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 year’s 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 don’t need a COA (Commission on Audit) report. You can declare PDAF unconstitutional because what? In the expenditure of funds, it says the President can’t spend the money without the concurrence of the Senate committee on finance and House committee on appropriation. That’s unconstitutional, correct? Because the GAA has been approved already,” Carpio said.
“That the Cabinet secretary can realign, that’s unconstitutional. That the Senate committee and House committee can concur with the realignment, that’s unconstitutional. That the legislator can identify a project and that’s binding on the executive. That’s 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 can’t execute the GAA. But they forgot everything now. That’s the problem now. It’s riddled with unconstitutionalities. Correct? On its face. You don’t 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 second-semester 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 it’s 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 branches—legislative and executive—appeared 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 he’s 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 pork 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.”
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