PDAF case a test for Aquino appointees

In the Supreme Court, the discussion on Tuesday, October 8, on whether the PDAF (or Priority Development Assistance Fund) and the Malampaya Fund hewed to constitutional boundaries was nuanced and at times, arcane. But it was an early indicator of where the justices stood on the issue. 

Justice Antonio Carpio, regarded as a strict constitutionalist, was the most clear in his position: the PDAF, on its face, is “riddled with unconstitutionalities.” Likewise with the Malampaya Fund which is enabled by a Marcos decree.  

Justices Jose Perez and Roberto Abad, through their questions, appeared to be on the same track as Carpio’s.

(Two of the 15 justices—Presbitero Velasco and Martin Villarama—were absent in yesterday’s oral arguments.)

Carpio cited provisions on PDAF in the 2013 General Appropriations Act or GAA which violate the Constitution. These include the delegation of the presidential power to re-align funds to members of the Cabinet and the House appropriation and Senate finance committees and identification of projects by legislators after the GAA has been enacted into law. 

Only the president, as head of the executive branch, can re-align funds, Carpio stressed.

Dancing around the issue

One thing emerged in the oral arguments, though: the 4 Aquino appointees, led by Chief Justice Maria Lourdes Sereno, danced around the issue, showing caution. They tended to show that the abuse of PDAF was not due to the law itself but to faulty implementation and that the executive and legislative branches should fix the system first before the Court steps in.

(Other Aquino appointees are Justices Marvic Leonen, Estela Perlas-Bernabe, and Bienvenido Reyes.)

Leonen, in his rapid-fire questioning of Alfredo Molo III, counsel for the petitioners, appeared unconvinced of their arguments.

Molo, a young law professor and former staff member of Carpio in the Court, laid out the grounds for the unconstitutionality of PDAF: it violates the separation of powers because it allows the legislators to identify projects and “cross the line in the sand,” from appropriation (a power of Congress) to implementation, which is the turf of the executive; it impairs checks and balances because PDAF is a tool for the executive branch to “capture” Congress; and it erodes accountability because PDAF is “designed to privilege legislators.”

Leonen asked, “Shouldn’t flexibility be given to legislators? If we remove the discretion of legislators, who will take care of local projects?” 

He also pointed out that implementing agencies submit lists of priority projects, as stated in the General Appropriations Act or GAA special provisions on PDAF. “Where in the special provisions does it state that legislators have the final say [on projects]? You are assuming that they have the final say,” Leonen told Molo. “You’re attacking PDAF based on actual practice, not on the law. You’re using COA report (2007-2009) to attack the 2013 GAA.”

Justice Perlas-Bernabe, the justice in charge of this case, suggested at one point, “Let the executive and legislative improve the system first before the Court steps in.” With her amiable demeanor, she asked the counsel for the petitioners (led by Greco Belgica, a pastor in his 30s) to cite reforms to safeguard the use of pork. 

Eduardo Bringas, who was the least eloquent among the 4 lawyers of Belgica et. al., muttered that efforts to make the PDAF process transparent have not worked to insulate it from abuse.  

Surprise

What was surprising in the 5-hour oral arguments was Sereno’s open defense of the president’s use of “incentives” to push a legislative agenda. She phrased it as a “political theory question:” Shouldn’t the president, a good president, be allowed to use political levers to make Congress pass priority bills?

“The president means well,” she added. “How can the legislative agenda move? What will be the incentives for politicians? Do we have any basis to tell the legislators that PDAF is unconstitutional? Will it ring true with them?”

Molo replied that the president of the Philippines has the line-item veto power (which the US president does not have) and can use “moral suasion.” He also said that abolishing the pork system would change the country’s political landscape.  

Sereno called Molo’s thinking “quixotic.”

But Molo stayed his course and kept repeating: “Let’s go back to the Constitution. We have strayed far.”

“You want us to inject shock into the system,” Sereno continued, “by telling them to observe constitutional limits and find your reason for being. What will be the effect of the shock?”

To which Molo responded that it will send a “strong message” that the old system is out.

The empty rows in the session hall seem to show that the public has left the oral arguments on the congressional and presidential pork to the lawyers. Many, anyway, have spoken on the streets and in the mainstream and social media—and they don’t want the pork, any sliver of it, to remain.

Saddled with unresolved important cases—the RH, cybercrime, and mining laws—the Court has added one more big job to its plate. It looks like the public cannot expect a decision soon. - Rappler.com