In February of 2004, civil society led by Bishop Pedro Dulay Arigo of
Palawan, Cesar Sarino, the late Dr Gerry Ortega, the late Dr. Jose
Antonio Socrates, Prof. Oscar Evangelista and Cesar R. Ventura and I
filed suit before the Supreme Court questioning the legality of
President Gloria Macapagal Arroyo’s use of the government proceeds from
the Malampaya natural gas field. Petitioners, before going to the
Supreme Court, had previously filed suit in the RTC of Palawan and the
Court of Appeals, pursuant the hierarchy of Courts.
The petitioners’ complaint was simple. Under the 1987 Constitution,
local governments were given a fair and equitable share in the revenues
derived from natural resources found in their area. Under the Local
Government Code, this share was defined as 40 percent of all gross
government receipts from these resources. Palawan civil society then
argued that a provisional sharing agreement entered into by Mrs. Arroyo
and the then-local leadership of the province providing that Palawan
shall be entitled to 20 percent net of all government revenues was
unconstitutional.
This was on at least four grounds: First, the interim sharing
agreement amended the legal provision on how much the entitlement should
be: from 40 percent of gross to 20 percent net; Second, it amended the
local government code in the manner by which it was to be shared by the
barangay, municipality and province where the resources are found. Under
the law, the province shall have 20 percent of such revenues, while the
municipality and the barangay are to have the lion’s share of the
revenues: 35 percent and 45 percent, respectively. The sharing agreement
called for projects to be identified by the two representatives of the
province, its governor, and the mayor of Palawan. Third, the Code
provides the manner by which the money was to be spent: 80 percent of
all sums should be applied to lower the cost of electricity in the
province, while the remaining 20 percent should go to local government
projects and for livelihood. The Interim sharing agreement made the fund
additional pork barrel for the two representatives of the province and
its other local officials. The fourth argument of the petitioners would
prove to be perhaps the most important argument in promoting good
governance. Petitioners argued that the manner by which Mrs. Arroyo
entered into the agreement was unconstitutional because she spent the
funds without congressional authorization.
In entering into the questioned sharing agreement, PGMA invoked the
provision of a little known Marcos Presidential Decree 910, section 8 of
which reads: “—Section 8. x x x production share on service
contracts and similar payments on the exploration, development and
exploitation of energy resources, shall form part of a Special Fund to
be used to finance energy resource development and exploitation programs
and projects of the government and for such other purposes as may be
hereafter directed by the President.” Petitioners argued that this
violates the rule that no money shall be paid out of the national
treasury without appropriation by law.
PGMA, on the other hand, argued that because of the foregoing PD, all
government revenues earned from Malampaya are in the nature of a
special fund which can be disbursed at the pleasure of the President.
It was this argument that later led COA to conclude that at least
P2.3 billion of the Malampaya funds were misused by local government
officials of Palawan including its fugitive ex-governor Joel Reyes and
the defeated Baham Mitra. Unfortunately, it was this interpretation that
also led to the disbursement of the first tranche of P900 million
Malampaya release that COA now says were plundered by Napoles and her
cohorts. Ironically, the first tranche released to Napoles was
authorized only two days after our oral argument in the Supreme Court on
November 24, 2009. Worse, it is this interpretation that led to the
release of a further P26.3 billion of Malampaya funds which early
reports now say may have been released and malversed by Arroyo shortly
before the 2010 elections.
It comes hence as no surprise that much of the scandal unearthed by
the Napoles revelations involve the Malampaya funds. To begin with, the
popular clamor that there “shall be no taxation without representation”
was based on the idea that the people’s representatives should authorize
all public spending and shall exercise oversight on the manner the sums
are spent. Because the Malampaya funds were spent without congressional
authorization, and hence without oversight, it was spent for any and
all purpose that the President desired, And when you have a kleptomaniac
for a president, that meant spending the money all for naught.
I cannot help but also blame the Court for this fiasco. The Malampaya
petition has been pending in our courts since 2004. It reached the
Supreme Court in 2009 after passing through the hierarchy of courts,
Until today, it has not been resolved. Had the court acted on the
petition seasonably, we may have prevented Napoles from squandering P900
million worth of public funds that could have gone to livelihood and
lowering the cost of electricity in Palawan. We may even have prevented
the further plunder of P26.3 billion worth of Malampaya revenues and
applied the same not just for national defense, but also for education
and heath purposes. As the saying goes, “justice delayed is justice
denied.”
I rest my case.
source: Manila Standard's Column of Atty. Harry Roque, Jr.
