The Supreme Court, PDAF and revolution

The Supreme Court has finally spoken. In a unanimous vote, the 15-person body declared unconstitutional the Priority Development Assistance Fund (PDAF) and the use of Malampaya funds for other purposes other than energy-related projects. 

The case started when 6 whistleblowers headed by Benhur Luy declared in their affidavits that JLN Corporation – “JLN” standing for Janet Lim Napoles – had defrauded the government of billions of pesos of public funds and infused them into “ghost projects” using no fewer than 20 dummy NGOs for 10 years.

The whistleblowers said the money was diverted to Napoles’ private accounts when the NGOs were supposedly the ultimate recipients of PDAF funds. Spurred by this information, the National Bureau of Investigation (NBI) began its probe into allegations that “the government has been defrauded of P10 billion pesos over the past 10 years by a syndicate using funds from the pork barrel of lawmakers and various government agencies for scores of ghost projects.”

The investigation on the Napoles controversy resulted in the filing of criminal complaints before the Office of the Ombudsman, charging, among others, 5 lawmakers for plunder, and 3 other lawmakers for malversation, direct bribery, and violation of the Anti-graft and Corrupt Practices Act. 

On Aug 16, 2013, the Commission on Audit (COA) released the results of a 3-year audit investigation covering the use of legislators’ PDAF from 2007 to 2009, or during the last 3 years of the Arroyo administration. The COA report, as contained in its Report No. 2012-03, entitled “Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)” came out with negative findings, some of which are as follows:

• Amounts released for projects identified by a considerable number of legislators significantly exceeded their respective allocations
• Amounts were released for projects outside of legislative districts of sponsoring members of the Lower House
• Infrastructure projects were constructed on private lots without these having been turned over to the government
• Significant amounts were released to [implementing agencies] without the latter’s endorsement and without considering their mandated functions, administrative and technical capabilities to implement projects
• Implementation of most livelihood projects was not undertaken by the [implementing agencies] themselves but by [NGOs] endorsed by the proponent legislators to which the Funds were transferred
• The funds were transferred to the NGOs in spite of the absence of any appropriation law or ordinance

The whistleblowers also alleged that “[a]t least P900 million from royalties in the operation of the Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has gone into a dummy [NG0].” 

Supreme Court ruling

As a result of the findings of illegal use of the PDAF contained in the COA Report and the Napoles controversy, several petitions were filed before the Supreme Court seeking the declaration of the “Pork Barrel System” as unconstitutional.

Roughly 5 months after the whistleblowers executed their affidavits against Napoles, that is, on Nov 19, 2013 the Supreme Court, speaking through Associate Justice Perlas-Bernabe, finally came out with its historic decision declaring the PDAF or pork barrel as unconstitutional. This reversed 3 separate rulings it had issued earlier sustaining the constitutionality of pork barrel. The decision also invalidated illegal provisions in two laws that authorize the President to use the controversial Malampaya fund and the President’s Social Fund, both known as presidential pork. 

In particular, the Supreme Court nullified all legal provisions of past and present Congressional Pork Barrel laws which authorize/d legislators – whether individually or collectively organized into committees – “to intervene, assume or participate in any of the various post-enactment stages of the budget execution.”

The High Tribunal also declared unconstitutional provisions of the laws allowing the President to use the Malampaya fund for other purposes other than energy-related projects, as well as the provision which allows the Presidential Social Fund to be used for priority infrastructure development projects. 

In the main opinion of the Court, two substantive issues were resolved, namely:  

i. Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws similar thereto are unconstitutional considering that they violate the principles of/constitutional provisions on (a) separation of powers; (b) non-delegability of legislative power; (c) checks and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

ii. Whether or not the phrases (a) “and for such other purposes as may be hereafter directed by the President” under  Section 8 of PD 910,116 relating to the Malampaya Funds, and (b) “to finance the priority infrastructure development projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of the Philippines” under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional insofar as they constitute undue delegations of legislative power.

On the constitutionality of the congressional pork barrel laws, the Court made the following disquisitions:

As to the principle of separation of powers, the Court said: x x x these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. 

As to the principle of non-delegability, the Court observed that the 2013 PDAF Article, insofar as it confers post-enactment identification authority to individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise the power of appropriation which is lodged in Congress.

In agreeing with petitioners that the PDAF is a lump-sum appropriation, the legislator’s identification of the projects after the passage of the GAA denies the President the chance to veto that item later on, the ponencia noted that this kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a “budget within a budget.”

According to the Court, that such budgeting system provides for a greater degree of flexibility to account for future contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that unconstitutional means do not justify even commendable ends, the ponencia added.  

However the Court considered as speculative the submission of petitioners that the pork barrel system would be able to propagate political dynasties. 

On the Malampaya fund issue, the Court agreed with petitioners that the phrase “and for such other purposes as may be hereafter directed by the President” under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a sufficient standard to adequately determine the limits of the President’s authority with respect to the purpose for which the Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law.

Implications

The SC decision on PDAF is historic. The implications of the decision on our life as a nation cannot be underestimated. With this decision, nothing will be the same again.

In the past politicians could dip their hands in government coffers with impunity and use them as if they had proprietary rights. But with the abolition of pork barrel, a whole system is eradicated that, in the words of Justice Leonen, “historically encourage dole-outs; inculcates a perverse understanding of representative democracy; encourages a culture that misunderstands the important function of public representation in Congress and does not truly empower those who are impoverished or found in the margins of our society.”

The SC decision is also revolutionary. Typically revolutions are initiated by the “masses,” in the Philippines often with the help of a faction of the military. The Supreme Court, by the nature of its constitutional mandate, does not normally lead a revolt. In EDSA I and II, the Supreme Court merely lent legitimacy to a fait accompli when it recognized the new order established by the people. But if revolution means to radically and drastically change a whole system, then the SC decision on PDAF may be considered a revolution of sorts.

The decision practically upended the status quo. It reengineers government’s use of public funds. It has direct or indirect effects on the electoral system. It diminishes patronage system. It puts a new perspective on how to look at fundamental principles of government like separation of powers, non-delegability of legislative power, and operational aspects of budgeting. And finally, it raises the bar of accountability and transparency in government.

As a result of the pork barrel scandal, the people have become more vigilant and pro-active in fighting corruption. The scandal has afforded the public a new-found courage to assert their right to prevent the misapplication and wastage of public funds, and to demand accountability from their public officials. 

The Supreme Court’s decision is a resounding affirmation of the strident clamor by the people to scrap the anomalous and graft-ridden pork barrel system in the country. While it is true that the pork barrel system is not a novelty in a democratic set-up having originated from the United States, the pork barrel Philippine style has evolved into some species that perpetuates patronage and systemic corruption.

It has metamorphosed into a milking cow of sorts from which some politicians and their accomplices could line their pockets to the detriment of the taxpayers and the intended beneficiaries. Having transgressed all constitutional principles of accountability, transparency and good governance, the pork barrel system has lost its very reason for existence, with utterly no place in a democracy.

By a mere stroke of a pen, the SC had done through peaceful means what normally would have been done through mass action, protest rallies, and even violent confrontations. Without doubt, this SC decision may just be an opportunity to eradicate greed, which has plagued us for so long and, in the words of Justice Leonen, “build a government that has a collective passion for real social justice.”

How can that not be revolutionary? – Rappler.com