On the pork issue: Why the Supreme Court should step in

On the first day of the oral arguments over the constitutionality of the pork barrel system, Associate Justice Marvic Leonen asked a compelling question: “Isn’t it unfair that the only burden in correcting the system is with the court? Shouldn’t we say it’s also with the legislature and executive and we will do our part in correcting it?”

Justice Leonen asked this after the petitioners put on the Supreme Court the task of stepping in as “savior” to rid the country of pork. 

Supreme Court Chief Justice Sereno’s question provides the background why it is important to first establish why there is a need for the Supreme Court to intervene at this point: “We are sensitive to the fact that we are not politicians. There are political solutions. We have to know whether it’s time to step in.” 

There are at least 3 reasons why the intervention of the Supreme Court is justifiable.

1. Pork is an institutional design issue. 

Commission on Audit (COA) Chairperson Grace Pulido Tan, who appeared as a resource person in the Supreme Court hearing, raised the problem of the inherent flaw of the design of the pork system: “We’re saying this is not just systems failure but a complete breakdown of controls. If you look at the legal framework, there are a lot of laws, regulations, but somehow in the enforcement, in the way the system itself was designed, the controls failed.”

The design of the pork system itself leads to the breakdown of controls. 

Pork barrel is anathema to the checks-and-balance relationship between the executive and the legislature. It violates the separation of powers principle enshrined in the Constitution. 

On questions regarding institutional design, the Supreme Court must clarify and settle how the institutions are supposed to relate with one another and how the principles such as checks-and-balance and the separation of powers must be observed in a particular program or policy. 

Because it is an institutional design question, only Congress and the Supreme Court can settle it.

2. Past efforts to correct the practice have failed. 

The respondents in the case — Executive Secretary Paquito “Jojo” Ochoa Jr, Budget Secretary Florencio Abad, Senate President Franklin Drilon, and House Speaker Feliciano Belmonte Jr — represented by the Office of the Solicitor General, in their comment filed in the Supreme Court, provides the following reason why the Supreme Court should let the executive and the legislature resolve the pork issue: “The reported abuses of the PDAF are problems of implementation, they do not go into the constitutionality of the law…judicial solution may inadvertently limit a more progressive solution.”

However, there have already been efforts in the past to correct the pork system. When the Countrywide Development Fund (CDF) was changed to Priority Development Assistance Fund (PDAF) 13 years ago, additional checks were introduced. Yet the country still faces multi-billion-peso pork scams today. 

3. The Philippines has weak institutions that are unable to withstand particularistic pressures.

Our institutions are weak vis-a-vis political actors. These powerful forces mold and use institutions based on what is useful to them, which has been proven to be, more often than not, against what is best for the country and the people.

The weakness of our institutions is partly because they are not well-defined. How they should be used and applied given the political context of the country is not conceptually elaborated on. 

Such task of defining institutions, elaborating on their limits and proper application rests on the Supreme Court. This is not to say that the Supreme Court should go beyond the legal-institutional framework. What is being asked is for the Supreme Court to define and elaborate on the powers and responsibilities of institutions. To provide clarity. To speak the truth. With clarity and truth, abuse and capture can be prevented. 

So going back to the question of Justice Leonen: “Isn’t it unfair that the only burden in correcting the system is with the court?”

The burden to respond to the pork issue according to its mandate is not unfair. What is unfair for the country is if the Supreme Court evades a mandate crucial to developing and strengthening the integrity of our political system. – Rappler.com

Joy Aceron is Program Director at School of Government-Ateneo de Manila University directing Political Democracy and Reforms (PODER) and Government Watch (G-Watch). She lectures at the Ateneo Political Science Department.