President Ferdinand Marcos Jr. enabled the bicameral conference committee to increase the unprogrammed appropriations (UA) in the 2024 budget by P450 billion, Associate Justice Marvic Leonen said in a separate opinion to the Supreme Court’s ruling on the Philippine Health Insurance Corp. (PhilHealth) case.

The SC released on Friday its decision voiding the provision in the 2024 General Appropriations Act (GAA) that allowed the Department of Finance (DoF) to sweep up the excess funds of government-owned and controlled corporations, as well as the DoF directive implementing it.

The High Tribunal also ordered the return to PhilHealth of its P60 billion in reserve funds that was transferred to the National Treasury.

Leonen had a more incisive view of the controversy, holding that the 2024 GAA was unconstitutional and would have required the reenactment of the 2023 budget.

He also concurred in the majority’s ruling on the return of the P60-billion reserve fund.

According to Leonen, the majority ruling correctly clarified that while the decision to certify a bill as urgent is a matter of executive policy, the Court is not precluded from determining whether the President committed a grave abuse of discretion in doing so, pursuant to the Court’s expanded power of judicial review.

The Associate Justice asserted that this allowed Congress to approve the bicam report on the very same day it was delivered to the legislators, bypassing the requisite period for deliberations.

“With deep respect to the ponencia’s (Associate Justice Amy Lazaro-Javier, who authored the majority decision) determination, I submit that the President’s certification of the urgency of House Bill 89804 was tainted with grave abuse of discretion,” Leonen asserted.

From P281.9 billion in the 2024 National Expenditure Program, the UA grew to a staggering P731.5 billion in the final General Appropriations Act (GAA).

The UA is intended as a standby fund for priority programs and projects, the release of which could only be triggered by excess revenue collections, new tax or non-tax revenues, or foreign loans.

Leonen said he disagreed with the ponencia, which held that the President did not commit a grave abuse of discretion when he certified House Bill 8980 or the 2024 GAA as urgent. 

The majority ruling explained that the passage of a general appropriations law for 2024 was necessary and urgent “to achieve the ever-shifting development goals and address the ever-evolving internal and external concerns of the country.”

In not conforming with that portion of the decision, Leonen indicated that a public calamity or emergency contemplates an event, whether natural or human-made, which is unforeseeable or an event “that cannot be reasonably predicted or anticipated.”

“The passage of the GAA is not unforeseeable as Congress does it every year and it is a piece of legislation that is expected from Congress annually,” Leonen averred. 

Government operations would not be impeded, according to Leonen, since there exists a built-in safeguard in the Constitution, which is that the general appropriations law for the preceding fiscal year shall be deemed reenacted.

He said the Court is not bound by the acceptance of both chambers of Congress, “given that the President committed a grave abuse of discretion in issuing the certification.”

While the House of Representatives and the Senate had enough time to review the General Appropriations Bill (GAB), “it was in the bicameral conference committee (bicam), which took only eight days (the first and second meetings on 28 November and 6 December 2023, respectively) to make significant additional insertions, that everything was hastily done.”

Leonen said that on 11 December 2023 the bicam report was submitted to both the House and the Senate and approved on the same day.

The bicam report reflected an increase in the UA of P449.5 billion and inserted Special Provision l (d) under Chapter XLIII to the budget bill.

Leonen said that while there is a presumption of regularity in the performance of official duties, “it is hard to envision how members of Congress could have effectively examined and approved all of the changes in the bicam report on the same day it was submitted to them.”

Further, Leonen’s opinion indicated “Congress’ increase of the UA by P449.5 billion violated Article VI, Section 25(1) of the Constitution, which prohibits Congress from increasing the “appropriations recommended by the President for the operation of the government as specified in the budget.’’

Leonen said the Constitution does not distinguish between programmed and unprogrammed allocations in the prohibition’s specification.

“There is no specific provision of law requiring that the President’s proposed budget cover only those expenditures with a definite funding source,” he added.

Pork maneuver 

Leonen quoted amicus curiae budget analyst Zy-za Suzara’s view that the 2024 budget showed freed-up fiscal space in the programmed appropriations that went to departments where the hard and soft projects of legislators were traditionally lodged, such as local infrastructure projects of the Department of Public Works and Highways (DPWH) and the Department of Agriculture (DA). 

Suzara described this as a new scheme to massively fund the pork barrel, which undermines the integrity of the budget process and effectively circumvents the 2013 SC ruling that voided the Priority Development Assistance Fund.

The UA, thus, was no longer a list of general line items that could provide stand-by appropriations for contingencies but had morphed into a long list of line items that Congress eliminated in exchange for pork.

“Congress has undoubtedly found a way to circumvent the prohibition on post-enactment intervention, mangling the budget as it undergoes legislation. There is currently no mechanism during budget legislation to safeguard the budget from these excesses,” Suzara was quoted as saying.