Sunday, October 13, 2013

Pork Barrel is legal - SC decisions

Recently I was watching bald Democrat Strategist James Carville (a dead ringer for controversial Filipino fugitive former congressman Ruben Ecleo Jr of Surigao), with his funny Texan- liked twang, who argued with Bill O' Reilly at The O'Reilly Factor at Fox TV that the Republicans would be slaughtered in the coming polls and they are now frantically looking for a way out in relation with their stand off with the Democrats on the budget.
 Then here comes the new NBC poll I saw last October 12 that sent shock waves to the GOP (Grand Old Party of the Republicans).
According to the Republican Strategist Dick Morris on his website, the government shutdown is triggering a disastrous decline in Republican fortunes especially in the 2014 mid-term election and had left President Barrack Obama largely unaffected.
Morris enumerated the finding of the polls:
• GOP approval is down to 24% the lowest ever, a drop of ten points in two weeks. The Democratic Party approval is 43%, down four.
• By 53-31 people blame the Republicans for the shutdown.
• 70% say the Republicans put their own agenda ahead of the needs of the country (only 51% say that about Obama).
• Two thirds think the shutdown is hurting the economy. Only 17% expect the economy to improve next year. 43% expect it to worsen.
• And the percent that say the country is on the right track has dropped from 30% two weeks ago — very low — to just 14% now. That’s very, very, very low!
These data indicate that the Republicans are headed toward losing the House and the Senate in 2014 unless they change course.
The adverse statements of former Senior Associate Justice Antonio Carpio, retired Chief Justice Reynato Puno, Fr. Joaquin Bernas, a constitutional law expert,  former Budget Secretary Benjamin Diokno, and Church People’s Alliance against the priority development assistance fund (PDAF) or the dreaded “pork barrel’ in the General Appropriation Act (GAA) 2013 is unconstitutional is just, well, their opinion.
There were two decisions or jurisprudence by the Supreme Court that say that the tens of billions of pesos of “pork” (that was used by almost all of the 24 senators and the more than 200 (presently they are 288 members whose names are appended with the word “honorable”) members of the House of Thieves, er, Representatives to identify their pet and fancy projects) were constitutional.

Philippine Constitutional Association vs. Enriquez

The nemesis of the pork should know that in 1994 that countryside development fund (CDF), the forerunner of the PDAF, was  rendered by the high court as constitutional.
Before that 1994 decision petitioners (composed of Philippine Constitution Association, Exequel B. Garcia, and A. Gonzales) argued  against respondents (composed of Secretary Salvador Enriquez of the Department of Budget & Management, Hon. Vicente T. Tan head of the National Treasurer, and the Commission on Audit)for the nullification of the pork: “claim that the power given to the members of Congress to propose and identify the projects and activities to be funded by the Countrywide Development Fund is an encroachment by the legislature on executive power, since said power in an appropriation act in implementation of a law”. 
They continued “the proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the Constitution”.

 Speaker de Venecia’s  “High Priest” told me pork is imaginative and innovative

Susmariosep, why I know this? I once had a lengthy argument with constitutional lawyer and guru Raul Lambino (who used to be former speaker Joe de Venecia’s “political high priest “on charter change that almost won its bid on the abolition of the Senate for a parliamentary system of government in 2006 by a hair thin 8-7 votes by justices of the Supreme Court.
 “The pork is immoral. Solons should legislate and not implement projects,” I told Lambino in 1999.
He told me that solons did not implement the infrastructure, they don’t even handle the money that was given to them but they only identify the projects for the national departments like public works and highway, agrarian reform, education, and agriculture and national agencies like national irrigation administration.
He even quoted in toto to convince me that the high tribunal even lauded the pork as being “imaginative” and “innovative”
“The CDF attempts to make equal the unequal. It is also a recognition that individual members of Congress, far more than the President and their congressional colleagues are likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project
I learned about corruption in the Pork after I ran into an errand.
When my mother asked me decades ago to buy vetsin (monosodium glutamate) and vinegar at a sari-sari  store where I stumbled into gin drinking media men who “proselytized” me to join the 4th estate, I learned in  the trade that lawmakers not only identify projects but were on the take from their favorite private contractors who constructed defective projects either it be a P10 million worth one kilometer concrete road that lacks steel bars, a P3 million rip rap that cost only P1 million, or a P7 million covered court that can be constructed in an honest to goodness way with  P3 million only.
(You can read how elective officials pocket public funds by accessing at my blog

LAMP vs. Secretary of the DBM
The other argument by the high court that PDAF is constitutional can be seen in the jurisprudence of Lawyers against Monopoly and Poverty (LAMP) vs. Secretary of Department of Budget and Management, the Treasurer of the Philippines, COA, Senate president, and Speaker of the House of Representatives. 
According to petitioners, the provision of the PDAF, unlike the CDF, does not allow members of Congress to identify projects. According to them, “[t] he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the ‘pork barrel’ system.” “[T]he omission of the PDAF provision to specify sums as ‘allocations’ to individual Members of Congress is a ‘casus omissus’ signifying an omission intentionally made by Congress that this Court is forbidden to supply.” LAMP then concluded that “the pork barrel has become legally defunct under the present state of GAA 2004.”
The court in upholding the pork barrel for the second time, ruled: “Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld in Philconsa. This remains as valid case law”.
2013 Petition at the Supreme Court to nullify the pork

 With a petition filed  recently by senatorial candidates Samson Alcantara and Greco Belgica and Pedro Nepomoceno versus President Benigno Aquino III, Executive Secretary Paquito Ochoa, Senate President Franklin Drilon and House Speaker Feliciano Belmonte at the High Tribunal assailing the constitutionality of the PDAF, let’s cross our fingers that the Court sides with the petitioners and revokes finally the controversial pork that many opine has its good side (e.g scholarship to poor students, financial aid to areas struck by calamities) too, or emulate the high court's decisions in 1994 and 2006.
The petitioners’ argument for the abolition are the President’s delegation of his power to realign savings in the GAA to Cabinet secretaries, the concurrence of the Senate finance committee and the House appropriations committee to such a realignment, and the identification of projects by lawmakers.
Were the same arguments identical with the positions of the petitioners in the past against the pork?
 (You can read my selected intriguing but thought-provoking columns at You can send comments too at

Jardeleza: Let gov’t fix pork itself 
By Oscar Franklin Tan
 Philippine Daily Inquirer 9:16 pm | Sunday, October 13th, 2013 7 412 390

Tasked to partially defend pork barrel at the oral arguments at the Supreme Court last Oct. 10, Solicitor General Francis Jardeleza faces defeat under the most ironic circumstances. The antipork petitions are of visibly lesser caliber compared to his office’s recent output. His opponents, some almost half his age, cannot be as formidable as the megafirm senior partners and veteran law professors he faced in recent cases. Yet all his gravitas might not surmount the public outrage against pork.
The outrage may well be felt by the justices. Senior Associate Justice Antonio Carpio was quoted in headlines after the last hearing as saying that pork laws are “riddled with unconstitutionalities.”
His staff and that of Chief Justice Maria Lourdes Sereno, in particular, clearly studied pork laws independent of the feeble petitions. Against this daunting backdrop, Jardeleza stressed that the government shares the outrage. However, he argued that despite recent abuses, the actual legal framework of lawmakers’ pork must be recognized as constitutional, even as Congress is abolishing it in the 2014 budget. He pounded on his strongest chip, the Court’s 1994 Philconsa decision which upheld this pork framework’s legitimacy, and argued that if the Court upheld the brief language of that time, it must uphold the more detailed procedures for handling pork in 2013. When Justice Estela Perlas-Bernabe quoted the 2008 Abakada Guro decision which pronounced that lawmakers’ participation must end after a law’s enactment, Jardeleza argued that Philconsa made an exception that allows lawmakers’ recommendation of pork projects. The linchpin is whether lawmakers merely recommend or hold post-budget authority. Philconsa cannot apply, Carpio argued, because the budget it reviewed did not require projects’ “favorable endorsement” by lawmakers, first seen in 2013.
 Jardeleza argued this is not approval but a mere matter of documentation. Sereno went through each previous budget and asked representatives of the Department of Budget and Management and Congress whether there were objections to provisions requiring notice to or consultation with lawmakers. They and even Jardeleza confessed surprise at these pork provisions. Carpio reemphasized, twice, that because the President has a line-item veto power, Congress must have a corresponding duty to present line items. Jardeleza could only reply that the President could have vetoed the lump sum in the 2013 budget for lawmakers’ pork and that future budgets are planned to contain only line items. Justice Teresita Leonardo-de Castro posited the pork menu is so broad it violates the constitutional ban on transfers of appropriations. Jardeleza requested the Court to allow government to correct its own mistakes with lawmakers’ pork. He quoted to Bernabe his best possible line, 19th-century Harvard professor James Bradley Thayer’s warning that the awesome judicial power runs counter to majoritarian rule and that correcting from the outside “might dwarf the political capacity of the people and deaden their sense of moral responsibility.” Sereno asked what guarantee there is that government will act, and he stressed that there is no stronger correction than Congress’ abolition of its pork. He argued that although a Court ruling may educate and be a quicker solution, it may create binding constitutional rules that will give government less leeway. Aldrich Fitz Dy argued in the previous hearing that Congress’ request to release pork allotted to indigent patients and scholars need not be granted because it may pass a law to do this. Jardeleza responded that such a supplementary budget may violate the Court’s TRO on pork. Justice Marvic Leonen retorted this forces the Court to rule. Carpio echoed Dy that pork in 2013 has thus still not been abolished and only the Court may abolish it if Congress does not. Jardeleza agreed, never having claimed otherwise.
“Presidential pork” received less focus. Jardeleza presented that the Malampaya Fund is allowed to be spent by the president on energy-related purposes and others he/she may direct, and argued the latter must mean an energy context, as has been President Aquino’s practice. Part of the fund was used to purchase a warship and build fortifications that would ostensibly help protect Malampaya. Leonen noted this contradicts still effective Arroyo-era executive orders that allow the Malampaya Fund to be used for any purpose. Bernabe gave Jardeleza pause when discussing the President’s Social Fund and its use for sociocivic purposes. She asked: “What is not a sociocivic project?” He replied: “I find it difficult to give an example offhand.” At the hearing’s emotional zenith, Carpio asked if Jardeleza is asking the Court to “dilly-dally.” Carpio recalled how, in their student days, the then solicitor general asked the Court to allow President Ferdinand Marcos to close Congress. In response, Carpio continued, the 1987 Constitution makes judicial review a “duty,” not just a power, and expanded it to allow the Court to strike down even laws that are constitutional but tainted by “grave abuse of discretion.” Carpio stated that the Court is being asked to shirk its post-Edsa duty and Jardeleza is “asking too much of this Court, counsel.” To Jardeleza’s great credit, he succeeded in presenting a sympathetic case of a government racing to show reforms to the citizenry. The expansion of judicial power Carpio and other justices emphasized, however, would justify the Court’s striking down all pork even if all his arguments prove correct.

Oscar Franklin Tan (@oscarfbtan, teaches constitutional law at the University of the East. Read more: Follow us: @inquirerdotnet on Twitter | inquirerdotnet on Facebook

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