Pork barrel as a human rights issue?

The oral arguments last Nov. 19 at the Supreme Court on the Disbursement Acceleration Program went largely as expected. The petitioners argued that the DAP allows the President to single-handedly rewrite the budget.

Solicitor General Francis Jardeleza must have been secretly pleased. The Court announced shortly before the hearing its verdict that lawmakers’ pork is unconstitutional. But Jardeleza had declined to defend it (and largely protected the President’s discretionary funds). The DAP, in contrast, gives him some legal leg to stand on. And where the petitions against lawmakers’ pork were so deficient—one was written by a nonlawyer—that the justices made their own arguments and Jardeleza’s opponents in the hearings were half his age, the Integrated Bar of the Philippines sent former University of the Philippines law dean Pacifico Agabin to argue the DAP.

Agabin is one of few Jardeleza would not be ashamed to name as a superior in constitutional litigation. Indeed, Justice Marvic Leonen opened with: “I hope I will do justice to the constitutional law classes I took under you.” Senior Associate Justice Antonio Carpio mistakenly addressed his professor as “Justice Agabin.” Chief Justice Maria Lourdes Sereno quoted Agabin’s articles against him.

The justices made it clear that they were not creating a venue to attack the President. Justice Lucas Bersamin stressed that he wanted to discuss the constitutional issue, not prosecution. Raymond Fortun alluded to “possible bribery” in then Chief Justice Renato Corona’s impeachment. Leonen firmly asked him to refrain from making unproven statements.

I was surprised to see Agabin assigned to defend only the preliminary technicalities, such as whether a “petition for certiorari” is proper in the context of the Constitution’s expanded concept of “grave abuse of discretion” even though the head of the Department of Budget and Management has no “quasi-judicial” authority. I cannot imagine the Court declining to rule on the DAP because of these technicalities. Nevertheless, the choice proved wise as the justices did go through the technicalities.

Agabin gave a technically precise speech but pushed a very liberal stand, arguing that procedural rules and the doctrine that the Court is not a trier of facts must be read more broadly under the 1987 Constitution, as analyzing “grave abuse of discretion” necessarily involves facts. Leonen proposed it would be more prudent to wait for clearer facts, such as complete documentation of the projects being attacked (which the petitioners did not obtain) and Commission on Audit disallowance. He said the DAP cannot be attacked as a concept. Sereno said Agabin’s proposal would lower the requirements for filing a constitutional case and flood the Court with petitions.

These exchanges revived debates from the Reproductive Health Act case. Justice Roberto Abad raised judicial notice, which he previously used to establish that contraceptives are poison, while Sereno recalled how contraceptives must first be ruled upon by the Food and Drug Administration.

Manuelito Luna shocked by arguing that the DAP violates equal protection because senators did not receive equal funds from it. Equal protection is a human rights concept and the DAP is clearly not a human rights issue. Worse, Luna invoked the discredited 2010 Biraogo v. Philippine Truth Commission decision that used the same human right to protect former President Gloria Arroyo from investigation for corruption.

The main arguments were strongly presented but difficult to follow given the references to various laws, but became more focused with the justices’ questions. The petitioners’ strongest argument is that DAP funds were used to fund projects not in the national budget. This is purely factual. The power to realign savings may only be used to augment existing budget items, and a project is either in the budget or it is not. The Philippine Constitutional Association’s Manuel Lazaro expounded to Bersamin that it found 41 such DAP projects in DBM press releases.

Carpio walked through the other argument, that DAP funds are not taken from savings as defined in law. He concluded that savings may be taken only from completed and discontinued projects, yet DAP funds were taking from supposedly slow-moving projects that were suspended. Dividends from government corporations must go to the government general fund and be appropriated, while capital outlays have a lifespan of two years and may not be immediately declared as savings. The petitioners argued that funds for suspended projects go to the general fund and are not savings that may be realigned. Leonen tried to show that the budget is not so simple because it is merely an estimate of revenue, and the president does choose which projects to fund first if money has not yet come in.

Carpio added a third attack by having Rep. Carlos Zarate establish that realignments in recent years were not documented as done by the president. This violates the recent Sanchez ruling which held only that the president may realign funds and the power may not be delegated.

In a light moment, Justice Abad overeagerly questioned Budget Secretary Florencio Abad even before the government’s turn, calling him his “adopted cousin.”

Lazaro called Ferdinand Marcos Jr. his “favorite senator,” explaining to Bersamin that the latter is the son of our greatest president—which may be ironic coming from the Philconsa representative, considering the 1987 Constitution’s anti-martial law stance.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.