Are the PDAF ‘realignments’ constitutional?

Did the “realignment” made by nine senators of their Priority Development Assistance Fund in the 2014 national budget violate the unanimous landmark decision of the Supreme Court declaring the PDAF unconstitutional (Belgica vs Ochoa, Nov. 19, 2013, penned by Justice Estela M. Perlas-Bernabe)? In short, are the senatorial “realignments” unconstitutional and void?

The Constitution and the facts. Before answering, let us first review the Constitution, the facts and the decision. Under the Constitution, “all appropriation …  bills shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments.”

Yearly, the President sends to Congress a national budget proposal for the ensuing year. The proposal is first passed upon by the House and then transmitted to the Senate, which, to stress, “may propose or concur with amendments.” Once approved by both chambers and signed by the President, the budget bill becomes known as the General Appropriation Act or GAA.

In deference to the Court’s decision, 15 senators, including Senate President Franklin Drilon, completely deleted their PDAF allocations of P200 million each from the budget bill forwarded by the House to the Senate. And so did Vice President Jejomar Binay with his own pork barrel of P200 million, thereby saving a total of P3.2 billion (P200m x 16).

However, nine senators did not. Five of them (Alan Peter and Pia Cayetano, Ralph Recto, Miriam Defensor-Santiago and JV Ejercito) “realigned” theirs to the Calamity Fund; three (Lito Lapid, Ramon Revilla Jr. and Antonio Trillanes IV) allocated theirs to specific schools, hospitals, public works projects, scholarships, charity patients and  barracks for soldiers; and one (Jinggoy Estrada) gave his to the cities of Manila (P100 million) and Caloocan (P50 million) and Lla-lo town in Cagayan (P50 million).

The SC decision. Under the doctrine of separation of powers, Congress enacts the law while the President (and the offices under him) implements it. Legislators cannot participate in the implementation. Corollarily, the President cannot legislate by determining what projects or activities are to be funded from lump sums provided in the GAA or other laws.

Thus, legislators were prohibited from participating or intervening in the implementation of the GAA, except for congressional oversight. They cannot determine the projects, or authorize fund releases, or identify government offices and nongovernment organizations to implement the law.

Budget items were required to have specific purposes, and as a rule, lump-sum appropriations were banned. Under the “specific appropriation, stated purpose” rule enunciated by the Court, neither the President nor the legislators have any postenactment power to determine how such lump sums shall be spent.

Obviously, the lump-sum ban and the “specific appropriation, stated purpose” rule were designed to prevent graft.

However, prior to the GAA’s approval and while it is still pending in Congress, legislators may include specific projects in or otherwise amend the President’s budget proposal.

Now, the answers. First, legislators have no power to “realign” or “augment” budget items. The Charter grants such power only to the President, the Senate President, the Speaker, the Chief Justice and the constitutional commissions. Hence, it is erroneous to say that Senator So-and-so “realigned” his/her PDAF.

What actually happened was that the nine senators proposed amendments to the House-approved budget bill regarding their originally-allocated PDAF. These amendments were approved by the bicameral conference committee and, subsequently, by the entire Congress, and thus became integral parts of the 2014 GAA.

Second, the amendment authored by five senators adding their original PDAF of P200 million each to the Calamity Fund to be administered by the President is constitutional. Although the Calamity Fund is a huge lump sum that does not have a singular purpose, the justices exempted it (as well as the “contingency fund and intelligence fund”) from the “specific appropriation, stated purpose” rule.

By their nature, calamity funds cannot be given “line-item” breakdowns because no one can predict what and how many calamities would befall the country, and how much would be needed to alleviate their effects.

Third, the three senators’ diversion of their PDAF to schools, hospitals, etc. have specific purposes and would be implemented by the executive offices concerned, without any postenactment intervention by the legislators. Hence, they are constitutional, provided they do “not increase the appropriations recommended by the President for the operation of the Government as specified in the budget.”

Fourth, the PDAF allocation made by a senator for three local government units (LGUs) risks a violation of the Constitution, because it creates lump sums without specific purposes. To be constitutional, it should have specified the purposes, like the construction of a road or school in Manila.

If the President is banned from using lump sums without breakdowns and specific purposes, how can LGUs, which are merely parts of the executive branch, exercise more power than the President and be allowed to determine the specific projects for which the lump sums can be used?

Unconstitutionality signifies that the allocation is void and cannot be used for the goals intended, even if such goals are laudable. Laudable ends cannot justify unconstitutional means.

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