271059/271347/E-02472/E-04036 Dissenting Opinion: Justice Antonio T. Kho, Jr. — Official PDF

Dissenting Opinion 9 G:R. Nos. 271059, 271347 E-02472 & E-04036 several programs will be funded, in what order, or in what amount. When available revenues are not enough to fund all listed purposes, the Executive must make those choices as to which programs will proceed and which will remain unfunded. That choice is an allocative judgment concerning national priorities, not a ministerial act of budget execution. The Executive is no longer merely ascertaining a fact. It is selecting national priorities which the Constitution entrusted to Congress. I also find the SAGIP unconstitutional because one large amount could fund numerous unrelated purposes later selected by the Executive. It correctly concludes that this arrangement contains a prohibited post enachnent identification feature.36 In my view, the same constitutional concern of the ponencia ia SA GIP exists more broadly in unprogrammed appropriations. A rule stating that funds may be used when excess revenues, new revenues, or approved foreign loans arise answers only the question of when some spending authority may be activated. It does not adequately answer the following questions: Which specific project must first receive the new funds? How are several competing projects to be ranked? What amount is each project entitled to receive? May all available revenues be used for a single project? May a project included under programmed appropriations also receive unprogrammed funding? What happens when expected programmed revenues fall short while one non-taxfevenue source exceeds its individual target? • ' • • May the Executive fund unprogrammed projects while programmed appropriations remain unsupported? These are not insignificant details. They concern the substance of the Government's spending policy. The absence of binding priority rules under unprogrammed appropriations allows the Executive to substitute its own judgment for that of Congress. A general reference to "priority projects, " "infrastructure, " "social programs, " or "implementation-ready projects" does not meaningfully restrain discretion. Almost every government project can be described as a public priority. A standard broad enough to embrace virtually everything provides no effective standard at all. 36 Ponencia, p. 69.