If the Supreme Court declares the pork barrel law unconstitutional, is there still a need for Congress to act? Likewise, if Congress should repeal that law, is there still a need for the Supreme Court to declare it unconstitutional? The short answer to both questions is “Yes.” Let me explain.
Banish pork completely. Let us assume that indeed Congress banishes the pork barrel from the 2014 budget, as promised by Senate President Franklin Drilon and Speaker Feliciano Belmonte. Let us further assume that Congress abolishes it by eliminating (1) the lump-sum appropriation and (2) the legislators’ power to direct the use of the lump sum via their chosen government agencies or nongovernment organizations, as I proposed last Sunday in this space.
This would be well and good. The two legislative leaders, I believe, will live up to their commitment. However, there is no guarantee that future Congresses will not revive the pork barrel, especially after the two leaders finish their terms of office and when our people’s attention is deflected to other burning issues.
After all, pork—as history has shown—is a very tempting political patronage that traditional politicians love. So, too, Congress cannot—even if our people may want it to—enact a law banishing pork barrel forever because the Constitution prohibits the passage of irrepealable laws. The best way to guarantee the permanent and complete banishment of the hated pork barrel is for the Supreme Court to declare it unconstitutional. In this way, it cannot be revived by a future law.
Of course, no law bars the high court from reversing jurisprudence. Nonetheless, it provides a more reliable guarantee. Apart from their “cold neutrality,” the justices, unlike lawmakers, have no pecuniary interest in the pork barrel.
Should the Supreme Court declare the 2013 pork barrel law unconstitutional, the funds originally intended for it should still be appropriated so these can be used in promoting the wellbeing of our people. Under the Constitution, only Congress can do this. The high court cannot. While the high court can invalidate laws, it cannot create new ones in their place.
Realigning PDAF. Quite apart from the 2014 (next year’s) budget, several billions of pork barrel funds under the 2013 (this year’s) budget called Priority Development Assistance Fund (PDAF) remain unspent because (1) senators had waived their remaining PDAF allocations and (2) the Supreme Court banned their release via a temporary restraining order (TRO). These unspent funds constitute “savings” that can be used to help calamity victims, especially those hit by the last earthquake.
To attain this goal, the Senate passed a resolution urging President Aquino to “realign” these funds and augment the existing “calamity funds” of the executive branch. Once so realigned and converted to calamity funds, these would no longer be subject to the legislators’ whims. Consequently, the line agencies of the executive branch can freely use the funds, without any interference from the legislators.
Realignment of funds is authorized by the Constitution (Art. VI, Sec. 25, par. 5), thus: “The President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of the Constitutional Commissions may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”
A law—the Administrative Code of 1987—implements this constitutional provision by authorizing the President to realign the PDAF savings and to augment the existing budget item called “calamity funds,” specifically “for disaster relief and rehabilitation” of the victims of the last earthquake and earlier calamities.
Again, this is well and good. Under this Senate proposal, the savings or unspent funds already appropriated under one budget item (PDAF) in the executive branch will be “realigned” by the President to “augment” the “calamity funds” also under the executive branch. This proposal makes legal, political and humanitarian sense.
Safer solution. However, a future event may complicate this well-intentioned proposal. Should the Supreme Court declare the PDAF unconstitutional, then the unspent pork barrel funds may no longer be treated as “appropriated funds” because the law creating such funds would be deemed void and nonexistent.
Thus, the unspent pork funds would revert to and become part of the unappropriated general funds. Consequently, these cannot be realigned because these no longer partake of the nature of appropriated funds in the budget of the executive branch.
I believe the better and safer way would be for Congress to pass a supplemental budget or a new law that authorizes the line agencies of the executive branch to use these savings to alleviate the plight of the calamity victims. To repeat, only Congress can appropriate and authorize the use of public funds through the passage of a law; neither the President nor the Supreme Court can use unappropriated funds of the government without an enabling law.
What about the portion of 2013 PDAF allegedly misspent by the legislators and the NGOs prior to the issuance of the Supreme Court TRO? The Commission on Audit or the judiciary in appropriate proceedings can order the refund of these illegally-spent funds, which are also the fruits of a void or nonexistent law.
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