House threats against SC ‘retaliatory’

A MAGISTRATE of the Supreme Court said he and his colleagues recognize the unhappiness of congressmen over their decisions on two controversial issues, but threats of impeachment or investigation into judicial funds will not stop them from performing their duties.

“They are just getting back at us,” a justice of the Supreme Court told the Manila Standard on condition of anonymity.

He said members of the Court are aware that some congressmen are making issues of the disqualification of Marinduque Rep. Regina Reyes-Ongkiko and the decision to declare pork barrel unconstitutional.
“Perhaps, it’s really hard to accept for some of them that the billions in discretionary funds that they enjoyed for a long time will be gone just like that,” the justice said, a day after Chief Justice Ma. Lourdes Sereno defended the Judiciary Development Fund.

Sereno explained on Monday that the JDF was a special purpose fund established in 1984, under Presidential Decree No. 1949, precisely to help ensure and guarantee judicial independence.

Court spokesman Theodore Te, maintained that the Supreme Court had no intention to disrespect Congress as a coequal branch of government, as claimed by Oriental Mindoro Rep. Reynaldo Umali, a House prosecutor during the impeachment of former Chief Justice Renato Corona.

“The Constitution gives the Supreme Court the power to strike down acts of Congress which violate the Constitution,” Te said, reiterating that the Court was the agency tasked by the Constitution to review the constitutionality of any legislation.

“Its members cannot be impeached for doing their duty even if members of Congress disagree with the outcome,” Te added.

Te echoed Sereno’s explanation that, unlike congressional pork barrel, the JDF is not discretionary as the law defines how it will be used: 80 percent for cost of living allowances while not more than 20 percent for office equipment and facilities of the courts.

“While the chief justice is given the power to administer and allocate the fund and shall have the sole exclusive power and duty to approve the authorize disbursement and expenditures of the fund, she is not given any discretion on how the funds will be used,” Sereno said in a statement Monday.

Sereno also denied reports that the JDF amounted to some P5 billion, noting that 80 percent of it is released monthly to employees as cost-of-living allowances.

The 20-percent component, on the other hand, had an accumulated balance of P1.435 billion as of last Nov. 30, according to a report by the Supreme Court’s office of fiscal management and budget office.
Of this amount, P732.5 million has been earmarked for the construction of Court of Appeals buildings in Cebu and Cagayan De Oro and consultancy services for the electrical system of the high court in Manila.
Another P620.7 million has been certified as available for various capital outlays, including the procurement of computers, and construction and repair of court houses, she added.

The Court said the 20-percent component, which amounts to P200 million a year, is “barely enough for the court to source its budget for renovations, repairs and construction of halls of justice and for the various equipment needed for court operations.”

The Court said it had already submitted a report on how the JDF was used to the House committee on appropriations during budget deliberations in September.

“The JDF reports are also included in the annual report submitted by the chief justice in August 2013 to the Office Of The President, the Senate president, and the speaker of the House of Representatives. The annual report is also posted in the judiciary’s website and is accessible to everyone,” the Court said.

Since the last quarter of 2011, the Court said, it has been submitting financial reports on the JDF to the Department of Budget and Management.

Sereno issued the statement after Iloilo City Rep. Niel Tupas, chairman of the House committee on justice, said the move to scrutinize the JDF was aimed at reestablishing the chamber’s power after the Court declared pork barrel funds as unconstitutional.

Tupas vowed to give priority to the investigation when Congress resumes session next year amid the demand of congressmen who believe the Court encroached on their power over the purse.

source:  Manila Standard

High-stakes SC fight rages on P-Noy pork

PRESSURE TACTICS: The pressure being applied on the Supreme Court by Malacañang and its House allies to uphold the constitutionality of the Disbursement Acceleration Program, a source of presidential pork, is being stepped up as the tribunal prepares to rule on the issue.

The Supreme Court as an institution has no feeling and harbors no fear of anyone. It is not the 15-strong tribunal but its individual members who are heirs to such human frailties as dread and anxiety.
Only an SC justice can succumb to pressure tactics or blackmail. We pray then that justices with pivotal votes will stick to their conviction and that the tribunal will emerge from this bruising high-stakes fight with its integrity intact.

*      *      *

OVERSIGHT POWER: Senior congressmen smarting from the Court’s taking away their pork barrel for being unconstitutional are threatening the justices with impeachment on the basis of their speculation that the tribunal’s Judiciary Development Fund may have been misused.
But if it would be impeachment, who would stand as accused — Chief Justice Maria Lourdes Sereno, the entire SC membership, just the justices appointed by former President Gloria Arroyo, or only those inclined to vote against DAP?
Selective impeachment will be highly suspicious. It will not win public support, unless it is preceded by the usual massive media demolition job on the targeted justices.
The House threatens to unsheathe its oversight sword inserted in the 2014 national budget. The weapon empowers the Congress to review the use of the funds of the Judiciary, a separate branch of government that is guaranteed fiscal autonomy by the Constitution.
In what looks to us like a bad move, Malacañang has joined the fray by commenting and acknowledging that indeed the Congress could (it sounded like “should”) wield its newly acquired oversight powers to check how the SC spends its money.

*      *      *

‘RESBAK’: Noting the looming showdown on the presidential pork (DAP) whose constitutionality is under review by the tribunal, Navotas Rep. Toby Tiangco said:
“The Congress had not questioned the fiscal autonomy of the Supreme Court until now. In street parlance, this is ‘resbak’ (retaliation) from the Congress after the SC declared the lawmakers’ Priority Development Assistance Fund as unconstitutional.”
Tiangco, who is United Nationalist Alliance secretary general, said Liberal Party researchers have been digging up on suspected corruption and misuse of the JDF in complete disregard of the Court’s fiscal autonomy.
But administration stalwart Cavite Rep. Elpidio Barzaga said fiscal autonomy must be subservient to fiscal accountability and responsibility. He pointed out also that the Congress now enjoys oversight powers to review the use of judiciary funds.

*      *      *

PALACE BULLYING: Tiangco said Malacañang and its congressional point men have until Jan. 28, when the SC oral arguments on DAP are to open, to increase pressure on the justices to vote favorably on the presidential pork.

“We’ve to be very vigilant,” he said. “We’ve already seen their moves along the impeachment idea, the Department of Justice-National Bureau of Investigation probe on ‘Ma’am Arlene,’ the scrutiny of the judicial budget, the probe on the JDF and the Special Allowance for the Judiciary.”

He assailed as hypocrisy the Aquino administration’s invoking a 29-year-old Marcos presidential decree to poke into judicial funds. Malacañang’s “bullying,” he said, undermines not only fiscal autonomy, but also the principle of check and balance.

Elsewhere, a ranking member of the Nationalist People’s Coalition disclosed days ago that Liberal party gofers have approached them for support in the threatened filing of impeachment complaints against SC justices who do not support the legality of DAP.

Sources said the administration needs only three more SC votes to tilt the balance in favor of Malacañang on the DAP issue.

*      *      *

IMPEACHMENT UNLIKELY: The decision of the Supreme Court on DAP or presidential pork will have a survival impact on President Aquino and the LP-led administration.

Having DAP declared unconstitutional — like the PDAF before it – could expose President Aquino to possible impeachment, if it could be shown that DAP was created by Budget Secretary Florencio Abad upon his instructions.

At this point, however, even if its constitutionality is voted down by the SC, the President’s impeachment is still a distant possibility.

First, Abad could take the fall by saying DAP was his sole creation on the belief that it was legal and necessary to speed up disbursement and stimulate the economy. He could swear that the President did not order him to create it, although that may sound a bit incredible.

Second, with the President still in virtual control of an overwhelming number of congressmen, it is unlikely that an impeachment complaint against him will prosper.

However, with political loyalty being a transactional item in the legislative market, the votes might shift if/when patronage (pork) funds dwindle and the President’s popularity continues to drop.

*      *      *

RESEARCH: Access past POSTSCRIPTs at www.manilamail.com. Follow us via Twitter.com/@FDPascual. Send feedback to fdp333@yahoo.com

source:  POSTSCRIPT By Federico D. Pascual Jr. (The Philippine Star)

We have no pork -- SC

THE SUPREME Court (SC) has disputed claims that its judiciary development fund (JDF) is a form of pork barrel following reports that the tribunal also has its own discretionary funds.

The Office of the Chief Justice (OCJ) clarified in a statement the JDF is not a pork barrel fund but a "special purpose fund" which helps ensures the independence of the Judiciary.

"While the Chief Justice is given the power to ‘administer and allocate the fund and shall have the sole exclusive power and duty to approve the authorized disbursements and expenditures of the fund,’ she is not given any discretion on how the funds will be used."

The OCJ also said the Judiciary has submitted to Congress a report on the uses and balances of the JDF.

"The annual report is also posted in the Judiciary’s Web site and is accessible to everyone."

Various lawmakers have questioned the JDF, saying it is a form of pork barrel.

The Supreme Court last month declared as unconstitutional the Priority Development Assistance Fund (PDAF) of lawmakers following reports that the congressional funds were channeled to bogus nongovernment organizations implementing ghost projects. -- Mikhail Franz E. Flores
 
source:  Businessworld

Bangsamoro: Power-sharing and development

FIRST, allow me to share the statement of the Philippine Center for Islam and Democracy (PCID) on the successful Government of the Philippines-Moro Islamic Liberation Front (GPH-MILF) negotiations in Kuala Lumpur over the weekend.

"The PCID applauds the signing of the Annex on Power Sharing by the negotiating panels of the Philippine Government and the Moro Islamic Liberation Front. We congratulate the members of the panels for reaching this collaborative effort in establishing the Bangsamoro government structure envisioned to be responsive to the aspirations and needs of the region and its people.

"We at PCID see the annex as another step towards the preparation of the legal framework supporting the peace processes in Mindanao. The document should lay the foundation for the long-awaited genuine, inclusive and meaningful political autonomy for the Bangsamoro, with its diversity of peoples and cultures. However, the key is in the enactment of the enabling Basic Law by the Bangsamoro Transition Commission (BTC) that would set the parameters for its interpretation and eventual implementation by the still to be established Bangsamoro Political Entity.

"Mandating the representation of non-Moros, women and other sectors in the regional assembly is laudable, as this will ensure the dividends of peace and developments will be shared equitably, and safeguard their distinct cultures, rights and civil liberties.

"PCID is hopeful that definitive provisions on Ancestral Domain, particularly as it relates to the Indigenous Peoples of the region, will be addressed by the BTC. Another concern is the reported deferment of the delineation of territorial waters, and its inclusion in the last annex on Normalization. These two contentious issues will have to be resolved, as this impact the viability of the Bangsamoro as a distinct politically autonomous region.

"We are hopeful that the provisions embodied in the annex will ultimately motivate all Bangsamoro people to become more involved in the drafting of the Basic Law. With the people’s active engagement in the ensuing public consultations, the envisioned Bangsamoro legal framework would, at the very least, establish an autonomy truly reflective of the aspirations of all Bangsamoro.

"Finally, PCID reiterates its continuing support for the peace process and hopes that the coming new year would be greeted by the signing of the final annex on Normalization."

The three annexes will strengthen the foundation for economic development, thus expanding the economic pie, which will, in turn, strengthen fiscal autonomy. As BTC Chair Mohagher Iqbal said, "Political autonomy without fiscal autonomy, or power without resources will break as soon as it is being put to test."

Allow me to continue the discussions on expanding the economic pie during the "Business and Investment Climate for the Bangsamoro" held at the Waterfront-Insular Hotel in Davao City (Nov. 26-27).

Former National Economic Development Authority (NEDA) Secretary Dondon Paderanga, who chaired the Forum, cited the critical role of the private sector in his synthesis. The private sector is key to bridging the Autonomous Region in Muslim Mindanao (ARMM) -- soon to become the Bangsamoro Region -- from the challenges it faces to the opportunities available in agri-business, power, mining and natural resource development, tourism and trade. To do this, the region must address the constraints: particularly in peace, law and order; sustainable infrastructure, including human infrastructure; skills for the business sector and the state of education; governance and policy. All these have been barriers to sustainable development, as detailed by the presentation of PCID Convenor Urooj Malik, former Director of the Asian Development Bank, and now Bangsamoro Development Authority’s senior adviser for Sustainable Development.

Additional inputs from the private sector with regards to the challenges to competitiveness included: openness to foreign capital participation; fair and equal treatment for foreign and domestic companies; ease of doing business (such as strong arbitration laws in line with international arbitration practice and adherence to international conventions); open and transparent local economy; access to land and a stable and predicable policy environment (political and economic). The Framework Agreement on the Bangsamoro (FAB) and the annexes, in part, address these concerns, but need to be fleshed out by the BTC.

Mr. Paderanga, a native son of Mindanao, summarized the immediate (and doable) strategic interventions: investment promotion and identification of projects as well as for the Bangsamoro to negotiate and determine its economic goals of fiscal autonomy and an autonomous economic strategy, not too tightly bound by the strings of Manila.

In the medium to long-term, the Bangsamoro will need to put the fundamentals in place for business and labor regulation, incentives and business support, land and property rights, banking and finance including Islamic finance.

In a nutshell, the former NEDA Chief said: "Economic Sustainability is critical!" The consensus of the 120 gathered participants: while government will have to focus on policy and institutional options and actions following the FAB and the signed annexes, there are options that are doable now. Further, short-term and long-term strategies must address the four identified thematic areas: sustainable social infrastructure, both human and physical infrastructure; business/labor regulations; financing -- particularly Islamic finance; and land and property rights.

A piece of advice shared by many participants: the Bangsamoro must avoid past mistakes and have a development plan that addresses its unique situation. Tom Allen, Project Director of the conference and former World Bank Country Director, had stated earlier: "It cannot be ‘business as usual’ for the Bangsamoro." Autonomy provides the Bangsamoro with the legal foundation to set its own strategy, a power it has not exploited in the past. Listening intently were Dr. Safrullah Dipatuan and the board of the Bangsamoro Development Agency (BDA), as were members of the BTC and the Bangsamoro Leadership and Management Institute (BMLI). (It was unfortunate that none of the invited officials from the ARMM Regional Government attended, apart from Board of Investments head Ishak Mastura. (Hmmm. Political dynamics at play?)

The BDA is currently immersed in drafting its Bangsamoro Development Plan. Their timetable: to have the final draft ready by April 2014, ready to be addressed by Congress when it convenes to work on the national budget. Last Wednesday, the World Bank hosted the meeting of government’s development partners to discuss how to provide the assistance needed by the BDA in crafting the Plan.

Time is tight and resources are limited. We hope that the calamities that have visited the Philippines, both disasters due to man and to nature, will not distract government and development partners from their commitment to support the Bangsamoro. We have a window of opportunity, closing fast, to set things right in Muslim Mindanao. For the sake of the nation as well as the long-suffering Bangsamoro, we need to exert all efforts to ensure that the promise of autonomy made to the Bangsamoro decades ago is converted to reality. A truly autonomous Bangsamoro will contribute to the growth and wellbeing of the entire nation. A dysfunctional Bangsamoro, as it is today, will continue to be a millstone that will drag the Philippines down. Seems to me that there is only one rational choice.

source:  Businessworld

Understanding the PDAF decision

n a unanimous vote, the Supreme Court declared the congressional pork barrel (not just the Priority Development Assistance Fund) unconstitutional, thereby reversing three separate rulings it had issued earlier sustaining the constitutionality of pork barrel. The decision also invalidated illegal provisions in two laws that authorize the President to use the controversial Malampaya fund and the President’s Social Fund, which some, erroneously I believe, call presidential pork.

The main decision was penned by Associate Justice Estela Perlas-Bernabe with Chief Justice Maria Lourdes Sereno, Senior Associate Justice Antonio Carpio, Associate Justice Arturo Brion, and Associate Justice Marvic Leonen registering their concurring opinions.

Aside from procedural issues, the ponencia resolved two substantive issues, namely: (1) Whether or not the 2013 PDAF article and all other congressional pork barrel laws similar thereto are unconstitutional; (2) Whether or not certain provisions of PD 910,116, relating to the Malampaya funds, and PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

In declaring congressional pork barrel unconstitutional, the Court held that post-enactment measures embedded in the PDAF - project identification, fund release, and fund realignment - are not related to legislative duties, and hence, are encroachments on duties that properly belong to the executive function of budget execution. Second, the individual participation of the members of the Congress is an express violation of the principle of non-delegability of rule-making functions lodged in the Congress.

Further, the Court said that “these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and are violative of the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of appropriation, which is lodged in Congress.

The Court ruled not just on the PDAF but declared unconstitutional all laws, (past, present and future) and formal and informal practices which had allowed legislators to take part in post-enactment and implementation. In my view, this renders the proposed legislative initiative to ban the pork barrel unnecessary.

In her separate opinion, Chief Justice Maria Lourdes Sereno, while agreeing with the result, observed that the ponencia made no doctrinal pronouncement that all lump-sum appropriations per se are unconstitutional. She postulated that wholesale rejection of lump-sum allocations contrives a rule of constitutional law broader than what is required by the precise facts in the case. She further observed that lump-sum appropriations are not textually prohibited by the Constitution.

In the same breath, Justice Brion and Justice Leonen warned against the possibility of the Court exceeding the bounds set by the actual case and controversy; that a total condemnation of lump-sum funding is an “extreme position that disregards the realities of national life,” as Justice Brion stated.

The Court, echoing petitioners, said that “the fact that individual legislators are given post-enactment roles in the implementation of the budget makes it difficult for them to become disinterested ‘observers’ when scrutinizing, investigating or monitoring the implementation of the appropriation law to a certain extent, the conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves participate.

As to the presidential pork barrel, the ponencia agreed with petitioners that “the phrase “and for such other purposes as may be hereafter directed by the president” under section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President’s authority with respect to the purpose for which the Malampaya funds may be used.

Associate Justice Antonio Carpio, concurring with the ponencia, reasoned that the phrase “for such other purposes as may be hereafter directed by the president” in PD 910 is an undue delegation of legislative power.

For his part, Associate Justice Brion said that the Malampaya fund because of “its purpose and lack of specificity; its lump sum nature and its disbursement solely at the discretion of one man, unchecked by any other; how and why a multi-project and multi-activity fund covering many projects and activities, now and in the future, should be held at the discretion of one man; and the legal situation where the power of congress and its participation in national policymaking through the budget process is disregarded. All these can be encapsulated as violations of the doctrines of separation of powers and checks and balances x x x.”

The main decision concluded that the pork barrel system must be struck down as unconstitutional insofar as, among others, “it has allowed legislators to wield, xxx non-oversight, post-enactment authority in vital areas of budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they themselves determine, it has similarly violated the principle of non-delegability of legislative power; insofar as it has created a system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of presentment and, in the process, denied the president the power to veto items.”

Emphasizing the deleterious nature of the pork barrel system Justice Leonen most aptly puts it, saying: pork barrel funds historically encourage dole-outs. It inculcates a perverse understanding of representative democracy. It encourages a culture that misunderstands the important function of public representation in congress. It does not truly empower those who are impoverished or found in the margins of our society.”

Facebook Page: Dean Tony La Viña Twitter: tonylavs
source:  Manila Standard today

The ABCs of government budgeting: Part II

CAN THE President unilaterally alter the General Appropriations Act in the guise of accelerating disbursements?

Absolutely not. His mandate is not to speed up disbursement if it will mean abandoning programs and projects that he told Congress are needed to improve the economy and society. The GAA is a contract between the President and Congress, the latter consisting of agents of the people in a representative democracy. What the President asked and what Congress authorized to implement cannot be unilaterally altered by him. Worse, he cannot simply change, revise, dilute and throw away programs, projects and activities that Congress authorized him to implement and replace these with his own programs, projects and activities. That’s usurpation of the congressional power of the purse, which effectively changes the balance of power enshrined in the Constitution.

When the representatives of the people, the members of Congress, prefer A to B while the President prefers B to A and B is chosen, then the choice of one individual wins. This is called ‘dictatorship’.

New spending for programs and projects not part of the GAA -- for example, the P750 million budgetary assistance for the province of Quezon, the P4.5 million for the purchase of additional train cars for Metro Rail Transit (MRT), P8.9 billion worth of assistance for the ARMM to implement the Comprehensive Peace and Development Peace and Development and the P30-billion budgetary support for the Bangko Sentral ng Pilipinas -- are clearly unconstitutional. The Constitution provides: "No money shall be paid out of the Treasury except in pursuance of an appropriation made by law."

But why can’t the President withdraw the SARO (the authority to enter into contracts) from slow-moving projects?

First, withdrawing the SARO already issued violates his contract with Congress ( and indirectly with the people, his ‘bosses’). For some appropriations, the life of the SARO is two years. For example, appropriations for capital outlays and maintenance and other operating expenditures authorized in 2011 won’t lapse until end of 2012. Why withdraw the SARO only after six months of its issuance? Contracting out takes time. Look at the Department of Transportation and Communications. After more than three years of the Aquino administration, it has successfully bid out and awarded only one public-private partnership (PPP) project. What a dismal performance!

Second, withdrawing the SARO does not guarantee that projects will be done more quickly. An argument can be made that the withdrawal of the SARO might further delay, rather than accelerate, project implementation. Of course, in the case of budgetary assistance to local government units and government corporations like the P30 billion budgetary subsidy for BSP, disbursements is accelerated. But they do not mean the programs and projects that the President committed to do in his budget, which Congress authorized, will be done more quickly, if at all. Remember, the DPWH got an additional P5.5 billion from the Disbursement Acceleration Program I but by the end of December 2011 none had been disbursed.

Third, rather than penalize the slow-moving agency by issuing negative SAROs, in effect reducing the authorized appropriations, thus denying the agency’s potential beneficiaries the benefits of the postponed, reduced, or discontinued programs and projects, why not discipline the head of the agency instead? Suspend or fire the agency head. Why make people suffer for his or her incompetence?

Finally, the President is prohibited by law from impounding appropriations. This prohibition is as clear as sunlight. It needs no interpretation.

WHAT IS THE MEANING OF IMPOUNDMENT?
To impound means to "seize and take legal custody", to sequester, to confiscate. The President cannot impound appropriations.

Section 66 of the General Provisions of the 2011 GAA states: "Prohibition Against Impoundment of Appropriations. No appropriations authorized under this Act shall be impounded through retention or deduction, unless in accordance with the rules and regulations to be issued by the DBM: PROVIDED, That all the funds appropriated for the purposes, programs, projects and activities authorized under this Act, except those covered under the Unprogrammed Fund, shall be released pursuant to Section 33(3), Chapter 5, Book VI of E.O. No. 292."

WHAT ARE THE CONDITIONS FOR THE USE OF SAVINGS FOR AUGMENTATION?
The President may legally use savings for augmentation under the following conditions: first, savings as defined in Section 60 must come from item(s) included in the GAA; second, the item(s) to be augmented exist or included in the GAA; third, the item(s)/source of savings and the item(s) to be augmented must be within the appropriations of the authorized official; and fourth, " in no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act".

WHAT’S THE UNPROGRAMMED FUND? CAN IT BE USED AS FUNDING SOURCE FOR THE DAP?
The use of the Unprogrammed Fund (UF) as a funding source for DAP is a mystery to me. The UF by its nature is a contingent appropriation, It is not part of the Programmed Appropriation. It may tapped only when the revenue collections exceed the original revenue targets submitted by the President, including savings from programmed appropriations for the year.

But in 2011, as in previous years, actual revenue collections were lower than the original target. The original target was P1,410,000,000, while actual collections were P1,359,942,000.

Some components of total revenues, say PAGCOR collections, were higher than target: P11.4 billion actual vs. P10.9 billion target. But for purposes of using the Unprogrammed Fund that’s irrelevant. The GAA talks of revenue collections rather collections for specific tax or non-tax sources.

One exception in the use of the Unprogrammed Fund is in the case of newly approved loans for foreign assisted projects (FAPs). If a loan agreement for FAPs was already perfected during the fiscal year, a SARO covering the loan proceeds may be issued, charged against the UF.

In 2011, total unprogrammed appropriations for "support to foreign-assisted projects" was P10.8 billion (approximately $245 million); I doubt if foreign loans for specific projects worth that much were perfected in 2011.

The author is Professor of Economics at the U.P. School of Economics and former Secretary of Budget and Management.

source:  Businessworld

2013: SC declares PDAF unconstitutional

MANILA, Philippines—Voting 14-0, the Supreme Court on Tuesday declared as unconstitutional the Priority Development Assistance Fund (PDAF) or “pork barrel.”

In the decision authored by Associate Justice Estela Perlas Bernabe, the high court declared as unconstitutional the entire 2013 PDAF.

The high court also nullifies “all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and Countrywide Development Fund (CDF) articles and the various Congressional Insertions, which authorize/d legislators-whether individually or collectively organized into committees—to intervene, assume or participate in any of the various post-enactment stages of the budget execution.”

At the same time, the high court also nullified the laws that provided lawmakers lump-sum allocations to fund their chosen projects.

“All informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of discretion,” are also declared void.

“Accordingly the Court’s temporary injunction dated Sept. 10, 2013 is hereby declared to be permanent. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous years…are hereby enjoined,” the high court said.

The high court ordered the Department of Justice and the Office of the Ombudsman to investigate and file the needed cases against all government officials as well as private individuals involved in the improper disbursement of PDAF.

Among those who separately petitioned the court to scrap the PDAF system are losing senatorial candidates Samson Alcantara and Greco Belgica.

Petitioners pointed out that the system on discretionary funds of both Congress and Malacañang violated the constitutional limits given to the executive and the legislative because they were able to spend money beyond what was approved by Congress “since these are lump sum funds.”

On the other hand, the government through the Office of the Solicitor General said the high court has upheld the constitutionality of the PDAF system in previous cases, including LAMP vs. DBM.

Below is a copy of the Supreme Court ruling:

source:  Philippine Daily Inquirer

 
 


Full copy of the Supreme Court Decision by Manila Bulletin

In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d legislators—whether individually or collectively organized into committees—to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of discretion; and (e) the phrases (1) “and for such other purposes as may be hereafter directed by the President” under Section 8 of Presidential Decree No. 910 and (2) “to finance the priority infrastructure development projects” under Section 12 of PD 1869, as amended by PD 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.”
 
“WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which authorize/d legislators—whether individually or collectively organized into committees—to intervene, assume or participate in any of the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of discretion; and (e) the phrases (1) “and for such other purposes as may be hereafter directed by the President” under Section 8 of Presidential Decree No. 910 and (2) “to finance the priority infrastructure development projects” under Section 12 of PD 1869, as amended by PD 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.

Accordingly, the Court’s temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT. Thus, the disbursement/release of the remaining PDAF Funds allocated for the year 2013, as well as for all previous years, and the Malampaya Funds under the phrase, “and for such other purposes as may hereafter be directed by the President” pursuant to Section 8 of Presidential Decree No, 910, which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCA) but only by Special Allotment Release Orders, whether obligated or ot, are hereby ENJOINED. In similar regard, the Court also enjoins the release of funds sourced from the Presidential Social Fund under the phrase, “to finance the the priority infrastructure development projects” pursuant to Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993. Said funds covered by this permanent injunction shall not be disbursed/released but instead returned to the general coffers of the government, except for the funds covered by the Malampaya funds and the Presidential Social Fund which shall remain therein to be utilized for their respective special purposes not otherwise declared unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES petitioners’ prayer seeking that the Executive Secretary and/or the Department of Budget and Management be ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports related to the availments and utilization of the funds subject of these cases. Petitioners’ access to official documents already available and of public record which are not related to these funds must, however, not be prohibited but merely subjected to the custodian’s reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue through a separate petition.

The Court also DENIES petitioners’ prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.
This Decision is immediately executory but prospective in effect.”


11/19/13 - SC decision restores normal constitutional order

As early as 1994, the constitutionality of the pork barrel, then called the Countrywide Development Fund (CDF), 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 CDF. 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 CDF, it was the President who would implement them.

Prior to the approval of the 1994 General Appropriations Act (GAA), pork barrel, which was recognized by the 1935 Constitution as a legitimate institution, had not received much attention. In the years from 1972 to 1986, there was no talk about pork barrel. But those were unusual years because, for all practical purposes, President Ferdinand Marcos controlled the national treasury, both pork and beef.

After the restoration of democratic processes and in the years from 1986 to 1993, pork barrel was not a hot subject of debate. It was only after the approval of the 1994 GAA that pork barrel became a frequent front-page subject for heated discussion.

What was it in the 1994 GAA that invited debate?

Earlier pork barrel laws specifically stated that the money could be released only with the approval of the President, and that the budget secretary should promulgate rules and regulations for pork barrel funds.  For as long as this was followed, there was no problem. However, such requirements were removed by the 1994 GAA, Republic Act No. 7663.

Officials concerned
RA 7663 simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”
Who are these “officials concerned”? They are senators, representatives, and the Vice President. In effect, RA 7663 gave to the members of Congress control over the release of approved funds.

Whereas under the Constitution it is the President, either directly or through executive agencies, who should control the release of funds, the executive agencies awaited the go-signal of the members of Congress before they could release the funds for the projects recommended by the members of Congress. 

The decision Tuesday of the Supreme Court restores the normal constitutional order of handling public money. The first destination of money coming in for the public, either as taxes or other forms of income, is the public treasury. And such money stays in the treasury until Congress determines how it is to be used.
As the Constitution says, “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.” The appropriation can be either through the general appropriations law or through special appropriations. This provision prevents members of Congress, and the President, from indiscriminately spending unappropriated money.

Now that we have the Supreme Court decision, unappropriated and unspent money will have to be returned to the general coffers of government “except for the funds covered by the Malampaya Fund and the Presidential Social Fund, which shall remain therein to be utilized for their respective special purposes not otherwise declared unconstitutional.”

Effect on President
What effect will this decision have on President Aquino’s capacity to meet emergency situations? I do not know how much money the President has in the contingency provisions for him in the general appropriations law.

Does he have the resources needed to deal with the effects of the October earthquake in Bohol and now also with the ravages caused by Supertyphoon “Yolanda?” At the rate the President is reassuring the survivors of the ravages caused by nature, he probably is confident that he has the resources. If needed, he can call Congress to a special session to appropriate what more is required.

The beneficiaries of the pork barrel will probably be unhappy with the high court’s decision. Many of them really needed what the pork barrel system had given them. That need of many remains.




The challenge now is for Congress and for the President to devise something constitutional to fill the vacuum left by the Supreme Court’s decision declaring pork barrel unconstitutional.

source:  Philippine Daily Inquirer's Column of

11/19/13 - Statement by Senate President Franklin M. Drilon
on the Supreme Court's ruling on the PDAF

"We welcome the decision of the Supreme Court declaring the Priority Development Assistance Fund (PDAF) unconstitutional. We will abide by the decision of the Supreme Court."

"The highest court's decision is moot and academic insofar as the Senate is concerned, as the senators have already waived their use of the remaining PDAF for 2013. Also, a majority of the senators, at least 15 of us, have already decided to fully delete the PDAF in the 2014 budget, which in effect will lower the country's budget deficit pegged at P266.2 billion."

"With this decision, we are now eyeing the passage of a supplemental budget for 2013 - and we will thereafter urge the President to certify it as urgent - in the amount of P14.5 billion representing the unutilized PDAF for 2013, which the executive may use to bolster its relief operations and rehabilitation of areas affected by the recent calamities, particularly typhoon Yolanda, Santi, Labuyo, and as well as the siege in Zamboanga City and the 7.2 magnitude earthquake in Visayas."

"I believe the SC decision reinforces the government's efforts to reform the country's political system and likewise affirms the Senate's position that PDAF must be abolished."

"Everybody is stepping in the right direction, as the abolition of PDAF system should be the start of more reforms aimed at curbing corruption and misuse of taxpayers' money."

"With the abolition of PDAF, we will also dismantle the system of political patronage that has stunted socio-economic development and allowed a few to maintain their political dominance in certain areas."

"The Senate will see to it that henceforth, all officials shall adhere to laws and rules and regulations governing the use of public funds."

11/15/13 - SC sets rules on DAP hearing

Lawyers for the petitioners and Malacañang will be confined to argue on six issues when the Supreme Court holds the public hearing on the legality of the Disbursement Acceleration Program.

In an advisory released Thursday, the SC set two categories--procedural and substantive--the issues to be tackled on November 19.

On a technical level, the SC directed parties to resolve if there is a controversy ripe for judicial determination, if petitioners have legal standing to question DAP and whether certiorari, prohibition and mandamus are proper remedies to assail the constitutionality and validity of the DAP.

The substantive aspect covers whether or not the DAP violates Sec. 29, Art. VI of the constitution, mandating that “no money shall be paid out of the treasury except in pursuance of an appropriation made by law.”

The SC justices approved the guidelines in session last Tuesday.

The nine petitions against DAP were filed earlier by former Iloilo Rep. Augusto Syjuco, lawyers Jose Malvar Villegas Jr. and Manuelito Luna; Philippine Constitution Association; Integrated Bar of the Philippines; the militant Bayan Muna, Kabataan and Gabriela party-list groups; Christian sects led by losing senatorial candidate Greco Belgica; Confederation for Unity, Recognition and Advancement of Government Employees; and the Volunteers Against Crime and Corruption.

They alleged that the discretionary fund of the President violated the legislature’s power of the purse.

The respondents in the case--Office of the President, Department of Budget and Management and the Senate and House of Representatives--have asked the SC to dismiss all petitions for lack of merit.

Solicitor General Francis Jardeleza argued there was “no genuine question of law, only error in petitioners’ appreciation of the facts” and that critics could have just conducted “reasonable inquiry and reading of publicly available information.”

source:  Manila Standard



10/31/13:  Oral arguments on DAP to focus on six issues

PARTIES to the pending petitions on the Disbursement Acceleration Program (DAP) filed at the Supreme Court (SC) have proposed six issues to be discussed in the impending oral arguments on the controversial stimulus funds.

In a press briefer, the SC’s Public Information Office (PIO) said debates will include the real nature of the DAP, whether it is a fund or a program.

Oral arguments will also tackle the legal basis for the creation of the DAP, its constitutionality based on fund releases upon requests of lawmakers and the definition of “savings” under the Constitution and other rules. Lastly, the debates will cover the DAP’s legality as a program based on existing laws, the DAP funds’ constitutionality in augmenting the General Appropriations Act.

The SC has allotted 30 minutes for the petitioners and respondents. The time will not include justices’ interpellation of the speakers.

Petitioners will submit to the SC, through the assigned justice, their proposal on how to divide the time allotment as well as the order and identity of speakers.

Petitions challenging the DAP will be heard on oral arguments on Nov. 11 starting at 10 a.m.

“The argument will be on the merits of the petitions as well as the need to issue a stay order.”

The SC likewise ordered the solicitor general to comment on the consolidated petitions by Nov. 7.

A total of seven petitions are questioning the DAP’s constitutionality.

The latest petition was filed by losing senatorial candidate Greco Antonious Beda B. Belgica, Bishop Reuben M. Abante and Rev. Jojo L. Gonzales. -- Mikhail Franz E. Flores

source:  Businessworld

Rejecting dictatorial powers

Credit should be given where it is due. President Noynoy Aquino should be commended for rejecting the option of exercising dictatorial powers. At a time when his popularity has gone on a free fall, courtesy partly of the bad mouths in charge of his communications, the President still rejected suggestions for him to be a dictator by imposing Martial Law in Tacloban. Lesser mortals would have taken advantage of the situation.

There is no doubt that the humanitarian crisis resulting from the strongest typhoon ever has caused complete breakdown of law and order in Tacloban. Media have reported rampant lootings and the perpetration of other crimes, including murder, in the city most ravaged by Yolanda. While a despot would welcome any opportunity to infringe on civil liberties, I am happy that PNoy rejected the temptation to exercise powers of a dictator.

Under our Constitution, the President has three extraordinary powers as Commander-in-Chief of the Armed Forces of the Philippines, which powers are hierarchically provided and exercised accordingly. First, he has power to call upon the “armed forces to prevent or suppress lawless violence, invasion or rebellion”, the power to declare a national emergency. Further in cases of n case of invasion or rebellion, when the public safety requires it, he may, for a period not exceeding sixty days, suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law. Further, Congress may declare a state of emergency.

PNoy was correct that while there is a breakdown of peace and order in Leyte, the suspension of the privilege or the declaration of martial law should be exercised with caution. This is because freedoms are protected by the Bill of rights and any derogation hence from the duty to protect and promote them should be construed strictly.

Moreover, the correct response to the crisis, in addition to his calling out power, is the declaration of a state of calamity. Legally, such a declaration would authorize local governments to spend their calamity funds even without local ordinances. While I am not certain about the legal effect of what was actually declared, that of a “state of national calamity”, I suppose that such a declaration was a fusion of the calling out power and authority for local governments involved in the ravaged areas to spend their calamity funds.

Of course, the perpetrators of the unconstitutional Disbursement Program will, like Napoles and PGMA, capitalize on the Yolanda disaster to justify the DAP anew. But what we do know is: one, there’s still funds left in the appropriation for calamity funds; and two, if the funds are insufficient, the remedy would be to pass a special appropriation to address the crisis. Of course, the use of savings, provided it complies with Demetria vs. Alba, that is, it comes from savings in the executive to be used in connection with an existing line item, is still an option. The controversy over DAP is not whether the President can do this, but whether the use of savings to add further programs which are not provided in the budget law and /or whether the President can use savings from the executive and disburse them to another branch of government such as the Senate. This was of course what Senator Jinggoy Estrada revealed: that each Senator who voted to remove former Chief Justice Corona was given P100 million each from savings of the executive.

PNoy, for all his other shortcomings, should be commended. Recall that his predecessor, the “evil one”, exercised the calling out power thrice and declared martial law twice, albeit the first one, declared to be unconstitutional in David vs. Arroyo, was undeclared . It is no small feat hence for a President to resist the temptation to trample upon civil liberties. Certainly, the Marcos dictatorship was proof of this. All freedom-loving Filipinos should hence commend PNoy for rising up to the challenge and rejecting the allure and temptation of dictatorial powers.

source:  Manila Standard Column of Atty Harry Roque, Jr.

Freedom of expression in Asean

I am in Bangkok, Thailand for training on media defense for lawyers from Cambodia, Vietnam and Burma. This is sponsored by Media Defense Southeast Asia with support from the Konrad Adenaur Stiftung and the American Bar Association Rule of Law Program. The prognosis is very bleak. All throughout Southeast Asia, despots continue to infringe on freedom of expression, a right guaranteed by the International Covenant on Civil and Political Rights and customary international law.
Freedom of expression has three aspects: the right to freely hold opinions which is absolute, as in fact, no government can control our thinking process; the right to expression, which may be limited in cases of national emergencies; and right to information. The latter is of course important because without information, people cannot make judgments. Without personal opinions, there will be no public opinion, which in turn, can be utilized to make governments accountable.

The consensus is that all leaders in the region are averse to freedom of expression because all of them suffer from issues of legitimacy. While the degree of repression varies drastically from the use of brutal force in cracking down on bloggers in Burma, Vietnam and Cambodia, Lest Majeste in Thailand, the use of libel and internal security laws in Singapore and Malaysia, and the  killing of journalists in the Philippines- the commonality is that leaders in the region are all averse to the truth. The fact is  even at this time and age, many of the regimes in the region lack popular mandate.  When they do enjoy the mandate, like PNoy, they are allergic to criticism.

Dean Raul Pangalangan delivered a brilliant lecture on the normative values of free speech. He summarizes these into four: the democratic rationale, the counter-majoritarian rational, the marketplace of ideas, and the “safety valve” function.

The democratic function is summarized in the leading case of American Communications vs. Douds: “but we must not forget that in our country are evangelists and zealots of many different political, economic and religious persuasions whose fanatical conviction is that all thought is divinely classified into two kinds — that which is their own and that which is false and dangerous”. In “Whitney vs. California, it was described as: freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth.”

The counter-majoritarian rationale is best summarized in West Virginia State Board of Education v. Barnette: “one’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The marketplace of ideas was expressed in Abrams vs. US: “To allow opposition by speech seems to indicate that you think the speech impotent ….. But when men have realized that time has upset many fighting faiths, they may come to believe … that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge.”

The “safety valve” function, finally,  was expressed in Whitney v. California: “The framers of the Constitution “knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones.”

The Philippines could be the leader in promoting freedom of expression had we not resorted to censorship by murder. It does not help either that our President, despite having a popular mandate, appears antithetic  to criticisms. Nonetheless, the good news is that our media lawyers—led by Centerlaw’s Romel Bagares and Media Defense Southeast Asia’s Gilbert Andres—will be at the forefront of availing of international remedies to support the cause of expression in Burma, Vietnam and Cambodia. That’s good news.

source:  Manila Standards Column of Atty Harry Roque

Member of Lupon Tagapamayapa can be disqualified

Dear PAO,
I am now facing a baseless complaint from my neighbor for defamation before the Lupon of our barangay. I would like to ask the procedure for changing a member of the Lupon who is biased?
MD

Dear MD,
 
A Lupon Tagapamayapa is created by virtue of Republic Act (R.A.) No. 7160 otherwise known as the “Local Government Code of 1991”, wherein Article 387 (b) of the law provides that “there shall be in every barangay a lupong tagapamayapa”. The lupon is composed of the punong barangay as chairman and 10 to 20 members. A member of the lupon must be a person residing or working in the barangay, who is not otherwise expressly disqualified by law, and possessing integrity, impartiality, independence of mind, sense of fairness, and reputation for probity (Section 399, Local Government Code). 

The lupon has the following functions: (a) Exercise administrative supervision over the conciliation panels provided herein; (b) Meet regularly once a month to provide a forum for exchange of ideas among its members and the public on matters relevant to the amicable settlement of disputes, and to enable various conciliation panel members to share with one another their observations and experiences in effecting speedy resolution of disputes; and (c) Exercise such other powers and perform such other duties and functions as may be prescribed by law or ordinance. 

It is the Pangkat Tagapagkasundo, whose members are chosen from the Lupon, that conducts barangay mediation after efforts for mediation of lupon chairman fails (Section 410 (b), Local Government Code). The members of the pangkat is chosen by the parties from the members of the Lupon. If the parties fail to agree on the pangkat membership, the same shall be determined by lots drawn by the lupon chairman (Section 405, Local Government Code).

Thus, if a pangkat tagapagkasundo, who would conduct mediation regarding the compliant of your neighbor, is not yet constituted, we advise that you choose the members who have the qualifications as stated by the Local Government Code to best resolve the issue presented. If a pangkat is already constituted and it appears that one of the members thereof is biased, you may move to disqualify him on the said basis.

However, an affirmative vote of the majority of the pangkat is needed to resolve the said motion to disqualify, which decision shall be final (Section 410 [d], Local Government Code).

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

source:  Manila Times' Column of Atty Persida Acosta

Exigencies justifying warrantless search and seizure

At the height of the December 1989 coup d’etat staged against the government, the members of the Reform the Armed Forces Movement-Soldiers of the Filipino People (RAM-SFP) bombarded various establishments and military camps in Metro Manila with their “tora-tora” planes and took over the Villamor Air Base, the Headquarters of the Philippine Army, the Army Operations Center, the government television station, and the Greenhills Shopping Center in San Juan.

The accused in this case was charged with the crime of illegal possession of ammunition and explosives in furtherance of rebellion.

According to the military officers involved, the Intelligence Division of the National Capital Region Defense Command conducted a surveillance of a European automobile sales office along EDSA pursuant to an intelligence report that said establishment was being used as a communication command post by the RAM-SFP. 
                However, when they neared the establishment, they were attacked and fired upon by a group of men. This resulted in the subsequent raid of the sales office, wherein the military officers discovered and confiscated six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different calibers, and “Molotov” bombs inside one of the offices belonging to a certain Colonel.

The officer who first entered the building alleged that he saw the accused inside the office of the Colonel holding a C-4 while suspiciously peeping through the door. The accused was arrested and was made to sign an inventory of the explosives and ammunition confiscated by the raiding team.

The team, however, failed to secure a search warrant prior to the raid. They attributed this failure to the disorderly circumstances at the time, i.e., the attack of the nearby Camp Aguinaldo by rebel forces with the simultaneous firing within the vicinity of the sales office, coupled with the fact that the courts were consequently closed.

In his defense, the accused gave an entirely different version of what transpired. He claimed that he worked as a “boy” for the Colonel and was tasked to guard his office. When the raiding team arrived, he was not in the office but rather in his nipa house, which was adjacent to the building. He was ordered to get out of his house and was made to lie on the ground face down. He averred that he knew nothing about the explosives, which were already there when he was ordered to get up.

The trial court found him guilty beyond reasonable doubt. On appeal, one of the issues tackled by the Supreme Court was whether there was a valid search and seizure in this case. Answering in the affirmative, the High Court held -
 
Under the foregoing circumstances, it is our considered opinion that the instant case falls under one of the exceptions to the prohibition against a warrantless search. In the first place, the military operatives, taking into account the facts obtaining in this case, had reasonable ground to believe that a crime was being committed. There was consequently more than sufficient probable cause to warrant their action. Furthermore, under the situation then prevailing, the raiding team had no opportunity to apply for and secure a search warrant from the courts. The trial judge himself manifested… when the raid was conducted, his court was closed. Under such urgency and exigency of the moment, a search warrant could lawfully be dispensed with (People of the Philippines v. De Gracia, G.R. Nos. 102009-10, 6 July 1994, J. Regalado).

source:  Manila Times' Column of Benchpress

Consented warrantless search

An agent from the Anti-Usury Board obtained a search warrant commanding any officer of the law to search the person, house, or store of a woman at Victoria, Tarlac, for “certain books, lists, chits, receipts, documents and other papers relating to her activities as usurer.” The search warrant was issued by a judge based on the affidavit of the same agent who believed that this woman conducts activities in violation of the Anti-Usury law and keeps evidence of these activities in her home and store.

The same day the warrant was issued, the agent went to the store. The woman was not present because she was sick and confined at home. Regardless of this fact, the agent and police officer showed the search warrant to the woman’s bookkeeper and began to search the premises. Two packages of records and a locked filing cabinet containing several papers and documents were seized and a receipt issued to the bookkeeper.

Six cases were filed in court for violation of the Anti-Usury Law. Pending decision, the woman demanded several times from the Anti-Usury Board to return all the documents seized. The legality of the search warrant was also questioned. The lower court refused to return the documents seized. While it found the search warrant to be illegal, it upheld the search on the basis that there was a waiver on the right against warrantless searches and seizures.

The Supreme Court (SC) upheld the illegality of the search warrant but ruled that no such waiver or consent was given to warrant a warrantless search. It explained the concept of a consented warrantless searches, one of the exceptions to the rule on unreasonable searches and seizures - [t]he constitutional immunity against unreasonable searches and seizures is a personal right which may be waived. The waiver may be either express or implied. No express waiver has been made in the case before us . . . It is well-settled that to constitute a waiver of a constitutional right, it must appear, first, that the right exists; secondly, that the persons involved had knowledge, either actual or constructive, of the existence of such right; and, lastly, that said person had an actual intention to relinquish the right . . . Certainly, the constitutional immunity from unreasonable searches and seizures, being a personal one, cannot be waived by anyone except the person whose rights are invaded or one who is expressly authorized to do so in his or her behalf.

The SC also declared that no implied waiver was present under the circumstances -
[F]ailure to resist or object to the execution of the warrant does not constitute an implied waiver of constitutional right. It is but a submission to the authority of the law. As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer’s authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law.

Lastly, the Court recognized that even though the woman did not immediately demand the return of her documents upon seizure, she demanded their return on four different occassions before and pending criminal action. It held that “in the light of these circumstances, we find that the petitioner did not waive her constitutional right. The delay in making demand for the return of the documents seized is not such as to result in waiver by implication” (De Garcia v. Locsin, G.R. No. L-45950, 20 June 1938, J. Laurel).

source:  Manila Times' Column of Benchpress


Notes:

1. Warrant has to be presented by authority to the person to whom it issued against
2. Person needs to personally manifests his waiver or manifest the same through his authorized 3rd party

Natural law as law standard

A TOPIC I’ve oft been asked is on the proper role of natural law in our constitutional system. As it is, one dictum goes “that Congress must legislate in accordance with natural law but the Supreme Court must rule in accordance with the Constitution.” However, the reality and the way our present Constitution is written provide significant deviation from that.

It must be emphasized that our constitutional system, even prior to the 1987 Constitution, allows our Supreme Court to overturn laws not merely on the basis that the Congress did not comply with constitutional requirements (i.e., “procedural due process”) but also to inquire as to the inherent “justness” of a law (i.e., “substantive due process”). Due to our experience with martial law in the 1970s, where our Supreme Court had to shy away from ruling on the measures taken by then President Ferdinand Marcos (as almost every act he did, whether morally questionable or not, was done with legal precision), the present Constitution had a new provision written into it: Article VIII, Section 1. Thus, now expressly, the Supreme Court has the power to determine if the acts of Congress (or the president’s) were done with “grave abuse of discretion amounting to lack of or excess of jurisdiction.”

Accordingly, the Supreme Court has the authority to overturn a law enacted by Congress if the same was “capricious or whimsical exercise of judgment” or if such was enacted in an “arbitrary and despotic manner by reason of passion and hostility.” The latter indicates a law that is unfair, unjust, or contrary to reason, motivated as it was, for example, by mere “passion.”

Taking that into consideration, is the Supreme Court mandated to use natural law as a standard (alongside and even beyond that of the Constitution) with which to view Congressional enactments? The answer is yes. For two reasons. One is that because natural law is: “an objective standard of right and wrong derived from the use of right reason.” If a law be contrary to natural law, it goes against reason, and an irrational law logically would be an act of “grave abuse of discretion amounting to lack of or excess of jurisdiction.”

But there’s another and more simple reason: because the Supreme Court itself said so.

This (expressly or impliedly, directly or in allusion to) in ruling after ruling by the Supreme Court, which in a partial listing alone would include: People v. Asas (recognizing the right against forced confessions as part of the natural law); People v. Agbot (recognizing that the natural law forbids killing); Mobile Oil Philippines, Inc. v. Diocares (the element of promise as the basis of contracts as an influence of natural law); Manila Memorial Park Cemetery v. Court of Appeals (estoppel as part of natural law); Yu Con v. Ipil (on natural law in maritime law); In Re Testate Estate of Narciso Padilla (on the prohibition of unjust enrichment in the natural law); Moncado v. El Tribunal del Pueblo y Juan M. Ladaw (statement on the innate human sense of justice); Laurel v. Misa (on the natural law and positive law prohibition of wars of aggression); Ansay v. the board of directors of the National Development Co. (on natural obligations); Philippine Commercial and Industrial Bank v. NAMAWU-MIF (on the natural law basis of certain labor code provisions); De La Llana v. Alba (on the role of natural law in judicial decisions); Marquino v. Intermediate Appellate Court (on the natural law basis of property rights); Uniwide Sales Realty and Resources Corporation v. Titan-Ikeda Construction and Development Corp. (on natural obligations).

Then there are specific cases, where aside from referring to a “higher law” or “rule of reason,” the Supreme Court also touched on the nature of “human dignity”: Estrada v. Escritor; Blooming Mills Employment Organization v. Philippine Blooming Mills Co., Inc; Floresca vs. Philex Mining Corp.; Allado v. Diokno; Republic vs Sandiganbayan.

All the foregoing must be read alongside Article II, Section 2 of the Constitution, incorporating international law (which has natural law as basis, as even any law student knows) into our constitutional system. Examples of this: the 1948 UN Declaration on Human Rights; the 1966 International Covenant on Economic, Social and Cultural Rights; the International Covenant on Civil and Political Rights; international law doctrines of jus cogens (as well as erga omnes); and the Nuremberg War Crimes Trials.

It must be emphasized that when the Supreme Court invokes natural law, it wasn’t referring to any theological or religious concept but rather an acknowledgement that there are indeed objective standards. Even the US Supreme Court referred to natural law.

As revered legal expert Jorge Coquia explains: “One standard that can serve as a guide for courts in resolving concrete cases involving conflicts of the fundamental freedoms of speech, press, property and religion is Natural Law. xxx Positive law needs the enduring critic provided by Natural Law. It must be confronted by objective justice.”

Contact: jemygatdula@yahoo.com. Visit my blog at www.jemygatdula.blogspot.com.

source:  Businessworld

Plain view doctrine in warrantless searches and seizures

One late afternoon in a small barangay of Mendez, Cavite, five police officers were on routine patrol duty when they heard the sound of successive gunshots in the vicinity and found a man firing a gun into the air. The man saw the patrol and immediately ran away to a nearby house where the police officers pursued him. They found two (2) slightly inebriated individuals drinking on the porch of the house. The inebriated individuals informed the police men that the man they were chasing had already escaped through the window of the house.

One of the police men, however, observed a noticeable bulge around the waist of one of the men who later on admitted he was carrying a .38 caliber revolver. Moreover, he did not have a valid license to carry the firearm, which led to the confiscation of his revolver. The policeman asked the owner of the house if he could search the house for the man firing the gun, and the owner consented. In the sala, they found more firearms as well as other paraphernalia used in the repair and manufacture of firearms. Both the owner of the house and the individual carrying the firearm were indicted for illegal possession of firearms under Sec. 1, Presidential Decree No. 1866.

The two accused denied owning or possessing any of the confiscated firearms. They further alleged that the firearms and gun paraphernalia were illegally seized in violation of their constitutional rights. The trial court found both men guilty.

Wherefore, for having possessed firearms in violation of P.D. No. 1866, accused Santiago Evaristo and Noli Carillo are hereby sentenced to serve the penalty provided for under Sec. 1 thereof. The full period of their preventive imprisonment shall be deducted from the aforementioned penalty.

On appeal, the Supreme Court sustained the trial court’s decision ruling that the search that led to the seizure of the firearm and gunfire paraphernalia was a reasonable search based on the plain view doctrine. Citing Harris v. U.S. and Coolidge v. New Hampshire, the plain view doctrine provides that “objects inadvertently falling in the plain view of an officer who has the right to be in the position to have that view, are subject to seizure and may be introduced in evidence” -

The records in this case show that Sgt. Romerosa was granted permission by the appellant Evaristo to enter his house. The officer’s purpose was to apprehend Rosillo whom he saw had sought refuge therein. Therefore, it is clear that the search for firearms was not Romerosa’s purpose in entering the house, thereby rendering his discovery of the subject firearms as inadvertent and even accidental.

The Court reminded that Sec. 2, Art. 3, 1987 Constitution, only prohibits unreasonable searches and seizures and this rule is subject to several exceptions.

For a search to be reasonable under the law, there must, as a rule, be a search warrant validly issued by an appropriate judicial officer. Yet, the rule that searches and seizures must be supported by a valid search warrant is not an absolute and inflexible rule, for jurisprudence has recognized several exceptions to the search warrant requirement. Among these exceptions is the seizure of evidence in plain view (People v. Evaristo, G.R. No. 93828, 11 December 1992, J. Padilla).

source: Manila Times' Column of Benchpress

2013: Comelec Money Ban

May 10, 2013

Court issues stay order on Comelec money ban

THESUPREME COURT (SC) has issued a stay order on a Commission on Elections (Comelec) resolution that sought to limit cash withdrawals to P100,000 per day starting Wednesday until Monday, election day, to curb vote buying.

During an emergency press briefing early Friday, SC Spokesperson Theodore O. Te announced that Chief Justice Maria Lourdes P.A. Sereno has issued an indefinite status quo ante order (SQAO) on the so-called ‘money ban’ resolution promulgated by Comelec on Tuesday.

“[C]onsidering the allegations contained, the issues raised and the arguments adduced in the petition, as well as the recent amendents (Resolution No. 9688-A) of the assailed Comelec Resolution No. 9688 dated May 7, 2013, it is necessary and proper to issue a status quo ante order,” said Mr. Te.

The chief justice acted on the petition filed on Thursday by the Bankers Association of the Philippines (BAP) which argued that the Comelec directive “immediately and adversely affects the Constitutional rights of all depositors and the banking industry.”

Mr. Te also said Comelec officials are required to comment on the petition filed by BAP within ten days from receipt of notice.

The Comelec on Tuesday issued Resolution No. 9688 deputizing the Bangko Sentral ng Pilipinas (BSP) to restrict withdrawals of cash or encashment of checks worth more than 100,000 per day. The transportation and possession of half-a-million pesos in cash would also be prohibited. The ban was set on May 8 to Election Day, or May 13.

The poll body, however, after receiving criticisms from the BSP and the private sector, issued an amended resolution, Resolution No. 9688-A, which allows banks to decide on exemptions to the money ban.

Nevertheless, the amended resolution still did not sit well with those that will implement the resolution.

In a statement on Thursday, after the Comelec issued Resolution No. 9688-A, BAP President Lorenzo V. Tan said he believes the amended resolution “places undue burden on banks which now are given “discretion” to apply the money ban based on “regular” and “non-regular” clients. The banks have a legal and contractual obligation to release deposits to all withdrawing clients.”

President Benigno S.C. Aquino also said on Thursday that he did not give his concurrence on the money ban, which is a requirement under the 1987 Constitution.

Comelec officials have yet to comment on the SQAO. -- Daryll Edisonn D. Saclag


May 08, 2013

Comelec money ban illegal, says BSP

ELECTION OFFICIALS have been forced to rethink a money ban it says will prevent vote-buying in next week’s polls, with the central bank yesterday calling the move illegal.

The Bangko Sentral ng Pilipinas (BSP) said that while it supported the Commission on Election’s (Comelec) goal of clean and honest elections, limiting financial transactions would not be the solution to vote-buying.

The Comelec on Tuesday issued an order deputizing the BSP to ban cash withdrawals exceeding P100,000 per day. The transportation and possession of P500,000 in cash will also be prohibited. The ban -- the first of its kind in the country -- was to be implemented starting yesterday up to May 13, election day.

"Limiting cash withdrawal and check clearing beyond P100,000 may disrupt normal business and commercial transactions in the Philippines," the BSP said in a statement.

It added, "The BSP is also constrained from enforcing the Comelec resolution because this would necessarily entail looking into bank deposit accounts.

"This is essentially unsound and in violation of the Republic Act 1405 (Secrecy on Peso Deposits) and Republic Act 6426 (Secrecy on Foreign Currency Deposits)."

Banks said they would not follow the Comelec until regulators asked them to do so.

"This [ban] will hamper the commercial and business transactions of banks in general. Workers and suppliers of certain industries are paid weekly. Public markets operate on a cash-basis daily," Bankers Association of the Philippines President Lorenzo V. Tan said in a text message.

"It is business as usual for us. We haven’t received directives from our regulators," Mr. Tan added.

BDO Capital & Investment Corp. President Eduardo V. Francisco said, "If the BSP does not issue a directive, then we won’t comply with the Comelec as a lot of our clients need to withdraw in excess of P100,000 for their daily operations."

Business groups likewise backed the banking sector.

The limit of P100,000, said Management Association of the Philippines President Melito S. Salazar, Jr., would affect the daily operations of businesses, especially small and medium enterprises.

Donald G. Dee, vice-chairman of the Philippine Chamber of Commerce and Industry, added: "Businesses who are too small to automate wages, for example, still give out cash. What will happen to workers who are supposed to get their wages on Saturday?"

In Iloilo City, Iloilo Business Club executive director Ma. Lea Victoria E. Lara, said the ban would lead to complications.

"While this is a concrete action by Comelec to address or curb the practice, there should have been a more massive campaign to include getting the commitment of candidates not to buy votes," Ms. Lara said.

Eldrid C. Antiquiera, a member of the Integrated Bar of the Philippines’ Commission on Bar Discipline, said the money ban was contrary to the equal protection and right to privacy provisions of the Constitution.

Malacañang has ordered a review of the money ban and the Comelec, while insisting on its right to issue the directive, said it would review the matter.

"We have been receiving several complaints and concerns about it. And, as such, the President has asked the relevant Cabinet secretaries to look into the matter," Deputy Presidential Spokesperson Abigail F. Valte said.

Justice Secretary Leila M. de Lima, Trade Secretary Gregory L. Domingo and Finance Secretary Cesar V. Purisima have been directed to conduct the review, she said.

Comelec Chairman Sixto S. Brillantes, Jr., meanwhile, said: "The BSP has a formal letter to us, advising us if possible not to implement [the ban]. I don’t think we should take their advice, we are an independent [body]."

But Commissioner Lucenito N. Tagle, in a text message said: "Will discuss that [the ban] in our en banc."

Comelec spokesperson Arthur James B. Jimenez enjoined the central bank to come up with a better solution.

"It would be helpful if the BSP could give us its objections formally. And if they object to the solution we propose, they could help us formulate a solution they can support," Mr. Jimenez said.

source:  Businessworld

SC: Congress only has one seat in JBC

BAGUIO City, Philippines - The Supreme Court on Tuesday, April 6, upheld an earlier ruling limiting the number of congressional representative in the Judicial and Bar Council to one. 

The SC, voting 9-3-3, junked the motion for reconsideration filed by Iloilo Rep. Niel Tupas and Sen. Francis Escudero. The SC earlier ruled in July 2012 that the JBC - the body that vets and screens aspirants to the judiciary - should only have 7 members instead of 8. Congress should then be represented by one lawmaker and not by two, with one each from the Senate and the House of Representatives.

Concurring with the majority opinion were Justices Antonio Carpio, Bienvenido Reyes, Teresita Leonardo de Castro, Estela Perlas-Bernabe, Jose Mendoza, Jose Perez, Martin Villarama, Diosdado Peralta and Lucas Bersamin.

Dissenting were Justices Mariano del Castillo, Roberto Abad and Marvic Leonen. Chief Justice Maria Lourdes Sereno inhibited from the voting because she chairs the JBC; Justice Presbitero Velasco Jr also inhibited from the case because he is a consultant to the body. Justice Arturo Brion also took no part.

Leonen said both the Senate and the House of Representatives must be represented in the JBC because, "This is the Constitution’s mandate read as a whole...Any other interpretation diminishes Congress and negates the effectivity of its representation in the Judicial and Bar Council.”

The JBC presently has 8 members: Tupas, Escudero, retired Court of Appeals Justice Aurora Lagman, retired SC Justice Regino Hermosisima, lawyer Jose Mejia, Integrated Bar of the Philippines officer Milagros Fernan-Cayosa, Justice Secretary Leila de Lim and Sereno.

With the ruiing, the JBC must decide who would they retain in the body - Tupas or Escudero.

It was former Solicitor General Francisco Chavez who questioned the 8-member composition before the SC in July.

One of the candidates then for the post of chief justice, Chavez said he could not submit himself to the deliberations of a body whose composition is unconstitutional.

The SC ruled in his favor, saying that the 1987 Constitution clearly specified in Sec.8 Article VIII that "a representative of Congress" shall be one of its ex-oficio members. Representatives from the Senate and House of Representatives sat on the JBC alternately then.

History
The SC said that that this was altered in 1994, however, when an 8th member was added, as two representatives from Congress sat simultaneously in the JBC, casting a vote of 1/2 each. In 2001, each representative was allowed to cast one full vote.

The SC said though that there is no need to have two representatives from Congress in the JBC because the reference to it as a bicameral body "refers to its primary function in government which is legislation."

Congress should also act as a bicameral body when exercising its powers of appropriation, declaration of the existence of a state of war, canvassing of electoral returns for the President and Vice President and impeachment. 

"An inter-play between the two houses is necessary in the realization of these powers causing a vivid dichotomy that the Court cannot simply discount," the High Court said.

The SC said the same does not apply in Congress' functions in the JBC, however.

"There is clearly no interaction between the two houses in their participation in the JBC. No mechanism is required between the Senate and the House of Representatives in the screening and nomination of judicial officers," the SC said.

"Hence, the term ‘Congress’ must be taken to mean the entire legislative department."

source:  Rappler