SC asked: Declare secret funds unconstitutional

MANILA, Philippines — Retired Supreme Court Senior Associate Justice Antonio Carpio led other legal professionals yesterday in filing a petition asking the SC to declare the allocation, release and disbursement of confidential funds as unconstitutional.

The petitioners, who include Howard and Joseph Peter Calleja, some members of the University of the Philippines Law Batch 1975, priests and law students, asked the SC to declare as null and void Joint Circular No. 2015-01 and Executive Order (EO) No. 2, s. 2016, which provide the guidelines in the disbursement and liquidation of confidential funds.

They also asked the high court to prohibit the respondents or any person, entity, member, officer, employee or representative from enforcing the EO and the circular.

The petitioners also asked the SC to issue a temporary restraining order, writ of preliminary injunction and/or mandamus to prevent any irreparable injury to petitioners due to the infringement of their rights.

Named respondents were Vice President Sara Duterte, Executive Secretary Lucas Bersamin, Senate President Migz Zubiri, Speaker Martin Romualdez, the Department of Education, Department of Budget and Management, Department of the Interior and Local Government, Governance Commission for GOCCs and the Commission on Audit.

Under the joint circular, the auditing of confidential funds is left to national agencies and local governments to submit their disbursements of confidential funds, but not subject to full public disclosure.

Meanwhile, EO 2, which is also known as the Freedom of Information (FOI) order signed by former president Rodrigo Duterte supposedly mandates full public disclosure of all offices under the executive branch.

The petitioners, however, claimed that the joint circular and the EO have been used to justify the non-disclosure of the use of confidential funds as these were allegedly “exempted from people’s right of access to information.”

They argued that the EO and the joint circular do not have the force of law, but only mere guidelines on the disbursements and liquidation.

The petitioners noted that the only exemption to “full public disclosure” and “the right to information on matters of public concern” is when there is a law that provides reasonable guidelines and parameters for the exemption.

Since the EO and the joint circular are not laws and there is currently no law providing for “reasonable limitations” on the disclosure of public funds, the petitioners argued that the disbursement and liquidation are still subject to full public disclosure, which is the general rule.

“The executive branch cannot interpret and use the joint circular and the EO as ‘law’ to regulate the disbursement and to justify the exemption on ‘full public disclosure’ and ‘the right to information of every citizen’ of the confidential funds. To do so is a violation of the Doctrine of Separation of Powers,” the petition stated.

The petitioners said that the joint circular and the EO must be voided for “usurpation of legislative power.”

“These guidelines in the disbursements and liquidation of confidential funds are unconstitutional as they are a usurpation of legislative power by the executive branch, as there is no valid delegation of legislative power,” they added.

They also argued that the allocation and release of confidential funds is unconstitutional because it violates Article II, Section 28 of the 1987 Constitution, which states that “subject to reasonable conditions prescribed by law, the state adopts and implements a policy of full disclosure of all its transactions involving public interest.”

It also violates the people’s right to information, under Article III, Section 7 of the Constitution.

At a press conference after the filing of the petition, Carpio and Howard Calleja called on Congress to enact a law on confidential funds.

“You might want to wake up a little bit and create a law so we will have a standard on what is confidential, what is an intelligence fund, and what should be used for what,” Calleja said in Filipino and English.

For Carpio, Congress should enact a law providing for reasonable limitations from public disclosure of funds.

“Because we are reasonable people. We cannot just say that a local government can decide any amount to be given to the mayor to be the confidential fund. We should have reasonable limitations naman,” he said.

This is the second petition that challenged the use of confidential funds.

Last Nov. 7, a group of legal and economic experts filed a petition asking the SC to declare as unconstitutional the transfer of P125 million in confidential funds to the Office of the Vice President (OVP) last year.

The petitioners also asked the high court to order the OVP to return the P125 million to the national treasury.

Decreased CF for DOJ

Meanwhile, the Department of Justice (DOJ) is set to receive a significant decrease in its confidential funds next year.

Sen. Aquilino Pimentel III was able to confirm this from the agency’s 2023 allocation of P526 million during yesterday’s Senate plenary deliberations on the DOJ’s budget.

Sen. Sonny Angara, the DOJ’s budget sponsor, said that according to the Senate finance committee report on the DOJ’s budget, the Office of the DOJ Secretary is set to receive P168 million in confidential funds for 2024.

The amount was a decrease from the DOJ’s request of P256.696 million in confidential funds in the National Expenditure Program.

Congress is realigning confidential funds from civilian government agencies to national security agencies in a bid to bolster the country’s defense posture in the West Philippine Sea.  – Marc Jayson Cayabyab