Of 2 lawyer wannabes and pork

I asked my sons Edward and Julo, who are taking up law at Ateneo Law School, to check whether there is a Supreme Court case on the constitutionality of the pork barrel fund. They gave me the case titled Philippine Constitution Association (Philconsa) vs. Enriquez, G.R. No. 113105 (1994), wherein Article XLI of the General Appropriations Act of 1994 (GAA) under Republic Act No. 7663 was sought to be declared as unconstitutional.

This particular article set up the Countrywide Development Fund (CDF), more popularly known as the pork barrel fund. Renamed the Priority Development Fund (PDAF), it allocates to each congressman and senator P12.5 million and P18 million, respectively.

A special provision of the CDF provides that the amount “shall be used for infrastructure, purchase of ambulances and computers and other priority projects and activities, and credit facilities to qualified beneficiaries as proposed and identified by officials concerned.”

Petitioners in that case claim that the power given to members of Congress to propose and identify the projects to be funded by the CDF is “an encroachment by the legislature on executive power, since said power in an appropriation act in (sic) implementation of a law.”

They argue that the proposal and identification of the projects do not involve the making of laws or the repeal and amendment thereof, a function of which is given to Congress by the Constitution. The Supreme Court upheld the validity of the CDF, stating that it was “Congress itself that determined the purposes for the appropriation.”

The high court noted that “[t]he authority given to members of Congress is only to propose and identify projects to be implemented by the President.” The President must still “examine whether the proposals fall within the specific items of expenditures for which the [CDF] 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 … it is the President who shall implement them. In short, the proposals … made by members of Congress are merely recommendatory.”

Two-cents worth from my two lawyer wannabes: In upholding the CDF, the Supreme Court noted the “power of appropriation carries with it the power to specify the project or activity to be funded under the appropriation law.”

My two sons pointed out to me that the high court should have ruled that the project recommendation must take place as part of the budget process in Congress. They cited the justification of the court that “members of Congress, far more than the President … are likely to be knowledgeable about the needs of their respective constituents and the priority to be given each project.” My sons argue that, consistent with the constitutional separation of powers, the projects should be identified during the congressional deliberations on the budget, and not during the project implementation stage, which is executive in nature.

Without them saying it, they are batting for item budgeting, as opposed to lump sum budgeting as presently done. My two sons also argue that good public governance dictates that, after the general appropriations act becomes law, the involvement of our legislators should disappear. According to them, realities on the ground make it prudent that legislators should not be able to direct, or even recommend, the release of the fund to implementing agencies, much less to Napoles-like foundations. Neither should they be made to recommend, much less choose, a project’s suppliers or contractors.

Such involvement, according to my sons, creates a fertile ground for corruption at the expense of the people. Again, without them expressly acknowledging it, their young minds started to imbibe President Aquino’s  “Daang Matuwid” and “Kung Walang Corrupt, Walang Mahirap” principles of public governance.

Finally, they pointed out that, had the high court made such delineation in its 1994 Philconsa decision, billions of taxpayer money would have been saved from corruption.

Of course, my sons may not have “take[n] into account the complexities, realities and politics attendant to the operation of the political branches of government” mentioned by the Supreme Court. But as a father, I’m happy that my two law students are capable of critical thinking and conscious of the societal impact of things at this early stage.

Meanwhile, as I write this column, there are reports that two new cases have been filed at the Supreme Court against the pork barrel fund, and the tribunal issued a temporary restraining order against its release. My question is: Will the Supreme Court agree with my two sons and reverse its 1994 Philconsa decision?

Your guess is as good as mine.

(The author is a law professor at the Ateneo Law School. He may be contacted at [email protected])