Guarding the guardians

What we see today is the unraveling of the system of checks and balances we installed after Edsa 1. We restored Congress in 1987 precisely to check presidential abuse and corruption, but it was like letting the fox guard the chicken coop. Yet that is only the first of the many ironies that arise in the Napoles pork barrel scam.

The second is that it was in fact President Cory Aquino who restored the practice of giving pork barrel to the legislators after Edsa 1. We had the chance to rewrite the rules afresh after the 1986 People Power uprising, but we chose to restore the old pork barrel instead. The practice has flourished because it was good not just for the senators and congressmen but also for later presidents who found a new way to hold them by the neck.

The third is that the Supreme Court has stepped into the fray and frozen the Priority Development Assistance Fund and the Malampaya funds via a temporary restraining order. Justice Diosdado Peralta the other day admitted that the TRO showed a prima facie finding that the PDAF is unconstitutional. Yet this same court has thrice upheld the pork barrel in the past, calling it “imaginative as it is innovative” because “individual members of Congress, far more than the President … are likely to be knowledgeable about the needs of their respective constituents.” It “make[s] equal the unequal” among “favored and less favored legislators, or those not in the good graces of a sitting President.” The court recognized the “yoke caused by graft and corruption” but still it invoked every rule in the book to validate pork: “Every presumption should be indulged in favor of the constitutionality ….”

And finally the Palace spokesman is justifying presidential discretion over special funds by invoking a Marcos-era presidential decree! It is the height of hypocrisy to excuse what has now been seen as presidential pork by saying Marcos did it first!

Pork violates the Constitution because Congress holds the proverbial “power of the purse” to allocate funds. Legislators can at best suggest specific projects to be included in the annual budget so long as they keep their hands off the actual spending. There are two powers at stake. The first is the power over policy—that is, to lay down government policy broadly through budget priorities. The second is the power of patronage—namely, to spend the money and choose the beneficiaries, the contractors and, in the Napoles business model, the NGO conduits.

The “absolutists” who will abolish pork altogether will give to Congress only the broad policy power and exclude it from the patronage power. Whenever we say “Abolish pork,” we confine the patronage power entirely to the president and exclude the legislators.

The first lesson here is that, after Edsa 1, we thought it was all about building institutions. Now we realize it’s about people, too, more specifically, the politicians we vote into power. The main solution we seek today—to abolish the pork barrel—will actually shift the patronage power to the president. We might be comfortable doing that with a President Benigno Aquino III, but would we have wanted it under a President Gloria Macapagal-Arroyo?

The second lesson is that it’s more than just about the officials we elect. It’s actually about the process of governance. The congressmen are correct. Their constituents vote them for their largesse, not for big questions of national policy. (This, by far, is the best argument for the abolition of Congress, proposed tongue-in-cheek by Senate President Franklin Drilon but taken rather seriously by some quarters.) But that concern is easily answered, because even after we abolish pork, there is nothing to stop legislators from suggesting specific projects for inclusion in the General Appropriations Act, so long as they have no say in the actual spending—that is to say, choosing the project implementers and approving their final payments.

Third, this only shows that the legislators need pork barrel to finance their reelection campaigns, but this merely confirms that pork money is illicit from the beginning, just a convenient cover for divert public moneys. Yet look at the flip side. This will leave the electoral field to candidates from the moneyed classes or their pawns. The campaign against pork must include the campaign for electoral reform.

Which brings us to the last point. Who will guard the guardians? Plato is supposed to have suggested that we train the guardians’ souls. In our post-Edsa democracy, it is “we the people” whose souls need to be transformed.