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SC: Why pork is unconstitutional

Last October. 8, Senior Associate Justice Antonio Carpio, Justice Estela Perlas-Bernabe and University of the Philippines administrative law professor Alfredo Molo III compellingly outlined why lawmakers have no constitutional authority to enforce what we know as pork barrel. The issue at the oral arguments at the Supreme Court seemed to be how strongly—not whether—the government should be admonished.

I initially dismissed the Court’s TRO as revenge for a chief justice’s impeachment. Some petitions were so sparse they give mental masturbation a bad name. Two were by losing, perhaps publicity-seeking, senatorial candidates. One, Samson Alcantara, filed a 9-page petition and 8-page reply. A third 14-page petition by former mayor Pedrito Nepomuceno was wholly in italics and ended with an apology that it was not written by a lawyer. Justice Marvic Leonen criticized pleadings assailing “pork barrel” without specifying which laws were meant. Some lawyers could not even articulate the rule on taxpayer suits during the arguments.

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Molo’s deceptively simple opening, however, set the arguments’ strictly legal tone. It properly revolved around the 2008 Abakada Guro decision, which pronounced: “From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional.” Molo’s sophomoric unease as the justices directed all questions to him lent him an air of sincerity and belied his credentials (Harvard Law, Philippine Law Journal chair).

Under Bernabe’s dispassionate, step-by-step questioning, Molo pointed to 2013 budget provisions under which lawmakers direct projects after the budget is passed. He continued that prior budgets were not as specific but practice reflects lawmakers’ institutionalized power to direct projects post-budget. He quoted the newly released 2007-2009 Commission on Audit report, where Cabinet secretaries asked to be removed as pork conduits because they would be accountable for funds over which they had no control. Bernabe and Carpio emphasized that the power to appropriate belongs to Congress, not individual lawmakers or committees.

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Carpio emphasized that lawmakers’ control is now explicit in the 2013 budget and makes pork unconstitutional “on its face.” More importantly, this evades the President’s veto power, which is specifically at the line-item level for budgets. The 2013 budget’s evolved wording also disapplies rulings on the earliest versions of pork. Carpio added that Cabinet secretaries are given power to realign certain funds with lawmakers’ consent, yet only the President has the constitutional power to realign. (One might argue, however, the doctrine that secretaries act as the President’s “alter egos.”)

Leonen refuted several points. First, he asked Molo to point to the indubitable phrase in the 2013 budget showing that lawmakers direct projects postbudget. Second, the Court may declare only that phrase unconstitutional but, as it did in a previous ruling, uphold the pork system. Third, an alleged pattern of abuse is based at best on a COA report on only three out of 19 years of pork. Leonen added the Court ruled that COA reports are akin to allegations, not facts, as they are only the start of a process. Finally, he noted that pork may balance funding across districts and counter the ruling party concentrating funding in its districts, though this is a political and not legal problem. Chief Justice Maria Lourdes Sereno also walked through various pork laws and noted possible policy justifications.

Molo gravely mixed up jargon and told Leonen that he was mounting a “facial challenge” against the law independent of its execution. This would require proof that the law is invalid under all possible facts and, as stressed in the Reproductive Health Act arguments, is allowed in the Philippines only in free speech cases. Fortunately for him, Solicitor General Francis Jardeleza is not challenging his suit’s propriety.

The Court invited COA Chair Grace Pulido-Tan to speak as a “friend of the court,” giving her a powerful pulpit. Justice Teresita Leonardo-De Castro asked pointblank, “Where was COA?”—and the regret in Tan’s voice was unmistakable. Sereno and Justice Lucas Bersamin later asked Tan to discuss the thousands of pork-related audit disallowances to be issued.

Carpio outlined that a fund may only be created for a specified purpose however broad, even a “contingency” or “calamity” fund, but not a “special purpose” fund. Aldrich Fitz Dy attacked “presidential pork,” arguing that the wording governing the likes of the Malampaya Fund practically gives the President unrestricted discretion to spend. If true, this would be an unconstitutional abdication of Congress’ power to appropriate, but the modern trend is to give leeway.

The arguments’ clearly legal tone allays fears of the Court intervening in a political issue. Indeed, the Solicitor General is not defending lawmakers’ pork and merely asked the Court to let the government dismantle the system itself. Almost all the justices appeared to accept the conclusions from Carpio and Bernabe, unless they take Leonen’s thought bubble that lawmakers do not actually have post-budget discretion, or decide to admonish, short of formally rule, to give the government a final chance at reform. Regardless, in the context of the Court’s higher role as moral educator, there should be no doubt it has subtly but clearly affirmed that lawmakers’ pork is blatantly unconstitutional.

Solicitor General Jardeleza responds Thursday.

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Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) teaches constitutional law at the University of the East.

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TAGS: Alfredo Molo III, Antonio Carpio, Chair Grace Pulido-Tan, Estela Perlas-Bernabe, Marvic Leonen, Pedrito Nepomuceno, pork barrel, pork barrel scam, Supreme Court, unconstitutional, University of the Philippines
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