The Supreme Court announced its landmark ruling that lawmakers’ pork barrel is unconstitutional but released the complete decision days later. The weighty question in that interim is why Chief Justice Maria Lourdes Sereno was announced as “concurring in the result only” in the decision of the decade. It turns out that she and Justice Marvic Leonen argue that the decision does not require budget allocations to be line items and prohibit lump sums.
Observers overlooked the sideshow line-item war. During the oral arguments, Senior Associate Justice Antonio Carpio posited that lawmakers’ discretionary funds are unconstitutional because they are lump sums in the budget that cannot be subject to the President’s item veto, negating this constitutional power. This is in addition to the principal argument in previous pork cases that pork violates the separation of powers as lawmakers should not be involved in project execution. Carpio’s argument was not meant to be taken to an extreme as he explained that a discretionary fund with a broad specified purpose such as a calamity, contingency or intelligence fund is still a line item. He asked the petitioners to discuss the new favorable argument in their final memoranda, and the decision then cited their discussion.
The belated line-item debate broke out in the decision’s separate opinions. Sereno hoped to add “a strong emphasis that this Court has not thereby made an invalidation of any lump-sum appropriation except in the form that was described.” She argues that Congress is not required to pass a line-item budget and emphasized that the issue was never raised by the petitioners: “This confusion appears to have stemmed from the highly limited exchanges in the oral arguments between one of the petitioners and the Chairperson of the Commission on Audit (COA), on one hand, and a Member of the Court, on the other. The argument progressed on the basis of the Member’s own suggestion that the item-veto power of the President is negated by lump-sum budgeting despite the fact that it was not the very issue identified in the petitions.” Leonen makes the same argument, but tempers his conclusion to: “the fine line between ‘line’ and ‘lump sum’ budgeting … should be clarified further in a more appropriate case.”
Sereno and Leonen thus argue that the decision’s line-item discussion is “dicta” or the justices’ nonbinding idle chatter. The Court regularly revisits decisions and interprets their scope and actual issues raised, especially in the context of succeeding applications. It is unusual when justices debate a decision’s scope in the decision itself.
Where exactly do Sereno and Carpio diverge? It is as though Sereno argues that lump-sum budget allocations are allowed so long as they have a specified purpose, while Carpio argues that the budget must consist of line items but the specified purposes are allowed to be quite broad. Sereno raises that a lump sum in US congressional practice is a fund for two or more purposes while a line item is only for a single purpose.
Nevertheless, the main decision read: “[A]s Justice Carpio correctly pointed out, a valid appropriation may even have several related purposes that are by accounting and budgeting practice considered as one purpose.” Nothing in the tone implies the inflexibility in budgeting that Sereno and Leonen caution against. The underlying policy is to merely restrict the application of discretionary funds and facilitate their auditing.
The decision’s text, not to mention public opinion, appears to be with Carpio. The main decision has a specific heading for requiring line-item budgeting and a lengthy discussion. In striking down lawmakers’ pork, it specifically stated: “This kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a budget within a budget which subverts the prescribed procedure of presentment and consequently impairs the President’s power of item veto.” Further, some secondary counterarguments are difficult to accept. For example, Sereno argues that a law journal article Carpio cites itself recognizes that lump-sum appropriations are valid. This referred to the US system, however, where a presidential line-item veto is unconstitutional. She argued that a calamity fund would be unconstitutional for being a lump sum even after both the main decision and Carpio’s opinion considered it a line item.
Justice Estela Perlas-Bernabe deserves praise for making the first major decision she authored an extremely exhaustive one, and I hope the side debate in the separate opinions do not inadvertently diminish its strong wording. The true culprit in the line-item war is the deficient petitions. Leonen vented measured frustration, writing, “Petitions filed with this Court are not political manifestos” and “[W]e cannot declare a ‘system’ as unconstitutional… [A petitioner] has questioned the general political and historical concept known as the ‘pork barrel system.’” He even echoed the Solicitor General’s minor point that the petition written by nonlawyer Pedrito Nepomuceno sued the President and must be dismissed as a clear violation of presidential immunity. There is clearly something wrong with how the petitions framed the case if the justices had to flesh it out themselves and are now questioning what exactly they ruled on. This is especially appalling given a point so crucial as pork must be restricted through line-item budgeting, as Congress promised even before the Court ruled.
Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.