Saturday, March 1, 2014

THE JALAUR KILLER MEGA-DAM

THE JALAUR KILLER MEGA-DAM
“NOT A BOOST, BUT A GRAVE SORROW TO WATER SUFFICIENCY”
   26 February 2014,    AUGUSTO BOBOY SYJUCO, Ph.D.                


According to the Regional Officials of NIA in Iloilo City, the construction and eventual operation of the Jalaur Multi-Purpose Dam will boost Philippine sufficiency. This statement is of course expected from government officials concerned because the project will be a good source of kickbacks for them in various forms. Hereunder is a guide analysis of the basic realities of the project. The following narrations are worth mentioning:

1.   Based on the records of the Master Plan on Water Resources Management in the Philippines (Phil-JICA, Aug. 1998), the potential irrigable land of Iloilo is about 75,160 hectares. The Jalaur Killer Mega-Dam proposes to serve only a maximum of 31,840 hectares.

Given these values, there is an apparent shortfall of more than 50%; therefore, the Jalaur Killer Mega-Dam is obviously not to boost but instead a limitation to Philippine rice sufficiency.

2.   Based on the records of the same Master Plan on Water Resources Management (Aug. 1998), the water demand from the Jalaur River Basin towards year 2025 is projected to reach surface water coverage of at least 620 MCM and about 1,463 million cubic meters (MCM).  The Jalaur Killer Mega-Dam is proposed to store water only of about 172 MCM, or less than 12% of requirements.

Given these values, there is an apparent deficit of some than 80%; therefore, the Jalaur Killer Mega-Dam is obviously not to boost but instead will be a limitation to Philippine water sufficiency towards year 2025.

3.   Based on the records of the same Master Plan on Water Resources Management (Aug. 1998), the agricultural water demand for Iloilo is projected to reach about 1,808 MCM in year 2015 and 2,139 MCM in year 2025. The Jalaur Killer Mega-Dam is proposed to provide a maximum water supply of only 172 MCM.

          Given these values, there is an apparent shortfall of water supply of about 91% towards year 2015 and 92% towards 2025; therefore, the Jalaur Killer Mega-Dam is obviously not to boost but to  limit Philippine water supply sufficiency towards year 2015 and 2025.

4.   The same Master Plan on Water Resources Management (Aug. 1998) has stressed that the development of “Small Impounding Dams” enjoined with the rehabilitation and improvement of existing service areas of the Jalaur River Basin to about 21,720 hectares  suffices to meet the water demand after year 2020. This means that the concept of Jalaur Killer Mega-Dam is the least effective option, but the most expensive and therefore not recommended.

5.   Based on the records of the same Master Plan on Water Resource Management (Aug. 1998), Iloilo has a total of about 79 million cubic meters (MCM)/year of groundwater. This is sufficient to meet the groundwater demands of Metro Iloilo beyond year 2025 which is only about 20 MCM/year. In comparison to the Jalaur Killer Mega-Dam, the deep-well development of exploitable groundwater for the Metro Iloilo Water Districts is considered strategic, cheaper, sustainable, environment-friendly and at lower maintenance cost. With these facts the Jalaur Killer Mega-Dam allegedly to generate bulk water supply for the Metro Iloilo Water Districts is unnecessary and irrelevant.

6.   Iloilo is blessed with several water sources for irrigation. To cite few, these are:
·        Jalaur-Suague River System
·        Aganan-Sta. Barbara River System
·        Barotac-Viejo River Systems
·        Sibalom-Tigbauan River System

The above river systems when properly developed and well-managed have a potential irrigable area of about 60,000 hectares. Utilization of these river systems with the combination of national irrigation (NIS), communal irrigation system (CIS), small water impounding management/projects (SWIM/SWIP), diversion canal/dam, and shallow tube-wells are far better, cheaper, healthier and safer options than the Jalaur Killer Mega-Dam which can only provide for a ceiling of 31,840 hectares.

          Given the above observations, therefore, the Jalaur Killer Mega-Dam is not to boost but is instead a limitation for Philippine rice sufficiency. 
               
7.   Coal-Fired Power Plant with a power generation of about 150MW is estimated to cost about 12 billion pesos (e.g. proposed Cadiz Coal-Fired Power Plant). The Jalaur Killer Mega-Dam which will cost the government 11.2 billion pesos is proposed to generate only 6.6MW.
         
Given this estimate, therefore the Jalaur Killer Mega-Dam is not to boost but again a limitation for Philippine power sufficiency.
      
                  AUGUSTO BOBOY SYJUCO, Ph.D.                                         Petitioner  Against the Iloilo
                                             Jalaur Killer Dam                                                                                                                   

Wednesday, November 20, 2013

Summary Sheet of the Three (3) Motions Filed by Augusto L. Syjuco Jr., Ph.D. today in the morning of November 20, 2013

Summary Sheet of the Three (3) Motions Filed by Augusto L. Syjuco Jr., Ph.D. today in the morning of November 20, 2013



Dear Friends:

          Please be informed that I have filed Three (3) Motions seeking leave from the Supreme Court for the following, to wit:

1.   Motion to admit COA Annual Audit REPORT of 2011 on DBM’S DAP DISBURSEMENTS

On November 19, 2013, during the conduct of the oral arguments on DAP petitions, no one mentioned the Agency Audit Report on the Department of Budget and Management for 2011 conducted by the Commission on Audit(COA) for the year 2011. Even COA Chairperson, Maria Gracia Pulido-Tan, made no mention of any COA report regarding the DBM’s implementation of the DAP.

          In filing this motion, I now informing the Supreme Court that:              

b1.) there exists a COA Audit Report on DBM’s discombobulating misuse of DAP for year 2011; and

b2.) the COA Report dealt extensively with the unexplained irregularities  of DBM in the implementation of DAP, specifically, COA’s observations in its 2011 audit of the DBM’s DAP questioned the integrity and efficiency of DBM’s operations on missing, unaccounted for, double-numbering, and skipping of control numbers for 3,158 different Special Allotment Release Orders (SAROs) out of 42,193 SARO’s for the year, 2011. These SAROs amount to ONE TRILLION NINE HUNDRED FORTY TWO BILLION TWO HUNDRED EIGHTY SIX MILLION THREE HUNDRED FIFTY FIVE THOUSAND SEVEN HUNDRED EIGHTY EIGHT AND THIRTY EIGHT CENTAVOS (Php1,942,286,355,788.38).

             c)   From the foregoing, by all reasonable appearances, OUR GOVERNMENT WENT BANKRUPT IN 2011,            until today.
                This is apparent in that government now has to borrow new money of $1 billion (Php 43 billion) for the relief of Yolanda victims.

2.   Motion to Participate in the Oral Arguments

Last October 17, 2013, I wrote a letter addressed to the Honorable Chief Justice Ma. Lourdes Sereno requesting that I be allowed to deliver my oral arguments on the instant case on November 19, 2013. The said request was apparently not acted upon or impliedly denied. In an Advisory issued by the Supreme Court they only allowed lawyers-petitioners were allowed to participate in the oral arguments.

On the said hearing, I was interpellated by the Honorable Court without having been given the chance to argue. 

Thus, I asked the Supreme Court to allow me, as well as,   Budget Secretary Benjamin E. Diokno and former National Treasurer Leonor M. Briones to deliver an oral argument on December 10, 2013

3.   Urgent Motion to Resolve (“Urgent Motion for Issuance of Temporary Restraining Order and Preliminary Injunction”)

Last October 21, 2013, I filed an “Urgent Motion for Issuance of Temporary Restraining Order and Preliminary Injunction” on the implementation of the DAP.

Up to now, however, my said motion remains pending and deferred by the Supreme Court and no TRO was issued in the implementation of the DAP.

With this motion, I reiterated my “Urgent Motion for Issuance of Temporary Restraining Order and Preliminary Injunction” filed last October 21, 2013 and sought its immediate resolution to stop the hemorrhage of public funds coursed through the DAP.


Thank you for your kind attention.


              Sincerely always,
 
                                                     AUGUSTO L. SYJUCO JR., PH.D.


Saturday, October 26, 2013

PDAF PETITION

Republic of the Philippines
SUPREME COURT
Manila, Philippines


AUGUSTO L. SYJUCO JR., Ph.D.       G.R. NO. 209421
                             Petitioner,

-versus-                                FOR:
                                                  PROHIBITION, CERTIORARI,
FLORENCIO B.                        AND MANDAMUS  
In his capacity as the                            
Secretary of Department of
Budget and Management,

HON. FRANKLIN MAGTUNAO DRILON
In his capacity as the Senate President
Of the Republic of the Philippines 
                             Respondents.
x-------------------------------------------------x


PETITION

COMES NOW, the Petitioner in the above captioned case and to this Honorable Supreme Court, most respectfully state:

I.             PREFATORY STATEMENT

This is a petition for Prohibition, Mandamus and Certiorari under Rule 65 of the Revised Rules of Court coupled with a Petition for Declaratory Relief under Rule 63 of the Revised Rules of Court questioning the creation, implementation, validity and constitutionality of the Priority Development Assistance Fund (PDAF) as contained in Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013.

To put forward, our supreme law, the Constitution, cannot be overlooked. It is the Constitution that defines, limits and establishes the fundamental powers of the branches of government. Everyone should be mindful that all other laws, and governmental rules, regulations and policies must conform to the Constitution including the highest official of the land. Irrespective of how genuine and sincere the intention is in running and administering the functions of government, still Constitutional parameters must remain to be observed and conformed.
         
II.           PARTIES TO THE PETITION

Petitioner is of legal age, Filipino, married and a resident of No. 4 Rodriguez St., Sta. Barbara, Iloilo, Philippines where he may be served with notices and other processes of the Honorable Court. He is a law abiding citizen who faithfully pays his taxes as required by law.

Respondent Florencio B. Abad is herein impleaded in hiscapacity as the Secretary of the Department of Budget and Management under the executive branch of the government, who is of legal age, Filipino and holding office at General Solano St., San Miguel, Manila, Philippines 1005 where he may be served with notices and other processes of the Honorable Court.

Respondent Franklin Magtunao Drilon is herein impleaded in his capacity as the Senate President of the Republic of the Philippines and former Chairman of the Finance Committee of the Philippine Senate, who is of legal age, Filipino and holding office at Rm. 525 5th Flr., GSIS Bldg., Financial Center, Roxas Blvd., Pasay City where he may be served with notices and other processes of the Honorable Court.


III.          JUSTICIABLE QUESTION

The present case primarily questions the constitutionality of the creation and implementation of the Priority Development Assistance Fund as contained in Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013 or popularly known and herein indicated as “Pork Barrel”.
As pronounced by a litany of our jurisprudence, the power of judicial review is limited to actual cases or controversies. Courts decline to issue advisory opinions or to resolve hypothetical or feigned problems, or mere academic questions. The limitation of the power of judicial review to actual cases and controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas committed to the other branches of government.
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence. The Court can decide the constitutionality of an act or treaty only when a proper case between opposing parties is submitted for judicial determination.[1]
The case at bar presents a justiciable question. The petitioner herein and all tax payers of this country stand to be directly affected by the illegal appropriation, release and use of public funds through the Pork Barrel system. This Pork Barrel system has been implemented, is being implemented and to be continuously implemented by the respondents with the use of public funds to the damage and prejudice of every tax payer of this country who contributes to the collection and accumulation of public funds. It is for this matter that I question the constitutionality of the Pork Barrel system and submit its proper resolution to the Honorable Supreme Court.

IV.          LOCUS STANDI OF THE PETITIONER

The petitioner is filing the present case as a tax payer for and in behalf of all tax payers who will be directly affected by the misappropriation of tax payers’ money remitted to the public funds. As a tax payer, plaintiff has the right to file the present petition since the public interest so requires, such that the issue herein is a matter of transcendental importance, overreaching significance to society and of paramount public interest.

V.          SUBJECT OF THE PETITION

The subject of this petition is the Priority Development Assistance Fund (PDAF and herein referred to as the Pork Barrel) as contained in Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013.
VI.          STATEMENT OF FACTS

          On December 19, 2012 the President of the Republic of the Philippines signed into law Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013. The said law pertains to budgetary allocations of our government for its operation for the year 2013.

Included in the said law is the allocation of Priority Development Assistance Fund (PDAF) to legislators. This fund allocation is specifically contained in Section XLIV of the said law. The amount of allocation was Twenty Four Billion Seven Hundred Ninety Million Pesos (Php24,790,000,000).

Special Provision No. 2 of Section XLIV of the said law particularly provides as to the identification of projects and designation of beneficiaries, as it states and I quote:

“2. Project Identification. Identification of project and or designation of beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency: PROVIDED, That preference shall be given to projects located in the 4th to 6th class municipalities or indigents identified under the MHTS-PR by the DSWD. For this purpose, the implementing agency shall submit to Congress said priority list, standard or design within ninety (90) days from effectivity of this Act.

All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.”

As based on Special Provision No. 2, it is clearly provided that members of Congress have been given the privilege, right and authority to identify projects and programs for which their Pork Barrel will be allocated subject only to the required standard or design of the implementing agency. In essence, it is the legislator which has the exclusive authority in choosing and identifying the projects or programs for which their Pork Barrel will be spent. 

Furthermore Special Provison No. 4 of Section XLIV of the General Appropriations Act for Fiscal Year 2013, further provides and I quote 

“4. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund, subject to the following: (i) for infrastructure projects, realignment is within the same implementing unit and same project category as the original project; (ii) allotment released has not yet been obliged for the original project/scope of work; and (iii) request is with the concurrence of the legislator concerned. The DBM must be informed in writing of any realignment within five (5) calendar days from approval thereof: PROVIDED, That any realignment under this fund shall be limited within the same classification of soft or hard programs/projects listed under Special Provision 1 hereof: PROVIDED, FURTHER, That in case of realignments, modifications and revisions of project to be implemented by LGUs, the LGU concerned shall certify that the cash has not yet been disbursed and the funds have been deposited back to the BTr.

Any realignment, modification and revision of the project identification shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance, for favorable endorsement to the DBM or the implementing agency, as the case may be.”

The above stated provisions particularly deal with the release and realignment of the Pork Barrel.

 Special Provision No. 4 provides that cabinet members of the Executive Branch of the government and Local Government Units may realign the Pork Barrel allocated to them as implementing agency once. This realignment shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for favourable endorsement to the DBM or the implementing agency, as the case may be.    



GROUNDS FOR THE PETITION

          As I join all the petitioners in challenging the constitutionality of the Priority Development Assistance Fund (PDAF) provisions under the General Appropriations Act for Fiscal Year 2013, I present the following grounds in its declaration as unconstitutional:

1.    Special Provision No. 2 should be declared unconstitutional for lack of constitutional basis when it granted unbridled discretion on members of Congress exclusive privilege and authority in individually choosing and identifying the projects or programs for which their Pork Barrel will be spent;

2.    Special Provision No. 4 should be declared unconstitutional as it allows the Cabinet secretaries to realign funds which only the President can do under the Constitution and as it requires the favourable endorsement of the House Committee on Appropriations and the Senate Committee on Finance to the DBM or the implementing agency; and

DISCUSSION

The Priority Development Assistance Fund (PDAF) or Pork Barrel under the 2013 General Appropriations Act should be struck down as unconstitutional.

The primary constitutional provision that was violated is Article VI, Section 25 (5) of the 1987 Constitution which provides:

Section 25.
xxxx
(5)No law shall be passed authorizing any transfer of appropriations; however, the President, the President of the Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme Court, and the heads of Constitutional Commissions 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.”

The PDAF or Pork Barrel System should be declared unconstitutional.

Unconstitutional Power
of Budget Realignment

First, we will discuss the power of realignment of budget for Pork Barrel as provided under the 2013 General Appropriations Act.

This power exclusively remains with the President. This power cannot be delegated to the Cabinet secretaries because the same is not warranted or sanctioned by the Constitution, hence, a delegation thereof is prohibited.

With respect to congress, realignment of budget should be made by Congress as a body. A mere House or Senate committee or a legislator cannot realign funds. As such Congress should be acting as a body and not just a component thereof.

With the above constitutional principles and safeguards considered, the provisions on PDAF or Pork Barrel as contained in the 2013 General Appropriations Act provides unconstitutional powers of realignment to Congress and Cabinet secretaries of the Executive Branch.

Special Provision No. 4 provides that:

“4. Realignment of Funds. Realignment under this Fund may only be allowed once. The Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry are also authorized to approve realignment from one project/scope to another within the allotment received from this Fund…..xxxxxxx

This is utterly contrary to the Constitution. The Secretaries as mentioned in the above stated provision cannot realign funds. They do not have that power under the Constitution. Under the Constitution, it is only the President, in the executive branch, who is authorized and allowed under the Constitution.

Furthermore, the second paragraph of the same provision provides:

“Any realignment, modification and revision of the project identification shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance, for favourable endorsement to the DBM or the implementing agency, as the case may be.”

This paragraph likewise violated our Constitution. The power given to the Senate committee, and to the House committee to concur before there can be realignment is unconstitutional. No provision in the Constitution provides that a Senate committee or House committee may, on its own, realign the budget. Hence, the PDAF provision is unconstitutional as well on this second score. Furthermore, the acts of these congressional committees in concurring with budget realignment violates the constitutional principle on separation of executive and legislative powers.


Individual Projects/Programs
Identification Unconstitutional

          The release of the PDAF or Pork Barrel is based on the projects or programs identified and endorsed by an individual legislator. This is based on Special Provision No. 2 of the PDAF provisions in the 2013 General Appropriations Act and I quote:

All programs/projects, except for assistance to indigent patients and scholarships, identified by a member of the House of Representatives outside his/her legislative district shall have the written concurrence of the member of the House of Representatives of the recipient or beneficiary legislative district, endorsed by the Speaker of the House of Representatives.”

          The act of an individual legislator in identifying projects and programs for which his/her Pork Barrel will be spent carry the character of budget legislation. This act of legislation is being carried out individually and after an appropriations law has already been passed. This is a post budget legislation and contrary to our Constitution.

On another note, the individual identification of programs or projects as allowed in the PDAF provisions should be held unconstitutional. Since the identification of projects and programs for the pork barrel carries the character of a budget legislation, the same should be an act of Congress as a body and not individually. The act of an individual member of Congress is not the act of Congress as a body.

To countenance this practice would also result to unconstitutional consequences wherein the President will be deprived to veto budget line items. How can the President veto this programs or projects when they are not included in the budget submitted to him.


SPECIAL PRAYER IN THE FORM OF
MOTION TO CITE RESPONDENT FRANKLIN MAGTUNAO DRILON
IN CONTEMPT OF COURT AND FOR DISBARMENT


Antecedent Facts

          At present there are several pending petitions before the Supreme Court challenging the constitutionality of the Priority Development Assistance Fund (PDAF) or the Pork Barrel. First, that of the Social Justice Society President Samson Alcantara; second, from Mr. Greco Belgica; and third is from Former Boac, Marinduque Mayor Pedrito which was the latest among the petitions filed before our Supreme Court.

          Oral arguments were already made over these aforementioned last October 7, 2013.


TRO on PDAF

          The Honorable Supreme Court issued on September 10, 2013 a Temporary Restraining Order (TRO) on the disbursement and release of the Pork Barrel of the legislators while it is still in the process of deciding the constitutionality of this allocation.


Nature of a TRO

          In our jurisdiction, a temporary restraining order could be defined as an order of limited duration. A TRO commands the parties in the case to maintain a certain status until the court can hear further evidence and decide whether to issue a preliminary injunction. For a TRO issued by our Supreme Court, the same is effective until order otherwise.

          A TRO will usually be granted when it is made to appear that there is a substantial controversy between the parties and one of them is committing an act or threatening the immediate commission of an act that will cause irreparable injury or destroy the status quo of the controversy before a full hearing can be had on the merits of the case.


Drilon’s Contemptous Act

While the Supreme Court has put on hold lawmakers’ pork barrel releases for the rest of 2013, one respondent is determined to violate the authority of the Honorable Supreme Court.

In a clear display of utter arrogance, Respondent Franklin Magtunao Drilon filed on Monday, October 21, 2013, Senate Resolution No. 302 in order to realign the senators’ remaining Priority Development Assistance Fund (PDAF) for the year to the calamity fund despite the temporary restraining order issued by the Honorable Supreme Court on its disbursement and release.

In his resolution, Respondent Drilon cites Section 53 of the 2013 General Appropriations Act, which defines “savings as the portions or balances of any programmed appropriation that is free from any obligation or encumbrance which is still available because of final discontinuance or abandonment of work, activity, or purpose for which the appropriation is authorized.”

In a public statement Respondent Drilon said the following and I quote:

“Given the Supreme Court’s “impoundment of the remaining 2013 Senate PDAF,” as well as the expressed willingness of some senators to waive their pork barrel, their PDAF for this year is technically “abandoned,.” The amount “is now effectively converted into savings, hence the President may realign the same for the repair, improvement and renovation of government buildings and infrastructure and other capital assets damaged by natural calamities,”

In another press conference, Respondent Drilon was asked if this was not a case of the Senate pre-empting the Supreme Court’s resolution of the question on the PDAF’s constitutionality. This he said, and I quote:

“They can still resolve it. That’s their prerogative. We are an independent body. We can make our own decision.”
  
          By filing Senate Resolution No. 302, Respondent Franklin Magtunao Drilon has commenced a process or series of acts which will disburse and release the constitutionally challenged Pork Barrel of the Senate.

This act of Respondent Franklin Magtunao Drilon is a clear defiance of the lawful order of the Honorable Court who issued a temporary restraining order as to the disbursement and release of the PDAF or Pork Barrel pending its constitutional determination.

For this, Respondent Franklin Magtunao Drilon should be held in CONTEMPT OF COURT and should be properly sanctioned.


Contempt of Court

The power to declare a person in contempt of court serves to protect and preserve the dignity of the court, the solemnity of the proceedings therein and the administration of justice. There is no doubt that a person guilty of defying a court process may be held liable for contempt of court.

“Contempt of court presupposes a contumacious attitude, a flouting or arrogant belligerence, a defiance of the court" (Matutina vs. Judge Buslon and the Sheriff of Surigao, 109 Phil. 140, 142). It is an offense against the authority and dignity of the court.

It is important to note in this connection that being a lawyer, Respondent Franklin Magtunao Drilon’s wilful filing of Senate Resolution No. 302 and solicitation of signatures in Senate in which Drilon had moral suasion and influence, should be regarded as a flagrant disrespect towards the authority and mandate of the Honorable Supreme Court. The act of Respondent Drilon can be categorized as arrogant and defiant which impeded, obstructed and degraded the administration of justice.

Verily, the act of Respondent Franklin Magtunao Drilon in filing Senate Resolution 302 run smack directly onto the authority of the Honorable Supreme Court. The Honorable Supreme Court has to preserve and maintain its dignity and authority as dispenser of justice. It should not allow itself to be disrespected, defied and trampled upon by any one, especially the like of Respondent Drilon, who is even a lawyer. The Honorable Supreme Court has no other recourse but to cite Respondent Drilon in contempt of court and proper sanctions should be imposed against him.

          This offensive display of hard core audacity and defiance by Respondent Franklin Magtunao Drilon was highlighted in the statements given by his counterpart in the House of Representatives. House Speaker Feliciano Belmonte, Jr. was quoted saying:

"How could you actually be reallocating or spending money which is the subject of a TRO [temporary restraining order]?"If you ask me, I could not say we could do it."

As to Belmonte, the temporary restraining order issued by the Supreme Court prevents anyone from realigning the PDAF in order that it may be released or disbursed. Clearly, Respondent Drilon is acting in defiance of the lawful order of the Honorable Supreme Court.

          The accommodating attitude of other members of the Senate, spearheaded by Respondent Franklin Magtunao Drilon, is evident when Senator Francis Escudero stated and I quote:

 “It’s up to the courts to decide later on should someone file a petition to determine if indeed this is covered or not by the temporary restraining order issued by the Supreme Court.,
 “There are many fond of filing charges in court. Let the court say whether it is legal or not. Our intention here is clear—to allocate funds to those ravaged by calamities and it’s in the resolution filed,” he said. (sic)

As can be drawn from the statement of Escudero, they themselves are in quandary as to the legality of Senate Resolution 302. They merely accommodated the solicitation of Drilon, as Senate President and colleague.

Lastly, contempt of court is not the solitary consequence of disobedience to a court order. The Court cannot be restricted to this singular response to an insolent challenge to its dignity and authority. The Court is not precluded from declaring as invalid the act committed in violation of its lawful order.
Thus, Senate Resolution No. 302 should be declared unlawful and illegal ab-initio for being violative of the Temporary Restraining Order issued by the Honorable Supreme Court.     

Drilon Should be Imprisoned
and Penalized for
Indirect Contempt

          Section 3, Rule 71 of the 1997 Revised Rules of Civil Procedure provide the acts for which a person may be adjudged guilty of indirect contempt. These acts are as enumerated by the said rules are as follows:

Section 3. Indirect contempt to be punished after charge and hearing. — After a charge in writing has been filed, and an opportunity given to the respondent to comment thereon within such period as may be fixed by the court and to be heard by himself or counsel, a person guilty of any of the following acts may be punished for indirect contempt;

(a) Misbehavior of an officer of a court in the performance of his official duties or in his official transactions;

(b) Disobedience of or resistance to a lawful writ, process, order, or judgment of a court, including the act of a person who, after being dispossessed or ejected from any real property by the judgment or process of any court of competent jurisdiction, enters or attempts or induces another to enter into or upon such real property, for the purpose of executing acts of ownership or possession, or in any manner disturbs the possession given to the person adjudged to be entitled thereto;

(c) Any abuse of or any unlawful interference with the processes or proceedings of a court not constituting direct contempt under section 1 of this Rule;

(d) Any improper conduct tending, directly or indirectly, to impede, obstruct, or degrade the administration of justice;

(e) Assuming to be an attorney or an officer of a court, and acting as such without authority;

(f) Failure to obey a subpoena duly served;
(g) The rescue, or attempted rescue, of a person or property in the custody of an officer by virtue of an order or process of a court held by him.

And nothing in this section shall be so construed as to prevent the court from issuing process to bring the respondent into court, or from holding him in custody pending such proceedings. (3a)

          The commission of any of the above stated acts, constituting indirect contempt, carries a penalty as provided under Section 7 of the same procedural rule, to wit:
Section 7. Punishment for indirect contempt. — If the respondent is adjudged guilty of indirect contempt committed against a Regional Trial Court or a court of equivalent or higher rank, he may be punished by a fine not exceeding thirty thousand pesos or imprisonment not exceeding six (6) months, or both. If he is adjudged guilty of contempt committed against a lower court, he may be punished by a fine not exceeding five thousand pesos or imprisonment not exceeding one (1) month, or both. If the contempt consists in the violation of a writ of injunction, temporary restraining order or status quo order, he may also be ordered to make complete restitution to the party injured by such violation of the property involved or such amount as may be alleged and proved.
          In view of the contemptuous acts of Respondent Franklin Magtunao Drilon, being the “promotor” of Senate Resolution No. 302, as discussed earlier, he should be adjudged guilty of Indirect Contempt, particularly Paragraphs (b) and (d) of Section 3, Rule 71 of our procedural law.

Respondent Drilon’s contemptuous act is aggravated by the fact that he is a lawyer, a member of the bar and a person expectedly of better appreciation of the rule of law. He should have been more mindful of his actions before filing Senate Resolution No. 302 and soliciting signatures thereof. With the presence of this aggravating circumstance, the penalty of fine and imprisonment should be imposed against him in the maximum period.

Hence, Respondent Franklin Magtunao Drilon should be adjudged guilty of Indirect Contempt as defined and penalized under Sections 3 and 7 of Rule 71 of the 1997 Rules of Civil Procedure and should suffer the penalty of imprisonment of at least six (6) months and pay the penalty of Thirty Thousand Pesos (Php30,000). 


Drilon should be Disbarred
And Removed from the
Roll of Attorneys

"The practice of law is a privilege accorded only to those who measure up to certain rigid standards of mental and moral fitness. For the admission of a candidate to the bar, the Rules of Court not only prescribe a test of academic preparation but require satisfactory testimonials of good moral character. These standards are neither dispensed with nor lowered after admission: the lawyer must continue to adhere to them or else incur the risk of suspension or removal."[2]

The interdict upon lawyers, as inscribed in Rule 1.01 of the Code of Professional Responsibility, is that they "shall not engage in unlawful, dishonest, immoral or deceitful conduct." This is founded on the lawyers’ primordial duty to society as spelled out in Canon 1 which states:

"CANON 1 – A lawyer shall uphold the Constitution, obey the laws of the land and promote respect for law and legal processes."

It is not by coincidence that the drafters of the Code of Professional Responsibility ranked the above responsibility first in the enumeration. They knew then that more than anybody else, it is the lawyers -- the disciples of law -- who are most obliged to venerate the law. As stated in Ex Parte Wall:[3]

"Of all classes and professions, the lawyer is most sacredly bound to uphold the laws. He is their sworn servant; and for him, of all men in the world, to repudiate and override the laws, to trample them underfoot and to ignore the very bonds of society, argues recreancy to his position and office and sets a pernicious example to the insubordinate and dangerous elements of the body politic."

Corollarily, the above responsibility is enshrined in the Attorney’s Oath which every lawyer in the country has to take before he is allowed to practice.

Respondent Franklin Magtunao Drilon is a lawyer and officer of the court. Of all classes and professions, it is expected that he must always act in exact accord of the law and our duly constituted authorities. Unfortunately, it was he himself who trampled and violated the constitutional mandate and authority of the Supreme Court by violating its lawful order and even incited private and public support for his rebellion against the Temporary Restraining Order and his tom-foolery to go around it. The blatant, deliberate and conscious violation of the temporary restraining order issued by the Supreme Court rendered Respondent Drilon to be unfit to continue the practice of law.

As a member of the bar and an officer of the court, Respondent Franklin Magtunao Drilon, as any attorney, is in duty bound to uphold its dignity and authority and to defend its integrity, not only because it had conferred upon him the high privilege, not a right (Malcolm, Legal Ethics, 158 and 160), of being what he now is: a priest of justice (In re Thatcher, 80 Ohio St., Rep., 492, 669), but also because in so doing, he neither creates nor promotes distrust in the administration of justice, and prevents anybody from harboring and encouraging discontent which, in many cases, is the source of disorder, thus undermining the foundation upon which rests that bulwark called judicial power to which those who are aggrieved turn for protection and relief (61 Phil. at 727-728; emphasis supplied)

Ergo, Respondent Franklin Magtunao Drilon should be disbarred or at least suspended for an indefinite period of time at the least for his violation of his lawyer’s oath and duties as lawyer and officer of the Court.

          RELIEFS SOUGHT

          After due consideration of the discussions as above stated, the following are the reliefs most respectfully prayed, to wit:

1.    To declare the Priority Development Assistance Fund (PDAF and herein referred to as the Pork Barrel) as contained in Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013 unconstitutional;

2.    To cite Respondent Franklin Magtunao Drilon in Contempt of Court for violating the Temporary Restraining Order issued by the Honorable Supreme Court on the release and disbursement of the PDAF;

3.    Respondent Franklin Magtunao Drilon should be adjudged guilty of Indirect Contempt as defined and penalized under Sections 3 and 7 of Rule 71 of the 1997 Rules of Civil Procedure and should  suffer the penalty of imprisonment of at least six (6) months and pay the penalty of Thirty Thousand Pesos (Php30,000);  

4.    To declare Senate Resolution No. 302 as illegal and invalid
ab-inito and to have no effect for being violative of the Temporary Restraining Order issued by the Honorable Supreme Court on the release and disbursement of the PDAF; and

5.    Respondent Franklin Magtunao Drilon should be disbarred or suspended for an indefinite period of time, at the very least, for violation of his lawyer’s oath, lawyer’s professional and duties as lawyer and officer of the Court.


CONCLUSION

In closing, please allow me to quote a newspaper editorial that is very relevant to the issues herein presented and submitted for resolution. The Article:

ABOVE THE LAW

By Manila Standard October 23, 2013 | Posted 18 hours ago | 1,331 views Oct 23, 201


“THERE was a touch of hubris when Senate President Franklin Drilon declared that he and his colleagues could do as they please with the Priority Development Assistance Fund (PDAF) or pork barrel impounded by a temporary restraining order issued by the Supreme Court.

“As far as I am concerned, even if PDAF is being questioned in court it can be used to augment the [President’s] calamity fund,” Drilon told a radio interview.

“Even if the Supreme Court declares that it is unconstitutional, it can be transferred as savings because this realignment is allowed by the Constitution… Regardless of how the Supreme Court will rule, in my experience as a lawyer and as the former chairman of the Senate committee on finance, PDAF can be realigned and transferred to the calamity fund,” he said.

The Senate President’s disregard extended to the House of Representatives, which he said was not needed to convert funds that had been allocated to the senators. The congressmen, he said, could decide what to do with their own impounded pork barrel.

With the sleight of hand, Drilon sought to free the impounded funds and turn them over to the President’s calamity fund, presumably to help the victims of the devastating quake in the Visayas.

Notwithstanding the very real humanitarian concerns, there are at least two flaws in Drilon’s plan.

First, if the Supreme Court eventually rules that PDAF is illegal, then the senators will have committed an illegal act by voting to spend it, regardless of the temporary restraining order.
         
Second, the Senate leader is asking the public to trust an administration that has proved notoriously unable to make a clear accounting of the public’s money. To date, it has been unable to specify where billions of pesos in two funds over which the President has sole discretion: the Malampaya fund and the calamity fund.

In view of this poor track record, Drilon’s call to convert the pork barrel into yet another discretionary fund for the President is a leap of faith that can only be described as suicidal.

The suggestion that the Senate can unilaterally overrule the Supreme Court can only come from someone who believes he is above the law. This is not unusual in this administration, as the President himself has been known to take a few legal shortcuts—such as ignoring inconvenient Supreme Court orders.

If Drilon wishes to put a legal veneer over the use of the impounded funds, the less questionable tact might be to do it through an amendment to the General Appropriations Act, which would need both chambers of Congress to act with dispatch, since the needs of the quake victims are urgent.

The success of such an approach might seem far-fetched until we remember how 188 congressmen and congresswomen voted to impeach the sitting chief justice overnight—surely a sign that Congress is capable of swift action when the incentive is right.”[1]

          Please allow me to conclude this pleading by saying:

          In this time of confusion and disillusionment of our people over their government and its leadership, the Highest Court of the land is once again being summoned to perform and fulfil its constitutional mandate.

The acts of Respondent Franklin Magtunao Drilon is a clear defiance of the Supreme Court’s constitutional mandate and constitutional role of maintaining the majesty of the law. His disrespectful and arrogant acts, taking undue advantage of his position as the third highest official of the government, caused further discouragement and uncertainties to our people. His actions clearly placed our society on the edge of anarchy and lawlessness. To countenance this serious and remorseless transgression to pass unpunished will greatly cause irreparable damage to morals and morale of our Filipino people and the sanctity of the constitutionally vested authority of the Supreme Court.

To make matters worse, Respondent Franklin Magtunao Drilon betrayed the public in its most vulnerable state. He is taking undue advantage of the helpless and susceptible condition of our people who have been whipped by scandals and natural calamities. The bad timing is just so mischievous, insidious, contemptuous and treacherous. He perpetuated his own devious agenda when our country and our people are presently in a state of frustration, despair, abandonment, dissolution and confusion.

In other words Your Honors please, if you let this pass without the appropriate and stern sanctions imposed against Respondent Franklin Magtunao Drilon, the reverence of the Supreme Court as the last bulwark of democracy, will diminish to the extent that it will invite more serious and graver transgressions in the here and now, and will be an heavier albatross in the continuing future. 

Our people await the disposition, discipline and just recompense that our race and legacy deserve. I implore Your Honors to assert the rule of law to those who are drunk with power and stuffed with pork.

As the late President John Adams said :

“Ours is a government of laws, and not of men.” 

PRAYER

          WHEREFORE, premises considered, it is most respectfully prayed of the Honorable Supreme Court that after due consideration of this Petition, an order be issued :

1.    To declare the Priority Development Assistance Fund (PDAF and herein referred to as the Pork Barrel) as contained in Republic Act No. 10352 otherwise known as the General Appropriations Act for Fiscal Year 2013 unconstitutional;

2.    To cite Respondent Franklin Magtunao Drilon in Contempt of Court for violating the Temporary Restraining Order issued by the Honorable Supreme Court on the release and disbursement of the PDAF;

3.    Respondent Franklin Magtunao Drilon should be  adjudged guilty of Indirect Contempt as defined and penalized under Sections 3 and 7 of Rule 71 of the 1997 Rules of Civil Procedure and should  suffer the penalty of imprisonment of at least six (6) months and pay the penalty of Thirty Thousand Pesos (Php30,000);

4.    To declare Senate Resolution No. 302 as illegal, and invalid ab-initio and to have no effect for being violative of the Temporary Restraining Order issued by the Honorable Supreme Court on the release and disbursement of the PDAF; and

5.    Respondent Franklin Magtunao Drilon should be disbarred or suspended for an indefinite period of time, at the very least, for violation of his lawyer’s oath, lawyer’s professional code and duties as lawyer and officer of the Court.

Other reliefs and remedies which are just and equitable under the premises are likewise prayed for.

Respectfully submitted this 24th day of October 2013 in the City of Makati for the City of Manila, Philippines.
  

AUGUSTO L. SYJUCO JR., Ph.D.
Petitioner/Tax Payer
No. 4 Rodriguez St., Sta. Barbara, Iloilo City


Copy furnished:

SEC. FLORENCIO ABAD
Secretary
DEPARTMENT OF BUDGET AND MANAGEMENT
General Solano St., San Miguel, Manila
Metro Manila, Philippines 1005
By:____________________
Date:_________________

SEN. FRANKLIN MAGTUNAO DRILON
Senate Office: Rm. 525 5th Flr., GSIS Bldg., Financial Center, Roxas Blvd., Pasay City
By:____________________
Date:_________________

Hon. FRANCIS H. JARDELEZA
Office of the Solicitor General
134 Amorsolo St., Legaspi Village,
Makati City, 1229
 
By:____________________
Date:_________________