Now that taxpayers have filed anew a constitutional challenge against the pork-barrel system, it is apropos to review judicial precedents on the issue in order to determine what may become of these recent petitions. Offhand, it looks dire for the petitioners and the Filipino people.
The starting point is the 1994 case of Philippine Constitutional Association vs. Enriquez. In this case, as is with the petitions filed recently, petitioners sought to nullify the Countryside Development Fund by arguing that: “claim that the power given to the members of Congress to propose and identify the projects and activities to be funded by the Countrywide Development Fund is an encroachment by the legislature on executive power, since said power in an appropriation act in implementation of a law”. Petitioners argued “the proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the Constitution”.
The CDF for that year in 1994 was P2,977,000,000. In 1994, the sum was to “be used for infrastructure, purchase of ambulances and computers and other priority projects and activities and credit facilities to qualified beneficiaries.”
The court dismissed the petition and ruled that there was no violation of the constitution: “The authority given to the members of Congress is only to propose and identify projects to be implemented by the President. x x x the President must perforce examine whether the proposals submitted by the members of Congress fall within the specific items of expenditures for which the Fund was set up, and if qualified, he next determines whether they are in line with other projects planned for the locality. Thereafter, if the proposed projects qualify for funding under the Funds, it is the President who shall implement them. In short, the proposals and identifications made by the members of Congress are merely recommendatory.”
In fact the Court even endorsed the CDF as being “imaginative” and “innovative”: “The Countrywide Development Fund attempts to make equal the unequal. It is also a recognition that individual members of Congress, far more than the President and their congressional colleagues are likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project.”
But the victory of the CDF was short lived. Not long after the case was decided, Ellen Tordesillas and Yvonne Chua, both then with the Philippine Center for Investigative Journalism, and now with the renowned Vera Files, wrote a book detailing how the CDF operates to benefit our senatongs and tongressmen. It appears that the pork is in the 30 percent to 50 percent kickbacks that legislators made from their CDF. There naturally was uproar against the pork after this revelation. This was enough to compel then-President Joseph Estrada to attempt to do away with the pork barrel.
But Estrada’s resistance to the pork was short-lived. He soon realized that without pork, the Executive cannot have the cooperation of Congress. This may also have been why he was so easily impeached on the House. To make a long story short, the CDF was renamed the Priority Development Fund, which until today remains the official designation of the pork barrel.
Not long after the renaming of the pork, the Lawyers Against Monopoly filed suit anew challenging the constitutionality of the renamed pork, the PDAF. In the case of LAMP vs. Secretary of the DBM, the petitioners impugned the P8-billion PDAF in the 2004 budget, which was earmarked “ to fund priority programs and projects or to fund the required counterpart for foreign-assisted programs and projects.” According to petitioners, the provision of the PDAF, unlike the CDF, does not allow members of Congress to identify projects. According to them, “[t] he silence in the law of direct or even indirect participation by members of Congress betrays a deliberate intent on the part of the Executive and the Congress to scrap and do away with the ‘pork barrel’ system.” “[T]he omission of the PDAF provision to specify sums as ‘allocations’ to individual Members of Congress is a ‘casus omissus’ signifying an omission intentionally made by Congress that this Court is forbidden to supply.” LAMP then concluded that “the pork barrel has become legally defunct under the present state of GAA 2004.”
The Court, in upholding the pork barrel for the second time, ruled: “Although the possibility of this unscrupulous practice cannot be entirely discounted, surmises and conjectures are not sufficient bases for the Court to strike down the practice for being offensive to the Constitution. Moreover, the authority granted the Members of Congress to propose and select projects was already upheld in Philconsa. This remains as valid case law”.
It is unlikely that the Court will deviate from these jurisprudence. What must be done is to document that almost all of our legislators abused and misappropriated the PDAF. Absent this, there will be “no changed circumstance” that would warrant the reversal of these two decisions. It’s a tough job, but let’s do it!