The porky jurisprudence on the pork barrel

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!

The defense’s debacle

The prosecutors in the on-going impeachment trial of Chief Justice Renato Corona owe the defense a mountain of gratitude. After all, it was the defense that proved what the prosecutors could not:  That the chief justice has dollar deposits in the amount of— at least—$12 million, which he failed to disclose in his Statement of Assets, Liabilities and Net Worth.


What on earth was the defense thinking when it called on the Ombudsman as its own witness? Perhaps they thought that the Ombudsman would not honor the subpoena sent to her to testify in the Senate. But why would she ignore such a subpoena when as a retired Supreme Court magistrate, she knows all too well that unlike contempt issued by the courts, a contempt imposed by the legislature may be for a lifetime. Did they think that the Ombudsman would not disclose details of her ongoing investigation, or at least not the documents tending to show the existence of the CJ’s dollar deposits, because to disclose these would be to violate the existing law protecting the confidentiality of dollar deposits without a court order?


But why would the Ombudsman not disclose this? To begin with, the secrecy of dollar deposits is only provided for by a law, while the duty of the Ombudsman to “investigate public official” for “illegal, unjust, improper, or inefficient” acts and its power to “request any government agency for assistance and information necessary  x x x  and to examine, if necessary, pertinent records and documents” are both provided for by the Constitution. Pursuant to the principle of hierarchy of laws, the Constitutional provisions on the Ombudsman prevail over the prohibition of the FCDU law.


What makes the defense act even more perplexing is that from the declarations of the Ombudsman herself, she apparently had no intention of taking the stand in the ongoing trial. When asked by Senator Miriam Defensor Santiago to what purpose the Ombudsman could investigate an impeachable officer such as the CJ, the Ombudsman responded that is was only for the purpose of “recommending to Congress the filing of an impeachment complaint after the one-year ban in December of this year.” Ergo, her investigation, if warranted, would have resulted only in a letter to the Speaker of the House perhaps recommending a second impeachment proceeding against the chief justice. This implies that she did not see taking the stand as an option.


So the question is: Why did they do it?


Lawyer Jose Roy III said it was upon the express order of Corona himself, to know what the Ombudsman has. I guess the defense achieved its purpose—except that in the process, they crucified their client.


The defense, after realizing that the Ombudsman dropped a bomb shell against the chief justice, is now saying that the information divulged are: one, not accurate, because the amounts were not verified by the Ombudsman herself; and two, in any case, illegally obtained and hence inadmissible.


Such are admirable attempts to contain the consequences of their self-inflicted damage. But these are utterly bereft of merit. To begin with, the Ombudsman divulged the documents only insofar as it forms part of her ongoing investigation about an alleged dollar deposit undeclared by the chief justice in his SALN. Certainly, this was what complainants Rissa Hontiveros-Baraquel et al alleged in their complaint. Moreover, although she has not personally verified the accuracy of the accounts, she is still entitled to presume that a very specialized agency such as the Anti-Money Laundering Council would be discharging its functions regularly. If at all, the AMLC cannot be faulted for heeding the constitutionally mandated power of the Ombudsman to solicit its assistance. Instead, it should perhaps be faulted for not conducting its own investigation even before the impeachment trial.


Moreover, the chief justice himself, in the form prescribed for the SALN,  has expressly authorized the “ obtain and secure from all appropriate government agencies, x x x such documents that may show my assets, liabilities, net worth, business interests and financial connections.” How can he now complain about the acts of the Ombudsman?


With the testimony of the Ombudsman,  Corona has put the last nail in his own coffin. Ironically, we have the defense to thank for this.


Deadly Malampaya funds

Doctor Gerry Ortega, the 142nd journalist killed since 1986, was not just a critic of local mining in Palawan. In fact, I met him more than eight years ago because of his involvement in a civil society group, Kilusan Love Malampaya. The group advocates that the people of Palawan should have an “equitable share” in the wealth generated by the Malampaya natural gas and oil field and in the percentage identified by the Local Government Code: 40 percent of all such income generated by Malampaya. This initiative led to the filing of a case, which was finally the subject of oral arguments by the Supreme Court last year. On the basis of the court hearings, it is clear that the Malampaya issue is a three cornered fight: between civil society of Dr. Gerry and Bishop Pedro Arigo who want to enforce the literal provisions of the Constitution and the Local Government Code, the local government that entered into an illegal provisional sharing agreement which Justice Antonio Carpio described during oral arguments as effectively “ an amendment of the law”, and the national government of former President Arroyo that sought to spend the Malampaya funds as its pork barrel.
It is unfortunate that Doc Gerry did not live long to see the outcome of the case that he has lived for. Meanwhile, it is my duty as a friend and as his counsel to correct the mistake of national media speculating that his death may be related to his opposition to three on-going mining projects in Palawan.

The truth is that prior to his death, Doc Gerry was in constant contact with me concerning Commission on Audit reports which detail how Palawan’s local government officials have misused sums given to Palawan as part of the provisional sharing agreements. He was the one who furnished me with a copy of just one of the many COA reports that involved ghost projects, inferior projects and crass misappropriation of public funds. Some of the recommendations of the COA were: “ Refund of P49 million representing excessive cost of projects, disallowance of a P25 million consultancy project, refund of P6 million representing deficiencies, file appropriate charges against (then) Governor Joel T .Reyes, Vice-Governor David Ponce-De Leon, members of the Sangguniang Panlalawigan and the Provincial Administrator x x x”.

While Dr. Gerry’s dedication to the preservation of the environment was in fact notable, police authorities should not discount the involvement of these local officials as masterminds in his murder. I, together with many Palawenos, believe that ultimately, it is these local elected officials of Palawan who may have the motive to silence Dr Gerry.

As of the writing of this column, it has been reported that the gun used for the murder is registered in the name of the former provincial administrator of former Governor Reyes.

Dr. Gerry was first and foremost, one of my closest friends. I will miss him. Already, I miss his weekly phone patch during his daily broadcast in the local affiliate of RMN in Palawan. Ironically, Doc Gerry took over the slot of another broadcaster, Dong Batul, who himself was murdered.

Perhaps it is high time that President Noynoy Aquino once and for all take back his earlier pronouncement and marching orders to Secretary Leila De Lima to run after tax cheats and smugglers as a matter of his highest priority. Please, please: it’s high time that this administration, swept into power on a platform of change, should now accord the highest priority to investigating, prosecuting and punishing the killers in our society.

The Center for International Law, of which I am the chairman, that stood as counsel for Doc Gerry and KLM, and as an advocacy group that seeks to promote freedom of expression, condemns in the strongest possible terms the recent murder of Doc Gerry as yet another affront on freedom of the press. We call upon President Aquino to spearhead an investigation into his death, even if some of those who may want to see Doc Gerry dead happen to be his party mates.


The bomb attack on a passenger bus along EDSA has highlighted anew the country’s inability to deal with modern-day terrorism. Part of the problem is not that we do not have sufficient legal infrastructure to deal with terrorism, as in fact we do, including the dreaded Human Security Act that I have consistently criticized as being inconsistent with our human rights obligations; but that we do not have a working justice system to effectively investigate and punish terrorist.

Recall that when world class bomber, Al Ghozi, was apprehended and detained in Camp Crame, the notorious bomber, probably not liking his food ration, simply walked out of his detention cell. Ironically, it has also been reported that our government created the dreaded Abu Sayaff terrorist group and that the past dispensation allowed our territory to be used as a training ground by the Jemiah Islamiah and other terrorist groups.

In like manner that a working criminal justice system is the panacea to the malaise of extralegal killings, the same is also the panacea to the problem of terrorism. Absent a working legal system, what we will continue to have is more of what we see every day: the streets of Manila and the Philippines reduced into a jungle where lawlessness and terrorism prevail. Will anyone please tell me: who’s in charge here?