Friday, August 23, 2013

PDAF law is void



PDAF law is void

By BERTENI “TOTO” CATALUÑA CAUSING
President, Alab ng Mamamahayag (ALAM)
Author of the book “Simplified Libel Law in the Philippines”




If I file a petition to declare the nullity of pork barrel, will I succeed?
            I love to answer it with BIG “YES,” following an attitude of confidence and arrogance for what is just, true and logical by the yardsticks of law, morality and the Constitution.
            And as my analyses below show, yes I will succeed.
            First off, I am a proper party because I am a taxpayer and the PDAF law or the Pork Barrel Law involves expenditures of monies collected from taxes.
            If I file, I will begin from the basics that the powers of government are divided into three: (a) executive; (b) legislative; and (c) judicial.
            I need to stress so that all understand it. 
The Executive Department headed by the President holds the powers to implement or execute laws and the executable provisions of the Constitution. 
The Legislative Department, composed of the Senate and the House of Representatives, holds the power to make laws that cannot be higher than any provision of the Constitution. 
The Judiciary, headed by the Supreme Court and the Chief Justice, primarily holds the power to make judgments on actual issues involving disputes about rights and obligations under the laws made by the Legislative Department and under the Constitution. It also has the power to interpret chaotic laws or Constitutional provisions and the power to check grave abuse of discretion by the Executive or any other office.
Let’s focus on the hottest issue of the day: pork barrel or the so-called “Priority Development Assistance Fund (PDAF)”.
First thing: Pork barrel is a fund created by law to be spent by the lawmakers (Senators and Representatives) in the manner of their own choice.
It is the senators and congressmen who make the law creating PDAF and they made a condition that the funds allocated for that shall be spent in whatever purpose chosen by the lawmaker to whom it pertains.  The PDAF for each senator is P200,000,000 a year and for each congressman P70,000,000 annually.
The lawmaker can choose whatever project or purpose that the amounts pertaining to him be spent for.  With this, it gives a substantive leverage or advantage to that lawmaker. 



Even if he or she will not make any gain from it in terms of money because he or she is truly honest, it will nevertheless strengthen his political chances come next election over an opponent who usually would use his own money to rely on to put up a fight: unfairness, in short. 
If the lawmaker concerned is dishonest, he can pocket substantial sums from it by means of fixing the biddings of supplies and constructions for his projects. 
To earn much bigger from his or her PDAF, as shown in the recent Janet Lim-Napoles caper that is simple, the legislator may use a non-governmental organization (NGO) or a foundation to which the funds shall be delivered by an implementing agency (IA) upon an agreement that the foundation will take charge of implementation and will submit liquidation reports to the IA and finally to the Commission on Audit (COA).  According to the whistleblowers who exposed Janet, they did the liquidation report in the meanest and most revolting manner by faking names of people to make it appear that PDAF funds indeed were delivered to these people. They invented names of persons who received the PDAF money or deliveries. 
The implementation of a PDAF project is not lawmaking. It is an executive function because it merely involves the doing of the acts prescribed by the laws.
Neither can the power of making a choice as to which projects shall be the receiver of PDAF funds be considered as an act of not making a law.
So that on the first score, the PDAF law is contrary to the Constitution that specifically and exclusively vests the power to make laws on the legislative alone and reserves the power to implement laws in the executive alone.  The fact that PDAF law allows the lawmakers to intrude into the territory of implementing or executing laws makes that porky law unconstitutional. 
By the way, to understand what does it mean by unconstitutional, it means that it is runs counter to what the Constitution commands.
The second score that makes the PDAF law unconstitutional is the fact that it provides for an undue or unconstitutional delegation of powers.
It grants the legislator concerned the exclusive power to choose which projects to be funded by his PDAF.
The Constitution allows congressmen and senators acting officially as two bodies to delegate or assign some tasks or powers. 
Because the Constitution restricts the power to make laws only in the legislative, it necessarily follows that the only powers that can be assigned by the Congress in every law they make are powers that are not considered legislative.
For example, senators and congressmen make a law to give P1,000 every week to each of all persons who have no work. If they delegate to the DSWD the power on how to give the money, it is permissible.
And in all cases thought about by the Constitution the delegations must be made to officials or offices that are not lawmakers.
But in the case of the PDAF law, it delegates the power individually to lawmakers themselves. And the power that is delegated is the power to choose which projects to be funded is a power to make law that provides which projects should be budgeted.  This therefore makes the PDAF law unconstitutional twice over.
The third score why the PDAF law is unconstitutional is that it destroys the foundations of the check-and-balance system.
Further, in the setup of the government in terms of money releases, it is the DBM under the Executive that releases the money for PDAF funds.  If the PDAF law allows lawmakers to make choices that would likely be a choice that will give the biggest profit to the pocket, then it gives edge to the Executive to control the lawmakers into submission by withholding or delaying the release of PDAF funds if the lawmakers do not conspire with the President.  This scheme of things was perfectly used by all Presidents in the past, particularly President-in-usurpation Gloria Macapagal-Arroyo to defeat all impeachment bids against her.
So it is easy to see that this PDAF law destroys the Constitutionally-enjoined check-and-balance system.  The people can no longer expect independent lawmakers. They can always wallow in poverty, helplessness and pettiness in legislators who cannot speak their own mind.
The fourth score why this PDAF law is unconstitutional is that it gives life to the very evil the Constitution wants to kill: dynasty.
Why?
Because of the loose and illegal-but-practiced-by-all-lawmakers system yet blindly accepted by the public for decades now, the politicians in every province or city or town have grown their own dynasty easily, making it hard for challengers to defeat them from the thrones built by PDAF.
With all the moneys pocketed from PDAF releases or the commissions gotten from PDAF hard projects or even honest projects that make the good names of congressmen and senators intact, and the natural greed for power motivate them to make a surer path for their children, wives, brothers, parents or relatives to win all other positions or succeed them for the purpose of gaining more power and more wealth.
And when the legislators elected to the Congress come from dynasties, no one can expect that the senators and congressmen will pass a law to define dynasty.
Until I think of more, these are my fundamental bases in filing a petition seeking the Supreme Court to declare PDAF law unconstitutional.
So it is clear.
PDAF is void.
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