Jardeleza: Let gov’t fix pork itself

Tasked to partially defend pork barrel at the oral arguments at the Supreme Court last Oct. 10, Solicitor General Francis Jardeleza faces defeat under the most ironic circumstances.

The antipork petitions are of visibly lesser caliber compared to his office’s recent output. His opponents, some almost half his age, cannot be as formidable as the megafirm senior partners and veteran law professors he faced in recent cases. Yet all his gravitas might not surmount the public outrage against pork.

The outrage may well be felt by the justices. Senior Associate Justice Antonio Carpio was quoted in headlines after the last hearing as saying that pork laws are “riddled with unconstitutionalities.” His staff and that of Chief Justice Maria Lourdes Sereno, in particular, clearly studied pork laws independent of the feeble petitions.

Against this daunting backdrop, Jardeleza stressed that the government shares the outrage. However, he argued that despite recent abuses, the actual legal framework of lawmakers’ pork must be recognized as constitutional, even as Congress is abolishing it in the 2014 budget. He pounded on his strongest chip, the Court’s 1994 Philconsa decision which upheld this pork framework’s legitimacy, and argued that if the Court upheld the brief language of that time, it must uphold the more detailed procedures for handling pork in 2013. When Justice Estela Perlas-Bernabe quoted the 2008 Abakada Guro decision which pronounced that lawmakers’ participation must end after a law’s enactment, Jardeleza argued that Philconsa made an exception that allows lawmakers’ recommendation of pork projects.

The linchpin is whether lawmakers merely recommend or hold post-budget authority. Philconsa cannot apply, Carpio argued, because the budget it reviewed did not require projects’ “favorable endorsement” by lawmakers, first seen in 2013. Jardeleza argued this is not approval but a mere matter of documentation. Sereno went through each previous budget and asked representatives of the Department of Budget and Management and Congress whether there were objections to provisions requiring notice to or consultation with lawmakers. They and even Jardeleza confessed surprise at these pork provisions.

Carpio reemphasized, twice, that because the President has a line-item veto power, Congress must have a corresponding duty to present line items. Jardeleza could only reply that the President could have vetoed the lump sum in the 2013 budget for lawmakers’ pork and that future budgets are planned to contain only line items. Justice Teresita Leonardo-de Castro posited the pork menu is so broad it violates the constitutional ban on transfers of appropriations.

Jardeleza requested the Court to allow government to correct its own mistakes with lawmakers’ pork. He quoted to Bernabe his best possible line, 19th-century Harvard professor James Bradley Thayer’s warning that the awesome judicial power runs counter to majoritarian rule and that correcting from the outside “might dwarf the political capacity of the people and deaden their sense of moral responsibility.” Sereno asked what guarantee there is that government will act, and he stressed that there is no stronger correction than Congress’ abolition of its pork. He argued that although a Court ruling may educate and be a quicker solution, it may create binding constitutional rules that will give government less leeway.

Aldrich Fitz Dy argued in the previous hearing that Congress’ request to release pork allotted to indigent patients and scholars need not be granted because it may pass a law to do this. Jardeleza responded that such a supplementary budget may violate the Court’s TRO on pork. Justice Marvic Leonen retorted this forces the Court to rule. Carpio echoed Dy that pork in 2013 has thus still not been abolished and only the Court may abolish it if Congress does not. Jardeleza agreed, never having claimed otherwise.

“Presidential pork” received less focus. Jardeleza presented that the Malampaya Fund is allowed to be spent by the president on energy-related purposes and others he/she may direct, and argued the latter must mean an energy context, as has been President Aquino’s practice. Part of the fund was used to purchase a warship and build fortifications that would ostensibly help protect Malampaya. Leonen noted this contradicts still effective Arroyo-era executive orders that allow the Malampaya Fund to be used for any purpose. Bernabe gave Jardeleza pause when discussing the President’s Social Fund and its use for sociocivic purposes. She asked: “What is not a sociocivic project?” He replied: “I find it difficult to give an example offhand.”

At the hearing’s emotional zenith, Carpio asked if Jardeleza is asking the Court to “dilly-dally.” Carpio recalled how, in their student days, the then solicitor general asked the Court to allow President Ferdinand Marcos to close Congress. In response, Carpio continued, the 1987 Constitution makes judicial review a “duty,” not just a power, and expanded it to allow the Court to strike down even laws that are constitutional but tainted by “grave abuse of discretion.” Carpio stated that the Court is being asked to shirk its post-Edsa duty and Jardeleza is “asking too much of this Court, counsel.”

To Jardeleza’s great credit, he succeeded in presenting a sympathetic case of a government racing to show reforms to the citizenry. The expansion of judicial power Carpio and other justices emphasized, however, would justify the Court’s striking down all pork even if all his arguments prove correct.

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