SolGen under fire at SC
Solicitor General Francis Jardeleza. INQUIRER PHOTO
Associate Justice Antonio T. Carpio on Thursday refuted Malacañang’s claim that President Aquino had abolished the Priority Development Assistance Fund (PDAF), pointing out that only the Supreme Court and Congress have the power to scrap the corruption-plagued pork barrel.
At the resumption of oral arguments on petitions to declare the PDAF unconstitutional, Carpio told Solicitor General Francis Jardeleza it was “irreconcilable” for Malacañang to seek the lifting by the Supreme Court of its suspension of pork barrel releases while presidential spokesman Edwin Lacierda was saying up to Wednesday that the PDAF had been abolished.
“Is it not true that the PDAF has been abolished? We are talking of the balance of P13 billion or P14 billion of the PDAF issue here. Why are you still asking for its release?” asked Carpio. “Does it mean it has not been completely abolished?”
Jardeleza was forced to admit that only the “soft” portion of the PDAF—or livelihood projects and financial assistance programs that were abused by fake nongovernment organizations (NGOs)—was abolished while the administration was still hoping to deploy the “hard,” or infrastructure, projects this year had the court not intervened by issuing a temporary restraining order on further pork barrel releases.
He argued that the President had the “general power” to stop the pork releases but “it isn’t our function to have it abolished or not.”
“The PDAF can only be abolished by Congress or only the Supreme Court can declare it unconstitutional,” Carpio lectured Jardeleza. “He has no power to abolish the PDAF.”
Lacierda, in a press conference on Wednesday in reply to Carpio’s observation at the opening of the court hearing on Tuesday that provisions in the 2013 General Appropriations Act (GAA) covering the pork barrel were “riddled with unconstitutionalities,” told reporters: “You know, the President has already announced that the PDAF has been abolished. So that has been abolished.”
President Aquino announced three days before the Aug. 26 Million People March that he had scrapped the PDAF following indignation that billions of pesos in the PDAF and Malampaya Fund had been funneled to ghost projects and kickbacks to lawmakers at the expense of impoverished rural farmers and victims of devastating storms.
In fact, the House of Representatives approved on second reading on Sept. 28 before it went on a two-week break the 2014 GAA, shifting a proposed P25.4 billion in PDAF to executive departments but retaining the power of control and discretion over the fund. Following its approval in the House, the national budget will then go to the Senate for deliberations.
In Thursday’s hearing, Carpio also questioned the constitutional basis for the President’s power to “impound” government savings, the main issue in the controversy over the Disbursement Acceleration Program (DAP), which the government used to realign the budget of one department to another without getting Congress’ consent.
This was purportedly the source of the P50 million in additional pork given to senators after the conviction of Chief Justice Renato Corona in May last year for failing to declare his dollar deposits in his statement of assets, liabilities and net worth.
Carpio argued that only the President had the power to speed up or suspend the release of funds from the PDAF. But he said impoundment was still open to question considering that the Chief Executive is duty bound to implement the law, such as the GAA.
‘You are asking too much’
The senior justice said the government’s request to the Supreme Court to “dilly-dally” in resolving the case in order to allow the political branches to reach a solution to the issue was no different from the demand of then President Ferdinand Marcos that the high tribunal agree to his padlocking Congress and allow him to rule by decree.
“The court agreed and unfortunately, we had a disaster that lasted for decades,” said Carpio, referring to the habeas corpus cases questioning Marcos’ declaration of martial law in 1972. “It is our solemn duty to faithfully apply the Constitution and you are asking us to defer, to suspend our solemn duty to faithfully apply the Constitution. I think you are asking too much.”
Carpio and Jardeleza also disagreed on whether the senators and representatives were unjustly encroaching on the power of the executive to implement the spending program approved in the budget.
Carpio claimed that a provision in the 2013 GAA allowed modifications or realignments on the projects identified by Congress in their lump-sum PDAF items that could only be made with the “favorable endorsement” of the Senate finance and House appropriation committees.
“If the PDAF provisions on concurrence are mandatory by the court, then we would have to declare the law unconstitutional,” said Carpio, who cited a previous Supreme Court ruling on the 2008 Abakada case, which described congressional postenactment action in the budget illegal.
Jardeleza argued that such an endorsement was merely recommendatory, or “directory,” and not mandatory as the Department of Budget and Management (DBM) and the implementing agencies have a choice not to implement the project.
The solicitor general claimed that the recommendation of the lawmakers was meant as “favorable endorsement of the decision of lawmakers to change the project.”
Way off mark
Carpio said Jardeleza should not base his arguments on the 1994 Philconsa decision because this was made way before the 2013 GAA where the contested provisions were not yet in place. “If you are relying on Philconsa, then you are way off the mark,” said Carpio.
The Philconsa case was the first of three rulings the Supreme Court issued upholding the constitutionality of the pork barrel system, then called Countrywide Development Fund.
Aside from determining whether the prior green light of the Senate finance and House appropriation committees was mandatory or recommendatory, Carpio also asked Jardeleza to look into how the PDAF had eliminated the President’s power to veto line items since the pork was listed as a lump-sum appropriation with a list of projects and only a single amount for the entire Congress.
Carpio noted that without the line-item veto power, the President abdicated control of the pork to lawmakers.
“Open any page in the 2013 GAA, everywhere you look—schools, houses, teacher salary, everything has an amount. Look at the PDAF and it has a line for P24.79 billion and below are programs with no amount. How can the President exercise his veto power? There is an obligation on the part of congressmen to specify every line so that the President could strike out wasteful spending,” said Carpio.
After almost five hours listening and questioning Jardeleza and DBM representatives, the court concluded the oral arguments with Carpio directing all parties to submit their respective memoranda on or before Oct. 17.
“We have decided to come out with a decision by November to give Congress time to digest our decision when they finalize the 2014 General Appropriations Act,” Carpio said.
In defending the legality of the pork barrel, Jardeleza noted that the Commission on Audit (COA), in a review of PDAF releases from 2007 to 2009, found few instances of irregularities.
No justification
Replying to the interpellation of Associate Justice Estela Perlas-Bernabe, Jardeleza said, “The COA report does not rise to the level of evidence sufficient to justify the abandonment of standards in LAMP.” He referred to the court ruling on the LAMP case last year, affirming the legality of the PDAF.
“There were corruption issues of government funds through ghost deliveries,” he acknowledged, but noted that there were only four audit findings that implicated members of Congress.
“For all the sins of implementation of the PDAF, the errant and corrupt must be and will be punished. But I appeal for the half a million of scholars and the half a million indigent patients needing medical aid, they are not a party to any misuse, not a party to any corruption. Please give them the benefit of the doubt,” Jardeleza said in appealing for the partial lifting of the court TRO.
Associate Justice Marvic Leonen wondered if there were “ghost scholars” among those needing assistance cited by Jardeleza.
Chief Justice Maria Lourdes Sereno asserted that the main constitutional problem in the insertion of the pork funds in the GAA since 1991 was “up to what extent should this court draw the line in the congressional participation in the budget execution stage.”
Sereno said that even if the Supreme Court found the postbudget approval actions unconstitutional, there was no guarantee that Congress would undertake corrective measures.
She said that the court had “decided to come together and deliberate on this with all possible speed” amid apprehensions by the petitioners that it would treat this in the usual lackadaisical judicial fashion.
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