Miriam hits JPE's 'grave abuse of discretion'

Posted at 01/22/2013 12:40 PM | Updated as of 01/22/2013 5:10 PM

MANILA - Senator Miriam Defensor Santiago said Senate President Juan Ponce Enrile’s actions in connection with the chamber’s savings can be questioned before the Supreme Court.

In a letter sent to Commission on Audit chairwoman Ma. Gracia Pulido-Tan, the on-sick-leave senator said Enrile’s move to use the savings as Christmas gifts to a chosen few is “tantamount to grave abuse of discretion, amounting to lack or excess of jurisdiction, which can be questioned in the Supreme Court.”

The “personal and urgent” letter was sent yesterday, when Enrile took to the podium and moved to vacate his position. The motion was instantly rejected.

She said: “A fiscally responsible Senate President should be sensitive to the sources of financing – taxes and user charges paid for by the general public. A fiscally responsible Senate President should let the amount unused (or saved) revert to the National Treasury.”

Santiago also said she has a contrary opinion to that of Tan, who claimed she approved the use of the funds as Christmas bonuses.

“The law mentioned in the Constitution is the General Appropriations Act of 2012. However, it is not a blanket authority for realignment. It is necessary that the budgetary item that will be augmented exists. Savings cannot be used to fund a non-existent program, activity, or project,” Santiago said.

She added: “The consensus among the budget authorities in our country is that in the absence of any request for augmentation, none should be given.”

She said nobody asked for an augmentation. It was all Enrile’s doing, she said.

Santiago said that although the Senate President, like certain other high officials, has power to realign, that power should be exercised legitimately. “The issue is not the existence of the power, but the legitimacy of the exercise of that power.”

Below is her open letter:

PERSONAL AND URGENT!

22 January 2013

Chair Ma. Gracia Pulido-Tan
Commission on Audit

Dear Chair Tan:

This is further to my letter of January 10 concerning the use of Senate savings as Christmas gifts. It appears from media accounts that subsequent to my letter, you issued the opinion on television that the Senate President has absolute power to realign savings into Christmas bonuses. As a student of constitutional law, I fear that you may have been expressing a casual opinion. Hence, I take the liberty of citing certain constitutional provisions which might be of help in your written compliance on my earlier request for opinion.

I seek your written opinion, for two reasons. First, it will serve as a basis for interpellation during my proposed hearing of the Committee on Revision of Codes and Laws, which I chair. Second, it will serve as proof that I would have exhausted my administrative remedies, before bringing the proper case in the Supreme Court.

Under the Constitution, Article 6, Section 25, para. (5), certain officials, including the Senate President, “may, by law, be authorized to augment any item in the general appropriations law for their respective offices from savings in other items of their respective appropriations.”

Under this constitutional provision, the General Appropriations Act of 2012 (GAA 2012), aka R.A. No. 10155, General Provision, Section 53 provides in part that the same high officials,, including the Senate President, “are hereby authorized to augment any item in this Act from savings in other items of their respective appropriations.”

However, Section 54 provides the meaning of the term “savings” and the term “augmentation.” Under the law, savings “refer to portions of balances of any programmed appropriations in this Act free from any obligation or encumbrance. . . . Augmentation implies the existence in this Act of a program, activity, or project with an appropriation which upon implementation or subsequent evaluation of needed resources, is determined to be deficient. In no case shall a non-existent program, activity, or project, be funded by augmentation from savings or by the use of appropriations otherwise authorized in this Act.”

From this provision, as a student of constitutional law, my conclusion is as follows. The process of augmentation starts with a generation of savings. Assuming that savings have been generated, it is necessary that the budgetary item that will be augmented exists. Otherwise, it cannot be augmented. This is to support the congressional power of the purse. Savings cannot be used to fund a “non-existent program, activity, or project.”

Process of Augmentation

A fiscally responsible head of department can augment the budget of an individual senator, if there is a request for augmentation. The consensus among the budget authorities in our country is that: In the absence of any request for augmentation, none should be given.

If the initial budget allocation is sufficient, there is no need for augmentation. The amount of the augmentation should be based on a demonstrated need for additional funds, meaning that the initial MOOE allocation is insufficient to finance the day-to-day operations of the Office of the Senator.

In this light, the augmented amount now under controversy is the same for all senators who have received the additional MOOE. No senator made the necessary request for augmentation. This by itself should raise constitutional bells and whistles.

The needs of each senator differ; plus, senators have different responsibilities Senators have different standing committees (separately funded) and different oversight committees (also separately funded).

When funds are released by the Department of Budget and Management to an agency of the government, the funds are accompanied by the usual condition that: “The use of the fund shall be in accordance with all existing budgetary, accounting, and auditing rules and regulations.” It is reasonable to assume that further sub-allotments to offices of the senators are subject to the same condition. If the fund is for MOOE, then the allocated amount should be used for MOOE only and “its use shall be in accordance with all existing budgetary, accounting and auditing rules and regulations.”

Additional MOOE Cannot be Used for Cash Gifts

MOOE cannot be used for additional bonuses or cash gifts. The use of MOOE is limited to the following items:

· Travel expenses
· Communication expenses
· Repairs and maintenance
· Transportation and delivery expenses
· Extraordinary and miscellaneous expenses
· Taxes, insurance premiums, and other fees
· Professional services
· Printing and binding expenses
· Advertising expenses
· Representation expenses
· Subscription expenses
· Membership dues and contributions to organizations

Additional MOOE Must be Reported to Finance Committee

MOOE in the GAA 2012 are available for release and obligation until the end of 2013. The 2012 GAA provides in General Provisions, Section 63 that: “Provided, that a report on these releases and obligations shall be submitted to the Senate Committee on Finance.”

The Constitution Prohibits Grave Abuse of Discretion

Even if public officials like the Senate President are given the power to realign, that power, under the Constitution, should be exercised for a public purpose. And most importantly, the exercise of the power to realign should not be tainted by grave abuse of discretion amounting to lack or excess of jurisdiction. Otherwise, it becomes ripe for litigation before the Supreme Court.

The exclusion, for no stated reason, of four senators from the alleged augmented MOOE is a shocking abuse of discretion amounting to lack of jurisdiction, under the Equal Protection Clause.

Even with the power to realign, in the absence of the power to distribute financial incentives, the head of agency cannot give away year-end bonuses.

Further, the constitutional “power to augment” requires for its exercise the existence of some shortage or deficiency which necessitates the decision to supplement. Following this concept, savings from one item may be used to augment spending that was not envisioned at the time that the budget was approved. The distribution of bonuses does not fall under this concept of augmentation.

In addition, the context in which such bonuses are distributed may put into question, not the existence of the power, but the legitimacy of the exercise of such power.

Hence, my humble opinion is that the exercise of the power is illegitimate, being tantamount to grave abuse of discretion amounting to lack or excess of jurisdiction.

Conclusion

A fiscally responsible Senate President should be sensitive to the sources of financing – taxes and user charges paid for by the general public. A fiscally responsible Senate President should let the amount unused (or saved) revert to the National Treasury. Hence, the Senate would be able to reduce the amount of money that the government has to borrow to finance its operations.

As soon as I am medically able, I shall call a public hearing of the Committee on Revision of Codes and Laws, which I chair, in order that we can have the benefit of your considered opinion on the constitutional and other issues that I have raised.

Sincerely yours,

MIRIAM DEFENSOR SANTIAGO