The devil in the details
We have resoundingly spoken against pork barrel, and yet our leaders still seem hell-bent on lavishing largesse upon themselves. Are we totally helpless? Former Chief Justice Reynato Puno says we are not. We hold the power of “direct initiative” to bypass Congress and abolish pork on our own. Puno’s proposal is fraught with hope, but likewise risks disappointment.
It brings hope because it shows us a perfectly constitutional path to channel popular outrage into a legal mandate. The drafters of the 1987 Constitution, flushed with the triumph at Edsa, wrote People Power into the document. It codified into law the raw power of voters to “initiate” laws and constitutional amendments that they like but which Congress doggedly ignores. The Supreme Court, in its own giddy moment, said this “rhapsodized” our People Power uprising.
So now, Puno suggests, let’s end the shameless thieving by a direct initiative prohibiting pork barrel. Therein lies its beauty: That is precisely how the Constitution’s Founding Fathers designed it, as the handiwork of people and not of politicians.
And that indeed is how this exposé has unfolded. The Inquirer broke the Napoles story after months of investigative work by its reporters. Public indignation simmered in the social media and, before long, the Million People March was initiated not by any political group answering to a central command but by a motley group of citizens talking as peers through Facebook and Twitter. And now Puno steps in to say that there’s a legal device to transform crowd sourcing into People Power. If this idea comes to fruition, it will be the natural, almost organic melding of a free press, free citizens and free apps.
Some commentators worry about how to marshal the requisite half-million signatures to spark off the initiative. Those numbers are the least of our worries. The Luneta crowd alone can fill the quota. Our problems lie elsewhere.
First is the simple problem of logic. Why prohibit by law something that needs to be created by law in the first place? Remember that pork barrel exists only because it is provided for annually in the budget. The General
Appropriations Act, as the name suggests, is actually a law, a statute, enacted by Congress every year. If Congress doesn’t include it there, it can’t exist.
Can we preempt Congress by adopting ex ante a law prohibiting all pork barrel in the future? No, things don’t work that way. Laws stand on equal footing, and the law that is “later in time” merely amends and supersedes the laws that came before. Even if we now pass a law abolishing pork forevermore, there is nothing to stop Congress from restoring it in next year’s budget law. “Forever” lasts only until the next amending law.
Second is the problem of history. If a direct initiative to pass a law won’t suffice, then certainly a direct initiative to amend the Constitution to ban pork will do the trick. But the Supreme Court has shot down all attempts at a people’s initiative for charter change. It stopped the Ramos-era Pirma attempt, saying the Initiative and Referendum Act insufficiently covered such amendments. It stopped the Arroyo-era Lambino attempt, saying the initiators had been insufficiently told what amendment they were proposing. Both times, ironically, the high court defended democracy by not letting the people speak through a direct initiative.
Third is the issue of constitutional checks and balances. The protests today are not just about pork barrel but the abuse of every “lump sum” placed at the disposal of public officials: PDAF, DAP, Malampaya—and, if we are to be consistent, the Judiciary Development Fund. Recall that the JDF triggered the impeachment of then Chief Justice Hilario Davide in 2003, and it took the high court to block it by a strict application of the one-year bar. Given the record of high-court decisions on people’s initiatives and JDF-related powers, what are the odds that a direct initiative will pass muster this time around?
If we don’t like what our legislators are doing, let us vote them out of office come Election Day. That is how to make the Constitution work. Why exalt the extraordinary power of initiative, when all we need is our workaday power to kick them out? That is the tragedy of the Puno proposal: that Filipinos can vote wisely in an initiative when only issues are involved, but once candidates run and personalities come into play, they will always be charmed by form, by fluff, and not by substance.
