On the Constitutionality of the Priority Development Assistance Fund

[Last updated on November 1, 2013. Added were the definition of 'discretion'; discussion on Article VI, Section 25 (2), and Article XI, Section 1 of the Constitution; and the Constitutional bases of the lawmaking power of Congress. Also added was the distinction between Congress and individual members of Congress.]

The Priority Development Assistance Fund is discretionary funds appropriated for particular officials specifically members of the House of Representatives and members of the Senate. Are discretionary funds for particular officials unconstitutional? Article VI of the Constitution provides:

"Section 25. Paragraph 6. Discretionary funds appropriated for particular officials shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law."

The Constitution did not prohibit such funds, in fact it even has a proviso for its disbursement. Discretion, according to Merriam-Webster, is:

"individual choice or judgment"

On the same section of the same article in the Constitution:

"Paragraph 2. No provision or enactment shall be embraced in the general appropriations bill unless it relates specifically to some particular appropriation therein. Any such provision or enactment shall be limited in its operation to the appropriation to which it relates."

Is this prohibition of discretionary funds? Does this mean the Constitution runs counter to itself? No. The Constitution should be read as a whole and each provision should not be made to stand on its own. The Supreme Court said in Civil Liberties Union v. Executive Secretary, G.R. No. 83896, February 22, 1991:

"It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be so interpreted as to effectuate the great purposes of the instrument. Sections bearing on a particular subject should be considered and interpreted together as to effectuate the whole purpose of the Constitution and one section is not to be allowed to defeat another, if by any reasonable construction, the two can be made to stand together."

What the Constitution already allowed specifically in a particular provision cannot be disallowed by another. Paragraph 2 should be interpreted as to avoid totally unspecified appropriations. Are we to interpret 'specifically' and 'particular' in an absolute sense? Should Congress specify the particular brands of appropriated products and the minute details of the design of  a bridge to be constructed?

Appropriations in paragraph 6 are not totally unspecified because they are limited to 'public purposes' and further subject to such other limitations as may be provided by law.

Moreover, paragraph 2 is talking about the general appropriations bill. The PDAFs were included in the GAAs. Is it the intent of the Constitution to just separate discretionary funds in a special appropriations bill?

The PDAF allows Congress to 'propose and identify projects'. Is proposing and identifying projects by Congress unconstitutional? In Philconsa v. Enriquez, G.R. No. 113105, August 19, 1994, the Supreme Court said:

"The power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation law. It can be as detailed and as broad as Congress wants it to be.

Executive function under the Countrywide Development Fund involves implementation of the priority projects specified in the law."

To specify projects is part of the regular lawmaking power of Congress and does not encroach upon the power of the Executive to implement the same. Indeed the lawmaking power was conferred to Congress by the Constitution. In Article VI of the Constitution:

"Section 1. The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."

Also,  in Article VI of the Constitution:

"Section 24. All appropriation, revenue or tariff bills, bills authorizing increase of the public debt, bills of local application, and private bills, shall originate exclusively in the House of Representatives, but the Senate may propose or concur with amendments."

The constitutionality of the power of Congress to specify projects in the CDF was again upheld by the Supreme Court when the constitutionality of the PDAF was questioned in LAMP v. Secretary, G.R. No. 164987, April 24, 2012.

Is proposing and identifying of projects by individual members of Congress unconstitutional? Refer to the discretion discussion above.

Article XI of the Constitution provides:

"Section 1. Public office is a public trust. Public officers and employees must, at all times, be accountable to the people, serve them with utmost responsibility, integrity, loyalty, and efficiency; act with patriotism and justice, and lead modest lives."

Is public mistrust of the PDAF a ground for its unconstitutionality? The public trust clause cannot be used as an argument against the constitutionality of any law. This is directed to public officers and employees and not to public institutions. We can remove public officers and employees. We can impeach a president, a Supreme Court justice, a chief justice even, all fifteen justices one-by-one; but not the Supreme Court.

We must presume that laws were made by Congress with good intention. Just because a law can be used in a corrupt manner does not imply its unconstitutionality.

Read the second part: The Priority Development Assistance Fund as Question of Policy