Belgica, et al. vs. Executive Secretary, et al., G.R. Nos. 208566, 208493 & 209251, November 19, 2013
HISTORY of CONGRESSIONAL PORK BARREL
The term “pork barrel”, a political parlance of American-English origin, refers to an appropriation of government spending meant for localized projects and secured solely or primarily to bring money to a representative’s district.
The earliest form of the pork barrel system is found in Section 3 of Act 3044, otherwise known as the Public Works Act of 1922. Under this provision, release of funds and realignment of unexpended portions of an item or appropriation were subject to the approval of a joint committee elected by the Senate and the House of Representatives.
In 1950, members of Congress, by virtue of being representatives of the people, also became involved in project identification.
The pork barrel system was temporarily discontinued when martial law was declared.
It reappeared in 1982 through an item in the General Appropriations Act (“GAA”) called “Support for Local Development Projects” (“SLDP”). SLDP started the giving of lump-sum allocations to individual legislators. The SLDP also began to cover not only public works project or “hard projects” but also covered “soft projects” such as those which would fall under education, health and livelihood.
After the EDSA People Power Revolution and the restoration of democracy, the pork barrel was revived through the “Mindanao Development Fund” and the “Visayas Development Fund”.
In 1990, the pork barrel was renamed “Countrywide Development Fund” (“CDF”). The CDF was meant to cover small local infrastructure and other priority community projects.
CDF Funds were, with the approval of the President, released directly to implementing agencies subject to the submission of the required list of projects and activities. Senators and congressmen could identify any kind of project from “hard projects” such as roads, buildings and bridges to “soft projects” such as textbooks, medicines, and scholarships.
In 1993, the CDF was further modified such that the release of funds was to be made upon the submission of the list of projects and activities identified by individual legislators. This was also the first time when the Vice-President was given an allocation.
The CDF contained the same provisions from 1994-1996 except that the Department of Budget and Management was required to submit reports to the Senate Committee on Finance and the House Committee on Appropriations regarding the releases made from the funds.
Congressional insertions (“CIs”) were another form of congressional pork barrel aside from the CDF. Examples of the CIs include the DepEd School Building Fund, the Congressional Initiative Allocations, and the Public Works Fund, among others.
The allocations for the School Building Fund were made upon prior consultation with the representative of the legislative district concerned and the legislators had the power to direct how, where and when these appropriations were to be spent.
In 1999, the CDF was removed from the GAA and replaced by three separate forms of CIs: (i) Food Security Program Fund, (ii) Lingap Para sa Mahihirap Fund, and (iii) Rural/Urban Development Infrastructure Program Fund. All three contained a provision requiring prior consultation with members of Congress for the release of funds.
In 2000, the Priority Development Assistance Fund (“PDAF”) appeared in the GAA. PDAF required prior consultation with the representative of the district before the release of funds. PDAF also allowed realignment of funds to any expense category except personal services and other personnel benefits.
In 2005, the PDAF introduced the program menu concept which is essentially a list of general programs and implementing agencies from which a particular PDAF project may be subsequently chosen by the identifying authority. This was retained in the GAAs from 2006-2010.
It was during the Arroyo administration when the formal participation of non-governmental organizations in the implementation of PDAF projects was introduced.
The PDAF articles from 2002-2010 were silent with respect to specific amounts for individual legislators.
In 2011, the PDAF Article in the GAA contained an express statement on lump-sum amounts allocated for individual legislators and the Vice-President. It also contained a provision on realignment of funds but with the qualification that it may be allowed only once.
The 2013 PDAF Article allowed LGUs to be identified as implementing agencies. Legislators were also allowed to identify programs/projects outside of his legislative district. Realignment of funds and release of funds were required to be favorably endorsed by the House Committee on Appropriations and the Senate Committee on Finance, as the case may be.
MALAMPAYA FUNDS AND PRESIDENTIAL SOCIAL FUND
The use of the term pork barrel was expanded to include certain funds of the President such as the Malampaya Fund and the Presidential Social Fund (“PSF”).
The Malampaya Fund was created as a special fund under Section 8 of Presidential Decree (“PD”) No. 910 issued by President Ferdinand Marcos on March 22, 1976.
The PSF was created under Section 12, Title IV of PD No. 1869, or the Charter of the Philippine Amusement and Gaming Corporation (“PAGCOR”), as amended by PD No. 1993. The PSF is managed and administered by the Presidential Management Staff and is sourced from the share of the government in the aggregate gross earnings of PAGCOR.
PORK BARREL MISUSE
In 1996, Marikina City Representative Romeo Candozo revealed that huge sums of money regularly went into the pockets of legislators in the form of kickbacks.
In 2004, several concerned citizens sought the nullification of the PDAF but the Supreme Court dismissed the petition for lack of evidentiary basis regarding illegal misuse of PDAF in the form of kickbacks.
In July 2013, the National Bureau of Investigation probed the allegation that a syndicate defrauded the government of P10 billion using funds from the pork barrel of lawmakers and various government agencies for scores of ghost projects.
In August 2013, the Commission on Audit released the results of a three-year audit investigation detailing the irregularities in the release of the PDAF from 2007 to 2009.
Whistle-blowers also alleged that at least P900 million from the Malampaya Funds had gone into a dummy NGO.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy, (b) the issues raised are matters of policy not subject to judicial review, (c) petitioners have legal standing to sue, (d) previous decisions of the Court bar the re-litigation of the constitutionality of the Pork Barrel system.
Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel laws are unconstitutional for violating the constitutional provisions on (a) separation of powers, (b) non-delegability of legislative power, (c) checks and balances, (d) accountability, (e) political dynasties, (f) local autonomy.
(a) There is an actual and justiciable controversy
There exists an actual and justiciable controversy in the cases. The requirement of contrariety of legal rights is satisfied by the antagonistic positions of the parties regarding the constitutionality of the pork barrel system.
The case is ripe for adjudication since the challenged funds and the laws allowing for their utilization are currently existing and operational and thereby posing an immediate or threatened injury to petitioners.
The case is not moot as the proposed reforms on the PDAF and the abolition thereof does not actually terminate the controversy on the matter. The President does not have constitutional authority to nullify or annul the legal existence of the PDAF.
The “moot and academic principle” cannot stop the Court from deciding the case considering that: (a) petitioners allege grave violation of the constitution, (b) the constitutionality of the pork barrel system presents a situation of exceptional character and is a matter of paramount public interest, (c) there is a practical need for a definitive ruling on the system’s constitutionality to guide the bench, the bar and the public, and (d) the preparation and passage of the national budget is an annual occurrence.
(b) Political Question Doctrine is Inapplicable
The intrinsic constitutionality of the “Pork Barrel System” is not an issue dependent upon the wisdom of the political branches of the government but rather a legal one which the Constitution itself has commanded the Court to act upon.
The 1987 Constitution expanded the concept of judicial power such that the Supreme Court has the power to determine whether there has been grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality on the part of the government.
(c) Petitioners have legal standing to sue
Petitioners have legal standing by virtue of being taxpayers and citizens of the Philippines.
As taxpayers, they are bound to suffer from the unconstitutional usage of public funds.
As citizens, the issues they have raised are matters of transcendental importance, of overreaching significance to society, or of paramount public interest.
(d) The Petition is not barred by previous cases
The present case is not barred by the ruling in Philconsa vs. Enriquez because the Philconsa case was a limited response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of Congress.
On the contrary, the present cases involve a more holistic examination of (a) the inter-relation between the CDF and the PDAF Articles with each other, and (b) the inter-relation of post-enactment measures contained within a particular CDF or PDAF article, including not only those related to the area of project identification but also to the areas of fund release and realignment.
Moreover, the Philconsa case was riddled with inherent constitutional inconsistencies considering that the authority to identify projects is an aspect of appropriation and the power of appropriation is a form of legislative power thereby lodged in Congress. This power cannot be exercised by individual members of Congress and the authority to appropriate cannot be exercised after the GAA has already been passed.
The case of Lawyers Against Monopoly and Poverty vs. Secretary of Budget and Management does not also bar judgment on the present case because it was dismissed on a procedural technicality and hence no controlling doctrine was rendered.
SUBSTANTIVE ISSUES ON CONGRESSIONAL PORK BARREL
(a) The separation of powers between the Executive and the Legislative Departments has been violated.
The post-enactment measures including 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, which belongs to the executive department.
Legislators have been, in one form or another, authorized to participate in the various operational aspects of budgeting, including ―the evaluation of work and financial plans for individual activities and the ― regulation and release of funds in violation of the separation of powers principle.
Any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional.
That the said authority to identify projects is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition covers any role in the implementation or enforcement of the law.
Respondents also failed to prove that the role of the legislators is only recommendatory in nature. They even admitted that the identification of the legislator constitutes a mandatory requirement before the PDAF can be tapped as a funding source.
(b)The principle of non-delegability of legislative powers has been violated
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 – as settled in Philconsa – is lodged in Congress.
That the power to appropriate must be exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: ― No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
The legislators are individually exercising the power of appropriation because each of them determines (a) how much of their PDAF fund would go to and (b) a specific project or beneficiary that they themselves also determine.
(c) Checks and balances
Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the said amount would be further divided among individual legislators who would then receive personal lump-sum allocations and could, after the GAA is passed, effectively appropriate PDAF funds based on their own discretion.
This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a ―budget within a budget which subverts the prescribed procedure of presentment and consequently impairs the President‘s power of item veto.
It forces the President to decide between (a) accepting the entire PDAF allocation without knowing the specific projects of the legislators, which may or may not be consistent with his national agenda and (b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects.
In fact, even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally flawed since it would then operate as a prohibited form of lump-sum appropriation. This is because the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and, therefore, does not readily indicate a discernible item which may be subject to the President‘s power of item veto.
(d) The Congressional Pork Barrel partially prevents accountability as Congress is incapable of checking itself or its members.
The fact that individual legislators are given post-enactment roles in the implementation of the budget makes it difficult for them to become disinterested observers when scrutinizing, investigating or monitoring the implementation of the appropriation law.
The conduct of oversight would be tainted as said legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves participate.
The concept of post-enactment authorization violates Section 14, Article VI of the 1987 Constitution, which prohibits members of Congress to intervene in any matter before any office of the Government, because it renders them susceptible to taking undue advantage of their own office.
The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislator‘s control of his PDAF per se would allow him to perpetuate himself in office.
The use of his PDAF for re-election purposes is a matter which must be analyzed based on particular facts and on a case-to-case basis.
(e) The constitutional provision regarding political dynasties is not self-executing.
Section 26, Article II of the 1987 Constitution, which provides that the state shall prohibit political dynasties as may be defined by law, is not a self-executing provision.
Since there appears to be no standing law which crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on this issue.
(f) The Congressional Pork Barrel violates constitutional principles on local autonomy
The Congressional Pork Barrel goes against the constitutional principles on local autonomy since it allows district representatives, who are national officers, to substitute their judgments in utilizing public funds for local development.
The gauge of PDAF and CDF allocation/division is based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator represents.
The allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or geographic indicators have been taken into consideration.
This concept of legislator control underlying the CDF and PDAF conflicts with the functions of the various Local Development Councils (“LDCs”) which are already legally mandated to―assist the corresponding sanggunian in setting the direction of economic and social development, and coordinating development efforts within its territorial jurisdiction.
Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local affairs, their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are national officers that have no law-making authority except only when acting as a body.
SUBSTANTIVE ISSUES ON PRESIDENTIAL PORK BARREL
(a) Section 8 of PD No. 910 and Section 12 of PD No. 1869 are valid appropriation laws.
For an appropriation law to be valid under Section 29 (1), Article VI of the 1987 Constitution, which provides that “No money shall be paid out of the Treasury except in pursuance of an appropriation made by law”, it is enough that (a) the provision of law sets apart a determinate or determinable amount of money and (b) allocates the same for a particular public purpose.
Section 8 of PD 910 is a valid appropriation law because it set apart a determinable amount: a Special Fund comprised of ― all fees, revenues, and receipts of the [Energy Development] Board from any and all sources.
It also specified a public purpose: energy resource development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed by the President.
Section 12 of PD No. 1869 is also a valid appropriation law because it set apart a determinable amount: [a]fter deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the Government in the aggregate gross earnings of [PAGCOR], or 60%[,] if the aggregate gross earnings be less than P150,000,000.00.
It also specified a public purpose: priority infrastructure development projects and x x x 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.
(b) Section 8 of PD No. 910 and Section 12 of PD No. 1869 constitutes undue delegation of legislation powers.
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.
This 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.
This notwithstanding, it must be underscored that the rest of Section 8, insofar as it allows for the use of the Malampaya Funds ―to finance energy resource development and exploitation programs and projects of the government, remains legally effective and subsisting.
Section 12 of PD No. 1869 constitutes an undue delegation of legislative powers because it lies independently unfettered by any sufficient standard of the delegating law.
The law does not supply a definition of “priority infrastructure development projects” and hence, leaves the President without any guideline to construe the same.