Define pork before fighting it

The outcry against pork barrel is growing louder, but we need to be clearer on what we are protesting against. Sun Tzu considered formlessness a hallmark of a cunning adversary, and it is imperative to outline our target to move beyond a generic outcry against corruption.

The recent oral arguments at the Supreme Court revealed the many layers of what might be labeled as pork. The first comprises lawmakers’ discretionary funds (Priority Development Assistance Fund or PDAF), lump sums for projects identified by lawmakers after our budget is passed. Senior Associate Justice Antonio Carpio and Justice Estela

Perlas-Bernabe emphasized that these are blatantly unconstitutional. Under the separation of powers, lawmakers should have no participation after a law becomes effective. Further, Carpio argued that because the president has a line-item veto, lump sums such as pork must be itemized into line items. The defense is that lawmakers merely recommend projects post-budget. However, when Chief Justice Maria Lourdes Sereno went over budget provisions that required individual lawmakers’ authorization for projects, government lawyers confessed they were unaware of these.

This first layer will be roasted by 2014 as Congress appears to have itemized the projects. If any first-layer pork remains, it would be easy for the high court to declare this unconstitutional.

The second layer is the so-called “presidential pork,” funds such as the Malampaya Fund which can be used for very broad purposes. For example, the administration posits that the Malampaya Fund may only be used for energy-related purposes. Part of the fund was used to purchase a warship and build fortifications to help defend the Malampaya facility. Reasonable minds might differ on whether this is energy-related.

This attack boils down to whether a fund’s stated purpose is specific enough. There is no structural problem, unlike the blatant violation of separation of powers in lawmakers’ pork. For example, a calamity fund is clearly valid and cannot be itemized in advance. If funds are diverted to ghost nongovernment organizations, it is a problem of corruption, not structure. Note that the Constitution specifically allows discretionary funds “for public purposes” and does not explicitly require that a fund be for a specific purpose.

The third layer involves the Disbursement Acceleration Program or DAP. The Constitution allows the president to realign savings in the executive branch to augment other budget items (and heads of other branches have the same power). This may arguably be abused because: 1) savings should not be preplanned as a way of evading Congress’ budgetary authority; 2) one cannot augment items not previously identified in the budget; and 3) one cannot realign funds to other branches of governments. These challenges are not straightforward. Carpio closed the PDAF hearings by stressing that the high court wishes to rule quickly, yet it postponed the DAP arguments to November.

The fourth layer involves the ability of lawmakers to recommend projects as part of the budget. Only a total overhaul of government would abolish this.

The difference between protests against corruption and against the very structure through which money flows should be clear. On the former, we already have countless anticorruption laws and the public outcry should be to see prosecutions through. On the latter, such as a proposed people’s initiative to pass laws prohibiting pork, one must be clear what one is prohibiting. Finally, it becomes clear why attempts to hijack what is primarily a problem in Congress into a demonization of the President are not constructive.

However one defines pork, it is impossible to run a government without discretionary funds. It is impossible to prohibit pork in every sense, and instilling transparency and accountability remains paramount. We must thus channel our anger into specific steps. First, we must pass the Freedom of Information bill. With the failure of practically every check against corruption, the only way to end impunity is to empower every citizen to see for him/herself how his/her money is used.

Second, we must support the nonpartisan checks already in the system. Underestimating Commission on Audit Chair Grace Pulido-Tan, some congressmen initially called for her resignation, and a senator attempted to grill her in what was supposed to be a budget hearing. The COA is theoretically coequal to the President and Congress, and Tan has made this real. The same is true of the feisty Ombudsman Conchita Carpio Morales who, we believe, is beholden only to how history will judge her good name. It must be made indubitable that public opinion is on their side as they confront the formidable web of pork mafias.

The Scrap Pork Network (www.scrapporknetwork.com), organized from Million People March Luneta volunteers, drafted a well-thought-out list of nonpartisan demands. We must abolish lawmakers’ pork, minimize executive-branch discretionary funds, account for use of all discretionary funds, and immediately prosecute all who abused such funds.

Pork presents a different challenge for the post-Edsa generation. The call is not for an immediate revolution. Rather, the call is to refine the structure of the government we have to live with every day, to make it work without each generation of Filipinos having to troop to the streets. Former senator Rene Saguisag once lectured that the only correct answer from an official entrusted with funds is: “Here are the receipts, here is the change, how else may I serve you today?” This may one day become the norm, but citizens must understand what we are trying to abolish if this is to be done.

Oscar Franklin Tan (@oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association committee on constitutional law and teaches at the University of the East.