Carpio: Use DAP for scholars, patients

MANILA, Philippines – If the government has so much savings, why not just use it for scholars and patients relying on the pork barrel?

Senior Associate Justice Antonio Carpio rejected the argument of Solicitor General Francis Jardeleza that the Supreme Court must lift the temporary restraining order (TRO) on the pork barrel for the sake of scholars and poor patients.

The Court issued a TRO on the release of the Priority Development Assistance Fund (PDAF) for the rest of 2013, and the Malampaya fund for purposes other than energy development.

Carpio said the government cannot pool P72 billion in savings for its controversial Disbursement Acceleration Program (DAP) and now say there is no money for the scholars and patients.

“I don’t know why you’re saying they will die because there is no money for the dialysis. There is, there are funds. In fact, we are amazed that so much funds are flowing out of this. There’s so much savings. How much savings did they get from DAP? P72 billion, that’s the claim,” Carpio told Jardeleza during oral arguments on Thursday, October 10.

“The funds are there, it’s political will. If they want to realign that, they can. And [the DAP] is not covered by the TRO.”

While the Supreme Court stopped the release of the PDAF, it did not issue a TRO on the DAP, the subject of a separate case that the Court will hear starting October 22.

The DAP is the government’s program to address underspending but critics said it had no legal basis and undermined Congress’ power of the purse. The government said though that the Constitution granted the President the power to realign savings.

Jardeleza argued for the lifting of the TRO on the PDAF for medical and educational assistance. He is representing the executive and legislative branches of government in the case. 

“For all the sins that attended the implementation of PDAF, there will be a time to punish the errant and the corrupt. Time is not on the side of patients and of the scholars. We appeal to the court to give the benefit of the doubt to these innocent victims of the PDAF,” Jardeleza said.

Yet Carpio pointed out that the government can source the money from the Philippine Charity Sweepstakes Office (PCSO), which has a program to for indigent patients. He said the President’s Social Fund (PSF) can also be tapped for the patients and to augment the scholarship programs of the education department.

“So the President has a lot of savings in the social fund and other items, he can just realign. It can be done if the President wants to do it. Anyway that money now kept there in the treasury for the balance of the DAP can be appropriated next year to reimburse PSF or other programs,” Carpio said.

Justice Mariano del Castillo humorously told Jardeleza. “You make me feel a little guilty now. You’re so sympathetic. I’m so unfeeling.”

Told that the patients can go to the PCSO, the justice said, “Thank you, counsel, I feel a little better now.”

The Court will decide on the constitutionality of the PDAF by November. Carpio ordered the respondents and the petitioners to submit their memoranda by October 17.

Petitioners questioned the legality of the PDAF after the pork barrel scam was exposed, where lawmakers allegedly channeled their PDAF to fake non-governmental organizations in exchange for kickbacks.

Secret pork barrel, juggling of funds

Associate Justice Marvic Leonen and Justice Teresita Leonardo De Castro also questioned the lump sum items in the budget like the various infrastructure including local projects (VILP).

Leonen said the VILP was for local infrastructure projects nationwide but did not specify the projects “so the President can choose whatever project.”

“Because there are no provisions that safeguard its expenditure, no special provision to protect it and therefore the President upon the recommendation of a congressman or senator can spend within this item, is that a secret pork barrel?”

Jardeleza said he will not characterize it as pork. Leonen asked the petitioners to define pork barrel in their memoranda.

De Castro also asked whether or not the lump sum itemization of the PDAF in the budget was a “clever way” of going around the Constitution. 

“There’s no itemization of the amount for the programs and projects mentioned. So he can put P20 million, P5 million there, and it will be up to the legislator to decide that so the provision on the Constitution on the transfer of appropriation will practically be nullified,” she said.  

Jardeleza though said this was “constitutionally permissible,” based on the 1994 Supreme Court ruling upholding the legality of the PDAF, Philconsa v Enriquez.

De Castro asked, “If you make a very long list and a very big budget and there are no itemized amount for each of this program or project, wouldn’t it facilitate the juggling of funds?”

Jardeleza said, “The other view is it became more detailed to constrain the use of the funds. Our answer is no, there cannot be juggling of funds.”

Malampaya: Presidential blank check?

Leonen and Justice Roberto Abad asked Jardeleza about the contentious provision in the martial law era Presidential Decree 910 allowing the use of the Malampaya fund for energy development “and for such other purposes as may be hereafter directed by the President.” (READ: 'PDAF, Malampaya 'illegal on its face')

The fund comes from the Malampaya natural gas project that has been operating off Palawan for 13 years. It is the single biggest investment in the Philippines, with proceeds amounting to P170 billion over the years.

Abad said, “Give it to the President and tell the President, ‘It’s up to you how many hydroelectric plant, thermal plants are needed.’ It’s just a lump sum amount of about P25 million a year.”

Leonen asked whether or not the provision was an “all-purpose authority” to the President. “The law says it must be levied for a special purpose. It can’t be a carte blanch authority given to the president or other instrumentality of government.”

The justice asked Jardeleza to clarify in memoranda whether the fund was a fee or tax. Leonen also told him to explain why the Aquino administration did not repeal an executive order and a circular allowing the use of the Malampaya fund for any purpose if its position was the money is only for energy-related projects.

In the oral arguments, Jardeleza clarified that the government recognized the High Court’s power of judicial review to decide on the case. He said what the government was asking for is for the Court to first allow the executive and legislative branches to correct abuses in the system. (READ: Miriam: SC has power to rule on 'pork' cases)

Jardeleza said, “Our plea is that [judicial review] is a very awesome power if it were exercised.”

Leonen responded, “I agree it is an awesome power but are we not confronted with as awesome a situation as [what's] happening today?" –  Rappler.com