MANILA, Philippines – Retired senior associate justice Antonio Carpio, along with lawyers Howard Calleja and Joseph Peter Calleja, are seeking the Supreme Court’s (SC) help to challenge the constitutionality of confidential funds.

The petitioners, who include some members of the University of the Philippines Law Batch 1975, priests, and law students, filed a petition for certiorari and mandamus, with urgent prayer for the issuance of a temporary restraining order (TRO) on Wednesday, November 15. A certiorari “involves the review of the judgment, award or final order on the merits,” while mandamus seeks to compel the respondents to do something.

Named respondents were Vice President Sara Duterte, Senate President Migz Zubiri, House Speaker Martin Romualdez, and Executive Secretary Lucas Bersamin.

The petitioners are asking the SC to declare null and void Joint Circular No. 2015-01 and Executive Order (EO) No. 2 (S. 2016), also known as the Freedom of Information (FOI) order signed by former president Rodrigo Duterte. They are asking the High Court to bar the respondents, “or any person, entity, member, officer, employee, representative or agent acting singly or collectively with them,” from enforcing the circular and the EO.

The grant and liquidation of confidential and intelligence funds are covered by Joint Circular No. 2015-01 dated January 8, 2015. The said circular states that intelligence funds can only be used for counter-intelligence activities and special projects and operations, while confidential funds can be used to purchase information necessary in the implementation of a government program, among others.

Meanwhile, Duterte’s FOI supposedly mandates full public disclosure of all offices under the executive branch. The petitioners are assailing the joint circular and the EO because they “provided the alleged justification to exempt Confidential Funds from full public disclosure.”

“These guidelines in the disbursements and liquidation of Confidential Funds are unconstitutional as they are a usurpation of legislative power by the Executive Branch, as there is no valid delegation of legislative power,” the petitioners said.

Arguments

In their arguments, the petitioners said the allocation and release of confidential funds is unconstitutional because it violates section 28, article II of the 1987 Constitution, which states that “subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full disclosure of all its transactions involving public interest.”

Aside from that, the petitioners also noted that it also violates the people’s right to information, under section 7, article III of the Constitution. On the joint circular and Duterte’s EO, the petitioners said they should be voided for “usurpation of legislative power.”

“These guidelines in the disbursements and liquidation of Confidential Funds are unconstitutional as they are a usurpation of legislative power by the Executive Branch, as there is no valid delegation of legislative power,” the petitioners said.

They added: “To reiterate, the Executive Branch which issued E.O. No. 2 (S. 2016) and the joint circular were not delegated of any legislative power by the Congress to create guidelines on the disbursement and liquidation of the Confidential Funds, and as result threatened Petitioners’ and the public’s right to information on matters of public concern and violated the ‘full disclosure’ mandate of the Constitution.”

Second petition vs confidential funds

This is the second petition challenging confidential funds. On November 7,  a group of legal and economic experts filed a petition for certiorari to declare unconstitutional Vice President Sara Duterte’s confidential funds. They also asked the Court to order the return of the P125-million fund.

The uses of confidential and intelligence funds have recently been questioned due to the influx of agencies requesting for them. In addition, these funds are much more difficult to audit as they are exempted from the Commission on Audit’s (COA) standard procedures. Among the recent controversies have been the transfer of a P125-million confidential fund to Sara Duterte’s office, even though the said fund was not originally part of the Office of the Vice President’s (OVP) budget for 2022.

In addition, the COA later revealed that Duterte spent the said amount in only 11 days. For 2024, Congress had already removed Duterte’s P650-million confidential funds request (P500 million for OVP, P150 million for the Department of Education). On November 9, Duterte announced that she dropped her request for P650 million in confidential funds for 2024.

However, the removal of the said confidential funds for next year is not yet official because both the House and the Senate have yet to convene for a bicameral conference for the 2024 budget and have yet to finalize the national budget for next year. – Rappler.com