The penumbra of PDAF

Several solons, opinion molders, and civil society leaders questioned the enormous budgetary lump sums that evoked a penumbra of the outlawed “Priority Development Assistance Fund,” notoriously known as PDAF.

LED BY SENATE MINORITY LEADER KOKO PIMENTEL, the critics assailed the penumbral darkness around the “staggering P544 billion lump sum in the 2023 budget of the Department of Public Works and Highways (DPWH)” that could be a “rich source of pork barrel funds for lawmakers” because the DPWH was granted “blanket authority” to disburse the gargantuan sum.

A decade ago, the Inquirer pioneered in exposing the lawmakers’ misuse of public funds via ghost projects or overpriced public works undertaken by so-called foundations that allowed huge kickbacks from these pork barrel allotments known as PDAF and its predecessor, the Countrywide Development Fund (CDF).

On Nov. 19, 2013, the Supreme Court en banc — in a unanimous decision in Belgica v. Ochoa superbly written by Justice Estela M. Perlas-Bernabe — unanimously banished the PDAF, CDF, and “similar pork barrel laws, past and present.”

CITING THE DOCTRINE OF SEPARATION OF POWERS, it struck down the budget provisions granting executive prerogatives to legislators to decide what projects should be undertaken and those giving the President legislative powers to decide how public money is to be spent and/or to choose the projects to be funded as these would constitute an undue delegation of legislative power.

The Court boldly obliterated “all legal provisions of past and present congressional pork barrel laws … 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; [and] 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…”

To stress, while “all past and present congressional pork barrel laws” were ruled unconstitutional, the Court limited this mantra to the laws that “confer/red personal lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine.”

In other words, the Court did not reverse previous decisions that declared pork barrel constitutional in the cases where the legislators had no power to determine the specific projects, and where their “intervention” was merely recommendatory and not binding on the executive agencies.

SIMILARLY, THE COURT RESTRICTED THE DISCRETION OF THE PRESIDENT in spending public funds. It ruled that lump-sum appropriations can be spent only for specific purposes or projects, and cannot give the Chief Executive unlimited choices.

Consequently, the portion of Presidential Decree No. 910 that granted the President the authority to use the Malampaya Fund for energy-related projects and “for such other purposes as may be hereafter directed by the President” was deemed an undue delegation of legislative power. Thus, it invalidated the quoted portion because it gave the Chief Executive the legislative power to determine what those “other purposes” were.

Similarly, the portion of PD 1869 that granted the President the authority to use his “social funds” to help victims of calamities and “to finance priority infrastructure development projects” was held to be unconstitutional because it gave him the legislative power to identify what those “priority infrastructure projects” were.

Notably, the Court directed the investigation and prosecution of “all government officials and/or private individuals for possible criminal offenses related to the irregular, improper and/or unlawful disbursements/utilization of all funds under the pork barrel system.”

Accordingly, to the applause of the gallery, fearless Ombudsman Conchita Carpio Morales dutifully filed cases of plunder against several officials including three prominent senators, in alleged conspiracy with private individuals like Janet Lim Napoles. However, the 16 cases filed against one senator were dismissed by the Sandiganbayan (SBN), on a demurrer, for “insufficiency of evidence” without requiring the accused to present his defense. And though charged with the “unbailable” crime of plunder, the two other senators were nonetheless granted bail, one by the Supreme Court and the other by the SBN.

Now, the question is: Do the lump sums in the 2023 budget constitute a form of pork barrel that could be scuttled using Belgica v. Ochoa? At this point, not being privy to the penumbral facts surrounding the lump-sum black hole, I cannot answer the question. Perhaps, Senator Pimentel can?

Comments to chiefjusticepanganiban@hotmail.com

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