Why is the congressional pork barrel declared unconstitutional?

In the case of Belgica v. Ochoa, the congressional pork barrel was declared unconstitutional because it
violated the principles of (1) Separation of powers (2) non-delegability of legislative power (3) checks
and balances (4) accountability and (5) local autonomy

As to separation of powers – legislators themselves have accorded post-enactment authority to identify

the projects they desire to be funded to pork barrel allocations, thus legislators are authorized to
participate in “the various operational aspects of budgeting and have effectively intruded to the proper
phases of budget execution. Thus, unconstitutional being acts of grave abuse of discretion amounting to
lack or excess of jurisdication.

As to non-delegability of legislative powers – it is unconstitutional since the legislators are effectively

allowed to individually exercise the power of appropriation, which, as settled in Philconsa vs. Enriquez, is
lodged in Congress. In Bengzon v. Secretary of Justice, the power of appropriation involves (a) setting
apart by a law a certain sum from the public revenue for (b) a specificied purpose. Under the PDAF,
individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how
much from such fund would go to (b) a specific project or beneficiary that they themselves also
determine. Since these two acts compromise the exercise of the power of appropriation as described in
Bengzon, and given that the PDAF authorized individual legislators to perform the same, undoubtedly,
said legislators have been conferred the power to legislate which the Constitution does not allow.

As to checks and balances – it denies the President the power of veto as these intermediate
appropriations are made by legislators only after the GAA is passed and hence, outside of the law, it
means that the actual items of PDAF appropriation would not have been written into the GAB and thus
effectuated wthout veto considerations.

As to impairment of public accountability – the conduct of oversight would be tainted as said

legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in
which they themselves participate.

As to subversion of local autonomy – The Court finds an inherent defect in the system which actually
belies the avowed intention of “making equal the unequal” (Philconsa, 1994). The gauge of PDAF
allocation is based solely on the fact of office, without taking into account the specific interest and
peculiarities of the district the legislator represents. As a result, a district representative of a highly-
urbanized metropolis gets the same amount of funding as a district representative of a far-flung rural
province which would be relatively “underdeveloped” compared to the former.

Why is the Presidential pork barrel declared unconstitutional?

As to the Malampaya Funds, there is no valid delegation of power as it fails to pass the sufficient
standards test. The phrase “and for such other purposes as may be hereafter directed by the President”
under Sec. 8 of PD 910 constitutes an undue delegation of power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the President’s authority with respect to the
purpose for which the Malampaya funds may be used. As it reads, the said phrase gives the President
wide latittude to use the Malampaya funds for any other purpose he may direct and, in effect, allows
him to unilaterally appropriate public funds beyond the purview of the law. That the subject phrase may
be confined only to “energy resource development and exploitation programs and projects of the
government” under the principle of ejusdem generis, meaning that the general word or phrase is to be
construed to include – or be restricted to – things akin to, resembling or, of the same kind or class as
those specifically mentioned, is BELIED by three reasons

1. The phrase “energy resource development and exploitation programs and project of the
government” states a singular and general class and hence, cannot be treated as a statutory
reference of specific things from which the general phrase “for such other purposes” may be
limited;
2. The said phrase also exhausts the class it represents, namely energy development programs of
the government,
3. The executive department has used the Malampaya funds for non-energy related purposes
udner the subject phrase, thereby contradicting respondent’s own position that it is limited only
to “energy resource development and exploitation programs and project of the government”

As to PSF

Section 12 of PD 1869 as amended PD 1993, indicates that the PSF may be used (1) to finance priority
infrastructure development projects and (2) to finance restoration of damaged or destroyed facilities
due to calamities, as may be directed by the OPP” The second indicated purpose adequately curtails the
authority of the President to spend the PSF only for restoration purposes which arise from calamities.
The first purpose, however, gives him carte blanche (full discretionary power, yan ang nsa ruling)
authority to use the same fund for any infrastructure project he may so determine as “priority”. Verily,
the law does not supply a definition of “priority infra development projects” and hence, leaves the
President without any guideline to construe the same.

The Doctrine of Operative Fact

The doctrine recognizes the existence of the law or executive act prior to the determination of its
unconstitutionality as an operative fact that produced consequences that cannot always be erased,
ignored, or disregarded. In short, it nullifies the void law or executive act but sustains its effects . It
provides an exception to the general rule that a void of unconstitutional law produces no effect.

Why DAP is unconsitutional

The transfer of appropriated funds, to be valid under section 25(5), must be made upon a concurrence
of the following requisites:
1. There is a law authorizing the Pres. Senate Pres. House Speaker, CJ and heads of the
constitutional commission to transfer funds within their respective offices;
2. The funds to be transferred are savings generated from the appropriations for their respective
offices
3. The purpose of the transfer is to augment an item in the general appropriations law of their
respective offices

As to the first requisite, the GAA of 2011 and 2012 lacked valid provisions to authorize transfer of
funds under the DAP, hence transfers under the DAP were unconstitutional. And although the GAA
of 2013 had provision for such transfer, it however lacked other requisites.

As to the second requisite, there were no savings from which could be sourced for the DAP. The
funds used in the DAP, the unreleased appropriations and withdrawn unobligated allotments, were
NOT ACTUAL SAVINGS within the context of Sec. 25(5), and the relevant provisions of the GAA.
Savings should be understood to refer to the excess money after the items needed to be funded
have been funded, or those that needed to be paid have been paid pursuant to the budget.

As to third requisite, CROSS-BORDER AUGMENTATIONS from savings were prohibited by the

Constitution. Cross-border augmentations from savings were prohibited by the Constitution. Cross-
border augmentation from the Executive to the COA and HOR is unconstitutional. No funds from
savings could be transferred under the DAP to augment deficient items not provided in the GAA.
The SC conclude that the “savings” pooled under the DAP were allocated to PAPs that were not
covered by an appropriations in the pertinent GAAs (Disaster Risk, DOST, etc). Unprogrammed funds
from the FAA cannot be used as a money source for the DAP because under the law, such funds may
only be used if there is a certication from the National Treasurer to the effects that the revenue
collections have exceeded the revenue targets. In this case, no such clear certification was secured
before unprogrammed funds were used.

In light of recent attacks in Marawi City by the Maute group and other terrorist organizations,
President Duterte declared a state of martial law and suspended the privilege of the writ of
habeas corpus in the whole of Mindanao, invoking as factual basis a written report pointing out
that for decades, Mindanao has been plagued with rebellion and lawless violence which only
escalated and worsened with the passing of time and the strategic location of Marawi City and its
crucial role in Mindanao and the Philippines as a whole. Is the factual basis for the proclamation
sufficient, and therefore constitutional?

A: YES. The President deduced from the facts available to him that there was an armed public
uprising, the culpable purpose of which was to remove from the allegiance to the Philippine
Government a portion of its territory and to deprive the Chief Executive of any of his powers and
prerogative, leading the President to believe that there was probable cause that the crime of
rebellion was and is being committed and that public safety requires the imposition of martial law
and suspension of the privilege of the writ of habeas corpus. Section 18, Article VII of the
Constitution itself sets the parameters for determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the privilege of the writ of habeas corpus,
namely (1) actual invasion or rebellion, and (2) public safety requires the exercise of such power.
Without the concurrence of the two conditions, the President's declaration of martial law and/or
suspension of the privilege of the writ of habeas corpus must be struck down. A review of the
aforesaid facts similarly leads the Court to conclude that the President, in issuing Proclamation No.
216, had sufficient factual bases tending to show that actual rebellion exists. The President's
conclusion, that there was an armed public uprising, the culpable purpose of which was the removal
from the allegiance of the Philippine Government a portion of its territory and the deprivation of the
President from performing his powers and prerogatives, was reached after a tactical consideration
of the facts. In fine, the President satisfactorily discharged his burden of proof. After all, what the
President needs to satisfy is only the standard of probable cause for a valid declaration of martial
law and suspension of the privilege of the writ of habeas corpus. (Lagman v. Medialdea, G.R. No.
231658, 04 July 2017)

2 kinds of presidential veto

General veto in the first paragraph

Item Veto in the second paragraph

The president may not veto a provision in the bill without vetoing the entire bill itself. Either he signs
a bill in toto and it becomes a law or he vetoes it in toto and it does not become a law. Selective veto
is prohibited in the Constitution. In the case of Bengzon. v. Drilon, the Executive must veto a bill in
its entirety or not at all. He or she cannot act like an editor crossing out specific lines, provisions,
or paragraphs in a bill that he or she dislikes. In the exercise of the veto power, it is generally all or
nothing. However, when it comes to appropriation, revenue or tariff bills, the Administration
needs the money to run the machinery of government and it can not veto the entire bill even if it
may contain objectionable features. The President is, therefore, compelled to approve into law
the entire bill, including its undesirable parts. It is for this reason that the Constitution has wisely
provided the "item veto power" to avoid inexpedient riders being attached to an indispensable
appropriation or revenue measure. (Verbatim dapat to.)

Jamar M. Kulayan vs. Governor Abdusakur M. Tan

Typhoon Bangis devastated the Province of Sinagtala. Roads and bridges were destroyed which impeded
the entry of vehicles into the area. This caused food shortage resulting in massive looting of grocery stores
and malls. There is power outage also in the area. For these reasons, the governor of the province declares a
state of emergency in their province through Proclamation No. 1. He also invoked Section 465 of the Local
 Government Code of 1991 (R.A. No. 7160) which vests on the provincial governor the power to carryout
emergency measures during man-made and natural disasters and calamities, and to call upon the
appropriate national law enforcement agencies to suppress disorder and lawless violence. In the same
proclamation, the governor called upon the members of the Philippine National Police, with the assistance
of the Armed Forces of the Philippines, to set up checkpoints and chokepoints, conduct general searches
and seizures including arrests, and other actions necessary to ensure public safety. Was the action of the
provincial governor proper? Explain. (2015 Bar)

No, the provincial governor is not endowed with the power to call upon the armed forces at his own bidding.
In issuing the assailed proclamation, Governor Tan exceeded his authority when he declared a state of
emergency and called upon the Armed Forces and the police. The calling-out powers contemplated under the
Constitution is exclusive to the President. An exercise by another official, even if he is the local chief executive,
is ultra vires, and may not be justified by the invocation of Section 465 of the Local Government Code since
said provision only refers to calamities and disasters only and not of looting as in the instant case (Kulayan vs
Tan, July 3, 2012).

The first paragraph of Section 19 of Article VII of the Constitution providing for the pardoning power of the
President, mentions reprieve, commutation, and pardon. Please define the three of them, and differentiate one
from the others. (1988 Bar)

The terms were defined and distinguished from one another in People v. Vera, 65 Phil. 56, 111-112, as follows:
a. REPRIEVE is a postponement of the execution of a sentence to a day certain,
b. COMMUTATION is a remission of a part of the punishment, a substitution of less penalty for the one
originally imposed.
c. A PARDON, on the other hand, is an act of grace, proceeding from the power entrusted with the execution of
the laws which exempts the individual on whom it is
bestowed from the punishment the law inflicts for a crime he has committed.

In March 2001, while Congress was adjourned, the President appointed Santos as Chairman of the
Commission on Elections. Santos immediately took his oath and assumed office. While his
appointment was promptly submitted to the Commission on Appointments for confirmation, it was
not acted upon and Congress again adjourned. In June 2001, the President extended a second ad
interim appointment to Santos for the same position with the same term, and this appointment was
again submitted to the Commission on Appointments for confirmation. Santos took his oath anew and
performed the functions of his office.
Reyes, a political rival, filed a suit assailing certain orders issued by Santos. He also questioned the
validity of Santos' appointment. Resolve the following issues:
a. Does Santos' assumption of office on the basis of the ad interim appointments issued by the
President amount to a temporary appointment which is prohibited by Section 1 (2), Article IX-C of the
Constitution?
b. Assuming the legality of the first ad interim appointment and assumption of office by Santos, were
his second ad interim appointment and subsequent assumption of office to the same
position violations of the prohibition on reappointment under Section 1 (2), Article IX-C of the
Constitution? (2005 Bar)

A:
a. The assumption of office by Santos on the basis of the ad interim appointment issued by the President does
not amount to a temporary appointment. An ad interim appointment is a permanent appointment, because it
takes effect immediately and can no longer be withdrawn by the President once the appointee has qualified
into office [Art. VII. Sec. 16, second paragraph of the Constitution; Matibag v. Benipayo, 380 SCRA 49 (2002)].
b. The second ad interim appointment of Santos does not violate the prohibition against reappointment under
Section 1(2) Article IX-C of the Constitution. The prohibition does not apply to a by-passed ad interim
appointment, because it has not been finally disapproved by the Commission on Appointments [Matibag v.
Benipayo, 380 SCRA 49 (2002)]. The prohibition against reappointment in the Constitution presupposes the
end of the term. After the end of the term, he cannot be reappointed.

Privilege from arrest

Privilege of speech

Section 4 rule 114 Appeal always a matter of right

Grave oral defamation – Congressman slanderous remarks

No because SECTION 11 Article VI . A Senator or Member of the House of Representatives shall, in

all offenses punishable by not more than six years imprisonment, be privileged from arrest while the
Congress is in session. No Member shall be questioned nor be held liable in any other place for any
speech or debate in the Congress or in any committee thereof. The phrase “in any other place”
would includes even the Courts.

In the old case of Osmeña vs. Pendatun, the SC held that he may not be held liable in any other
place, but not in the Senate itself, because of the power of each house of Congress to punish its
members for disorderly behavior and to order their suspension or expulsion as the case may be. As
now provided in the Section 16 (3) Art. VI of the 1987 Constitution.

Kasuhan mo sa House Ethics Committee citing Osmena v. Pendatun

Section 13 of Article VI

SECTION 13. No Senator or Member of the House of Representatives may hold any
other office or employment in the Government, or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries, during his term without forfeiting his seat (Incompatible Offce) . Neither
shall he be appointed to any office which may have been created or the emoluments
thereof increased during the term for which he was elected. (Forbidden Offices)

Congressman tapos may be validly appointed as cabinet secretary?

YEEEESSS! But the moment you accept, you forfeit your seat at the Congress, (you
need not even need to resign as a Congressman).

May a Congressman be validly appointed in a Forbidden Office?

No.

What if resign? No. Even if you are willing to forfeit your seat in the Congress

Members of electoral tribunal-

Proportional representation from the political parties having members in the Senate or in
the HOR as the case may be.

Commission on Apppointment shall meet only when the Congress is in session.

Ad Interim appointment – Congress is on recess or not in session

Regular appointment -

Who has the power to ratify a treaty?

Held: In our jurisdiction, the power to ratify is vested in the President and NOT, as commonly
believed, in the legislature . The role of the Senate is limited only to giving or withholding its
consent, or concurrence, to the ratification. (BAYAN [Bagong Alyansang Makabayan] v. Executive
Secretary Ronaldo Zamora,