Pork will survive Supreme Court action on PDAF

Hector A. Barrios
Commentary contributed to CenPEG.org
March 3, 2014

The Supreme Court’s (SC) ruling last Nov. 13, 2013 that the 2013 PDAF is unconstitutional was not enough to abolish the pork barrel once and for all. It can reincarnate in a new form and, with the kind of government officials we have, doubtless it will.

The ruling does not stop the pork permanently because the essential crime, which is the collusion between the executive and legislative branches in creating the PDAF, was not excised.

What the Court struck down were transgressions being committed in its implementation, namely:

a. giving Congress post-enactment powers in the execution of the budget (violates the separation of powers).
b. giving individual members of Congress the power to exercise the post-enactment measures (violates the principle of non-delegability of legislative powers).
c. allowing individual legislators to intervene in purely local matters (subverts genuine local autonomy).

Impact of the ruling

By stopping these wrong implementation practices, the ruling tends to greatly reduce the stealing of pork funds that has grown to scandalous proportions, but it does not remove the basic evil: (a) the abuse by the President and legislators of their constitutional powers by colluding to create the pork, and (b) the evil nature of pork itself being political patronage. As long they can collude, the pork can live on; it can be reformulated with new implementation procedures.

The basic issues were not addressed by the Court because they were not included in the petitions. Perhaps, the petitioners felt that they were not justiciable or not provable.

Just how bad is pork?

The worst thing that can happen to a democracy is for the government to use its power against the nation. It would die as a government of the people even though the symbols of a democracy were maintained. There could still be a judiciary, a legislature and a press, even though in reality these were controlled by only one or a few individuals.

The nation’s shield from a government gone bad is the separation of powers of the three branches of government. The powers that the people bestow are carefully divided among the three branches so that not one of them is too powerful and they serve as a check on each other.

The separation of powers also serves to keep the ship of state on an even keel. Corruption can rock the boat but cannot grow big enough to sink the nation as long the powers are separate and the checks and balances are at work.

There are very “bright people,” though, who can find ways to overcome the shield. One way, for example, is for one branch to usurp the power of the others. We have the benefit of experience in this, courtesy of our martial law period from 1972 to 1986. On paper, we were still a democracy operating under a constitutionally-allowed martial law, but in reality we were under the thumb of one person.

Another way is for the branches to collude, thereby combining their powers. The fusion of powers is often used not to take over the country but for more modest goals like dipping into public funds, selling off public assets, enjoying licenses, franchises and special privileges, manipulating elections, -- in short, to gain wealth, privilege and perpetuity of rule. The last thing they would want is to change the political status quo because with wealth, power and privilege, there’s nothing better than to live under the blessings of democracy.

The pork barrel is one such instance of fusion of political powers. The executive uses his power to put the pork in the budget and the legislators use their power to approve it. Their common goal is political power through patronage: the legislators gain the gratitude and continuing dependency of their supporters, and the President gains power and influence over the legislators. Without doing good public service, they become more popular and powerful simply by misusing their combined power over public funds.

Some forms of pork are designed with theft as an additional goal. An example is the PDAF. Its disbursement process deviated from that of normal government expenditures and made it easy to divert funds. The deviation involved the giving of ‘post-enactment powers’ to Congress -- this was the transgression that the SC shot down.* Thus, in the PDAF, the separation of powers was violated twice: (1) by the collusion between the branches in creating the PDAF, and (2) by the granting of ‘post-enactment’ powers to Congress which made it easy to divert funds.

The theft may be spectacular, as the Napoles case reveals, but the really great damage that pork does to our country is to undermine our political system. It is the corrupt politicians, and not the good ones, who survive and prosper. The pork turns garden variety politicos, and even the most execrable ones, into political powerhouses able to spawn dynasties. As they dominate the political scene, the emergence and growth of good politicians are stifled. We have a crying need for these good politicians – upright and competent practitioners of the noble art of politics -- because a democracy cannot function well without a dominant majority of them, but as long as there is pork, that will not be.

Even more damaging than the undermining of our political system is the corrupting of our people. Pork mentality contributes a lot to the culture of entitlement and mendicancy that is getting ingrained in our bureaucracy and citizenry. At stake, no less, is the character of the society that our children will be living in.

The pork has grown because our constitutional defenses have been eroded. The separation of powers has become a battered shield and we have tolerated ‘in-your-face’ violations thereof. Our legislators openly exercise executive functions, such as choosing projects for the budget, and no one bothers to ask why on earth our President has a legislative agenda.

It may help us to recall that democracy does not arise from the sword but from the minds of men. Its building blocks are principles. It will rise or fall with the observance or not of its principles. We who live in a democracy must know better than to fool around with these principles. And we have to defend them because, if not, our country will go down the drain.

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* The PDAF theft consisted of two steps. First, the implementation procedures were modified to allow NGOs to handle the funds and the legislators to choose the NGOs. This opened the door to theft. The second step was the execution of the theft using the modified implementation procedures. (This is similar to a basketball play consisting of a forward pass that opens up a scoring opportunity and the completion of the play by making the goal.)

The Supreme Court has slapped down the implementation process by ruling as unconstitutional some of the implementation mechanics. For their part, the Senate hearings and DOJ investigation are seeking out those who executed the theft. The elephant in the room that no one seems to be curious about is who caused the modification of the implementation procedures and why.

The answer to that would give a more complete picture of the PDAF scam and the complete picture will lead to the identity of the persons who set up the play, and even farther back to the persons who conceptualized it all.
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*H. A. Barrios is a former executive vice president, treasurer and director of Manila Bank. He is an active member of the Automated Election System Watch (AES Watch) and has written commentaries on election and political issues.