MARCO, MARK OLYVER T.

CONSTITUTIONAL LAW REVIEW BLOCK A

QUESTIONS:

In 2020, Congress enacted an appropriation law containing a provision that gives individual
legislators the discretion to determine, post-enactment, how much funds would go to a specific
project or beneficiary which they themselves also determine. Consequently, disbursements were
made in the interim pursuant thereto.

Eventually, Mr. Z filed a petition questioning the constitutionality of the statutory provision on
the grounds that it violates the separation of powers principle.

On the other hand, certain Congressman argued that there was nothing wrong with the provision
because, after all, the power to appropriate belongs to Congress.

(a) Rule on the arguments of the parties.

 On Mr. Z’s contention:

Mr. Z is correct. An appropriation law containing a provision that gives individual

legislators the discretion to determine, post-enactment, how much funds would go
to a specific project or beneficiary which they themselves also determine violates
the separation of powers doctrine.

As held in the case of Belgica vs. Ochoa, citing the case of ABAKADA vs.
Purisima, "from the moment the law becomes effective, any provision of law that
empowers Congress or any of its members to play any role in the implementation
or enforcement of the law violates the principle of separation of powers and is
thus unconstitutional."

In the present case, the authority given by the appropriation law to individual
legislators to determine, in their discretion, post enactment, how much funds
would go to specific project or beneficiary is violative of the doctrine. Such
function belongs to the sphere of budget execution which is reserved to the
executive department.

(It must be clarified, however, that since the restriction only pertains to "any role
in the implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the
Constitution itself allows. But it must be made clear that Congress‘role must be
confined to mere oversight. Any post-enactment-measure allowing legislator
 participation beyond oversight is bereft of any constitutional basis and hence,
tantamount to impermissible interference and/or assumption of executive
functions. )

 On the contention of certain Congressman:

The contention of certain Congressman is incorrect. The provision which confers

post-enactment discretionary authority to individual legislators, violates the
principle of non-delegability of legislative power since the legislators are
effectively allowed to individually exercise the power of appropriation, which is
lodged in Congress. That the power to appropriate must be exercised only through
legislation is clear under the Constitution which states that: "No money shall be
paid out of the Treasury except in pursuance of an appropriation made by law."

Clearly, even assuming that there was nothing wrong with the provision because,
after all, the power to appropriate belongs to Congress, still it cannot be exercised
individually by the legislators but by Congress as a body.

(b) Assuming that the provision is declared unconstitutional, should the disbursements
made pursuant thereto be returned in light of the doctrine of operative fact? Explain.

 No. The operative fact doctrine recognizes that until the judiciary, in an appropriate case,
declares the invalidity of a certain legislative or executive act, such act is presumed
constitutional and thus, entitled to obedience and respect and should be properly enforced
and complied with.

In this case, since disbursements where made pursuant to the appropriation law prior to it
being declared unconstitutional, such disbursements are presumed valid since the law is
presumed constitutional. Thus, said disbursements need not be returned since the
decision should be made to apply prospectively pursuant to the operative fact doctrine.