MANILA, Philippines – A group of legal and economic experts filed on Tuesday, November 7, a petition before the Supreme Court to declare as unconstitutional Vice President Sara Duterte’s confidential funds, and asked the Court to order the return of the P125-million fund.

“It is most respectfully prayed that this Honorable Court declare the transfer of the amount of P125 million to the Office of the Vice President as unconstitutional and that the Office of the Vice President be ordered to return the money to the government’s treasury,” the petition read.

Among the petitioners is economist Cielo Magno who recently left her post as finance undersecretary after reportedly being asked to resign over her opposition to the Marcos government’s rice cap policy.

The petition’s main argument is that the transfer of confidential funds to the Office of the Vice President (OVP) was a “clear usurpation of power of Congress.”

A legislative inquiry, prompted by the uproar over the 2022 audit report, found that contingent funds of the 2022 national budget were transferred to become the OVP’s P125-million confidential funds, which Duterte’s office spent in only 11 days. The Office of the President (OP) approved the transfer, and the funds were released by the Department of Budget and Management (DBM).

Petitioners argued that the transfer of funds from the national budget to the OVP is an exercise of legislative power. They added that Congress decides how the budget will be spent, including on what programs or activities the money will be used.

“Verily, the appropriation done by the DBM is a clear usurpation of the legislative power of the Congress of the Philippines to create and fund an item that has not been done so by the Congress itself,” the petitioners said.

In a statement on Tuesday afternoon, Duterte said she “welcomes” the opportunity to discuss the legalities of the confidential funds she received. 

“Umaasa kami na ang dunong ng Korte Suprema ay magiging daan upang tuluyang matapos ang usapin na ito (We are hoping that the SC’s wisdom will serve as a platform to end the discussions on this issue),” Duterte said.

Malacañang explained that the OP has the power, under Special Provision No. 1 of the 2022 General Appropriations Act (GAA), “to approve releases to cover funding requirements of ‘new or urgent activities or projects that need to be implemented or paid.'”

Special Provision No. 1 of the 2022 National Budget says that contingent funds should be released only upon the approval of the OP. But the petitioners said that this provision was not a permission for Congress to delegate its legislative power to the OP.

“The appropriation by executive fiat in clear violation of the legislative intent does not fall under the delegated legislative power under Special Provision No. 1 of the Contingent Fund in the GAA (general appropriations act) for FY 2022.”

In addition, the petitioners also argued that the confidential funds do not fall under the funding allowed by the contingent fund. They said there was no allocation for the OVP’s confidential funds in the first place.

“Clearly, the transfer from the Contingency Fund of the Office of the President to an inexistent ‘Confidential Fund’ is invalid, much not having a valid purpose for the said unlawful transfer,” said the petition.

The petitioners were composed of legal experts and civil society leaders, including Constitution framer Christian Monsod.

Theirs was a petition for certiorari, or one that questions the grave abuse of discretion by a government agency or official.

Like her father, Duterte’s confidential funds have been questioned, for one, because confidential and intelligence funds are much more difficult to audit as they are exempted from COA’s standard procedures.

The OVP’s 2022 budget was prepared by former vice president Leni Robredo, since she held the post until June 2022 before Duterte took over.

For the 2024 budget, which is still being deliberated, Congress has already removed Duterte’s P650-million confidential funds request (P500 million for OVP, P150 million for the Department of Education.)

The 2023 budget, which was already being spent when the 2022 budget controversy flared up, allotted P150 million in confidential funds to the Department of Education which Duterte also heads, and P500 million to the OVP. The fiscal year has to close before the government’s spending can be audited.

What happens next?

In the scenario that the SC favors the petitioners, only the P125 million in question, or Duterte’s 2022 confidential funds, will be dealt with by appropriate authorities.

“There’s no other really big issue here other than to be accountable for the money,” lawyer Katrina Monsod, one of the petitioners, explained during a press conference on Tuesday. 

Other moves to question the confidential funds in general should be pushed by other actors. In addition, if the petition is also granted by the SC, the transfer of funds – from contingent to confidential – would be declared unconstitutional. 

When asked if the petition – if it is granted by the High Court – would be used to push for an impeachment case, lawyer Ray Paolo Santiago replied: “Hindi ko masasagot kung grounds [for] impeachment simply because kailangan pag-aralan ‘yan. Hindi natin alam kung ano ang magiging desisyon ng Supreme Court.” 

(I cannot answer if that would be grounds for impeachment simply because it needs to be studied first. We don’t know what the Supreme Court’s decision would be.) – Rappler.com