09:54 PM September 22nd, 2013

By: Fr. Joaquin G. Bernas S. J., September 22nd, 2013 09:54 PM

In 1994, the constitutionality of the pork barrel fund was challenged on the ground of violation of the rule that, although appropriating money is the function of Congress, spending it is the prerogative of the executive branch. The Supreme Court ruled in favor of the fund. It said that what the law allowed members of Congress to do was simply to recommend projects. If the recommended projects qualified for funding under the Countrywide Development Fund, it was the president who would implement them.

The latest Priority Development Assistance Fund is found under the 2013 General Appropriations Act. Its constitutionality is now also being challenged. What defect in the PDAF Law makes it unconstitutional?

The law specifies the total amount to be appropriated, identifies the implementing agencies, specifies the individual amounts that can be identified by legislators (P70 million for representatives, P200 million for senators), and identifies the potential recipients. If realignment is needed, the rules for realignment are set in the law pursuant to a constitutional requirement for transfer of funds. A request for release of funds  must be supported by required documents and endorsed by the committee on finance of the House or the Senate. The release is made by the identified agencies. The Department of Budget and Management and the respective agencies are responsible for posting the identity of the proponent legislators, the name of the projects, the names of the beneficiaries, the program evaluation and the assessment report, the authorized realignment if any, and procurements made under the fund.

Obviously, something went wrong. What went wrong and whose fault was it? We will be waiting for what the Supreme Court will say.

Suspension of legislators.  The rule on the discipline of members of Congress is found in Article VI, Section 16(3): “Each House may determine the rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two-thirds of all its Members, suspend or expel a Member. A penalty of suspension, when imposed, shall not exceed sixty days.”

Inherent in any legislative body is its power of internal regulation and discipline. As Justice Joseph Story said, “If the power did not exist, it would be utterly impracticable to transact the business of the nation, either at all, or at least with decency, deliberation, and order. The humblest assembly of men is understood to possess this power; and it would be absurd to deprive the councils of the nation of a like authority.”

What stands out from the jurisprudence on the subject is that, except for some limitations of detail found in the Constitution itself, there is a clear recognition of the overall autonomy of the legislative body both in the formulation and in the application of its rules.

On the question whether a legislator’s action constitutes disorderly behavior, jurisprudence says “that the House is the judge of what constitutes disorderly behavior… The theory of separation of powers, fastidiously observed by this Court, demands in such situation a prudent refusal to interfere.”

On the question of whether a legislator under investigation should voluntarily go on leave, that is for the individual legislator to decide. We should also keep in mind that, like every person, legislators have the constitutional right to be presumed innocent until guilt is proven.

Zamboanga problem. In the face of the fighting in Zamboanga City, some people have wondered why the President did not declare a state of emergency. The simple answer is that we are no longer under martial law or the 1973 Constitution, which provided for this extraordinary power of the president: “Whenever in the judgment of the President (Prime Minister), there exists a grave emergency or a threat or imminence thereof, or whenever the interim Batasang Pambansa or the regular National Assembly fails or is unable to act adequately on any matter for any reason that in his judgment requires immediate action, he may, in order to meet the exigency, issue the necessary decrees, orders or letters of instruction, which shall form part of the law of the land.”

Now it is Congress that has the power to declare a state of emergency: “In times of war or other national emergency, the Congress may by law authorize the President, for a limited period and subject to such restrictions as it may prescribe, to promulgate rules and regulations to carry out a declared national policy.” Congress has not declared a state of emergency.

It is not, however, as if the President were powerless to deal with emergencies. As Commander in Chief of the Armed Forces, the President, in case of rebellion, when public safety requires it, can declare martial law or call on the Armed Forces to suppress lawless violence or rebellion. President Aquino had greater reason than President Arroyo had when she declared martial law in Maguindanao. There clearly was rebellion in Zamboanga City. Martial law could have given him all the emergency powers he might need. But instead he simply exercised his power to call out the Armed Forces to help the police suppress rebellion in Zamboanga; and it seems to be working, even if he did not have to stay in the city!

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