‘Pork’ through the years: It got complicated

MANILA, Philippines – Why did senators and the Vice President get pork barrel despite being national officials? Why did public money go to private organizations?

Chief Justice Maria Lourdes Sereno raised these questions as she traced the history of the pork barrel in over two decades. Sereno pointed out that the system started with simple and short provisions in the budget law. It evolved with complicated rules involving many steps and players, and “strange” changes like the inclusion of non-governmental organizations (NGOs). 

Sereno went through the evolution of the pork barrel in oral arguments on the constitutionality of the Priority Development Assistance Fund (PDAF) on Tuesday, October 8.

She said Alfredo Molo III, counsel for the petitioners, must show how changes to the budget law or General Appropriations Act (GAA) through the years violated the Constitution, to help convince the Court to strike down the PDAF.

The Court is tackling 3 petitions questioning the constitutionality of the PDAF, the so-called presidential pork or the use of the Malampaya fund for purposes other than energy development, and the President’s Social Fund (PSF). (READ: SC stops release of PDAF, Malampaya fund)

The cases come on the heels of the pork barrel scam, where lawmakers allegedly endorsed their PDAF to fake NGOs in exchange for kickbacks as big as 50% of the ghost projects. 

Molo argued that any involvement of the lawmaker in the project after the passage of the budget law goes against the separation of powers and is unconstitutional. The respondents or the government will present its case on Thursday, October 10. (READ: PDAF, Malampaya ‘illegal on its face’)

“It is even becoming more complicated. You can see the pattern. It’s evolving,” the chief magistrate told Molo.

“From short provisions, they are adding more and more provisions. There will be times the President will be vetoing it and they will come back to very basic, one special provision for the GAA.”

How did the system get complicated and prone to abuse? Here is a timeline based on the exchange between Sereno and Molo:

1990 – Then known as the Countrywide Development Fund (CDF), the pork barrel required the approval of the President for countrywide development projects.

Comment:Molo said this was constitutional.

1991-1992 – Legislators started submitted lists of projects and activities to be funded by the CDF also upon approval of the President.

Comments: Molo said this was unconstitutional “in operation” but not “as phrased” because in practice, the congressmen submit the list after the passage of the budget. 

1993 – For the first time, the budget law gave specific allocations to congressmen (P12.5 million each), senators (P18 million each), and even the vice president (P20 million).

The law also provided for the automatic release per quarter of the pork barrel to the implementing agency not later than 5 days after the submission of the list of projects and activities by the officials concerned.

Comments: Molo said this was unconstitutional “because the combination of the proposal, identification and automatic release indicates that upon identification of the legislator, it is already effective.” He later said he did not understand why the national officials were given PDAF when the purpose was to improve districts. 

1994 – The budget law had the same provisions as in 1993, but the Supreme Court upheld the pork barrel as constitutional, even praising it as “innovative.”

Comments: Sereno said: “It was actually the first time the concept of allocation according to districts was recognized, which is really the origin of the concept of pork barrel funds even in American legislation history. The concept really was to allow the district representative to find a way to have a say in how the funds are going to be allocated. Now this was praised by the SC as innovative.”

Molo said, “In all candor but with all due respect, I believe it was innovative but an unfortunate decision especially in the context by which our country operates now.”

Sereno also asked Molo about the political dynamic at the time, with the 1992 polls being the first presidential election after the 1986 EDSA Revolution. “Is it possible that for the first time the President understood the power by which he could push a legislative agenda with a very stubborn Congress in his view?”

Molo said, “It is possible.”

1995 – The semi-annual releases of the pork started, the origin of the practice of automatically releasing the pork at the first and second halves of the year.

Comments: Molo said this was unconstitutional and makes the “choice of the legislator even more powerful because it’s automatic.”

1996 – Reenacted budget

1997 – This is the first time the law required the endorsement of the Senate President, the chairman of the Senate finance committee, or the Speaker, and the chairman of the House appropriations committee. For the first time, the President also vetoed the automatic release of the pork.

Comments: Molo said the endorsement came after the passage of the law, making it again unconstitutional.

1998 – The law said the pork barrel shall be used for infrastructure, purchase of equipment and other priority projects, and activities as proposed and identified by officials concerned. There is automatic release 45 days after enactment.

1999 – The budget identified 3 programs to be funded by pork: food security program, Lingap para sa Mahihirap, and the Rural/Urban Development Infrastructure Program. For the first time, the law said the release of the pork barrel was “subject to prior consultation with a member of Congress concerned.”

Comments: Molo said this was unconstitutional. “These are all post-budget, post-legislation actions required before the releases can be made, which actions are generated by members of Congress.”

2000 – Like in 1999, the pork barrel releases can only be done upon prior consultation with the representative of the district. The President vetoed this provision.

Comments: Molo had the same objection while Sereno pointed out, “The President’s veto of this was quite strong. He was not amenable to this kind of consultation before the release. This is the first time they’re trying to say, ‘No we won’t make the release conditional upon the concurrence of Congress.’”

2001 – Reenacted budget

2002 – The pork was supposed to fund priority projects and be released directly to the implementing agency or local government unit, but it was unclear who could realign funds.

Comments: Molo agreed with Sereno that the provision was vague.

2003 – PDAF provisions again became short, without specifying who exercises authority for the district and what the conditions for lawmakers’ participation are.

Comment: Sereno said, “So for a period of time, it became very vague again.”

2004 – Reenacted budget

2005 – The Department of Public Works and Highways (DPWH) budget allowed the realignment of funds upon consultation with members of Congress.

Comments: Molo again said this was unconstitutional because it enables an act of Congress after the passage of the budget.

2006 – Reenacted budget

2007 – For the first time, the law mentioned NGOs as participants in the PDAF process. It allocated P250 million for NGOs including the Federation of Filipino Chinese Chambers of Commerce and Industry for its Operation: Barrio Schools program.

Comments: Molo said the provision was illegal because the Procurement Act requires bidding for a project, and the recipient was a private institution.

Sereno said the provision on the NGO was “strange.” She also questioned Government Procurement Policy Board resolution 12-2007, saying it created the process for getting the services of the NGOs, and may be a “legal template for farming out government projects to NGOs.”

“There’s a philosophical shift here from looking at line agencies as principal implementers of government projects to looking at the budgetary process and the budget law and special appropriations law as a way of encouraging the formation of NGOs. In other words if you look plainly, the Filipino public is going to finance the growth of NGOs by channeling funds to NGOs,” Sereno said.

2008 – The law said the PDAF should be for the 10-point legacy agenda of the Arroyo administration, giving it a life cycle of two years.

Comment: Molo said, “No, it has to be for the fiscal year for which the appropriation has been passed.”

2009-2010 – The Department of Education (DepEd) budget stated that local government units could construct school buildings using the PDAF, provided that the congressman of the district agrees.

Comments: Sereno said: “It’s becoming more sophisticated. The politicians are now at the local level, being asked even if they can implement the construction of school buildings.”

Molo again said this was unconstitutional.

2011-2013 – For the first time, the project “menu” is long. The menu limits the use of the PDAF and lists down requirements for projects. All PDAF-funded projects were also consolidated under a PDAF chapter and no longer included in the DPWH budget.

Comments: Sereno said: “This is a more open, forthright description of the situation, dividing it into the soft and hard categories so a little science was being introduced to the system, but what perhaps was not answered here was the constitutionality of the whole process.”

Sereno told Molo to prove the petitioners’ case by expounding in a memorandum the supposed illegalities in the PDAF over the years.

“If you want us to fill in the problem because this is a systems failure, you must first give us the constitutional basis for us to step forward,” the Chief Justice said.

“You have to let us walk through the evolution of the various PDAF provisions. It is indicative of how Congress is starting to shape its views on its participation in the budget process, in the passage of the law, and post-passage.” – Rappler.com