Joaquin G. Bernas, S.J.
When the Congress fails to pass the general appropriations act for the ensuing year, the effect on the general public can be alarming. Paralysis of the US government was averted in the nick of time when the hold-out conservatives in Congress finally approved financial measures needed to keep the government going.
The power exercised by the conservatives to hold the public hostage was a tool for forcing President Obama to submit to conservative wishes. But the approval of the needed money was not a complete solution. The solution is good only until January. Meanwhile the battle goes on until a new budget is approved.
Is this something that can happen in the Philippines? In the past, paralyzation of government was always a possibility. Congress could always refuse money for the President to spend. This, of course, was not true during the Marcos years. Marcos, after all, was both executive and legislative during his years. How about now?
We now have a first aid provision in the 1987 Constitution. It says: “If, by the end of any fiscal year, the Congress shall have failed to pass the general appropriations bill for the ensuing fiscal year, the general appropriations law for the preceding fiscal year shall be deemed reenacted and shall remain in force and effect until the general appropriations bill is passed by the Congress.”
As a matter of fact, however, our President has never been wanting for money to spend. At this time, it has been quit obvious that the President is quite generous in making use of surpluses and even un-appropriated new money such as the Malampaya Fund.
Will there be a stop to this free use of public money? The Supreme Court has finished listening to oral arguments on the constitutionality of the PDAF. The tone of the oral arguments give the general impression that there may be a curtailment of the free flow of money. Likewise cases have been filed and are mounting in the Supreme Court challenging the constitutionality of the DAP. We should also be witnessing oral arguments in Court on the subject.
What will happen should the Supreme Court declare both PDAF and DAP unconstitutional? Will this be the end of pork barrel?
It is not as simple as that. Although the President himself has declared the death of pork barrel and the Palace advisers have intoned that the word of the President is equally powerful as God’s saying “Let there be light!,” it will not be so. We must remember that both PDAF and DAP are about public money and the Constitution clearly says that no money shall be taken out of the public treasury except in virtue of an appropriation made by law. This means that Congress is the real master of the purse. The President can exercise his veto power but Congress can override his veto.
It has been made clear by the pork barrel controversy that we have a lot of money. It has also been made equally clear that the money has not been going to where it should go. This is the difficult challenge not just to the congressional process but also to the executive process. Principal agents in this delicate process aside from the President are the Secretary of Justice, the Budget Secretary, the Commission on Audit, and the Ombudsman among others.
Much is being expected by many from the anticipated appearance of Janet Napoles before the Senate investigation body. This will be another topic of controversy. We have to remember that, although Congress has the power to compel the attendance of witnesses, the Constitution also says “The rights of persons appearing in or affected by such inquiries shall be respected.”
In the celebrated ZTE case, the effort of the Senate to expose the truth was was foiled by Neri’s appeal to executive privilege. There will be no occasion, to the best of my knowledge, for appeal to such privilege in the current case. But standing tall is the right against self-incrimination of any person.
There are two distinct rights against self-incrimination: the right of an accused and the right of the witness who is not an accused. An accused has the right to refuse even to take the witness stand; a witness who is not an accused may simply refuse to answer an incriminating question.
I am not sure what the situation of Janet Napoles is. Will she be appearing as a simple witness or as an accused? As I recall she is already charged in court with offenses related to the pork barrel. Can she claim the right of an accused or at least to due process on the ground that whatever she says now can affect the criminal case against her? If she does appear but refuses to answer incriminating questions, can she be made to suffer the fate of Arnault in the Tambobong case. But as I recall the case of Arnault was not an appeal to the right against self-incrimination.
The pork barrel controversy will be a long drawn out case and, as is usually said of novel cases, the Supreme Court can “enrich”jurisprudence.
21 October 2013