Petitioners seeking the invalidation of the sneaky move of the Bicameral Conference C-ommittee and the Department of Finance (DoF) to reestablish the pork barrel system made a convincing case during the third oral arguments before the Supreme Court (SC). Still, the pilfered funds may not be returned.

Associate Justice Japar Dimaampao came up with strong points that lean on the possibility that the provision in the 2024 General Appropriations Act allowing the DoF to sweep up idle funds from government-owned and controlled corporations (GOCC) and the agency’s directive to implement it would be struck down.

During the exchange between the magistrates and the petitioners, it was established that the Philippine Health Insurance Corp. (PhilHealth) reserve fund cited in Section 11 of Republic Act 11223, or the Universal Health Care (UHC) Act, derived from the sin tax collections is a special fund.

The point is pivotal due to jurisprudence or a previous Supreme Court ruling on the same subject that Dimaampao raised.

The SC justice said the 2017 decision on the coconut levy fund had touched on the same question about special funds.

According to that SC decision, “Coco levy collections are special funds, allocated for a special purpose and cannot be used for purposes other than the benefit of the coconut farmers or the development of the coconut industry.”

In the same way, groups seeking the return of the P60 billion that PhilHealth surrendered to the National Treasury contended that the diverted amount was part of a special fund that could only be used for healthcare programs under the UHC Act.

One of the complainants against the transfer of the PhilHealth funds, lawyer Howard Calleja, said that an August 2024 letter to Recto questioning the legality of his directive to divert funds from GOCCs remained unanswered.

The unprogrammed appropriations (UA) ballooned in the 2024 national budget after it was stuffed with regular items in the budgets of different agencies to clear the way for the pet projects of legislators which are sources of kickbacks and commissions.

In 2013, the SC ruled that the legislative pork barrel Priority Development Assistance Fund (PDAF) and similar lump sum funds in the budget were unconstitutional, yet members of Congress had tried yearly to circumvent the decision.

Former Rep. Neri Colmenares, one of the petitioners, was asked about the allegations of complicity of the Bicameral Conference Committee in which juggling of funds in the 2024 budget.

“In the Constitution, appropriation bills should originate exclusively in the House of Representatives and the role of the Senate is to propose amendments to the bill,” he indicated.

In the National Expenditure Program that the Executive submitted to the House, the UA totaled P281 billion.

“The House and the Senate approved this in their versions of the budget, but suddenly the Bicam proposes an added P431 billion in the UA,” he said.

The petitioners against the reallocation of PhilHealth funds said the Bicam violated the constitutional mandate on the budget process.

Dimaampao then raised a doctrine that those culpable may cite to prevent the return of the P167 billion “excess funds” taken from PhilHealth and the Philippine Deposit Insurance Corp.

In the landmark 2014 decision invalidating the Disbursement Acceleration Program (DAP), the doctrine of operative fact prevented the return of money from the Palace pork barrel to the government.

While the SC ruled that certain acts and practices under the DAP violated the Constitution, specifically Section 25(5), Article VI which governs the transfer of appropriations and the principle of separation of powers, the doctrine of operative fact allowed it to mitigate the potentially disruptive impact on actions executed in good faith.

The DAP, introduced by the Benigno Aquino III administration, aimed to accelerate government spending by reallocating funds, including unspent appropriations and savings, to priority projects.

The High Tribunal recognized that the DAP had already been implemented, resulting in tangible outcomes such as infrastructure projects, social services, and economic stimulus measures valued at approximately P144 billion.

Completely nullifying these actions would have required dismantling completed projects — such as roads, bridges, and classrooms — which the Court deemed impractical and wasteful.

It was then Associate Justice Lucas Bersamin, now the Executive Secretary, who penned the historic DAP decision.

Still, people behind the pork barrel racket, notably Recto and the Bicam members, remain exposed to criminal liability similar to the accountability that the Sandiganbayan required over the DAP ruling.