Pork barrel 101

Under the doctrine of separation of powers, Congress shall enact laws, the president shall execute them, and the Supreme Court shall interpret them. This delineation of authority is exclusive and absolute and the three great branches of government cannot intrude into each other’s exclusive domain.

Basic doctrine. Consequently, the president cannot make laws, except when the Constitution is abrogated, like during the martial-law era when Ferdinand Marcos ruled by issuing presidential decrees, or like during the revolutionary government in 1986-1987 when Cory Aquino issued executive orders that were the equivalent of laws. Unless subsequently repealed or modified by the legislature, these decrees and orders are still valid up to now.

By the same token, the Supreme Court cannot legislate or implement laws; it can only interpret them. It can invalidate laws but it cannot create new ones. Judicial legislation is anathema to the Constitution.

Likewise, Congress cannot interpret with finality the meaning of the laws it passes. Neither can legislators implement them, nor participate in their implementation. Unconstitutional would be a law that empowers members of Congress (1) to specify what projects should be undertaken, and/or (2) to determine what offices or organizations should be given government funds from an appropriated lump sum to implement these projects.

Change in facts. In the past, legislators were not given by law any of these two prerogatives. They merely “recommended” the projects to the executive agencies. Hence, in 1994, the Supreme Court held that the pork barrel system was constitutional since the legislators were not empowered by the then prevailing law to determine the projects to be implemented. They merely recommended the projects to the executive offices, which retained the absolute discretion to accept or reject these recommendations.

In the case now pending in the Supreme Court, the contentious point is whether the present law requires the executive agencies to implement the projects that the legislators chose through the nongovernment organization (NGO) they select. Otherwise stated, is the “recommendation” of the legislators binding? If so, then the law would be unconstitutional because it authorizes the lawmakers to participate in the law’s implementation.

The 1994 precedent would not apply because it had a different factual setting: Under the then law, the lawmaker’s recommendation was not binding. A difference in facts produces a different ruling. “Stare  decisis” or stability of precedents would not apply when the facts change.

On the other hand, legislators may include in the law itself the specific projects to be undertaken (like a university or hospital) or to be built (like a bridge, port or highway) without violating separation of powers. Thus, Congress can validly pass a law describing in the law itself the specific projects and the source for funding them. This would not violate the Constitution because the legislators would not have post-enactment power to interfere in the law’s implementation.

What is prohibited is a law appropriating a lump sum and at the same time empowering the legislators individually to dictate the specific projects to be funded from the lump sum. This is what may make the present pork barrel law invalid: Legislators are given the power to interfere by choosing (1) what specific projects would be funded from the lump sum, and (2) which executive agency or NGO would undertake the projects.

How to abolish pork. More reprehensible is the downright misuse of the pork funds. According to media reports, releases from the lump-sum appropriations were diverted, at the alleged direction of some legislators, to NGOs which however did not undertake the projects. Simply stated, the funds were given to bogus NGOs and for ghost projects. Misuse of pork funds is not only unconstitutional; it is criminal. The scammers should be punished.

Who can abolish pork barrel? Answer: the Supreme Court, by declaring the law unconstitutional. Or Congress, by eliminating (1) the lump-sum appropriation and (2) the legislators’ power to direct the use of the lump sum via their chosen agencies or NGOs.

Hospitals, bridges, roads, scholarships, emergency aid, etc. can still be funded through and implemented by the line executive agencies. That is how it should be: The legislators make the law and the executive agencies implement it without any interference by the lawmakers.

Can it be abolished by a people’s initiative? The Supreme Court, in Lambino vs. Comelec (Oct. 25, 2006, penned by Justice Antonio T. Carpio during my term as chief justice), restricted the use of initiative to simple “amendments,” not to complicated “revisions” requiring debate and deliberation. As to whether the pork’s abolition is a simple amendment or a complicated revision could be debated ad  infinitum  and would surely end up in the courts.

Besides, initiative is a tedious process. It requires the signatures of at least 12 percent of the 50 million voters and of at least three percent of the voters in each of the 234 legislative districts; favorable action by the Commission on Elections; and a referendum by the people, all of which will take at least a year. Longer, if the matter is raised to the Supreme Court, as was done in previous initiatives.

In short, the unconstitutionality route, or congressional repeal, would be less convoluted and much faster. If these two solutions are ignored, it is time for another Edsa.

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