Belgica vs. Ochoa [November 19, 2013]

G.R. Nos. 208566, 208493 & 209251.

PERLAS-BERNABE, J.

Facts

In the Philippines, “Pork Barrel” has been commonly referred to as lump-sum, discretionary funds [as used in VI(25), par. 6] of Members of the Legislature.

General – When is a fund classified as “Pok Barrel”? – When there is post-enactment legislator participation (in the form of consultations or determination of projects, etc; take note of the legislator’s participation when reading the evolution of Pork Barrel). Normally after enactment, the role of Congress ceases and the law is placed in the hands of the Executive for implementation of the law. This is consistent with the doctrine of separation of powers. Pork barrels are appropriations, appropriations are laws. The legislature takes part in the execution in the form of prior consultation with the Congress on the projects where such funds will be used.

A – CONGRESSIONAL PORK BARREL (CPB)

A.1. Pre-Martial Law Era (1922-1972)

A.2. Martial Law Era (1972-1986)

• Support for Local Development Project (SLDP) was made an item in the General Appropriations Act (GAA).
• Started the practice of lump-sum allocations to individual legislators.
• Started the expansion of coverage of projects, not just public works: (a) Hard projects: public works, i.e. infrastructures; (b) Soft projects: non-public works projects, e.g. education, health and livelihood

A.3. Corazon Aquino Administration (1986-1992)

• “Mindanao Development Fund” and”Visayas Development Fund” were created. These were lump-sum appropriations development projects in the VisMin region.
• “Countrywide Development Fund” (CDF) was also created to allow similar appropriations for Luzon Congress. This was integrated into the 1990 GAA.

A.4. Ramos Administration (1992-1998)

A.5. Estrada Administration (1998-2001)

A.6. Arroyo Administration (2001-2010)

It was during this era that provisions which allowed formal participation of NGOs in the implementation of government projects were introduced.

A.7. Aquino Administration

B – PRESIDENTIAL PORK BARREL

C – CONTROVERSIES IN THE PHILIPPINES

D – PROCEDURAL ANTECEDENTS

The Court issued a TRO to prevent release of: 1) remaining PDAF; 2) Malampaya Funds. This is a consolidated petition above-mentioned.

Issues, Ruling and Discussion

Procedural Issues

1. Is there are actual case or controversy?

YES. There are actual case or controversy.

Jurisprudence provides that an actual case or controversy is one which involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute.

2. Is the controversy ripe for adjudication?

YES. The controversy ripe for adjudication.

A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch.

By constitutional design, the annulment or nullification of a law may be done either:

• by Congress, through the passage of a repealing law, or
• by the Court, through a declaration of unconstitutionality.

The challenged funds are currently existing and operational. There exists an immediate or threatened injury to petitioners as a result of the unconstitutional use of these public funds. This is true notwithstanding the President’s declaration that he had already abolished PDAF because the Executive branch has no constitutional authority to nullify or annul its legal existence.

3. Assuming the case is moot, may the Court still decide on the matter?

YES. The the Court may still decide on the matter, even assuming the case is moot.

The Court will decide cases, otherwise moot, if:

• There is a grave violation of the Constitution;
• The exceptional character of the situation and the paramount public interest is involved;
• When the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public
• The case is capable of repetition yet evading review.

In the instant case:

• Petitioners allege grave violations of the Constitution with respect to, inter alia, the principles of separation of powers, non-delegability of legislative power, checks and balances, accountability and local autonomy.
• The coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the government‘s own recognition that reforms are needed “to address the reported abuses of the PDAF” demonstrates a prima facie pattern of abuse which only underscores the importance of the matter.
• The CoA Chairperson estimates that thousands of notices of disallowances will be issued by her office in connection with the findings made in the CoA Report. Definitive ruling is need so that government may be guided on the proper utilization of public funds. Also for guidance of public, the bench and the bar.
• The issue is capable of repetition as magnified by the history of the Pork Barrel system. The same dog will just resurface wearing a different collar.

4. Is the matter a political question?

No. The matter is not a political question.

A political question refers to “those questions which, under the Constitution, are to be decided by the people in their sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure.”

The intrinsic constitutionality of the “Pork Barrel System” is not an issue dependent upon the wisdom of the political branches of government but rather a legal one which the Constitution itself has commanded the Court to act upon. Acting of the case is not just an exercise of the judicial power of review but a constitutionally mandated duty upon the Court.

5. Do petitioners have locus standi?

Yes. The petitioners have legal standing.

A person has standing of he is injuriously affected in any of his constitutional rights by the operation of statute or ordinance.

As taxpayers, they possess the requisite standing to question the validity of the existing “Pork Barrel System” under which the taxes they pay have been and continue to be utilized.

As citizens, petitioners have equally fulfilled the standing requirement given that the issues they have raised may be classified as matters of transcendental importance, or of paramount public interest.

6. Is the Court barred to decide on the matter by virtue of res judicata in relation to its prior rulings on Philcosa and LAMP?

No. The is not Court barred to decide on the matter by virtue of res judicata in relation to its prior rulings on Philcosa and LAMP.

The res judicata principle states that a judgment on the merits in a previous case rendered by a court of competent jurisdiction would bind a subsequent case if, between the first and second actions, there exists an identity of parties, of subject matter, and of causes of action.

Philconsa and LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases at bar call for a broader constitutional scrutiny of the entire “Pork Barrel System.” LAMP is a dismissal based on procedural technicality, not ono the merits.

7. Is the Court barred to decide on the matter by virtue of stare decisis in relation to its prior rulings on Philcosa and LAMP?

No. The Court is not barred to decide on the matter by virtue of stare decisis in relation to its prior rulings on Philcosa and LAMP?

The stare decisis principles evokes a general rule that a conclusion reached in one case should be doctrinally applied to those that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of justice that, absent any powerful countervailing considerations, like cases ought to be decided alike.

Philconsa resolution was a limited response to a separation of powers problem, specifically on the propriety of conferring post-enactment identification authority to Members of Congress. The present cases call for a more holistic examination of (a) the inter-relation between the CDF and PDAF Articles comprising the “Pork Barrel System” and (b) the intra-relation of post-enactment measures within the CDF or PDAF Article, including not just project identification but also to the areas of fund release and realignment.

The complexity of issues and broader legal analyses can be considered a powerful countervailing reason against the application of stare decisis.

There are serious constitutional inconsistencies in the Philconsa decision that the Court seeks to remedy. Philconsa ruled that the power to identify projects is only an aspect of power of appropriation, constitutionally lodged in the Congress, but: (a) the power is with Congress, not the individual legislators; (b) the power should be exercised within the ambit of lawmaking, thus, only up to the passage of the GAA, not after; and (c) the project identifications, being expressed in the GAA cannot be merely recommendatory.

Abakada case has effectively overturned Philconsa‘s allowance of post-enactment legislator participation in view of the separation of powers principle.

Again, LAMP is dismissed on procedural grounds.

Substantive Issues – CPB

8. Does the CPB transgress the principle of separation of powers?

Yes. The CPB transgresses the principle of separation of powers.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. By constitutional design “each department has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere.” Legislative cannot execute or construe law; Executive cannot make or construe law; Judiciary cannot make or execute laws.

From the moment the law becomes effective, 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 (ABAKADA case). Informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction.

There is a violation of the principle when there is impermissible:

• Interference with and/or
• Assumption of another department‘s functions.

The restriction on legislative participation in post-enactment measures is limited to enforcement (which is a function of the Executive). Thus, it may still exercise its oversight function as a means of checks and balances. These oversight functions are limited to [PERMISSIBLE POST-ENACTMENT CONGRESSIONAL MEASURES]:

• Scrutiny based primarily on Congress’ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation (question hour) [VI(22)]; and
• Investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation [VI(21)].

The “Pork Barrel System” accords to the Congress impermissible post-enactment authority in the form of:

• Project identification: program menu allows individual legislators to identify PDAF projects within those listed in the menu; legislator may choose from the list provided by the implementing agencies; legislators are allowed to identify projects outside of their district upon concurrence of concerned disctrict rep.; project revisions shall be approved by Congress committees, among others;
• Fund release: requires endorsements of Senate and House committees;
• Fund realignment: same with fund release; concerned departments, e.g. DPWH, DILG, DA, DepEd may approve realignments upon concurrence of concerned legislator.

9. Does the CPB violate the Non-delegability of Legislative Power?

Yes. The CPB violates the Non-delegability of Legislative Power.

The power of appropriation is vested exclusively in the Congress, by grating the individual legislator personal lump-sum appropriations, which they are able to apply to chosen projects and beneficiaries, constitutes invalid delegation of the power of appropriation.

The power of appropriation must be exercised by the Congress as a body, delegation of the power to individual members is violation of the constitutional principle on non-delegability of legislative powers.

Legislative power shall be exclusively exercised by the body (not the individual legislators) to which the Constitution has conferred the same.

The constitution vests the legislative power exclusively upon the:

• Congress, acting as a bicameral body; and
• People, through the process of initiative and referendum

Exemptions to non-delegation [DELAGABLE LEGISLATIVE POWERS]:

• Delegation to local governments, with respect to purely local matters;
• Constitutionally permissible delegation to the President in exercising powers to carry out a declared national policy in times of war or other national emergency; fix (subject to restrictions as Congress may impose), tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within the framework of the national development program of the Government.
• Limited or subordinate legislation authority to implementing agencies, which must be limited to rule-making to: (a) supplementary rule-making: filling up the details of the law for its enforcement; and (b) contingent rule-making: ascertaining facts to bring the law into actual operation.

10. Does the CPB violate the principle of Checks and Balances?

Yes. The CPB violates the principle of Checks and Balances.

The Constitution provided for an elaborate system of checks and balances to secure coordination in the workings of the various departments of the government. Each department, though separated is not absolutely independent with respect to each other.

An example is the President’s veto power, expressed in VI(7) of the Constitution. Relevantly, under par. 2:

The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to which he does not object.

The power of veto is essentially a legislative act resting upon a variety of policy goals, imposition of financial restrictions upon the Congress, and fortifying its role in the budgetary process.

The post-enactment identification feature impairs the President’s veto power. The PDAF fund is presented as a collective amount in the GAA. After passage, this will be allocated to the individual legislators, allowing appropriation of said amounts upon their own discretion. This effectively creates a budget within a budget that impairs the President’s veto power since the allocations are made after the GAA is passed.

Lump-sum appropriation is constitutionally flawed. The lump-sum amount would be treated as a mere funding source allotted for multiple purposes of spending. This setup connotes that 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.

11. Does the CPB violate the principle of Accountability?

In part.

Public office is a public trust [XI(1)], is an overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the principles of the Constitution which embodies the parameters of the people‘s trust. This is closely correlated with accountability.

Post-enactment features dilute congressional oversight and violate Section 14, Article VI of the 1987 Constitution (prohibition on financial interests), thus impairing public accountability. 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.

Post-enactment authority and/or the individual legislator‘s control of his PDAF would not per se allow him to perpetuate himself in office. Use of PDAF for re-election purposes is a matter which must be analyzed based on particular facts and on a case-to-case basis.

The process of impeachment largely borders on the domain of politics and does not strictly concern the Pork Barrel System’s intrinsic constitutionality. It is an improper subject of judicial assessment.

12. Does the CPB allow perpetuation of political dynasties?

NO RULING. Not within court’s jurisdiction; speculative.

Article II, Sec. 26 is not self-executing.

13. Does the CPB violate the policy of local autonomy?

YES. The CPB violates the policy of local autonomy.

The State’s policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of the 1987 Constitution, and RA 7160 or the Local Government Code of 1991.

The PDAF is operated in a way that is not germane to its declared purpose of making equal the unequal. It is granted by virtue of office, clearly without genuine consideration of specific paramaters such as the location, degree of development of the localities represented. Thus, a representative of a highly urbanized area received the same amount of Pork Barrel as that of an underdeveloped area. What intensifies the contention is that even the Vice President, who does not represent a particular region is granted the same.

The Pork Barrel System encroaches on the functions of the LDC. 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 – PPB

14. Is the PPB an invalid appropriation since they do not have the “primary and specific” purpose of authorizing the release of public funds from the National Treasury?

No. The PPB is not an invalid appropriation since they do not have the “primary and specific” purpose of authorizing the release of public funds from the National Treasury.

An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists when a provision of law sets apart a determinate or determinable amount of money; and allocates the same for a particular public purpose.

The Constitution does not mandate that a specific form be observed for there to be a valid appropriation only that it should be made by law. It may be made through:

• Annual laws, e.g. GAA
• Special provisions of laws of general or special application that appropriate public funds for specific public purposes. Such as the subject decrees, to wit: PD 910, Sec. 8; and PD 1869 (as amended), Sec. 12.

By contrast, 2013 PDAF is not a valid appropriation because the real appropriation happened not at the inclusion of the lump-sum amount in the GAA but at the post-enactment determinations made by individual legislators which occur outside of the law.

15. Does the PBB constitute an invalid delegation of legislative powers?

Yes. The PBB constitutes an invalid delegation of legislative powers?

The fundamental tests to ensure that the legislative guidelines for delegated rule-making are adequate are:

• Completeness test. A law is complete when it sets forth the policy to be executed by the delegate.
• Sufficient standard test. A law lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation from running riot. To be sufficient, the standard must: (a) specify the limits of the delegate‘s authority, (b) announce the legislative policy, and (c) identify the conditions under which it is to be implemented.

In the instant case:

Malampaya Funds. 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.

Presidential Social Fund. PD 1993 amended the original PD 1869 setting forth the purpose of the fund as: (a) a. to finance the priority infrastructure development projects, and (b) b. 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.

Note: (b) is proper as it fixes the standard and limits of the delegated power; but (a) should be stricken down as the term priority infrastructure development is not defined in the law and gives the President the discretion in determining what these should be.

Dispositive

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this Decision, the Court hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, 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, such as but not limited to the areas of project identification, modification and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine; (d) 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 jurisdiction; and (e) the phrases (1) “and for such other purposes as may be hereafter directed by the President” under Section 8 of Presidential Decree No. 910 and (2) “to finance the priority infrastructure development projects” under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.

Accordingly, the Court‘s temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT. Thus, the disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous years, and the funds sourced from (1) the Malampaya Funds under the phrase “and for such other purposes as may be hereafter directed by the President” pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase “to finance the priority infrastructure development projects” pursuant to Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs) but only by Special Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF funds covered by this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for their respective special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES petitioners‘ prayer seeking that the Executive Secretary and/or the Department of Budget and Management be ordered to provide the public and the Commission on Audit complete lists/schedules or detailed reports related to the availments and utilization of the funds subject of these cases. Petitioners‘ access to official documents already available and of public record which are related to these funds must, however, not be prohibited but merely subjected to the custodian‘s reasonable regulations or any valid statutory prohibition on the same. This denial is without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of Congress as the same is a matter left to the prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the 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.

This Decision is immediately executory but prospective in effect.

SO ORDERED.