FRESH ARGUMENTS | Retired Senior Associate Justice Antonio Carpio (third from left) fields questions during a media briefing after he and other civil society advocates filed a case at the Supreme Court on Nov. 15, 2023, to question the constitutionality of confidential funds. (Photo by NIÑO JESUS ORBETA / Philippine Daily Inquirer)
MANILA, Philippines — Another petition challenging the constitutionality of the controversial confidential funds was filed on Wednesday at the Supreme Court.
Retired Supreme Court Associate Justice Antonio Carpio, lawyer Manuel “Chel” Diokno, and former Sen. Richard Gordon were among the petitioners who questioned the legality of the allocation, release, and disbursement of confidential funds.
They also asked the high court to order Vice President Sara Duterte, Congress, and the Commission on Audit (COA) to provide documents showing how the Office of the Vice President (OVP) spent its 2022 confidential funds.
Named respondents in the petition were Duterte; the Office of the Executive Secretary; the Senate and the House of Representatives; the Department of Education, Department of Budget and Management, and Department of the Interior and Local Government; the Governance Commission for Government-owned and -controlled corporations, and the COA.
The petitioners likewise asked the high court to declare null and void Executive Order No. 2 and the COA’s Joint Circular No. 2015-01 “for being repugnant to the 1987 Constitution.”
The joint circular provides the guidelines on the disbursement and liquidation of confidential funds, while EO 2 — issued in 2016 by Duterte’s father, former President Rodrigo Duterte — operationalizes in the executive branch the right to information and state policies to full public disclosure and transparency and provided exemptions to such disclosure.
The petitioners asked the court to prohibit the enforcement of the EO and joint circular, which they said were unconstitutional because these were not laws passed by Congress.
They argued that the EO and the circular when applied to the release and disbursement of confidential funds violated Section 28, Article II of the 1987 Constitution, which provides that subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full disclosure.
It also violated Section 7, Article III, which states that “the right of the people to information on matters of public concern shall be recognized,” they added.
Denied requests
“Joint Circular No. 2015-01 and EO are unconstitutional because they are not laws passed by Congress. They have no force of law. Specifically, the joint circular is simply a guideline,” the petitioners said.
According to the petitioners, they sent a demand letter in October to the OVP and even to the Office of the President (OP) and other offices requesting copies of official records, documents, and papers related to disbursements and liquidations of confidential funds since 2022.
But the OVP denied their request, claiming the documents “are covered by the exceptions to the right of access to information” and cited the joint circular and the EO.
“There is no reason for respondents to deny petitioners of their requested documents pertaining to the confidential funds because at present, there is no law that exempts full public disclosure of all government transactions that involve taxpayers’ matter. Hence, the general rule of public disclosure must apply,” the petition said.
The respondents’ refusal to disclose the nature and purpose of the confidential funds to the public “sows distrust and further widens the division between the public and public offices. The country is being divided because government officials do not live by the principle that a public office is a public trust,” it added.
“Personally, I think intelligence funds are used for military secrets. So, you have to provide reasonable limitations on what to share with the public since it’s military secrets. But, when it comes to civilian agencies, there are no military secrets so there is no need to withhold information,” Carpio pointed out in a press briefing after the filing of the petition.
“The petition involves the right of the people on matters of public concern. It also involves the duty of public officials to fully disclose to the people matters of public interest. This boils down to public funds being used for confidential purposes,” he said.
Growing opposition
“Even if it’s confidential, the Constitution says the people have the right to know and public officials have the duty to disclose unless there is a law providing reasonable limits,” he noted, adding: “There is no law. What they’re showing is the EO of former President Duterte and the COA circular.”
This was the second petition questioning confidential funds that was filed at the high court.
Last week, a group of legal and economic experts asked the high court to declare as unconstitutional last year’s transfer of P125 million in confidential funds from the OP to the OVP and to order its return to the national treasury.
Among those who filed the first petition were lawyer Christian Monsod, one of the framers of the 1987 Constitution, and lawyer Barry Gutierrez, who served as spokesperson for former Vice President Leni Robredo.
OVP fund audit still ongoing
Sought for comment, Makabayan lawmaker and ACT Teachers Rep. France Castro said the new petition against confidential and intelligence funds (CIFs) was proof of the “broad and widening opposition” against such budget allocations.
“We support this petition and we in the Makabayan bloc ourselves with other concerned groups and individuals would also file a petition against the CIF in the coming weeks,” said the House deputy minority leader.
Meanwhile, the COA failed to comply with the Nov. 15 deadline it promised to lawmakers to produce the audit findings on the controversial P125 million in confidential funds of the OVP in 2022.
“Please be informed that the audit of the OVP’s liquidation of confidential fund cash advance is still ongoing,” the COA Public Information Office told the Inquirer in an email on Wednesday.
The COA said that its Intelligence and Confidential Fund Audit Office was still validating the documents submitted by the OVP pertaining to the liquidation of the confidential funds.
The commitment was made by the COA last September during the plenary deliberations at the House of Representatives on its proposed 2024 budget, after questioning by Gabriela Rep. Arlene Brosas.
Lawmakers from the opposition Makabayan bloc had initially pointed out that the P125 million transferred from the OP’s contingent fund was spent in 19 days, which the COA corrected and said that it was spent in only 11 days.