Archive for the ‘Administrative Law’ Category

Why Pork Is Here To Stay

With new information on just how vast the conspiracy to raid public coffers via the PDAF floating to the surface almost every day, the cry for the abolition of the pork barrel has generated such a ground swell that the President was forced to issue a statement that “it is time to abolish the PDAF.”

Pundits were quick to point out (correctly so) that the President did not abolish the pork barrel but re-packaged it into a “pork substitute” — same taste but with less calories.  This is how our Chief’s statement reads:

“Now, we will create a new mechanism to address the needs of your constituents and sectors, in a manner that is transparent, methodical, and rational, and not susceptible to abuse or corruption.

“Together with Senate President Frank Drilon and Speaker Sonny Belmonte, I will make sure that every citizen and sector will get a fair and equitable share of the national budget for health services, scholarships, livelihood-generating projects, and local infrastructure. Your legislators can identify and suggest projects for your districts, but these will have to go through the budgetary process. If approved, these projects will be earmarked as line items, under the programs of your National Government. In this way, they will be enacted into law as part of our National Budget—every line, every peso, and every project open to scrutiny, as with all other programs of your government.”

This article will not spend too much time debating how much fat, if at all, was cut out from the rebooted pork barrel. We are concerned here with what abolishing the pork would really mean from a legal perspective.

In simple terms, the “pork barrel” is an item in the Appropriations Act. So in equally simple terms, all it should take to slay the hog is for: (a) the President to stop including it in the budget and/or (b) the Congress to stop appropriating for it.  But that doesn’t sound the same as “abolishing” it if by abolition is meant a permanent end to the pork barrel in whatever form.

Neither does it seem that Congress can legislate the abolition (or in other words prohibit future iterations of the pork barrel). Under the current state of jurisprudence, the Supreme Court has been willing to draw a very thin line between appropriation (which is a legislative function) and spending (which is an executive one). In Philconsa vs. Enriquez, [GR No. 113105 (1994)], the inclusion of the discretionary fund (then named the “Countrywide Development Fund”) in the year’s GAA was questioned on the ground that it effectively allowed members of Congress to exercise the non-legislative function of “spending” earmarked funds. The Supreme Court found that the “identifications [of the projects to be funded]” was merely “recommendatory” and the power to appropriate can be exercised in a manner that is “as detailed [or] as broad as Congress wants,” thus:

“Under the Constitution, the spending power called by James Madison as `the power of the purse,’ belongs to Congress, subject only to the veto power of the President. The President may propose the budget, but still the final say on the matter of appropriations is lodged in the Congress.

“The power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation law. It can be as detailed and as broad as Congress wants it to be.

“The Countrywide Development Fund is explicit that it shall be used “for infrastructure, purchase of ambulances and computers and other priority projects and activities and credit facilities to qualified beneficiaries . . .” It was Congress itself that determined the purposes for the appropriation.

“Executive function under the Countrywide Development Fund involves implementation of the priority projects specified in the law.

“The authority given to the members of Congress is only to propose and identify projects to be implemented by the President. Under Article XLI of the GAA of 1994, the President must perforce examine whether the proposals submitted by the members of Congress fall within the specific items of expenditures for which the Fund was set up, and if qualified, he next determines whether they are in line with other projects planned for the locality. Thereafter, if the proposed projects qualify for funding under the Funds, it is the President who shall implement them. In short, the proposals and identifications made by the members of Congress are merely recommendatory.

“The procedure of proposing and identifying by members of Congress of particular projects or activities under Article XLI of the GAA of 1994 is imaginative as it is innovative.

“The Constitution is a framework of a workable government and its interpretation must take into account the complexities, realities and politics attendant to the operation of the political branches of government. Prior to the GAA of 1991, there was an uneven allocation of appropriations for the constituents of the members of Congress, with the members close to the Congressional leadership or who hold cards for “horse-trading,” getting more than their less favored colleagues. The members of Congress also had to reckon with an unsympathetic President, who could exercise his veto power to cancel from the appropriation bill a pet project of a Representative or Senator.

“The Countrywide Development Fund 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.

Inasmuch as the insertion of a pork barrel fund the mechanics of which allowed identification of projects by members of Congress was held to be valid exercise of legislative authority under the Constitution, the present Congress cannot pass a law “abolishing” the pork barrel for good as it would be tantamount to prohibiting subsequent Congresses from exercising a power that is granted by the Constitution. In that sense therefore, it would seem that true “abolition” of the pork barrel would require the amendment of the Constitution.

Furthermore, there are two (2) angles here. First, is the vulnerability or susceptibility of the fund to conversion or misappropriation.  Second is the concern that the unequal distribution of the fund is subject to abuse or excessive horse trading that diminishes or even eliminates checks and balances. While the first can be more or less tempered by the placement of tighter controls, the second is a more complex issue that does not lend itself to quick and elegant solutions. Curiously, the discussion in Philconsa implies that the CDF was itself designed to address the problem of  “uneven allocation” based on closeness to the “Congressional leadership.” The problem is that in taking the distributive carrot away from Congressional leadership and giving it to the President, the pork barrel system merely provided for a change in the personality of the giver. Worse, it also blurs the question of who is actually wielding the so-called “power of the purse.”

Thus, more than the pork barrel itself, what should be re-examined is the continuation or abolition of what has been commonly referred to as “pork barrel politics” defined (broadly) as the distribution of benefits to politically affiliated representatives in order to obtain, directly or indirectly, some form of political advantage. Again, this is not an easy topic to tackle and it would be reckless to dispense “unsolicited advice” in the limited space that we have here without defining assumptions. Politics is a complex dynamic with many players. We can only change politics by affecting behavior and what remains to be seen is whether a change in the architecture will be enough to do that.