How the high court slew pork
Lawmakers’ pork barrel is unconstitutional, the Supreme Court announced last Tuesday, shortly before the hearings on the Disbursement Acceleration Program. The high court appears to have stabbed the pig many times over to ensure its death, based on the unreleased (at this writing) decision’s available excerpts.
The unanimous decision underscores the justices’ determination to rule on pork barrel. They accepted extremely deficient petitions to create a case but crafted their own arguments. They arguably used lawyers as puppets during the oral arguments to air their own theories. Then they issued an unusually long order, the actual operational text at the end of a decision, one that reads like a dream Scrap Pork Network manifesto.
The order, first, declared the 2013 budget’s Priority Development Assistance Fund provisions unconstitutional. Justices during the arguments focused on how this, unlike previous budgets, explicitly required lawmakers’ authority to implement projects. The surprise is how much further the order went.
The order, second, also declared unconstitutional all provisions in previous budgets that allowed lawmakers or legislative committees to participate in project implementation after the budget is passed. One recalls how Chief Justice Maria Lourdes Sereno asked government lawyers to comment on provisions in old budgets that smelled of pork, and even Solicitor General Francis Jardeleza admitted that the exercise was an eye opener.
This is a surprise because even Senior Associate Justice Antonio Carpio, the most aggressive questioner, appeared to accept that it is legal for individual lawmakers to make recommendations regarding project implementation to the president. Further, the high court issued a 1994 decision upholding lawmakers’ pork.
The order, finally, declared unconstitutional all lump sums for individual lawmakers and all “informal practices of similar import and effect, which the Court similarly deems to be acts of grave abuse of discretion.” Carpio highlighted during the arguments the high court’s power to strike down “grave abuse of discretion,” which means it may strike down abusive use of a valid power.
The high court effectively laid down a broad principle that lawmakers’ pork violates the Constitution and recognized that it became common practice no matter what our laws say. The order states that it is prospective so it will not disrupt government and undo past payments, but lays a clear basis for future challenges to any form of lawmakers’ discretionary funds. Further, it is a constitutional interpretation and may not be overturned by Congress.
The high court’s reasons are straightforward. First, our Grade 6 social studies classes taught us that Congress drafts the budget and the executive branch spends the money. Giving lawmakers authority over project implementation thus blatantly violates the separation of powers. Second, Congress is supposed to oversee implementation, and lawmakers’ participation distorts this oversight role. Third, there is Carpio’s inspired argument that because the Constitution gives the president a veto over line items, the budget must thus contain line items. Fourth, the high court also argued that lawmakers are “national officers” and their pork allows them to intervene in local governments, subverting the local autonomy also emphasized in the Constitution.
In addition, the decision restricted the so-called presidential pork. The decision lays down the principle that Congress may create discretionary funds for the president so long as these have a “sufficient standard.” Otherwise, the president has free reign over the money and effectively appropriates this. The standard may likely be broad, noting Justice Estela Perlas-Bernabe’s quip to Jardeleza in the arguments, in relation to the President’s Social Fund: “What is not a sociocivic project?”
The high court struck down, first, the phrase in the Malampaya Fund that allows its use for “such other purposes as may hereafter be directed by the President” in addition to energy-related uses. Second, it struck down the phrase “to finance the priority infrastructure development projects” from the President’s Social Fund as unrelated to sociocivic uses. One imagines that overly broad or large discretionary funds may be challenged later on.
To his credit, it is not a particularly bad defeat for Jardeleza. First, he declined to defend lawmakers’ pork and only asked that Congress be allowed to dismantle it itself. The decision does mean that the present Congress’ removal of its pork will last beyond the Aquino administration. Second, Jardeleza was mainly defending the president’s discretionary funds and claiming that the Aquino administration used these within the spirit of the specified purposes.
There remain questions that will be answered when the decision is finally released. First, why is Sereno “concurring in the result only,” and why does she disagree with the high court’s reasoning in its most important decision to date? Second, is the high court actually naming the decision after any of the petitioners after not taking them seriously?
Finally, the ordinary Filipino has scored a victory broader than expected. Antipork advocates are right to say that the crusade continues, however. The legal questions regarding pork will be settled once the high court rules on the ongoing DAP case. The focus will then shift to long-term measures to ensure transparency and accountability in spending by the national and local governments.
Oscar Franklin Tan (Twitter: @oscarfbtan, facebook.com/OscarFranklinTan) cochairs the Philippine Bar Association Committee on Constitutional Law and teaches at the University of the East.
