Congress reins in Duterte's special budget powers
Cures and fixes notwithstanding, the new law may still be unnecessary because it is superfluous
BY AIKA REY AND LIAN BUAN | MARCH 25, 2020
Congress reins in Duterte's special budget powers
AT A GLANCE
- Congress approved a bill that gives President Rodrigo Duterte 30 "special powers" to deal with the pandemic.
- From the first reading up to the final reading, the bill was transformed to remove questionable and unconstitutional items.
- Now, lawyers are saying it's not necessary, as the items in the measure are already well within the President's powers and allowed by existing laws.
MANILA, Philippines – At 10 am on Monday, March 23, both houses of Congress started deliberating on bills that would have given President Rodrigo Duterte emergency powers that may have been unconstitutional if passed in toto.
Monday's session was the first-ever special session to be called since the President assumed office. It was noteworthy too – a special session meant to approve a bill that would give Duterte "additional powers" to combat the coronavirus.
At first the bills were controversial for including "emergency powers" and unconstitutional budget powers. In the end, they were watered down.
Now, lawyers are saying these may not be necessary.
What went on?
When the initial draft of Malacañang's emergency powers bill was leaked, it included a provision that would have allowed Duterte to take over private businesses and transfer "any appropriations."
Come Monday, the two bills filed at the House and the Senate became identifical, save for a phrase – the Senate version sought to give the President "authority," while the House version wanted "emergency powers."
The marathon special sessions took over 12 hours to approve the measure. On Monday afternoon, the House committee of the whole approved the carbon copy of Malacañang's draft bill. It contained catch-all budget powers that were unconstitutional and sought to give the President "emergency powers."
In Pasay City, it was a different scenario. Senators met behind closed doors for about 9 hours to "cure" the questionable items. When the bill was sponsored at the Senate plenary, the controversial budget powers were tweaked, listing the powers which Duterte already has. There was no mention of emergency powers.
Senate President Vicente Sotto III was right when he said that "nothing is written in stone" after the title.
Rappler tracked the changes in the law. The annotated document below shows the following:
- No highlight – Part of the original bills, Senate Bill 1413 and House Bill 6616
- Green highlight – The only difference between SB 1413 and HB 6616
- Yellow highlight – Amendments on the original bills. These portions also indicate they were sponsored at the Senate plenary for second reading as SB 1418. The amended HB 6616 was what the lower chamber approved on 3rd and final reading.
- Blue highlight – Amendments on SB 1418. These was approved by the Senate on 3rd and final reading. The House later adopted this version.
From first reading to final reading, the controversial provision on the takeover of businesses from the initial Malacañang draft was clipped. Instead the President's power was limited to "directing" privately-owned hospitals and health facilities, with owners still managing them. The approved Senate version included passenger vessels in the list.
In its final form, the Senate also plugged in key items on health worker compensation and special hazard pay, some P5,000 to P8,000 cash aid to 18 million low-income households, and an expanded Pantawid Pamilya Pilipino Program (4Ps) to include informal sector workers affected by the Luzon lockdown.
But the most important amendments were in the budget powers extended to the President.
When congressional deliberation started Monday morning, the most glaring and controversial in the budgetary provisions of both bills was Section 4(16).
In the earlier versions, Section 4(16) would have allowed Duterte to "reprogram, reallocate and realign" any appropriation in the 2020 budget "for whatever purpose the President may deem necessary and desirable" to respond to the coronavirus. (emphasis ours)
Retired Supreme Court senior associate justice Antonio Carpio and UP constitutional law professor Dan Gatmaytan said this was contrary to Section 25(5) Article VI of the charter which says: "No law shall be passed authorizing any transfer of appropriations."
But come Monday evening, both chambers revised their bills and fixed Section 4(16) and made it exponentially better.
From allowing Duterte to realign any appropriation, Section 4(16), to Section 4(23) in both bills, now only authorizes the President to "reprogram, reallocate and realign from savings on other items" in the 2020 budget.
This fixed the contention that only savings – and not any other type of budget – can be touched. Section 4(23) also removed the word "any" and narrowed it down to just the executive department.
However, Gatmaytan said there is still a "big problem" with the wording of Section 4(23) because it uses the phrases "reprogram, reallocate and realign." Gatmaytan said the President is only allowed to "augment."
"Savings are meant to augment appropriations, nothing more," said Gatmaytan.
The issue of "realignment" vs "augmentation" may be addressed by Section 4(21) of the law, which authorizes the President to "utilize the savings generated therefrom to augment the allocation for any item directly related to support operations and response measures."
Section 4(21), which used to be Section 4(14), was also cured in the final version. The amendment fixed the issue of cross-border transfers, or the limits on which budget can be augmented using savings.
The Supreme Court decision on the DAP or Disbursement Acceleration Program says savings of the executive cannot be made to augment the budget of an office outside the executive.
This is why the original version was problematic because it would have allowed Duterte cross-border transfers of savings, an unconstitutional act.
The passed version fixed that by deleting the phrase "for whatever purpose the President may deem" and specifying instead that savings can be used to augment budgets only "in the executive department."
Moreover, the High Court declared in the DAP ruling that spending for items not listed in the budget is unconstitutional. So even if savings are legally transferred, funds still cannot be used for a project that didn't exist in the budget, or in this case, the 2019 or 2020 budgets.
Section 4(14) in the old versions would have allowed the President to "augment the allocation for any item..as the President may deem necessary."
In what is now Section 4(21), lawmakers explicitly said that the savings could only augment the "following items in the budget," and went on to list specific projects like those under the health department, Philippine General Hospital, labor department and the like.
The later version also created a congressional oversight committee and required the President to submit a weekly report, every Monday, to include the amount of funds reallocated, augmented, and used during the state of emergency.
Another issue in the old versions was that the President was given the discretion to terminate his special powers when he saw fit, which he was previously not allowed to do.
In the old versions, Section 9 of the bill said the powers may be withdrawn "by means of a concurrent resolution of Congress or ended by Presidential proclamation." (emphasis ours)
Article VI, Section 23(2) of the Constitution clearly says that the powers will end in two ways only: "Unless sooner withdrawn by resolution of the Congress" or when "such powers shall cease upon the next adjournment thereof."
In the new versions, Congress extended the effectivity of the special powers from 2 to 3 months, and removed the clause that said these can be extended "longer if the calamity persists as may be determined by the President" and changed it to "unless extended by Congress."
That way, the power to extend was confined to Congress, and not the President.
The supposedy 30 additional powers granted to the President are either "superfluous and unnecesary," lawyers and dissenting lawmakers said.
Tweaking the special budgetary items in the revised measure, which confined the President to transferring savings only to add funding to already existing budget items, is well within Duterte's powers.
"More fundamentally, this provision and the other sections related to declaration of savings and augmentation of appropriation are not necessary," former budget chief Butch Abad said.
The use of savings to augment funding is already defined in the 2019 and 2020 general appropriations law. The approving authority? The President of the Philippines for the executive branch.
The only value-added in the new law is the clause under Section 4(21). In the older versions of the proposed bills, there was no reference to the two-year funding ban on discontinued programs. This was addressed by the law which says these programs may now be "proposed for funding in the next two years."
The Free Legal Assistance Group, meanwhile, said the law merely laid out objectives to deal with the pandemic, which can be accomplished using already existing laws.
FLAG cited the Mandatory Reporting of Notifiable Diseases and Health Events of Public Health Concern Act, signed in 2019: "Republic Act No. 11332, a law passed precisely to meet these objectives, already provides in its various sections, among others, for a definition of public health emergency, a response to such, and specific objectives, powers, and penalties."
Take the item on procurement as an example too. Abad said that current rules on emergency or negotiated procurement already "suffice."
Even the violations laid out in the law are already punishable by existing laws.
Still, the President saw the need for the passage of the law.
Duterte signed the Bayanihan to Heal as One Act of 2020 and in a rare short speech which he read late Tuesday with little ad-libbing, he thanked the lawmakers for the measure. Only 10 of them opposed it.
"To the members of Congress who sponsored and voted for the measure, I express my sincerest gratitude for granting our most urgent request. Finally, the executive department can move, decide, and act freely for the best interest of the Filipino people in the health crisis," Duterte said. – Rappler.com