"Separation of powers" and pork barrels

"Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. In the celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that the "Constitution has blocked out with deft strokes and in bold lines, allotment of power to the executive, the legislative and the judicial departments of the government."163 To the legislative branch of government, through Congress,164 belongs the power to make laws; to the executive branch of government, through the President,165 belongs the power to enforce laws; and to the judicial branch of government, through the Court,166 belongs the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, "each department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no authority to make or construe the law, and the judiciary has no power to make or execute the law."168 The principle of separation of powers and its concepts of autonomy and independence stem from the notion that the powers of government must be divided to avoid concentration of these powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally capable of independent action in exercising their respective mandates. Lack of independence would result in the inability of one branch of government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly encroaches on the domain of another. US Supreme Court decisions instruct that the principle of separation of powers may be violated in two (2) ways: firstly, "one branch may interfere impermissibly with the other’s performance of its constitutionally assigned function";171 and "alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another."172 In other words, there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of another department‘s functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both constitutionally assigned and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon. Carague173 (Guingona, Jr.), the Court explained that the phase of budget execution "covers the various operational aspects of budgeting" and accordingly includes "the evaluation of work and financial plans for individual activities," the "regulation and release of funds" as well as all "other related activities" that comprise the budget execution cycle.174 This is rooted in the principle that the allocation of power in the three principal branches of government is a grant of all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive department should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross over the field of implementing the national budget since, as earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr., the Court stated that "Congress enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter, Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act precisely following the process established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an appropriation made by law." Upon approval and passage of the GAA, Congress‘ law -making role necessarily comes to an end and from there the Executive‘s role of implementing the national budget begins. So as not to blur the constitutional boundaries between them, Congress must "not concern it self with details for implementation by the Executive."176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional."177 It must be clarified, however, that since the restriction only pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that Congress‘ role must be confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond oversight is bereft of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive functions. As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1âwphi1 In particular, congressional oversight must be confined to the following:

(1) scrutiny based primarily on Congress‘ power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel – among others, the 2013 PDAF Article – "wrecks the assignment of responsibilities between the political branches" as it is designed to allow individual legislators to interfere "way past the time it should have ceased" or, particularly, "after the GAA is passed."179 They state that the findings and recommendations in the CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over project implementation in complete violation of the constitutional principle of separation of powers."180 Further, they point out that the Court in the Philconsa case only allowed the CDF to exist on the condition that individual legislators limited their role to recommending projects and not if they actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated since the President maintains "ultimate authority to control the execution of the GAA‖ and that he "retains the final discretion to reject" the legislators‘ proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members of Congress to propose and identify projects so long as such proposal and identification are recommendatory."183 As such, they claim that "everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would be the authority of legislators to participate in the post-enactment phases of project implementation.

At its core, legislators – may it be through project lists,185 prior consultations186 or program menus187 – have been consistently accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed from the import of Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1 embodies the program menu feature which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF projects for as long as the identified project falls under a general program listed in the said menu. Relatedly, Special Provision 2 provides that the implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority list, standard or design prepared and submitted by implementing agencies from which the legislator may make his choice. The same provision further authorizes legislators to identify PDAF projects outside his district for as long as the representative of the district concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be identified by legislators"188 and thereunder provides the allocation limit for the total amount of projects identified by each legislator. Finally, paragraph 2 of Special Provision 4 requires that any modification and revision of the project identification "shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be." From the foregoing special provisions, it cannot be seriously doubted that legislators have been accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-enactment authority in the areas of fund release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to participate in the area of fund release through congressional committees is contained in Special Provision 5 which explicitly states that "all request for release of funds shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House Committee on Appropriations and the Senate Committee on Finance, as the case may be"; while their statutory authority to participate in the area of fund realignment is contained in: first , paragraph 2, Special Provision 4189 which explicitly state s, among others, that "any realignment of funds shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the implementing agency, as the case may be‖ ; and, second , paragraph 1, also of Special Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve realignment from one project/scope to another within the allotment received from this Fund, subject to among others (iii) the request is with the concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to participate in – as Guingona, Jr. puts it – "the various operational aspects of budgeting," including "the evaluation of work and financial plans for individual activities" and the "regulation and release of funds" in violation of the separation of powers principle. The fundamental rule, as categorically articulated in Abakada, cannot be overstated – from the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional.191 That the said authority is treated as merely recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which sanctioned the conduct of legislator identification on the guise that the same is merely recommendatory and, as such, respondents‘ reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the identification authority of legislators is only of recommendatory import. Quite the contrary, respondents – through the statements of the Solicitor General during the Oral Arguments – have admitted that the identification of the legislator constitutes a mandatory requirement before his PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget execution process:192

Justice Bernabe: Now, without the individual legislator’s identification of the project, can the PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot… (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

x x x x

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no identification.

x x x x

Justice Bernabe: Now, would you know of specific instances when a project was implemented without the identification by the individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I would doubt very much, Your Honor, because to implement, there is a need for a SARO and the NCA. And the SARO and the NCA are triggered by an identification from the legislator.

x x x x

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How can a legislator make sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if he does not identify, he cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense, Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other provisions of law which similarly allow legislators to wield any form of post-enactment authority in the implementation or enforcement of the budget, unrelated to congressional oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary thereto, informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional treatment. That such informal practices do exist and have, in fact, been constantly observed throughout the years has not been substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral Arguments of these cases:193

Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we enforces the initial thought that I have, after I had seen the extent of this research made by my staff, that neither the Executive nor Congress frontally faced the question of constitutional compatibility of how they were engineering the budget process. In fact, the words you have been using, as the three lawyers of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the past practice that had been done since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions. x x x (Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written into the law or informal practices institutionalized in government agencies, else the Executive department be deprived of what the Constitution has vested as its own."



G.R. No. 208566, November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN PAREDES SAN DIEGO, Petitioners,

vs.

HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in his capacity as SPEAKER OF THE HOUSE, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,

vs.

HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR., in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

x - - - - - - - - - - - - - - - - - - - - - - - x

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province of Marinduque, Petitioner,

vs.

PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET AND MANAGEMENT, Respondents.


Link - https://lawphil.net/judjuris/juri2013/nov2013/gr_208566_2013.html