Consti Cases 2nd Meeting

7/25/2019 Consti Cases 2nd Meeting

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Arturo Tolentino et al are questioning the constitutionality of RA

7716 otherwise known as the Expanded Value Added Tax

(EVAT) Law. Tolentino averred that this revenue bill did not

exclusively originate from the House of Representatives asrequired by Section 24, Article 6 of the Constitution. Even though

RA 7716 originated as HB 11197 and that it passed the 3

readings in the HoR, the same did notcompletethe 3 readings in

Senate for after the 1streading it was referred to the Senate

Ways & Means Committee thereafter Senate passed its own

version known as Senate Bill 1630. Tolentino averred that what

Senate could have done is amend HB 11197 by striking out itstext and substituting it with the text of SB 1630 in that way the

bill remains a House Bill and the Senate version just becomes

the text (only the text) of the HB. (Its ironic however to note that

Tolentino and co-petitioner Raul Roco even signed the said

Senate Bill.)

ISSUE: Whether or not the EVAT law is procedurally infirm.

HELD: No. By a 9-6 vote, the Supreme Court rejected the

challenge, holding that such consolidation was consistent with

the power of the Senate to propose or concur with amendments

to the version originated in the HoR. What the Constitution

simply means, according to the 9 justices, is that the initiative

must come from the HoR. Note also that there were several

instances before where Senate passed its own version ratherthan having the HoR version as far as revenue and other such

bills are concerned. This practice of amendment by substitution

has always been accepted. The proposition of Tolentino

concerns a mere matter of form. There is no showing that it


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would make a significant difference if Senate were to adopt his

over what has been done.

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 thereforwill 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


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an expos claiming that he, and other Senators, received

Php50M fromthe Presidentas 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 DAPbut 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 augmentationprovisions

thereof), Sec. 25(5), Art. VI of the Constitution (power of thePresident to augment), Secs. 38 and 49 of Executive Order 292

(power of the President to suspend expenditures and authority to

use savings, respectively).

Issues:


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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 prioritizinggovernment 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


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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/augmentationsmay 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 isconcerned 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


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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 forthe 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 asunconstitutional 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, theDoctrine 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.


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NOVEMBER 22, 2013BY FUCKYEAHEMIR

CASE DIGEST: Belgica v.Executive Secretary (G.R. Nos.20!""# 20$%& a'20%2!)# 20)&*

Click here for the fll te!t of the "eci#io$%

Click here for & 'ore co'(rehe$#i)e *i+e#t reco''e$*e*

for $o$-l&./er#%

I. SUBSTANTIVE ISSUES

A. Congressional Pork Barrel

ON the 2013 "AF Article &$* &ll other Co$+re##io$&l ork

B&rrel &.# #i'il&r to it &re $co$#tittio$&l co$#i*eri$+ th&t

the/ )iol&te the (ri$ci(le# of4co$#tittio$&l (ro)i#io$# o$5

1% 5#e(&r&tio$ of (o.er#

2% 5$o$-*ele+&6ilit/ of le+i#l&ti)e (o.er

3% 5check# &$* 6&l&$ce#
https://fuckyeahemir.wordpress.com/2013/11/22/2013porkdecision/https://fuckyeahemir.wordpress.com/author/fuckyeahemir/http://www.scribd.com/doc/186248465/208566https://fuckyeahemir.wordpress.com/2014/06/22/2013porkdecision_long/https://fuckyeahemir.wordpress.com/2014/06/22/2013porkdecision_long/https://fuckyeahemir.wordpress.com/author/fuckyeahemir/http://www.scribd.com/doc/186248465/208566https://fuckyeahemir.wordpress.com/2014/06/22/2013porkdecision_long/https://fuckyeahemir.wordpress.com/2014/06/22/2013porkdecision_long/https://fuckyeahemir.wordpress.com/2013/11/22/2013porkdecision/


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7% 5&cco$t&6ilit/

8% 5(olitic&l */$tie#

9% 5loc&l &to$o'/

B. Substantive Issues on te !Presi"ential Pork

Barrel#

ON the (hre#:

& ;&$* for #ch other (r(o#e# '&/ 6e here&fter

*irecte* 6/ the re#i*e$t< $*er =ectio$ > of " ?10 rel&ti$+

to the M&l&'(&/& F$*#, &$*

6 ;to @$&$ce the (riorit/ i$frtrctre *e)elo('e$t

(roect# &$* to @$&$ce the re#tor&tio$ of *&'&+e* or

*e#tro/e* f&cilitie# *e to c&l&'itie#, '&/ 6e *irecte*&$* &thorie* 6/ the Oce of the re#i*e$t of the

hili((i$e#< $*er =ectio$ 12 of " 1>9?, &'e$*e* 6/ "

1??3, rel&ti$+ to the re#i*e$ti&l =oci&l F$*,

&re $co$#tittio$&l i$#of&r the/ co$#titte $*e

*ele+&tio$# of le+i#l&ti)e (o.er

$ HELD AND %ATI&:

A. Congressional Pork Barrel


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1% 'ES. At it# core, le+i#l&tor# h&)e 6ee$ co$#i#te$tl/

&ccor*e* (o#t-e$&ct'e$t &thorit/ & to i*e$tif/ the

(roect# the/ *e#ire to 6e f$*e* thro+h )&rio#

Co$+re##io$&l ork B&rrel &lloc&tio$#D 6 &$* i$ the &re of

f$* relee &$* re&li+$'e$t% h#, le+i#l&tor# h&)e 6ee$, i$

o$e for' or &$other, &thorie* to (&rtici(&te i$ ;the )&rio#

o(er&tio$&l (ect# of 6*+eti$+,< )iol&ti$+ the #e(&r&tio$

of (o.er# (ri$ci(le% h&t the #&i* &thorit/ i# tre&te*

'erel/ reco''e$*&tor/ i$ $&tre *oe# $ot &lter

it# $co$#tittio$&l te$or #i$ce the (rohi6itio$ co)er# &$/

role i$ the i'(le'e$t&tio$ or e$force'e$t of the l&.%

I$for'&l (r&ctice#, thro+h .hich le+i#l&tor# h&)e eecti)el/

i$tr*e* i$to the (ro(er (he# of 6*+et e!ectio$, '#t

6e *ee'e* &ct# of +r&)e &6#e of *i#cretio$ &'o$ti$+ to

l&ck or e!ce## of ri#*ictio$ &$*, he$ce, &ccor*e* the

#&'e $co$#tittio$&l tre&t'e$t%

2%'ES.he 2013 "AF Article)iol&te# the (ri$ci(le of $o$-

*ele+&6ilit/ #i$ce le+i#l&tor# &re eecti)el/ &llo.e* to

i$*i)i*&ll/ e!erci#e the (o.er of &((ro(ri&tio$, .hich,

#ettle* i$ hilconsa, i# lo*+e* i$ Co$+re##%

3%'ES.U$*er the 2013 "AF Article, the &'o$t of 27%G?

Billio$ o$l/ &((e&r# & collecti)e &lloc&tio$ li'it%

e+i#l&tor# '&ke i$ter'e*i&te &((ro(ri&tio$# of the "AF

o$l/ &fter the AA i# (#e* &$* he$ce, ot#i*e of the l&.%

h#, &ct&l ite'# of "AF &((ro(ri&tio$ .ol* $ot h&)e

6ee$ .ritte$ i$to the e$er&l A((ro(ri&tio$# Bill &$* &re


10/36


11/36

&cti)itie# i$ .hich the/ the'#el)e# (&rtici(&te% Al#o, thi#

)er/ #&'e co$ce(t of (o#t-e$&ct'e$t &thori&tio$ r$#

&fol of =ectio$ 17, Article VI of the 1?>G Co$#tittio$ .hich

(ro)i*e# th&t: ;5LA =e$&tor or Me'6er of the Ho#e of

Re(re#e$t&ti)e# #h&ll $ot i$ter)e$e i$ &$/ '&tter 6efore

&$/ oce of the o)er$'e$t for hi# (ec$i&r/ 6e$e@t or

.here he '&/ 6e c&lle* (o$ to &ct o$ &cco$t of hi# oce%% rohi6itio$ &+&i$#t i$)ol$t&r/ #er)it*e

B% ON the *ele+&tio$ of &thorit/ to the Foo* &$* "r+

A*'i$i#tr&tio$ F"A to *eter'i$e ON & #((l/ or (ro*ct

i# to 6e i$cl*e* i$ the E##e$ti&l "r+# i#t i# )&li*

C% ON the RH &. i$fri$+e# (o$ the (o.er# *e)ol)e* to

oc&l o)er$'e$t# &$* the Ato$o'o# Re+io$ i$ M#li'

Mi$*&$&o ARMM

$ HELD:

A%

1% NO%

2% NO%

3%

&% NO%


17/36

6% YE=%

c% NO%

7% YE=%

8% NO%

9% NO%

G% NO%

>% NO%

B% NO%

C% NO%

$ %ATI&:

1% M&orit/ of the Me'6er# of the Cort 6elie)e th&t the

e#tio$ of .he$ life 6e+i$# i# & #cie$ti@c &$* 'e*ic&l i##e

th&t #hol* $ot 6e *eci*e*, &t thi# #t&+e, .ithot (ro(er

he&ri$+ &$* e)i*e$ce% Ho.e)er, the/ &+ree* th&t i$*i)i*&l

Me'6er# col* e!(re## their o.$ )ie.# o$ thi# '&tter%

Article II, =ectio$ 12 of the Co$#tittio$ #t&te#: ;he =t&te

reco+$ie# the #&$ctit/ of f&'il/ life &$* #h&ll (rotect &$*

#tre$+the$ the f&'il/ & 6ic &to$o'o# #oci&l


18/36

i$#tittio$% It #h&ll e&ll/ (rotect the life of the 'other &$*

the life of the $6or$ fro' co$ce(tio$%

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Consti Cases 2nd Meeting

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