PDAF, Malampaya ‘illegal on its face’

MANILA, Philippines – “In the end, this is very simple. On its face, you don’t need a COA report, you can declare the PDAF unconstitutional.”

Supreme Court Senior Associate Justice Antonio Carpio said that the legislators’ pork barrel fund or the Priority Development Assistance Fund (PDAF), and the executive’s use of the Malampaya fund for purposes not specified by Congress are “unconstitutional on its face.”

During Supreme Court oral arguments on Tuesday, October 8, Carpio said the pork barrel system in the 2013 budget law or General Appropriations Act (GAA) was “riddled with unconstitutionality.”

Carpio, the most senior Supreme Court justice, said provision 45 of the 2013 GAA violated the Constitution “on its face” when it delegated to Cabinet secretaries the President’s power to realign savings.

“The PDAF provisions say the secretary of agriculture, trade, etc. can realign funds. Can that power to realign be delegated to the Cabinet secretaries or is it not solely with the President? The Constitution says the President can realign savings within the executive department…so that power cannot be delegated to the Cabinet secretary.”

Carpio said by requiring the concurrence of the Senate finance committee and House appropriations committee in realignment, the 2013 GAA again violated the Constitution.

“Right then and there, there is facially a provision that is unconstitutional, two already. The power given to Cabinet secretaries to realign, that’s unconstitutional on its face. You don’t need a COA (Commission on Audit) report for that. The power given to the Senate committee, to the House committee to concur before there can be realignment, that’s unconstitutional on its face. Correct?”

Alfredo Molo III, counsel for petitioner, said, “Correct.”

Carpio said these are not the only possible grounds for declaring the 2013 GAA unconstitutional. The justice also said the 2013 GAA allowed individual lawmakers, not Congress as a whole, to identify projects after the enactment of the law.

“When the legislator identifies this project as my project, that is binding already on the executive. The executive cannot change that without the concurrence of the Senate or House committee, correct?”

Molo said, “Yes, your honor.”

Carpio added that the PDAF on its face also violates the President’s power to veto line items in the budget, and thus removes checks and balances. Since legislators identify which projects will be funded by their pork barrel only after the budget law has been passed, it effectively skips the President’s chance to veto.

“The PDAF is also a circumvention of the power of the President to veto line items,” Carpio said.

In answering questions from various justices, Molo also maintained that actions of legislators coming after the enactment of the budget law are unconstitutional. 

At the start of the proceedings, Molo argued why the PDAF is unconstitutional. “It allows legislators post-enactment to execute projects. It crosses the line between the executive and the legislative.”

Watch a video report on the proceedings below.

 

Past SC rulings not precedents

Carpio also pointed out that the previous Supreme Court rulings upholding the legality of the PDAF are not applicable to the current case that’s based on the 2013 GAA.

The Court upheld the constitutionality of the PDAF in Philippine Constitution Association (Philconsa) v Enriquez in 1994, Andres Sarmiento et al v the Treasurer of the Philippines et al in 2001, and Lawyers Against Monopoly and Poverty (LAMP) v Secretary of Budget and Management in 2012.

Carpio said: “In Philconsa and in LAMP, we said the identification [of the lawmaker’s project] is only recommendatory…. So clearly in Philconsa, the provision before the Court was a purely recommendatory PDAF, the legislator just recommends, on its face. In Philconsa, the court decided the case different from the provisions before us now. There’s no comparison at all.”

“Here it is mandatory. So Philconsa is not a precedent. It is a different animal from what we are facing today,” Carpio said.

The justice added, “It’s only in 2013 you can find this. It looks like the department of budget just put into the law their practice. It accumulated. At first, they were cognizant that the legislator cannot execute the GAA, [the power is] only recommendatory but they forgot that so they put everything in the 2013 budget.”

In an interview before the start of the oral arguments, Solicitor General Francis Jardeleza said the government holds a different view.

“The position of the government is that the rulings of the SC continue to be valid and we will try to convince the court that despite the COA report, there’s still no violation. All the previous rulings – Philconsa, Sarmiento, LAMP – our position is they’re still valid,” Jardeleza said.

Basis for using Malampaya fund repealed

In questioning Molo, Carpio also said that the use of the Malampaya fund for purposes beyond energy development may also be unconstitutional.

Petitioners are questioning the provision in Presidential Decree No 910 that the fund may be used for energy exploration, exploitation and development “and for such other purposes as may be hereafter directed by the President.”

Carpio traced the history of the presidential decree. It was enacted during martial law, so it was lawful for the President to hold both executive and legislative powers.

“But when Congress was restored under 1987 Constitution, there was now a problem because the President cannot exercise the power to appropriate anymore…. So it became unconstitutional when Congress convened, correct? When Congress convened, President Cory Aquino lost her legislative powers.”

“So that simple: on its face, Malampaya fund [and] PD 910 giving the President the power to use the fund for any purpose, on its face, that is unconstitutional?”

Molo said, “Correct.”

Carpio also said allowing the President to use the fund for any purpose is “an abdication of the power of Congress to appropriate.”

Molo concurred.

The government will present its case when the oral arguments resume on Thursday, October 10. – Rappler.com