COMMENT: Beyond Reasonable Doubt: Unconstitutional

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GENERAL SANTOS CITY (MindaNews / 21 Nov) – Last November 19, the Supreme Court declared the Priority Development Assistance Fund (PDAF) unconstitutional. The declaration was “beyond reasonable doubt” on two counts: (1) the voting was unanimous, 14-0 with one abstention, including Justice Jose Mendoza, who penned the favorable decision in the LAMP vs. DBM in 2012; (2) the court reversed its three previous decisions favoring “Pork”.

The decision is comprehensive as “the Supreme Court … declared unconstitutional past and present congressional pork barrel laws as it ordered the criminal prosecution of individuals who had benefited from the schemes over the past two decades”. [Bold text supplied. (Philippine Daily Inquirer, November 20, 2013: Supreme Court slays PDAF)]

Court Rulings

The Court specific ruling stated that “all legal provisions of past and present Congressional Pork Barrel laws, such as the previous PDAF and Countrywide Development Fund (CDF) articles and the various Congressional Insertions, which authorized 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”. (INQUIRER.net, November 19, 2013: PDAF, Malampaya fund use unconstitutional)

Besides this, the Court also struck down the discretionary provisions – in PD 910 and PD 1993 amending PD 1869 – granted the President in the use of multibillion-peso oil revenues from the Malampaya Fund and the Presidential Social Fund – the government share of revenues from the Philippine Amusement and Gaming Corp. (Pagcor)”.

This ruling: “All informal practices of similar import and effect, which the court similarly deems to be acts of grave abuse of discretion amounting to lack or excess of discretion” referred to the voided PD provisions allowing “revenues from Pagcor to fund projects ranging from flood control to beautification and healthcare in Metropolitan Manila authorized by the President” – as well as those from Malampaya Fund.

The order to prosecute reads: “The Court hereby directs all prosecutorial organs of government to, within the bounds of reasonable dispatch, investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the irregular, improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.” (GMA News November 19, 2013: Supreme Court declares PDAF unconstitutional)

GMA News, citing the Court, said “the decision was immediately executory but prospective in effect”. What that means legally, lawyers are the competent authorities to explain.

Contentions

In the present case the opposing contentions were:

The petitioners pointed out that the system on discretionary funds of both Congress and Malacañang violated the constitutional limits given to the executive and the legislative because they [the President and Members of the Congress] were able to spend money beyond what was approved by Congress ‘since these are lump sum funds’.”

The government through the Office of the Solicitor General (OSG) said the high court has upheld the constitutionality of the PDAF system in previous cases, including LAMP vs. DBM.”

By “previous cases”, the OSG was referring to three petitions in 1994, the most similar to the present case being Philconsa vs. Enriquez questioning the participation of the members of the Congress in the use of the CDF (Countrywide Development Fund) allotments; and the LAMP vs. DBM asking the Court to declare the PDAF unconstitutional – filed in 2004 and the “Decision” promulgated on April 24, 2012.

The OSG obviously overrated the Philconsa vs. Enriquez and LAMP vs. DBM as arguments to support its position in the present case – overlooking the irrelevance. Conversely, the petitioners must have done their homework noting very well the technicalities by which the Court dismissed the Philconsa and LAMP petitions. The complaints in the two previous cases and the present were essentially the same.

Differences

While the complaints were essentially the same, the “Special Provisions” in the GAAs (General Appropriation Acts) of 1994, 2004 and 2013 differ. The differences must have been, legally speaking, material to the Court’s appreciation of issues on constitutionality, legality and abuse of discretion.

In Philconsa vs. Enriquez, the “Special Provision [on the] Use and Release of Funds” in the 1994 GAA specified (1) the uses of the funds (2) to be “proposed and identified by officials concerned” and limited (3) “to the following allocations: Representatives, P12,500,000 each; Senators, P18,000,000 each; Vice President, P20,000,000” – providing for the manner of releasing and safeguarding the funds.

In LAMP vs. DBM, the “Special Provision [on the] Use and Release of the Fund” in the 2004 GAA provided: “The amount herein appropriated shall be used [1] to fund priority programs and projects or [2] to fund the required counterpart for foreign-assisted programs and projects.” (Bracketed numbers supplied). There are three “Provided” clauses on the release, realignment and the use of 10 percent maximum for the purchase of rice. However, the provision was silent on the participation of and allocations to the senators and representatives.

In the 2013 GAA, the “Special Provision(s) was merely stated in one sentence: “Use of Fund: The amount appropriated herein shall be used to fund the following priority programs and projects to be implemented by the corresponding agencies:” – referring to three columns (1) Programs/Projects, (2) Implementing Agencies, (3) List of Requirements. Just like in the 2004 GAA, the allocation to and participation of the senators and representatives were not stated.

Decisions

In Philconsa vs. Enriquez, the Court ruled that “the proposals and identifications made by the members of Congress are merely recommendatory” and did not violate the implementing power of the President. In fact the Court lauded the arrangement as “imaginative as it is innovative”.

In LAMP vs. DBM, the Court dismissed the petition for lack of evidence, having enunciated the principle that any law passed by Congress is presumed constitutional until proven otherwise. The burden of proof is on the petitioners, not on the Court.

The LAMP failed to prove that (1) the absence of express provision in the GAA allocating PDAF funds to the members of Congress violated the Constitution; (2) their proposing and selecting projects to be funded by PDAF encroached on executive power; (3) funds were directly released to the members of Congress “who actually spent them according to their sole discretion”; and (4) the “misuse of PDAF in the form of kickbacks has become a common exercise of unscrupulous members of Congress”.

Referring to “(3)” above, the Court said LAMP had not presented “even a documentation of the disbursement of funds by the DBM in favour of the Members of Congress”; and, to “(4)”, the newspaper or electronic reports showing the appalling effects of PDAF cannot be appreciated by the Court, ‘not because of any issue as to their truth, accuracy, or impartiality, but for the simple reason that facts must be established in accordance with the rules of evidence’.”

Implication

What might have abetted the abuse and misuse of PDAF after the promulgation of the Decision on LAMP vs. DBM are the following pronouncements of the Court:

First, in reference to the allegation that members of Congress received and spent PDAF funds: “Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution.” Critics were always dared to go to court.

Second: “Moreover, the authority granted the Members of Congress to propose and select projects was already upheld in Philconsa. This remains as valid case law. The Court sees no need to review or reverse the standing pronouncements in the said case.” If taken to court, the members of Congress had ready defense.

Third: “So long as there is no showing of a direct participation of legislators in the actual spending of the budget, the constitutional boundaries between the Executive and the Legislative in the budgetary process remain intact.“ Citing Philconsa, the members of Congress would always say their role in the PDAF implementation was recommendatory. However, some had become so over-confident as to reveal in the media how they swapped “Pork”.

Fourth: “While the Court is not unaware of the yoke caused by graft and corruption, the evils propagated by a piece of valid legislation cannot be used as a tool to overstep constitutional limits and arbitrarily annul acts of Congress.”

Fifth: “[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must prove its invalidity beyond a reasonable doubt.”

This “bill of constitutionality” is further elucidated: “that a law may work hardship does not render it unconstitutional; that if any reasonable basis may be conceived which supports the statute, it will be upheld, and the challenger must negate all possible bases; that the courts are not concerned with the wisdom, justice, policy, or expediency of a statute; and that a liberal interpretation of the constitution in favor of the constitutionality of legislation should be adopted.” The burden to overcome the “presumptions” is heavy for the petitioners.

In the Present Case

The LAMP petition was dismissed for lack of evidence, not lack of merit. Before ordering “the petition is DISMISSED”, the Court consoled the LAMP: “There can be no question as to the patriotism and good motive of the petitioner in filing this petition. Unfortunately, the petition must fail based on the foregoing reasons.” The petition was meritorious. Had there been sufficient evidence, could PDAF have been declared unconstitutional in 2012? A moot question!

In the case just decided, the petitioners must have studied the reasons for the dismissal of the LAMP petition. They must have been helped by the arrogance of many members of Congress – exposing to media their indiscretion. President Benigno Simeon C. Aquino III increased the PDAF appropriation every fiscal year and, until the PDAF-JLN scandal became too hot to handle, he defended the Fund and the participation of the members of Congress.

The Aquino loyalists believe that the PDAF-JLN scandal has pressured the Court to vote 14-0 to declare the PDAF and other forms of “Pork” unconstitutional. What politically-blinded thinking! The Chief Justice and Justices deserve more respect and credit than that – for their probity and independence.

The Court is just being true to its pronouncements and rulings in LAMP vs. DBM. The evidence gathered during the hearings, especially documents from the DBM (Department of Budget and Management) and the COA (Commission on Audit), bolstered that of the petitioners to declare beyond reasonable doubt the unconstitutionality of the PDAF and other “Porks”.

But slain and their sources of funds abolished are only the PDAF and other forms of “Pork”, not the “Pork Barrel System”. Known to all, political patronage is the reason for the being of PDAF and kin. Will they reincarnate in new beings of political patronage through the “omnipotence” of the President and the Congress?

(“Comment” is Mr. Patricio P. Diaz’ column for MindaViews, the opinion section of MindaNews. The Titus Brandsma Media Awards recently honored Mr. Diaz with a “Lifetime Achievement Award” for his “commitment to education and public information to Mindanawons as Journalist, Educator and Peace Advocate.” You can reach him at [email protected])

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