To abolish or to restructure?

In my column last week I cited the 1994 decision upholding the constitutionality of the pork barrel. The argument that had been used against the Countryside Development Fund was that, although appropriating money was the function of Congress, spending it was the prerogative of the executive department and Congress should not interfere with spending. The Court ruled in favor of the Fund, saying that, as the law stood, what the law allowed congressmen to do was simply to recommend projects. If the recommended projects qualified for funding under the CDF, it was the president who would implement them.

Prior to the approval of the 1994 General Appropriations Act, the pork barrel, which had been recognized by the 1935 Constitution as a legitimate institution, had not received much attention. In the years from 1972 to 1986, there was no talk about pork barrel. But those were unusual years because, for all practical purposes, President Ferdinand Marcos controlled the national treasury, both pork and beef. After the restoration of democratic processes and during the years from 1986 to 1993, pork barrel was not a hot subject of debate. It was only after the approval of the 1994 GAA that the pork barrel became a frequent front-page subject for debate.

One reason for this, of course, was that the amount involved had grown. In 1994 the total amount involved was P2.9 billion. By 2013, the total amount appropriated had ballooned to P24.7 billion. But when we were discussing the pork barrel in class in 1996, one of my students who had been studying the phenomenon said to me that the amount alone could not be the reason for the heated dispute over the pork barrel. After all, the amount involved was only a small fraction of the total budget. He put the blame, you might find it strange, on the 1994 decision of the Supreme Court. But I think, more appropriately, the blame could be put on the 1994 Congress. How so?

My 1996 student pointed out to me that earlier pork barrel laws specifically stated that the money could be released only with the approval of the president, and that the budget secretary should promulgate rules and regulations for pork barrel funds. Such requirements were removed by the GAA for FY 1994, Republic Act No. 7663.

RA 7663 instead simply said: “The fund shall be automatically released quarterly by way of Advice of Allotments and Notice of Cash Allocation directly to the assigned implementing agency not later than five (5) days after the beginning of each quarter upon submission of the list of projects and activities by the officials concerned.”

Who are these “officials concerned”? They are senators, representatives and the vice president. There is nothing in the 1994 law about prior approval by the president. The further implication seems to be that, if no list was submitted by the “officials concerned,” the president could not use the fund for other necessary projects. In effect, RA 7663 gave to the members of Congress control over the release of approved funds.

I have not checked whether or how long this provision of RA 7663 survived in subsequent GAAs. I have been able to check only the provisions of the GAA for FY 2013 and I did not see a copy of the 1994 provision. However, I did see a provision which indicates that there still is a continuing role for members of Congress in the actual implementation of the fund. The allowable extent is not clear. But if we may judge from continuing media reports on how, for instance, the indigents in hospitals can receive funds through legislators, the role of legislators is still extensive—extensive enough for them to be able to use their clout for reelection purposes.

The important question now is: What will the President do about it? How will he respond to the rally of last week? The budget secretary says that the 2014 budget is already set. I do not know whether this means that what happened under the 2013 GAA can still happen now.

The Inter-Agency Anti-Graft Coordinating Council manned, or “womanned,” by what Scripture might call mulieres fortes, is encouraging.  But its focus is on the investigation of the misuse of the Priority Development Assistance Fund (PDAF), the prosecution of legislators and others who have misused it and the recovery of assets that have been wrongfully taken. Responsibility for making these a success belongs to the executive department. How much success will the executive achieve?

Preventing past abuses from happening again cannot be achieved by the executive department alone. We have to remember that PDAF is about the disposition of money of the public. And the constitutional guardian of the public treasury is Congress. Although the year’s budget is prepared by the executive department, it is not only much influenced by the input of members of Congress but it is also ultimately dependent on what Congress approves. True, the President can veto items in what Congress produces. But the President can do nothing if Congress overrides his veto.

What all this means is that what will happen to the pork barrel will test the President’s leadership—his biggest test, perhaps.