December 12, 2013

Trojan horse

The recent Supreme Court (SC) ruling that the PDAF is unconstitutional (Alcantara vs Drilon), announced only through a press release by the Court’s spokesperson, was hailed by most of mass media as the end of the pork barrel system (PBS), a victory for the anti-pork movement, and proof that the legal justice system is alive and well, in particular that the SC can be trusted to uphold the Constitution. 

Some anti-pork groups were understandably jubilant but most received the news with guarded optimism.  Except for ruling some parts of the laws on the Malampaya Fund and the Presidential Social Fund unconstitutional, much of what is deemed as presidential pork is left untouched by the Court decision.  It did not help that the SC had uncharacteristically withheld the release of the decision’s full text until a few days after it was announced preventing closer scrutiny of its contents.

In fact the pork barrel system, and most especially presidential pork, is very much intact what with Congress, its Majority held captive by President BS Aquino and his Liberal Party, approving all proposed lump sum, discretionary funds of the Chief Executive in the 2014 General Appropriations Act. 

It is now common knowledge that presidential pork is the main source of presidential largesse generously doled out to the incumbent’s loyalists, political allies, camp followers and potential turncoats.  Thus the pork barrel for legislators can easily be resurrected later on although in more inconspicuous or unrecognizable forms. In a flurry of meetings by members of the Majority with Palace emissaries after the SC decision, the stunned and anxious legislators were reportedly reassured that they would have their “pork” and get to eat it too!

At best the SC decision can be seen as a partial victory only in the sense that the high court was forced by the anti-pork movement as well as the spontaneous and sustained outrage of the people to craft a decision which appears to abolish pork once and for all, or can be misinterpreted as doing so. Thus the SC decision is clearly double-edged, if not a Trojan horse, which can, if accepted uncritically, undermine the fight to abolish the entire pork barrel system.

The Supreme Court, after all, has not been the most consistent and thorough judicial body even as it concededly has the last word on interpreting the law. The Court has, in several controversial issues, shown that its first word is not always its last.  On the pork barrel issue, the SC has in fact flip-flopped.  Two previous unanimous decisions, one as recent as 19 months before the latest SC ruling on PDAF, upheld the constitutionality of the pork barrel in its most current incarnations.

If there is anything the Supreme Court, like its co-equal branches of government, is consistent in and clear-headed about, it is in ensuring that its decisions help strengthen and perpetuate the ruling order.   This, it seems, is what they take as their paramount obligation of “upholding and defending the Constitution”.   True enough, public sentiment, or clamor to be exact, has often been a major, if not a decisive, factor in the justices’ estimations and decisions.

We should recall where the anti-pork campaign was when news of the SC decision broke out.  While protest rallies in Metro Manila after the Million People March were much smaller, these were sustained and were much more organized, with greater attention given to bringing out information, analyses and calls to action as well as in broadening and unifying the ranks of the movement.  The anti-pork protests were also replicated in the major urban centers of the country with Cebu and Davao leading the way.

The SC petitions against the pork barrel system independently filed by other citizens’ groups, notably Mr. Samson Alcantara, president of the Social Justice Society and Greco Belgica et al, gained considerable traction with the unrelenting media coverage of the Napoles pork scam and its aftermath and the widespread public uproar generated.  Another petition led by Bayan, this time against the hitherto undisclosed Development Acceleration Program or DAP, further forced Malacanang to engage the anti-pork movement, at least in the judicial arena, and helped keep public interest and focus on the pork barrel issue, much more, on presidential pork. 

This was after President Aquino’s attempt to throw cold water on inflamed public sentiment by announcing that the PBS would soon be abolished.  In the meantime, the fugitive Janet Napoles “surrendered” to the waiting arms of Pres. Aquino and his right-hand-man DILG Sec. Mar Roxas and the Justice Department filed cases of plunder at the Ombudsman’s Office against several senators accused of involvement in the pork scam.  With government seemingly after the pork barrel crooks, Malacanang hoped that the issue would take the backseat to such attention-grabbing developments such as the siege on MNLF fighters in Zamboanga and much later, the devastation of Typhoon Yolanda.

But the pork issue has continued to roil, apparently sufficiently embedded in the public consciousness, for it to simply die down.

Former Chief Justice Reynato Puno’s proposal and challenge for the anti-pork movement to use the mechanism of a people’s initiative (PI) to legislate the pork barrel system’s abolition has added a new and exciting element to the equation.   In fact several organizations and alliances active in the anti-pork fight have already taken up Mr. Puno’s call for a PI and have started drafting the proposed bill.  Many more organizations and individuals have welcomed this novel venue as a means to keep up the pressure on corrupt government officials, and possibly, bring about major reforms in the government budgeting and disbursement system.

With the Alcantara ruling there is the perception in some quarters that the PI for the abolition of the pork barrel system been rendered moot and academic. 

We disagree.  We view the SC ruling as essentially a gambit.  The SC is “sacrificing” the PDAF and some portions of the presidential pork, which are already politically dead in the first place, in order to preserve the pork barrel system as a whole.  This is so that the people’s money can continue to be used to grease the wheels of reactionary politics in this country including but not limited to the entire rotten system of political patronage, political dynasties, undemocratic elections and bureaucrat capitalists enriching themselves abusing all the powers and perks of public office.

A legal critique of the Alcantara decision written by a group of lawyers using the pen name “Makata” (Manananggol para sa Katarungan) provides us the basis for this view.

While it is clear from the SC ruling “that all future legislation that permit legislators, individually or collectively, to intervene, assume or participate in post-enactment stages of budget execution, or which confer personal lump-sum allocations to legislators from which they are able to fund specific projects which they themselves determine, are unconstitutional, it is a clear error of perception that no such legislation will not and cannot be enacted by Congress.”

How can this happen? The Makata group says that because all laws enjoy the presumption of constitutionality, Congress may decide to pull a fast one and still pass such a law.  Unless successfully challenged once more in the Supreme Court, such a law will remain valid and operative.

Or else, the provisions that the Court has outlawed can be smuggled in as “riders” to other bills. A rider is a provision that has little or nothing to do with a bill but because of the untransparent way that Congress conducts its business, many riders pass through the legislative mill until discovered and exposed by a vigilant citizenry.

More to the point, since Congress wields the power of the purse, it determines how much money an agency or instrumentality receives.  It is in fact a yearly ritual for legislators as individuals, as committees and as a plenary body to leverage this power in order to wring favors or concessions from executive agencies and the judiciary.  The Makata lawyers assert that the justices of the Supreme Court are not invulnerable to this power and may be persuaded in the future to reverse their decisions.

The Makata group concludes:  “If the recitation of the pork barrel’s history in Alcantara demonstrates anything, it is that the pork barrel system has a venerable history in Philippine politics and that it has proven itself to be a resilient, hardy and many-faced institution.  As such, a Supreme Court decision, much less public opinion is hardly likely to make it disappear overnight.  It is not realistic to expect Congress to purge pork from its diet, not when its members have been gorging at the trough for so long. Therefore, it is only reasonable to expect that the pork barrel will re-surface, albeit in a disguised yet more palatable form, when the timing is right.” #

Published in Business World
13-14 December 2013


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