Solicitor General entered its appearance and filed a Comment for the Secretary of the Department of Budget and Management, Treasurer of the Philippines and Commission on Audit, while then Speaker of the House of Representatives, Jose De Venecia Jr. filed his separate Comment dated January 6, 2005. [11] Rollo, p. 66. [12] Id. at 62. [13] Id. at 149. [14] Id. at 67. [15] G.R. No. 113888, August 19, 1994, 235 SCRA 506. [16] Senate of the Philippines v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1, 35. [17] Lozano v. Nograles, G.R. Nos. 187883, and 187910, June 16, 2009, 589 SCRA 356, 358, citing Guingona Jr. v. Court of Appeals, 354 Phil. 415, 427-428.
[18]

People v. Vera, 65 Phil. 56, 89 (1937). Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400, 434. [20] David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485, 171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160. [21] Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding Judge, RTC of Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470. [22] People v. Vera, 65 Phil. 56, 89 (1937). [23] 110 Phil. 331, 342-343 (1960). [24] Separate Opinion, Joker P. Arroyo v. HRET and Augusto l. Syjuco, Jr., 316 Phil. 464 (1995). [25] Tanada v. Angara, 338 Phil. 546, 575 (1997). [26] 463 Phil. 179, 197 (2003). [27] Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14, 2008, 562 SCRA 251. [28] Drilon v. Lim, G.R. No. 112497, August 4, 1994, 235 SCRA 135. [29] Dissenting Opinion, The Board of Election Inspectors et al. v. Edmundo S. Piccio Judge of First Instance of Leyte at Tacloban, and Cesario R. Colasito, G.R. No. L-1852, October 14, 1948/ September 30, 1948. [30] Lim v. Hon. Executive Secretary, 430 Phil. 555, 580 (2002). [31] 273 Phil. 443, 460, (1991). [32] 1987 Constitution, Article 6 Sections 24 and 29 (1). [33] Rollo, p. 98. [34] Victoriano v. Elizalde Rope Workers' Union, 158 Phil. 60 (1974).
[19]

Santiago: PDAF transfer to NGOs allowed by law



Written by Tribune Tuesday, 10 September 2013 00:00

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Even Sen. Miriam Defensor-Santiago affirmed yesterday that the law allows the transfer of Priority Development Assistance Fund (PDAF) to non-government or ganizations (NGOs) to contradict an assertion of Commission on Audit (CoA) chairman Grace Pulido Tan in a Blue Ribbon committee hearing on the pork barrel scam that it is illegal for the pork barrel to be transferred to NGOs through implementing agencies. before a national student conference on hotel and restaurant management attended by some 1,000 students from different schools in the country held yesterday said that also just this year, Congress amended a provision in the budget, allowing civil society organizations (CSOs), which is another term used for NGOs, to receive subsequent fund transfers when earlier fund releases, if any, have been fully liquidated, and at least 70 percent of the latest fund transfer availed of by CSOs shall have been liquidated. She said the provision weakened the compliance requirement, which used to call for full liquidation prior to future releases of funds. By introducing the amendment, certain crooks in Congress inserted a phrase that allowed fake NGOs to get more and more pork barrel funds without even liquidating all prior pork barrel funds that they had obtained, she said. She nevertheless said in the case of PDAF transfers to NGOs owned by pork barrel scam brains Janet Lim Napoles, the procedure provided by law has been deliberately ignored, and therefore transfer of public funds to NGOs has been illegal. Santiago pointed out that the transfer of pork barrel funds to NGOs does not appear to follow the rules defined under RA 9184, also known as the Government Procurement Reform Act. More specifically, the transfer of funds appears to have failed to follow the rules under Resolution 12-2007 of the Government Procurement and Policy Board, which is now a provision of the implementing rules and regulations of the Government Procurement Reform Act, Santiago said. Santiago also said NGOs have miserably failed to comply with the requirement that they should have an established track record of service delivery and should be financially stable. She said that it appears that there is no compliance with the rule requiring the submission of audited financial statements for the past three years, stamped received by the BIR, or its duly accredited and authorized institutions, for the immediately preceding current year, showing, among others, its total and current assets and liabilities. Sen. Edgardo Angara underscored the role played by the implementing agencies, as well as the local government units (LGUs) in determining the legitimacy of the NGO that are in receipt of lawmakers PDAF. The first obligation of an implementing agency or LGU is to determine that the beneficiary-NGO is a legitimate (entity). It is their duty, according to the law, because they act as the disbursing officer, Angara said.

Their second duty is to seek liquidation from the NGO. They should require the NGO to submit accounting and liquidation. And their third obligation is to report to the Senate committee on finance and the committee on appropriations in the lower house. Thats the complete cycle of accountability and transparency, Angara, who spent almost two decades at the Senate, explained. The issue on requiring a MoA or a memorandum of understanding (MoU) before any fund transfer can take place between the IA and the NGO-beneficiary is an additional requirement which was adopted in the 2008 or 2009 the general appropriations act (GAA), he pointed out. Santiago said that since the pork barrel is a special purpose fund, the General Provisions of the budget apply both to the special purpose funds and to the regular budgets of line departments. However, the General Provisions on the limitations on transfer of funds to NGOs is intended to impose limitations. The essence of the law is to limit, and not to facilitate, the transfer of funds, Santiago said. Santiago added that Napoles and her NGOs have failed to comply with the conditions of the 2012 budget on the rules and use of funds. The Napoles NGOs and similar syndicated criminal NGOs did not fully liquidate their earlier fund releases, before they availed of new fund transfers from pork barrel funds. It appears that, contrary to the budget requirement, the Senate committee on finance did not receive reports on the fund releases of the NGOs prepared by the government agency concerned, and duly audited by the CoA. Under the budget requirement, it is the responsibility of the government agency head to require a CoA audit, Santiago said. Santiago added that under the Anti-Plunder Act, after preliminary investigation, if the prosecutor decides to file a case in court, lawmakers involved will be automatically suspended from Congress. In the same speech, Santiago explained the controversial question on whether pork is allowed for NGOs: The funds from PDAF are always released to implementing agencies and never to an NGO. An implementing agency consists of a department, an agency, or a local government unit. The choice of NGO, if the law is followed, is subject to competitive bidding or negotiated procurement, she said. Santiago claimed that once the report of the interagency body consisting of the justice secretary, the Ombudsman, and the CoA chairman probing the pork barrel scam is released, at least three senators will be recommended for preliminary investigation. If the prosecutor decides to file the case in court, then the judge would hold a bail hearing, to determine whether evidence of guilt is strong. If so, bail will be denied to the accused, she said. Santiago said that if the prosecutor decides to file the case in court, the senator or representative who is accused of plunder will immediately be suspended from Congress, Under Republic Act No. 7086, also known as the Anti-Plunder Act of 1991, any public officer

facing criminal prosecution that is pending in court, shall be suspended from office. Once the case is filed in court, the first thing that the judge will do will be to conduct a so-called bail hearing to determine if the evidence is strong against the accused, in which case they will not be entitled to bail. If the evidence of guilt is strong, the accused lawmakers will have to stay in jail during the course of the trial, Santiago said. Santiago added that an online version of a popular newspaper carried a suspicious article last Sept. 6 purporting to be news reports that, according to her, twisted the facts to make it appear that she is implicated in the pork barrel scam. The article was removed from the website the same day. Fifty-nine neophyte lawmakers, meanwhile, signed a manifesto expressing their support for the abolition of the PDAF even as they sought an immediate resolution of the investigation on the P10-billion Napoles funds scam. The manifesto read by Camarines Sur Rep. Leni Robredo; Nueva Ecija Rep. Magnolia Antonino Nadres; Batangas Rep. Raneo Abu; and Laguna Rep. Sol Aragones said that they are incensed that the reprehensible actions of the public officials involved in these scams have besmirched the integrity of a number of institutions, including the House of Representatives, and undid years of honest work by their more upright colleagues in the public service. The lawmakers also call on government agencies to exert all efforts to effect the fair and speedy investigation, prosecution and conviction of those responsible for the plunder of the PDAF. Those who are guilty must be held to account, and those who are innocent must be cleared, the manifesto stated.

On Tuesday, October 8, the Supreme Court will begin weighing in on the corruption crisis currently engulfing the country. Rightly so. If there is any issue that needs the intervention of the Supreme Court, the constitutionality of the Priority Development Assistance Fund should be on top of the list. Later I will argue that the same can be said of the Disbursement Acceleration Program (DAP). In both cases, big questions about separation of powers, with implications on public accountability, need to be answered, and in the end, only the Supreme Court can answer them. The 1987 Constitution is very clear about the role of the judiciary in our republic. Article 8, Section 1 states: The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law. The same provision further introduces what scholars have called expanded judicial power of review: 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. Every first year law student knows the provenance of the power of judicial review. We borrowed it from the United States where the Supreme Court in the 1807 case of Marbury vs Madison effectively elevated itself higher, at least in interpreting the Constitution, than the executive and legislative branches. According itself this role of constitutional umpire, according to the US Supreme Court then, was a natural consequence of being the judge of disputes. Chief Justice Marshalls immortal words, which I require my constitutional law students to memorize, are self-explanatory: It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. Final arbiter In 1936, in the case of Angara vs Election Commission, the Philippine Supreme Court speaking through the great Justice Jose P. Laurel (who later became president) defined the power of judicial review in our system. Laurel described the Supreme Court as the final arbiter, effectively checks the other departments in the exercise of its power to determine the law, and hence to declare executive and legislative acts void if violative of the Constitution. He pointed out that the Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government. The overlapping and interlacing of functions and duties between the several departments, however, sometimes makes it hard to say just where one leaves off and the other begins. In times of social disquietude or political excitement, the great landmarks of the Constitution are apt to be forgotten or marred, if not entirely obliterated. In cases of conflict, the judicial department is the only constitutional organ which can be called upon to determine the proper allocation of powers between the several departments and among the integral or constituent units thereof. During the martial law years, President Marcos curtailed this power and shamefully the Court frequently acquiesced by using the doctrine of political questions, i.e., that there

are controversies better left to the political branches of government or to the people to decide and that, in such cases, the Court must stay out of the picture. The Marcos experience is what prompted the 1986 Constitutional Commission to introduce the expanded power of judicial review. The framers, which included former Chief Justice Roberto Concepcion (known for standing up against Marcos in the early days of martial law) and the countrys most prominent constitutionalist Fr. Joaquin Bernas SJ, specifically intended this provision so that the Supreme Court will not shy away from the big questions of the day on the excuse of political questions. This, then, is likely to be the first question that the Supreme Court will tackle in the oral arguments on the PDAF case that has been filed before it. Should it even get involved as this clearly, is a matter involving Congress and the President who have agreed to set up this budgetary mechanism called the PDAF? Is this a policy question that is best left to the political branches or is there a constitutional principle that has been breached in the formulation of the PDAF as well as in its execution? Black-letter law vs operational code This is not the first time that the Supreme Court will look at the constitutionality of the pork barrel. In the case of Philippine Constitution Association v Enriquez, decided in 1994, the Supreme Court concluded that the Countrywide Development Fund (CDF), a fund similar to the PDAF, was constitutional because the authority given to the members of Congress under it was merely recommendatory. In fact, the Court praised The CDF as a way of equalizing the unequal. The impression that legislators only make recommendations was not entirely accurate. We saw this in the anomalies in the CDF exposed by the Philippine Daily Inquirer, which benefited from revelations by the late Marikina Congressman Romeo Candazo. We see that again in the current PDAF scandal where legislators actually meddle with implementation, among others, we know now, by endorsing favored contractors and/or NGOs. As it deliberates on the case before it, the Supreme Court might benefit from the distinction that Professor Michael Reisman of Yale Law School (disclosure: Reisman was my mentor in that school), makes between black-letter law (the official policies, rules and regulations) and the operational code (how things really work). It is likely that the PDAF, as the CDF then, would pass scrutiny if one limited itself to the black letter law. That is the defense of the legislators who have been criminally accused: we were only endorsing NGOs; its the fault of the agencies.

If the operational code were reviewed by looking at actual implementation, and thankfully we have the reports of the Commission on Audit, among others, to do that systematically, the result could be different. For example, is there any legal significance to the fact that endorsements by legislators were required before releases of funds were made? Patronage politics? Even before this recent scam exploded, so many safeguards were already in place, including the Procurement Act or R.A. 9184 and many COA issuances, yet the operators still managed to circumvent them with impunity. Looking at the reasons why this happened might be helpful as the Court decides the case. When the PDAF scam first came to light, I proposed a 3-pronged control-entitlement test for the abolition of the pork barrel or for its authentic reform if it cannot be totally eliminated: (1) How is the project to be decided? Is it solely the legislator's discretion? (2) Is there an entitlement to the fund? In other words, does the legislator believe that s/he has control of the fund? (3) Does the legislator have a say on who implements the project and how it is implemented? That is, can s/he influence who the agency/implementor/contractor will be? A yes answer to these questions means there is no iron wall between the executive and legislative branches of government and that patronage politics lives on. DAP Turning now to the legality of the Disbursement Acceleration Program (DAP), it is clear that the weight of legal opinion is on the side of unconstitutionality. Sen Miriam Santiago, for example, has asserted that the Constitution allows fund transfers, only if there are savings, meaning that the project was completed, and yet the appropriation was not exhausted; but there are no savings if a project was merely deferred. She observed that it appeared that DAP funds were taken from alleged slow-moving projects. If so, no savings were generated, and therefore DAP is illegal. She was seconded by former Sen Joker Arroyo who said that the Disbursement Acceleration Program (DAP) was neither provided for under the General Appropriations Act nor in any of the countrys laws. Professor Benjamin Diokno, a globally recognized budget expert and himself a former budget secretary, has spoken very strongly against the DAP. In a television interview reported on by Rappler, he observed that the realignment of savings to non-existing budget items in the General Appropriations Act resulted in the creation of a budget within a budget without Congressional action.

Rappler reported Diokno as saying, "Ito bastusan eh... Ang ginawa ng executive is that they sliced and diced the budget and repackaged it and came out with a new budget which is P72-billion worth." (What the government did was rude. The executive branch sliced and diced the budget and repackaged it and came out with a new budget which is P72-billion worth.) In the same interview on ANC, Fr Joaquin Bernas agreed with Diokno that savings should only be spent to augment existing line items in the budget. Bernas also identified the enabling conditions for realigning savings. "One, you have to have savings. Two, if these savings are to be transferred, they have to be transferred in the same department." On the other side of the issue, Bernas colleague in the Ateneo Law School, Atty Mel Sta. Maria has a different take on the matter, saying that it is nothing else but the disbursement of funds sourced from savings of a particular item to fund a deficit in another item for the purpose of immediately accomplishing a priority activity. According to Sta. Maria, this makes the DAP legal and constitutional, in his words: The only transfer that cannot be made in this process is a transfer of saved-funds from one great government department to another. Hence, the President cannot transfer executive funds to the judiciary, the judiciary to the executive, the judiciary to the legislature, the legislature to the executive, the executive to the legislature. To do so would be unconstitutional. But within the executive branch, which is composed of so many departments, the President may do so pursuant to the Constitution and the Administrative Code. In fact, the Constitution also explicitly grants the Chief Justice, the Senate President, the Speaker of the House, the head of Constitutional bodies the same powers within their departments. My take I have been asked by many where I stand on this issue, whether I will go with the more senior and famous constitutional minds such as Bernas, Santiago and Arroyo, or with Sta. Marias interpretation. On the case of DAP disbursement decisions made purely by the executive branch, there is a color of legality precisely because the President has the power to realign savings. However, with respect to those DAP disbursements made upon recommendation by senators and other legislators, I will draw the line and conclude that these were illegal. This is consistent with what happened to funds allocated to legislators through the PDAF and explains why again corruption rears its ugly head in such DAP disbursements. This is again because of the inherent fault of the legislators being allowed to cross the line with respect to implementation.

In the case of the PDAF that this was part of the approved budget and the link between legislator and funds was clear this was understandable even if wrong. But in the case of the DAP, there is no rationale at all for allowing the legislators to identify projects. What happened here? Why did the executive department allow this to happen? In this sense, I have come to the conclusion that the DAP overall can be legally defended but what cannot be justified legally, and I think ethically, given the context of the Corona conviction, is allowing the senators to identify even more projects than they already did with their PDAF. That reeks of quid pro quo. I do not think it is criminal bribery but it does not look or smell right. Broken system That we even find ourselves in this debate is symptomatic of how broken our system of government is. It indicates a complete breakdown of controls, which puts into question our very system of government. The virulence of corruption has seriously tainted vital government institutions among others, Congress, executive departments, agencies, government and controlled corporations and local government units. It also puts into question the existing auditing, budgeting processes, procedures and control mechanisms. With cases now being filed, our justice system will also be put to the test. The Pandoras Box has been fully opened. And if the P10-billion Napoles pork barrel and the Malampaya funds scandals are just a tip of the iceberg, chances are, more gargantuan scams involving public funds are waiting to be uncovered. For all the moral anguish and outrage that Filipinos are going through, I see a silver lining here. The pain could have a cathartic effect. Had these scandals not been unearthed, the corrupt would continue with their merry ways, wrecking more serious havoc along the way. But now, the guilty must be quaking in their feet. The fuse ignited by Benhur Luy and the other whistleblowers will definitely result in an explosion that will rack the country to its very foundations. But in the end, it will give us an opportunity to rectify our broken system of governance; and, if we learn from all of this, it is a precious opportunity to correct past mistakes to allow for a better society to emerge. Or we could go off the cliff and never have a chance like this again

Of PDAF and other matters


By Fr. Joaquin G. Bernas S. J. Philippine Daily Inquirer | September 22, 2013 at 9:54 pm
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In 1994, the constitutionality of the pork barrel fund was challenged on the ground of violation of the rule that, although appropriating money is the function of Congress, spending it is the prerogative of the executive branch. The Supreme Court ruled in favor

of the fund. It said that what the law allowed members of Congress to do was simply to recommend projects. If the recommended projects qualified for funding under the Countrywide Development Fund, it was the president who would implement them. The latest Priority Development Assistance Fund is found under the 2013 General Appropriations Act. Its constitutionality is now also being challenged. What defect in the PDAF Law makes it unconstitutional? The law specifies the total amount to be appropriated, identifies the implementing agencies, specifies the individual amounts that can be identified by legislators (P70 million for representatives, P200 million for senators), and identifies the potential recipients. If realignment is needed, the rules for realignment are set in the law pursuant to a constitutional requirement for transfer of funds. A request for release of funds must be supported by required documents and endorsed by the committee on finance of the House or the Senate. The release is made by the identified agencies. The Department of Budget and Management and the respective agencies are responsible for posting the identity of the proponent legislators, the name of the projects, the names of the beneficiaries, the program evaluation and the assessment report, the authorized realignment if any, and procurements made under the fund. Obviously, something went wrong. What went wrong and whose fault was it? We will be waiting for what the Supreme Court will say. Suspension of legislators. The rule on the discipline of members of Congress is found in Article VI, Section 16(3): Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days. Inherent in any legislative body is its power of internal regulation and discipline. As Justice Joseph Story said, If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority. What stands out from the jurisprudence on the subject is that, except for some limitations of detail found in the Constitution itself, there is a clear recognition of the overall autonomy of the legislative body both in the formulation and in the application of its rules. On the question whether a legislators action constitutes disorderly behavior, jurisprudence says that the House is the judge of what constitutes disorderly behavior The theory of separation of powers, fastidiously observed by this Court, demands in such situation a prudent refusal to interfere. On the question of whether a legislator under investigation should voluntarily go on leave, that is for the individual legislator to decide. We should also keep in mind that, like every person, legislators have the constitutional right to be presumed innocent until guilt is proven. Zamboanga problem. In the face of the fighting in Zamboanga City, some people have wondered why the President did not declare a state of emergency. The simple answer is that we are no longer under martial law or the 1973 Constitution, which provided for this extraordinary power of the president: Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is

unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instruction, which shall form part of the law of the land. Now it is Congress that has the power to declare a state of emergency: In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy. Congress has not declared a state of emergency. It is not, however, as if the President were powerless to deal with emergencies. As Commander in Chief of the Armed Forces, the President, in case of rebellion, when public safety requires it, can declare martial law or call on the Armed Forces to suppress lawless violence or rebellion. President Aquino had greater reason than President Arroyo had when she declared martial law in Maguindanao. There clearly was rebellion in Zamboanga City. Martial law could have given him all the emergency powers he might need. But instead he simply exercised his power to call out the Armed Forces to help the police suppress rebellion in Zamboanga; and it seems to be working, even if he did not have to stay in the city!
Antonio Carpio, the most senior justice of the Supreme Court, zeroed in Tuesday on provisions in the General Appropriations Act (GAA) of 2013 and asked whether these can be regarded as unconstitutional. These are: The authority of a lawmaker to identify a project as the recipient of the Priority Development Assistance Fund (PDAF) in the GAA. The delegation by the President to a Cabinet secretary the authority to realign funds. The concurrence of the Senate finance committee and the House appropriations committee to such realignment. At the start of oral arguments on several petitions asking the Supreme Court to overturn three previous rulings upholding the legality of the PDAF, Carpio directed his questions to Alfredo Molo III, lawyer of petitioner Grego Belgica, a defeated senatorial candidate. To all these questions, Molo replied that these provisions in the GAA mentioned by Carpio were unconstitutional. Molo said it was unconstitutional for a lawmaker to identify a project but in this years national budget this was binding and mandatory on the executive department. A legislator, he said, does not represent Congress and for him to identify a project is unconstitutional. This is very simple. On its face, you dont need a COA (Commission on Audit) report. You can declare PDAF unconstitutional because what? In the expenditure of funds, it says the President cant spen d the money without the concurrence of the Senate committee on finance and House committee on appropriation. Thats unconstitutional, correct? Because the GAA has been approved already, Carpio said. That the Cabinet secretary can realign, thats unconstitutional. That the Senate committee and House committee can concur with the realignment, thats unconstitutional. That the legislator can identify a project and thats binding on the executive. Thats unconstitutional, correct? he added. Carpio observed that the Department of Budget and Management (DBM) put in all those provisions in the 2013 GAA because this was the practice in the past, although this was not reflected in the GAA.

At first, they were cognizant that the legislators cant execute the GAA. But they forgot everything now. Thats the problem now. Its riddled with unconstitutionalities. Correct? On its face. You dont need a COA report, Carpio said. The oral arguments, which lasted for 5 1/2 hours, on three petitions questioning the legality of the PDAF came amid widespread indignation on allegations that P10 billion in the congressional pork barrel system went to bogus nongovernment organizations (NGOs) and kickbacks to lawmakers in schemes hatched by detained businesswoman Janet-Lim Napoles. While the issue is being litigated, the court in the meantime suspended the issuance of PDAF funds, to the chagrin of lawmakers who claimed they have nearly 500,000 scholars and thousands of indigent patients dependent on their pork. They pleaded that the court lift this suspension, particularly with the secondsemester enrollment just around the corner. Veto power clipped The hearings will continue on Oct. 10 and 17. The court said it would hold separate oral arguments on the controversial Disbursement Acceleration Program (DAP), an impounding mechanism for government savings, that was used as a source of the P50 million to P100 million in additional pork given to senators, following the conviction of Chief Justice Renato Corona in May last year. Carpio noted that the PDAF also deprived the President of the power to veto the spending items inserted in the lump sum items approved by lawmakers. He said that if a legislator reckoned that the President would veto his spending proposal, the legislator would just simply insert the spending item in his pork, depriving the Chief Executive of his chance to strike this out of the budget. He said this violated the system of checks and balances in a democratic system. Should the court rule the PDAF unconstitutional, Carpio said the pork would revert to the general fund and the only way lawmakers could access this would be through a supplemental budget where the spending items would be reviewed line by line. That is the intention of the framers of the Constitution because the President has a chance to veto an item if he thinks its a waste of government money, said Carpio. Justice Jose Perez observed that the PDAF was unconstitutional by itself because it allowed lawmakers to implement the law after approving it themselves.

Extraordinary situation Justice Marvic Leonen said that the failure of the system had led to an extraordinary situation where the political brancheslegislative and executiveappeared to be together on this and where the judiciary was now compelled to intervene to stop this grave abuse of power. Leonen said that even if the PDAF were declared unconstitutional, it would not end corruption because the lawmakers could still push for their desired projects through congressional insertions. He said it was unfair that the judiciary was given a heavy burden to correct the system. We are not the savior, the Filipino people working through the departments will be the saviors. Everybody needs to work together, Leonen said. Leonen, an Aquino appointee to the high tribunal, sought to expose possible holes in the petitions, specifically asking Molo to clarify whether indeed the President could be impleaded when hes immune from suit. He also wondered why the petitioner questioned PDAF in general, but not specific provisions in the GAA pertaining to PDAF.

Associate Justice Teresita de Castro, for her part, took to task COA chair Grace Pulido-Tan, who appeared during the hearing as an amicus curiae, or friend of the court, for not checking the misuse of p ork barrel over the last several years. Tan apologized and said she came aboard only in 2011. Chief Justice Ma. Lourdes Sereno said the issue before the high court could be political and beyond its purview. We are sensitive to the fact that we are not politicians. There are political solutions, but we have to know if it is time to step in, Sereno said. Systems failure Molo replied that injecting shock into the system could send a strong message that the Supreme Court would enforce boundaries that the legislative and executive branches would no longer be allowed to cross. Sereno expressed astonishment on why, starting with the 2006 national budget, there was a philosophical shift by Congress and the executive branch toward NGOs in implementing the PDAF. She observed that the people were financing the growth of NGOs by channeling funds to them and that the Government Procurement Policy Board resolution was being used as a legal template to farm out projects to NGOs. Is this a systems failure? Sereno asked the COA chair. Tan countered that it was more of a breakdown of controls. We have a systems failure and its too foregone and accountability checks should have been working which was not, Molo added. Molo also agreed that Presidential Decree No. 910, issued by the dictator Ferdinand Marcos in 1976, authorizing the President to use proceeds from the Malampaya gas project off Palawan province for other projects other than energy development, was unconstitutional. Carpio noted that by authorizing the President to use the fund for any purpose, Congress abdicated its power to appropriate. While this was not a problem then because Marcos exercised the powers of both the executive and the legislative deparments, it became a problem when then President Corazon Aquino came to power in 1986, he observed. Under the 1987 Constitution, the President could not use that power anymore with regard to the multibillion-peso Malampaya Fund. When Congress convened, President Aquino lost her legislative power, he said. Carpio asked Molo whether giving the President the power to use the Malampaya Fund for any purpose was unconstitutional. The lawyer replied, On its face, yes. RELATED STORIES: SC Justice: 2013 GAA riddled with unconstitutionalities SC Justice grills COA over failure to check pork abuses

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Senior Associate Justice Antonio Carpio INQUIRER FILE PHOTO

MANILA, PhilippinesThe 2013 General Appropriations Act is riddled with unconstitutionalities, a senior Supreme Court Associate Justice said Tuesday. During the oral argument, Senior Associate Justice Antonio Carpio said legislators as well as the Department of Budget and Management simply put in writing their long time practice in the disbursement of the Priority Development Assistance Fund (PDAF), which, even without a Commission on Audit Report can be considered unconstitutional. Meanwhile, the provision in the 2013 GAA authorizing a lawmaker to identify a project as a recipient of his pork barrel was unconstitutional, a petitioner said in agreement with Carpio. This as well as the provisions authorizing a Cabinet Secretary to realign fund and upon the concurrence of the Senate finance committee and House appropriations committee were unconstitutional, lawyer Alfredo Molo III said. Carpio grilled Alfredo Molo III, lawyer for petitioner Greco Belgica, on the constitutionality of the three provisions. Responding to clear, simple questions from the senior justice, Molo agreed that these provisions in the 2013 GAA were unconstitutional. Associate Justice Marvic Leonen exposed possible holes in the petition, specifically asking Molo to clarify whether indeed the President could be impleaded when hes immune from suit. He also wondered why the petitioner questioned PDAF in general, but not specific provisions in the GAA pertaining to PDAF. Carpio said a Cabinet secretary, a House Committee as well as the legislator couldnt realign funds. Is the power to realign [funds] can be delegated to the Cabinet? That power cannot be delegated. This power to realign is unconstitutional, Carpio said. When the Constitution says all appropriation shall emanate from the House, it has to be acting as a body, it cannot be one legislator or a Committee. A legislator or a House Committee is not Congress, Carpio said. You do not need a COA report. The 2013 provision on PDAF [in the GAA] is riddled with unconstitutionalities, he added. Regarding the Malampaya fund, Carpio said, the governments basis, which is Presidential Decree 910, which allows the President to use the Malampaya fund for other purposes, was done during the time of President Ferdinand Marcos, when the Executive also has a legislative power. But with the enactment of the 1987 Constitution, Carpio pointed out that the President has been stripped of the legislative power. So PD 910 is now facially unconstitutionally. You do not need a COA report on that, Carpio said. Associate Justice Teresita De Castro, for her part, took Commission on Audit Chair Grace Pulido Tan to task for not checking against misuse of pork barrel over the last several years. Tan apologized and said she came aboard only in 2011. With a report from TJ Burgonio

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