CARIO vs. COMMISSION ON HUMAN RIGHTSG.R. No. 96681, December 2, 1991

FACTS:Some 800 public school teachers undertook mass concerted actions to protest the alleged failure of public authorities to act upon their grievances. The mass actions consisted in staying away from their classes, converging at the Liwasang Bonifacio, gathering in peacable assemblies, etc. The Secretary of Education served them with an order to return to work within 24 hours or face dismissal. For failure to heed the return-to-work order, eight teachers at the Ramon Magsaysay High School were administratively charged, preventively suspended for 90 days pursuant to sec. 41, P.D. 807 and temporarily replaced. An investigation committee was consequently formed to hear the charges.When their motion for suspension was denied by the Investigating Committee, said teachers staged a walkout signifying their intent to boycott the entire proceedings. Eventually, Secretary Carino decreed dismissal from service of Esber and the suspension for 9 months of Babaran, Budoy and del Castillo. In the meantime, a case was filed with RTC, raising the issue of violation of the right of the striking teachers to due process of law. The case was eventually elevated to SC. Also in the meantime, the respondent teachers submitted sworn statements to Commission on Human Rights to complain that while they were participating in peaceful mass actions, they suddenly learned of their replacement as teachers, allegedly without notice and consequently for reasons completely unknown to them.While the case was pending with CHR, SC promulgated its resolution over the cases filed with it earlier, upholding the Sec. Carinos act of issuing the return-to-work orders. Despite this, CHR continued hearing its case and held that the striking teachers were denied due process of law;they should not have been replaced without a chance to reply to the administrative charges; there had been violation of their civil and political rights which the Commission is empowered to investigate.

ISSUE:Whether or not CHR has the power to try and decide and determine certain specific cases such as the alleged human rights violation involving civil and political rights.

HELD:The Court declares the Commission on Human Rights to have no such power; and that it was not meant by the fundamental law to be another court or quasi-judicial agency in this country, or duplicate much less take over the functions of the latter.The most that may be conceded to the Commission in the way of adjudicative power is that it may investigate, i.e., receive evidence and make findings of fact as regards claimed human rights violations involving civil and political rights. But fact finding is not adjudication, and cannot be likened to the judicial function of a court of justice, or even a quasi-judicial agency or official. To be considered such, the faculty of receiving evidence and making factual conclusions in a controversy must be accompanied by the authority of applying the law to those factual conclusions to the end that the controversy may be decided or determined authoritatively, finally and definitively, subject to such appeals or modes of review as may be provided by law.

Araullo vs Aquino

Political Law Constitutional Law Separation of Powers Fund Realignment Constitutionality of the Disbursement Acceleration Program

Power of the Purse Executive Impoundment

When President Benigno Aquino III took office, his administration noticed the sluggish growth of the economy. The World Bank advised that the economy needed a stimulus plan. Budget Secretary Florencio Butch Abad then came up with a program called the Disbursement Acceleration Program (DAP).

The DAP was seen as a remedy to speed up the funding of government projects. DAP enables the Executive to realign funds from slow moving projects to priority projects instead of waiting for next years appropriation. So what happens under the DAP was that if a certain government project is being undertaken slowly by a certain executive agency, the funds allotted therefor will be withdrawn by the Executive. Once withdrawn, these funds are declared as savings by the Executive and said funds will then be reallotted to other priority projects. The DAP program did work to stimulate the economy as economic growth was in fact reported and portion of such growth was attributed to the DAP (as noted by the Supreme Court).

Other sources of the DAP include the unprogrammed funds from the General Appropriations Act (GAA). Unprogrammed funds are standby appropriations made by Congress in the GAA.

Meanwhile, in September 2013, Senator Jinggoy Estrada made an expos claiming that he, and other Senators, received Php50M from the President as an incentive for voting in favor of the impeachment of then Chief Justice Renato Corona. Secretary Abad claimed that the money was taken from the DAP but was disbursed upon the request of the Senators.

This apparently opened a can of worms as it turns out that the DAP does not only realign funds within the Executive. It turns out that some non-Executive projects were also funded; to name a few: Php1.5B for the CPLA (Cordillera Peoples Liberation Army), Php1.8B for the MNLF (Moro National Liberation Front), P700M for the Quezon Province, P50-P100M for certain Senators each, P10B for Relocation Projects, etc.

This prompted Maria Carolina Araullo, Chairperson of the Bagong Alyansang Makabayan, and several other concerned citizens to file various petitions with the Supreme Court questioning the validity of the DAP. Among their contentions was:

DAP is unconstitutional because it violates the constitutional rule which provides that no money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

Secretary Abad argued that the DAP is based on certain laws particularly the GAA (savings and augmentation provisions thereof), Sec. 25(5), Art. VI of the Constitution (power of the President to augment), Secs. 38 and 49 of Executive Order 292 (power of the President to suspend expenditures and authority to use savings, respectively).

Issues:

I. Whether or not the DAP violates the principle no money shall be paid out of the Treasury except in pursuance of an appropriation made by law (Sec. 29(1), Art. VI, Constitution).

II. Whether or not the DAP realignments can be considered as impoundments by the executive.

III. Whether or not the DAP realignments/transfers are constitutional.

IV. Whether or not the sourcing of unprogrammed funds to the DAP is constitutional.

V. Whether or not the Doctrine of Operative Fact is applicable.

HELD:

I. No, the DAP did not violate Section 29(1), Art. VI of the Constitution. DAP was merely a program by the Executive and is not a fund nor is it an appropriation. It is a program for prioritizing government spending. As such, it did not violate the Constitutional provision cited in Section 29(1), Art. VI of the Constitution. In DAP no additional funds were withdrawn from the Treasury otherwise, an appropriation made by law would have been required. Funds, which were already appropriated for by the GAA, were merely being realigned via the DAP.

II. No, there is no executive impoundment in the DAP. Impoundment of funds refers to the Presidents power to refuse to spend appropriations or to retain or deduct appropriations for whatever reason. Impoundment is actually prohibited by the GAA unless there will be an unmanageable national government budget deficit (which did not happen). Nevertheless, theres no impoundment in the case at bar because whats involved in the DAP was the transfer of funds.

III. No, the transfers made through the DAP were unconstitutional. It is true that the President (and even the heads of the other branches of the government) are allowed by the Constitution to make realignment of funds, however, such transfer or realignment should only be made within their respective offices. Thus, no cross-border transfers/augmentations may be allowed. But under the DAP, this was violated because funds appropriated by the GAA for the Executive were being transferred to the Legislative and other non-Executive agencies.

Further, transfers within their respective offices also contemplate realignment of funds to an existing project in the GAA. Under the DAP, even though some projects were within the Executive, these projects are non-existent insofar as the GAA is concerned because no funds were appropriated to them in the GAA. Although some of these projects may be legitimate, they are still non-existent under the GAA because they were not provided for by the GAA. As such, transfer to such projects is unconstitutional and is without legal basis.

On the issue of what are savings

These DAP transfers are not savings contrary to what was being declared by the Executive. Under the definition of savings in the GAA, savings only occur, among other instances, when there is an excess in the funding of a certain project once it is completed, finally discontinued, or finally abandoned. The GAA does not refer to savings as funds withdrawn from a slow moving project. Thus, since the statutory definition of savings was not complied with under the DAP, there is no basis at all for the transfers. Further, savings should only be declared at the end of the fiscal year. But under the DAP, funds are already being withdrawn from certain projects in the middle of the year and then being declared as savings by the Executive particularly by the DBM.

IV. No. Unprogrammed funds from the GAA cannot be used as money source for the DAP because under the law, such funds may only be used if there is a certification from the National Treasurer to the effect that the revenue collections have exceeded the revenue targets. In this case, no such certification was secured before unprogrammed funds were used.

V. Yes. The Doctrine of Operative Fact, which recognizes the legal effects of an act prior to it being declared as unconstitutional by the Supreme Court, is applicable. The DAP has definitely helped stimulate the economy. It has funded numerous projects. If the Executive is ordered to reverse all actions under the DAP, then it may cause more harm than good. The DAP effects can no longer be undone. The beneficiaries of the DAP cannot be asked to return what they received especially so that they relied on the validity of the DAP. However, the Doctrine of Operative Fact may not be applicable to the authors, implementers, and proponents of the DAP if it is so found in the appropriate tribunals (civil, criminal, or administrative) that they have not acted in good faith.

Brief Fact Summary. The National Association for the Advancement of Colored People (NAACP/Petitioner) was ordered to produce a membership list by the state court.

Synopsis of Rule of Law. Freedom of association to promote beliefs is insured by the Fourteenth Amendment and is protected by adherence to strict scrutiny of any regulatory interference

Facts. Petitioner was ordered by a court to provide a full membership list, including names and addresses. Although Petitioner agreed to provide a list of its officers and paid staff members, it asserts that this list is protected and that it may assert the personal privacy interests of each of its members. Additionally, Petitioner claims that disclosure will serve as a restriction on lawful association of members that can only be justified by a compelling state interest.

Issue. Can the state compel disclosure of the membership list of the NAACP?

Held. No. Disclosure of the list will subject members to adverse consequences including economic, physical and other forms of public hostility. In essence, this will limit Petitioners members ability to advocate their beliefs, and it will dissuade others from joining the organization for fear of retribution.

Discussion. An association may assert the rights of its membership when the rights of the individual members are tightly interrelated to the interest of the association.

SJS vs Drillon

The recent Supreme Court (SC) ruling that the PDAF is unconstitutional (Alcantara vs Drilon), announced only through a press release by the Courts spokesperson, was hailed by most of mass media as the end of the pork barrel system (PBS), a victory for the anti-pork movement, and proof that the legal justice system is alive and well, in particular that the SC can be trusted to uphold the Constitution.

Some anti-pork groups were understandably jubilant but most received the news with guarded optimism. Except for ruling some parts of the laws on the Malampaya Fund and the Presidential Social Fund unconstitutional, much of what is deemed as presidential pork is left untouched by the Court decision. It did not help that the SC had uncharacteristically withheld the release of the decisions full text until a few days after it was announced preventing closer scrutiny of its contents.

In fact the pork barrel system, and most especially presidential pork, is very much intact what with Congress, its Majority held captive by President BS Aquino and his Liberal Party, approving all proposed lump sum, discretionary funds of the Chief Executive in the 2014 General Appropriations Act.

It is now common knowledge that presidential pork is the main source of presidential largesse generously doled out to the incumbents loyalists, political allies, camp followers and potential turncoats. Thus the pork barrel for legislators can easily be resurrected later on although in more inconspicuous or unrecognizable forms. In a flurry of meetings by members of the Majority with Palace emissaries after the SC decision, the stunned and anxious legislators were reportedly reassured that they would have their pork and get to eat it too!

At best the SC decision can be seen as a partial victory only in the sense that the high court was forced by the anti-pork movement as well as the spontaneous and sustained outrage of the people to craft a decision which appears to abolish pork once and for all, or can be misinterpreted as doing so. Thus the SC decision is clearly double-edged, if not a Trojan horse, which can, if accepted uncritically, undermine the fight to abolish the entire pork barrel system.

The Supreme Court, after all, has not been the most consistent and thorough judicial body even as it concededly has the last word on interpreting the law. The Court has, in several controversial issues, shown that its first word is not always its last. On the pork barrel issue, the SC has in fact flip-flopped. Two previous unanimous decisions, one as recent as 19 months before the latest SC ruling on PDAF, upheld the constitutionality of the pork barrel in its most current incarnations.

If there is anything the Supreme Court, like its co-equal branches of government, is consistent in and clear-headed about, it is in ensuring that its decisions help strengthen and perpetuate the ruling order. This, it seems, is what they take as their paramount obligation of upholding and defending the Constitution. True enough, public sentiment, or clamor to be exact, has often been a major, if not a decisive, factor in the justices estimations and decisions.

We should recall where the anti-pork campaign was when news of the SC decision broke out. While protest rallies in Metro Manila after the Million People March were much smaller, these were sustained and were much more organized, with greater attention given to bringing out information, analyses and calls to action as well as in broadening and unifying the ranks of the movement. The anti-pork protests were also replicated in the major urban centers of the country with Cebu and Davao leading the way.

The SC petitions against the pork barrel system independently filed by other citizens groups, notably Mr. Samson Alcantara, president of the Social Justice Society and Greco Belgica et al, gained considerable traction with the unrelenting media coverage of the Napoles pork scam and its aftermath and the widespread public uproar generated. Another petition led by Bayan, this time against the hitherto undisclosed Development Acceleration Program or DAP, further forced Malacanang to engage the anti-pork movement, at least in the judicial arena, and helped keep public interest and focus on the pork barrel issue, much more, on presidential pork.

This was after President Aquinos attempt to throw cold water on inflamed public sentiment by announcing that the PBS would soon be abolished. In the meantime, the fugitive Janet Napoles surrendered to the waiting arms of Pres. Aquino and his right-hand-man DILG Sec. Mar Roxas and the Justice Department filed cases of plunder at the Ombudsmans Office against several senators accused of involvement in the pork scam. With government seemingly after the pork barrel crooks, Malacanang hoped that the issue would take the backseat to such attention-grabbing developments such as the siege on MNLF fighters in Zamboanga and much later, the devastation of Typhoon Yolanda.

But the pork issue has continued to roil, apparently sufficiently embedded in the public consciousness, for it to simply die down.

Former Chief Justice Reynato Punos proposal and challenge for the anti-pork movement to use the mechanism of a peoples initiative (PI) to legislate the pork barrel systems abolition has added a new and exciting element to the equation. In fact several organizations and alliances active in the anti-pork fight have already taken up Mr. Punos call for a PI and have started drafting the proposed bill. Many more organizations and individuals have welcomed this novel venue as a means to keep up the pressure on corrupt government officials, and possibly, bring about major reforms in the government budgeting and disbursement system.

With the Alcantara ruling there is the perception in some quarters that the PI for the abolition of the pork barrel system been rendered moot and academic.

We disagree. We view the SC ruling as essentially a gambit. The SC is sacrificing the PDAF and some portions of the presidential pork, which are already politically dead in the first place, in order to preserve the pork barrel system as a whole. This is so that the peoples money can continue to be used to grease the wheels of reactionary politics in this country including but not limited to the entire rotten system of political patronage, political dynasties, undemocratic elections and bureaucrat capitalists enriching themselves abusing all the powers and perks of public office.

A legal critique of the Alcantara decision written by a group of lawyers using the pen name Makata (Manananggol para sa Katarungan) provides us the basis for this view.

While it is clear from the SC ruling that all future legislation that permit legislators, individually or collectively, to intervene, assume or participate in post-enactment stages of budget execution, or which confer personal lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine, are unconstitutional, it is a clear error of perception that no such legislation will not and cannot be enacted by Congress.

How can this happen? The Makata group says that because all laws enjoy the presumption of constitutionality, Congress may decide to pull a fast one and still pass such a law. Unless successfully challenged once more in the Supreme Court, such a law will remain valid and operative.

Or else, the provisions that the Court has outlawed can be smuggled in as riders to other bills. A rider is a provision that has little or nothing to do with a bill but because of the untransparent way that Congress conducts its business, many riders pass through the legislative mill until discovered and exposed by a vigilant citizenry.

More to the point, since Congress wields the power of the purse, it determines how much money an agency or instrumentality receives. It is in fact a yearly ritual for legislators as individuals, as committees and as a plenary body to leverage this power in order to wring favors or concessions from executive agencies and the judiciary. The Makata lawyers assert that the justices of the Supreme Court are not invulnerable to this power and may be persuaded in the future to reverse their decisions.

The Makata group concludes: If the recitation of the pork barrels history in Alcantara demonstrates anything, it is that the pork barrel system has a venerable history in Philippine politics and that it has proven itself to be a resilient, hardy and many-faced institution. As such, a Supreme Court decision, much less public opinion is hardly likely to make it disappear overnight. It is not realistic to expect Congress to purge pork from its diet, not when its members have been gorging at the trough for so long. Therefore, it is only reasonable to expect that the pork barrel will re-surface, albeit in a disguised yet more palatable form, when the timing is right. #

Published in Business World13-14 December 2013