consti cases 2nd meeting
TRANSCRIPT
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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 <er
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
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&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%
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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$o'o# #oci&l
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i$#tittio$% It #h&ll e&ll/ (rotect the life of the 'other &$*
the life of the $6or$ fro' co$ce(tio$%