Prosecute! Abolish! Transform!

Dean Tony La Viña
I propose 3 imperatives that we as a society must pursue if this current scandal is to be resolved decisively in favor of good governance

Dean Tony La Viña

The Commission on Audit (COA) Special Audit Report covering Priority Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP) releases from 2007 to 2009 says it all. While many have always suspected that that the pork barrel has long been a milking cow for politicians, one can never be ready to have these suspicions actually confirmed, not to the extent and magnitude that we are now seeing.

While corruption is a tragic reality in this country, the revelations about the systematic plunder of government coffers are unprecedented in magnitude and extent. One will simply run out of adjectives, if not expletives, to describe the humongous amount of monies involved. It runs through a very wide gamut of the institutional fabric of our society enveloping several executive departments and agencies, the two chambers of Congress, local government units, nongovernmental organizations (NGOs), and other entities.

It represents a breakdown in our procurement, fiscal and auditing systems.

A potentially big indignation rally in Luneta to be held on National Heroes Day on August 26 is in the works. The President has rightly ordered the temporary suspension of the PDAF pending the investigations being currently conducted. The two most progressive political formations in the House of Representatives, the Makabayan bloc and Akbayan, and several senators have now called for its abolition.

The die is cast and how this issue is resolved will determine the future of “daang matuwid,” the straight road of good governance that President Aquino has promised to faithfully walk.

In this piece, I propose three imperatives that we as a society must pursue if this current scandal is to be resolved decisively in favor of good governance. “Never again” must be our goal, and to get to that we must see three things happen: First, the prosecution and conviction of the guilty individuals no matter how high up it goes; Second, the abolition of the PDAF once and for all, slaying the pork barrel beast with finality so it will be never resurrected again; Third, the transformation of governance and political structures in our country so that they would serve the interests of the people, especially the poor, and not that of a few individuals and families.

Prosecute!

The Senate, after some flip-flopping, has finally decided to conduct a formal investigation into the alleged misuse of lawmakers’ funds. I would have preferred an investigation by a congressionally authorized independent body but it seems that was a no go.

A Senate investigation is the next best thing, especially if it is done in aid of legislation and results in a good decision about the future of PDAF. It will also allow an angry public to witness what promises to be an interesting and riveting fact finding process, something that will be denied it by the criminal investigations that are already on-going.

This investigation of course has its perils – among others because many present and past senators have been implicated – but Sen TG Guingona, chairman of the Senate Blue Ribbon Committee, has the right demeanor (political will, discipline, competence, integrity, decency, and humility) to do this correctly and fairly.

Beyond the Senate investigation, we should expect the Department of Justice and the Ombudsman to eventually file criminal charges against those who have violated the law. If we were to go by the COA Report, as a professor of the Law on Public Officers, I see clearly multiple violations of our anti-corruption laws such as the Anti-graft and Corrupt Practices Act (R.A. 3019), the Government Procurement Reform Act (R.A. 9184), certain provisions of the Revised Penal Code including bribery, malversation, falsification and the like.

Some may even be held liable for violation of the Plunder Law depending on the circumstances of the case. The highest officials implicated should be the priority for prosecution. I dare say that their prosecution is more important than going after Janet Napoles herself, assuming there is evidence against her, who could become the scapegoat while the main beneficiaries of the scam would go scot-free.

While urging a vigorous prosecution, it goes without saying that due process must be followed. Already we have seen a major blunder by the Department of Budget and Management and the COA in the error of a P3-B PDAF attributed to Congressman “Way Kurat” Zamora of Compostela Valley. The mis-identification of former Congressman Benhur Abalos with a certain Luis Abalos resulting in the COA conclusion that someone who was not a Congressman received a PDAF is also another error that has been reported.

These mistakes should not happen in a case of this magnitude. A good judge will dismiss charges if they are not based on solid evidence. Besides, not only reputations are at stake (some very good ones that were built over decades of public service) but the freedom of individuals is also on the line. Basic fairness means we allow legislators who have been named in the report to explain their side and for us to listen with open minds.

Abolish!

When the pork barrel controversy erupted, I was at first ambivalent about the abolition of PDAF.

The President’s argument regarding the utility of the PDAF for both basic needs of people and development interventions can actually be persuasive. In other words, there are good uses of this fund and representatives and senators have done good things through it. This is specially true in the provinces where often district representatives are often the last resort of constituents for health or other urgent needs. I also agree with the President that the national government cannot possibly know all the priorities of local areas.

I recognize that the PDAF could sometimes be used for the good. In fact, a few local governments (three total) have availed of the PDAF allocated to legislators to partner with the Ateneo School of Government (where I am Dean) for training programs for their officials. It has always been clear to me that the PDAF and its predecessor mechanism the Countrywide Development Fund (CDF) provide many opportunities for corruption.

In fact, the 1996 expose of the Philippine Daily Inquirer that had the benefit of the insider knowledge of former Rep Romeo Candazo (who passed away last Monday), was a warning signal that this budgetary vehicle was beyond repair and that no matter what we did to make it more transparent and less corruption-prone will not work.

Indeed, the history of the CDF and PDAF since 1996 are the futile attempts by the executive branch to control the PDAF and to make disbursements more transparent but to no avail.

By its very nature, the CDF and PDAF are anomalies not because they allowed legislators to have a say on what projects should be implemented by the executive branch (arguably still their role as representatives of the people) but because at the heart of the system is the legislator’s involvement in how the projects are implemented and in particular who implements the projects.

This is unconstitutional as it is a violation of separation of powers and this is also where corruption enters the picture. In the case of Philippine Constitution Association v Enriquez, decided in 1994 before the 1996 Inquirer expose, the Supreme Court ruled that the CDF program was constitutional because the authority given to the members of Congress under it was “merely recommendatory.”

But as one scholar has pointed out, the conclusion that legislators only make recommendations was in fact not entirely accurate in that legislators actually meddled with implementation by among others endorsing favored contractors and/or NGOs. In some cases, some for good reason, legislators even provide specifications on the materials to be used and the time frame of implementation.

It is however not correct to say that legisIators should stick only to passing laws. They do have other functions as representatives of the people. These include a role in identifying projects in their localities and in enacting the national budget which fund these projects. The national appropriations act itself is the most important law that  Congress passes every year and senators and representatives participate in its deliberation and enactment. But there must be an iron wall between the legislative process of budgeting and project implementation.

In particular, the executive department should not allow direct or indirect interventions of legislators in the implementation of projects. These include refusing endorsements from legislators on who should implement such projects which should be decided solely and in strict compliance with procurement rules.

Because the very nature of the PDAF, as it was of the CDF, is the breaching of this iron wall, I have concluded that it is not reformable. Essentially it corrupts the whole system, and as we are now seeing, sadly it is tainting and compromising even those in the executive and legislative branches that may have noble intentions.

In this regard, so we can have a complete accounting, we should not wait another 17 years before a new audit is done only to reveal the depths of the corruption as we are seeing now.

I hope that as early as this year, the COA will conduct an audit of the use of the PDAF from 2010-2012. I would like to know for example, if that is discoverable through audit, if there is basis for the accusation that the PDAF has been used to get favored results in the impeachment of Chief Justice Corona or the passage of the Reproductive Health bill. No matter what position one took on these contentious issues, such a practice if true (it is also rumored that the former president used PDAF to contra Congress) must be stopped because it is essentially corrupting and goes to the heart of the integrity of our political system.

More important, it would only be fair to conduct such an audit to see if in fact the same abuses from 2007-2009 were repeated in the first two years of the Aquino government. The results of that audit should be released a year before the 2016 elections so that what could probably already be incendiary results do not become nuclear explosions.

Transform!

Successfully prosecuting the guilty individuals and abolishing the PDAF would be important sucesses. But they are not enough.

Reforms in the budgetary process are essential and the good news is that under President Aquino and his Budget Secretary, Butch Abad, that process is on the way. Other fundamental governance and political reforms, such as the passage of the Freedom of Information Act and a law that would strenghten and promote political parties are also critical to cement good governance. There must be also clarity in the role of genuine (not fake) citizen organizations (my preferred term to NGOs or civil society because historically these have negative connotations in that they define themselves against the state.)

Reforming the budget process is not an easy feat. In a lecture he delivered at the Ateneo de Manila University earlier this year, Secretary Abad described its political dimensions as “an arena of struggle.” Abad spoke of the budget as the strongest sign of the Aquino Administration’s commitment to its commitment to its social and reform goals. That meant disentangling the morass of the politics of the government budget, to restore fiscal discipline, operational efficiency, and allocative efficiency.

He also explained the innovations of zero-based budgeting, and bottom-up budgeting rules for government agencies, the latter especially empowering as it gives civil society and ordinary citizens an avenue of substantive contribution to budgeting priorities.

Among the innovations that has been put into place, bottom-up budgeting probably has the most potential to replace PDAF.

One of my Facebook friends from the city government of Naga, Wilfredo Briñas Prilles Jr., explained why in a comment he posted in my timeline: “The Bottom-Up Budgeting (BUB) program, being coordinated by the National Anti-Poverty Commission (NAPC) deserves a close look. Each LGU has a cap (in Naga’s case P30M for 2014, of which 20% is our local counterpart). The projects must respond to the various Millenium Development Goal poverty dimensions that are measured by their respective Community Based Monitoring System (CBMS) results. There is a menu of anti-poverty programs by line agencies that LGUs can adopt, but they have to option to go outside it for about 20% of the ceiling. The local list is approved by a local team where NGOs sit, and endorsed to a regional counterpart comprising of line agency regional directors. The regional inter-agency team reviews the list, and screens it for compliance with BUB guidelines. The regional final lists are then consolidated at the national level and incorporated in the line agency budgets that would make up the proposed budget submitted by the president to Congress. For 2013, around P8 billion BUB projects are currently being implemented. Just imagine what the P25B PDAF can do to empower LGUs in addressing local poverty in its various forms.”

Indeed, it is relevant to ask the question: If we were to abolish the PDAF, where will all that money go? Can we trust Manila-based bureaucrats to decide what projects to develop and implement everywhere in the Philippines? Will that not make matters even less transparent and more corruption prone?

In addition, will that not result in a skewed development strategy that is Manila-centric and where priorities are determined only by a few national decision makers? I propose that if we do this we end up in an even worse situation than we are now, corruption and development wise, and the regions will be up in arms. And the operators will have a field day knowing they only have to talk to a few decision-makers in a few departments in Manila.

I think the key is finding a solution where bottom-up budgeting is done and that includes, but not exclusively, district-based legislators. Local governments, citizen organizations, people who are the beneficiaries of the programs, etc. must also be part of the process.

What is absolutely needed as well is a Freedom of Information law that will open up these and other transactions to scrutiny every step of the way. Such a law is the best guarantee that the reforms on transparency that this administration has put in place will be institutionalized and made permanent. Besides its obvious use as a tool in ensuring accountability in the utilization of public resources and power, an FOI Law would also bring the government closer to the people – that is let the Filipino people know how their government is working for them, which will in turn bring the common Filipino to the fold of genuine nation-building.

Another critical item is the need to to institute overdue reforms in the political party system.

The pork barrel is often used by the executive as a tool to rein in recalcitrant legislators and bring more “allies” to support his legislative agenda. This system is the root of the turncoatism (“balimbing”) phenomenon which happens when the cohesive force behind party alliances is not ideology but patronage. Legislators gravitate towards the party of the incumbent executive not necessarily because they are ideological comrades but because there is much largesse to be had when one is allied with the present-day administration.

Finally, given the role of fake and bogus NGOs in the current pork barrel scandal, it is important for government and for our society to have clarity about the role of citizen organizations in implementing development projects with government. It should be clear that the reason why genuine citizen organizations play this role is two-fold: First, because of the lack of capacity of government to deliver basic services effectively thus leaving a vacuum that citizen organizations fill up; Second, because it is the inherent right of citizens to be involved in governance and in development.

I believed that we must work to change the first circumstance by completing the rationalization process in government that was started by the Arroyo Administration so once and for we will have a lean and competent bureacracy peopled by the best and the brightest who will also have available all the necessary resources to complete their mission.

When that happens, many citizen organizations will likely shift to performing monitoring and accountability functions, something they are already doing. But there will always be those doing development work because of their unique contribution. Both roles should be welcome and not be resented by government.

I agree completely with my friend Sixdon Macasaet, Executive Director of the Caucus of Development NGO Networks (CODE-NGO), the largest coalition of citizen organizations in the Philippines, when he posted on Facebook how disappointed and angry he was that NGOs, without the qualifier “fake,” were being blamed for the pork barrel scam.

Macasaet writes: “I am not saying that NGOs should access the pork barrel funds. In fact, very few of the tens of thousands of NGOs have done so in the past and I think NGOs should be very wary about doing so in the future. But it is unfair for them to blame NGOs for their mess. Most PDAF funds do not go to NGOs (fake or true), but ALL PDAF funds go through Senators/Congresspersons and at least one government agency. So, following their logic, what they should be saying is that to prevent corruption, pork barrel funds should no longer be given to senators/congresspersons and government agencies!”

Conclusion

The pork barrel scandal is enormous. “Disgusting” is how the President describes it. “Shocked and enraged” is the words COA Chairperson Grace Pulido-Tan used to describe her feelings. But what is sad is that this is not the first time. And unless we prosecute and convict those responsible, abolish the PDAF, and transform governance and politics in this country, it will happen again. And again.

Secretary Abad ended his Ateneo lecture by describing the budget as a “potent starting point” to transform Philippine politics. How right he is. We must seize the opportunity. Because if we don’t, we will not be forgiven by future generations. And we will not be given another chance. – Rappler.com