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