The Supreme Court (SC) was asked on Monday, Sept. 18, to declare unconstitutional the Maharlika Investment Fund Act of 2023 under Republic Act No. 11954 that was signed into law by President Marcos last July 18 to be managed by the Maharlika Investment Corporation (MIC) which now has a seed capital of P150 billion.
In a petition, the SC was also asked to issue a temporary restraining order (TRO) or preliminary injunction or status quo ante order (SQAO) to stop immediately the implementation of RA 11954, and to conduct oral arguments.
The petition was filed by Sen. Aquilino “Koko” Pimentel III, former congressman and Bayan Muna Chairman Neri Javier Colmenares, and former Bayan Muna congressmen Carlos Isagani Zarate and Ferdinand Gaite
Named respondents in the petition were Executive Secretary Lucas P. Bersamin, Finance Secretary Benjamin E. Diokno, the House of Representatives, and the Senate.
The petition cited three “serious grounds” in seeking the unconstitutionality of Maharlika Investment Fund Act, namely: “RA 11954 is void because it was passed in violation of Section 26 (2), Article VI, of the 1987 Constitution; the test of economic viability as mandated under Section 16, Article XII of the Constitution was not complied with prior to the creation of the Maharlika Investment Corporation; and RA 11954 violates the independence of the Bangko Sentral ng Pilipinas as provided for under Section 20, Article XII of the Constitution.”
On alleged violation of Section 26 (2), Article VI of the Constitution, the petition claimed that “the Presidential certification of the Maharlika Bill in the House of Representatives and Senate did not comply with the constitutional requirement” and since the bill was not enacted in accordance with the Constitution, it “therefore did not become a law.”
It pointed out that “the Maharlika Investment Fund Act of 2023 therefore requires intense congressional scrutiny, genuine consultation with stakeholders, and a careful study by independent economic experts.”
But the petition said that “both Houses of Congress, however, went on the opposite direction and rushed the Maharlika bills and short-circuited the constitutionally mandated legislative processes, through an unnecessary and constitutionally infirm Presidential certification of urgency.”
The arguments by the petitioners were, in effect, summarized in their prefatory statement contained in their petition, the salient portions:
“Republic Act 11954, or the Maharlika Investment Fund Act of 2023, is a dangerous law. It entrusts hundreds of billions in public funds to unknown fund managers and an amorphous nine-member Board of Directors, six of whom remain unidentified until now.
“This, in the midst of a budget deficit of P1.6 trillion (2022), inflation rate of 6.1 percent (2022), poverty incidence of 18.1 percent, and massive unemployment and underemployment among our people.
“And, more importantly, in a country that has as yet, unchecked and unbridled corruption in the government. A sovereign wealth fund and un-transparent Maharlika Investment Corporation has no place in a country that is still plagued with corruption.
“The Maharlika Investment Fund Act of 2023 will practically threaten the capacity of the State to fulfill its obligations to the people under the International Covenant of Economic, Social and Cultural Rights as well as under Section 9 Article XXII of the Constitution, to ‘promote a just and dynamic social order that will ensure the prosperity and independence of the nation and free the people from poverty through policies that provide adequate social services, promote full employment, a rising standard of living, and an improved quality of life for all.’
“The assailed law is not a progressive realization of this obligation, on the contrary, it is in reverse direction and a retrogression in the fulfillment of the promise of prosperity.
“As a result of this unnecessary rush, mistakes were made after the Maharlika bills were passed on Third Reading in the House of Representatives, as the authors scrambled to amend the bill they have already passed on Third Reading on Dec. 15, 2022.
“This attempt at amendment was given judicial notice by the Court (SC) in Colmenares et. al. v Marcos et. al. (G.R. No. 265277, Feb. 28, 2023) when the Court declared: ‘To date, no law has been passed, and HB 6608 remains pending with the House for further revisions, eliminating petitioner legislators’ concerns regarding the expedited passage of HB 6608 in the House.’
“Instead of learning the lessons gleaned from the experience of the House of Representatives, the Senate also bypassed the constitutionally mandated legislative processes based on a constitutionally flawed Presidential certification dated May 22, 2023.
“The Senate approved Senate Bill 2020 at 2:32 a.m. of May 31, 2023. Then, it gave a copy of its Approved Bill to the delegates of the House of Representatives, in time for their ‘pre-bicameral meeting’ at 11:00 a.m. of that very day.
“The House of Representatives, again, not learning any lesson from their previous experience, immediately adopted the ‘Approved Bill’ of the Senate bill on that very day without even subjecting it to due diligence scrutiny or at least giving a photocopy of the bill to House members who were voting whether to adopt or not to adopt the Senate approved bill.
“The result was a disaster, as the Approved Bill was subjected to public criticisms by members of both Houses themselves, for so many defects and incongruences.
“The disaster was compounded when some members of Congress tried to amend the bill already approved and adopted by the Senate and by the House on May 31, 2023, respectively, a constitutionally fatal act in the passage of the law.
“After all the rush to pass the Maharlika bill on May 31, 2023 both Houses of Congress took their sweet time to submit the enrolled bill to the President on July 4, 2023, belying the urgency of the immediate enactment of the law as claimed in the Presidential certification of urgency.
“On July 18, 2023, more than seven months after the House of Representatives rushed the approval of their Maharlika Bill on Dec. 15, 2023, and nearly two months after the Senate rushed their approval of their Maharlika bill on May 31, 2023, the President signed a constitutionally infirm and fatally defective Republic Act 11594.
“The question remains—are we to continually allow Presidential certifications of emergency issued by so many administrations for decades, to circumvent and shortcut Article VI Section (26) (2) of the 1987 Constitution, which requires that for a bill to become a law, it must pass ‘three readings on separate days, and printed copies thereof in its final form have been distributed to its Members three days before its passage’?
“Or should the Honorable Court void the Presidential certification and order both Houses to follow the constitutionally mandated process of three separate readings in three separate days?
“Should we allow some members of Congress to amend a bill previously approved by both Houses of Congress and submit the same to the President as the supposedly ‘enrolled bill’?
“This would have a disastrous consequence on the regularity and finality of previously approved bills and subjects our laws to the discretion of some members of the leadership of both Houses.
“Petitioners ask this Honorable Court to intervene in this constitutional transgression and put a stop to this practice — especially on such a dangerous law as the Maharlika Investment Fund Act of 2023.”
