The unbearable lightness of PNoy’s so-called reforms

 

 

In his speech marking the celebration of National Heroes’ Day, President Noynoy Aquino put down the growing popular protests against his administration as disruptive of the government reforms he has initiated. Calling them forces against social reforms, the President’s own pro-administration coalition on the other hand has vowed to continue to fight for his “straight path” of governance.

 

What could yet be his strongest admonition against the popular protest, Aquino branded these protesters as “a few who are determined to bring back the old system of corruption and abuses.”

 

The popular protests against the Aquino government have been inflamed by the President’s own hints of calling for an amendment of the Constitution to extend his term of office and to restrain judicial overreach of the Supreme Court. Stirred up by public clamor for an end to pork barrel politics through total abolition of discretionary and lump sum funds in the national budget, several progressive groups and civil society organizations have joined forces to enlist 6 million signatures for a people’s initiative to enact these legislative reforms.

Popular protests against the Aquino administration gain momentum as several
progressive groups and civil organizations join  forces to gather 6 million
 signatures to enact legislative reform that will totally scrap pork barrel.

Instead of embracing the protesters’ demands, President Noynoy Aquino has chosen to roll the dice. It’s them versus him, the forces of change against the President’s self-convoluted vision of “daang matuwid.”

 

But what are these reforms President Aquino is talking about?

 

He has not achieved much in terms of stimulating the economy except earn some brownie points to upgrade the country’s credit rating. This is a hollow accomplishment since it only means that it is easier for the country to borrow money. Unless public expenditures designed as stimulus translate to more jobs, reduction in poverty and income inequalities, a credit upgrade is nothing but hot air.

 

Former Comelec Chairman Christian Monsod summed it up correctly when he recently criticized those who support the government’s posturing with Charter Change. “They are looking at the wrong places for sustained inclusive growth. Our social reform programs are dead in the water: housing, agrarian reform, ancestral domain, municipal fishermen. They are the poorest of the poor,” he said.

 

Delivery of public services and social programs remains slow and inefficient. Traffic in the biggest city in the country is not freely moving and has affected the flow of goods and made life unbearable to the majority of the population who rely on public transit. The government bureaucracy continues to struggle against red tape and incompetence of the civil service.

 

Public corruption is one of the highest in the region, which brings us to Aquino’s self-proclaimed delusions of “walang korap kung walang mahirap” (there’s no corrupt if there’s no poor) and the “daang matuwid” (straight path).

 

Aquino was successful in placing his predecessor, former President Gloria Macapagal-Arroyo, in jail since 2012 for crimes of graft and corruption and economic plunder. Two years in detention, no trial date has been set for the former president but a number of complaints against her have already been dismissed for lack of evidence.

 

The chief justice of the Supreme Court was successfully impeached by Congress for violation of public trust for not completely disclosing his statement of assets and net worth. But the impeachment is now tainted by allegations that the President bribed members of Congress through his pork barrel, the Disbursement Acceleration Program or DAP, which has been declared unconstitutional by the high court.

 

Last July, the 10-billion-peso-pork-barrel scandal imploded. But this was not due to efforts of the Aquino administration to weed out corruption in government. The Napoles-masterminded scheme of channeling pork barrel funds (the Priority Development Assistance Fund) designated for members of Congress to fake NGOs was exposed through whistleblowers and not by zealous government scrutiny. Only after a congressional investigation did the government really stamp its official approval of going after three leading opposition senators and putting them in jail for charges of plunder. Whether the government will be able to successfully prosecute these senators still remains a big question.

 

The congressional pork barrel known as PDAF has been dismantled when the Supreme Court declared it was unconstitutional; again, not because of the honest efforts of the incumbent administration, but through petitions made by progressive groups and civil society organizations.

 

The same thing happened to the Aquino administration’s own pork barrel, the DAP, which was also declared unconstitutional by the Supreme Court. If not for several progressive groups and civil society organizations, the pork barrel system of illegal and irregular allocation of government funds to members of Congress and to Aquino’s pet programs and projects would not have been exposed. Thus, even the Aquino government’s priority of keeping the straight path was not accomplished by the President and his staff but by the ever-vigilant public.

 

Here is the harsh truth: the Aquino government is planning to subvert the high court’s decision in disallowing the PDAF and DAP by insisting on the President’s discretion to keep lump sum allocations in the national budget, and at the same time, dropping hints of amending the Constitution to restrain judicial overreach of the Supreme Court. Minimizing the influence of the judiciary in a government of separation of powers and checks and balances between the three branches of government is only a prelude to an Aquino imperial presidency. With a subservient Congress on his lap, a populist president like Aquino could easily push for dubious reforms that would keep him in power for a long time.

President Noynoy Aquino insists that his administration was right in implementing the
Disbursement Acceleration Program (DAP) despite being declared unconstitutional by
the Supreme Court.

The current political situation in the Philippines may be warped, but this is not because of a fault in the Constitution. There is no provision in the body of the Constitution that needs to be altered or amended to meet current apprehensions. One only needs to give the Constitution one more thorough and careful reading, asking where and how one would alter it. The wisdom of the framers of the current Constitution and the fears of a re-run of the Marcos dictatorship speak clearly for a new vision of democracy in 1987, after more than two decades of authoritarianism and suppression of civil and political liberties.

 

President Aquino relies heavily on the role of his close advisers who would spin the political issues that beset the government by denial, on one hand, and by offering a better and more palatable version to the public, on the other. For instance, despite the Supreme Court’s decision on the unconstitutionality of the DAP, Aquino and his cabal of advisers still insist on the good faith behind their actions even when the facts of the beneficial effects of the DAP are questionable. When they were unable to influence public opinion, they resorted to a trial balloon of possibly amending the Constitution to amend the President’s term of office and floated around threats to reduce the powers of the judiciary.

 

Instead of respecting the Supreme Court’s decision, President Aquino keeps slugging the judiciary with a negative and self-serving interpretation of judicial oversight. Rather than welcome the people’s initiative for legislative reforms which Congress will not act upon because of the vested interests of members of the legislature, the Aquino administration dismisses the popular initiative as pushing the government back into what he describes as the “old system of past abuses and corruption.”

 

The problem with the President’s mindset is that it reinforces a cycle of political vendetta. His party was the last administration’s main political opposition and chances are that next time they will be at the receiving end of the vitriol, or perhaps they may suffer the same fate as their current political enemies who are now in jail.

 

It is becoming clearer everyday that a six-year term is too long for a bad president. Rotation of leaders is vital to a representative democracy, but the current President and his puppet Congress are willing to destroy this important democratic principle for their own vested and selfish interests.

 

President Aquino brags of reforms he has initiated but he’s come up empty. All he has accomplished is to promote an empty slogan of corruption-free governance. He talks of the straight path, yet he and the people around him walk the crooked line.

 

It has been a perplexing period during the political life of this presidency. Some of my liberal friends imagine themselves to be reformers and send their blank check of loyalty to the President in the belief that they are advancing the cause of democracy, even believing that only this President could effectively lead the country out of the doldrums of corruption and economic stagnation.

 

It will be the greatest distraction and only worsen our political condition if the Constitution or the political institutions it has envisaged as co-equal branches of government are wrongly and ignorantly blamed and subjected to yet more meddling, all because we have a popular president who is imperfectly perceived as incorruptible and worthy of a democratic legacy for which he is totally undeserving.

Good faith or arrogance?

 

 

So much has been said about good faith as a valid defence to President Aquino’s illegal redistribution of government funds under the Disbursement Acceleration Program (DAP) which was recently declared unconstitutional by the Philippine Supreme Court. This promises a long and continuing government intramural between the executive and judicial branches, for as long as the Aquino administration insists that the DAP was conceived with good intentions and that it benefited those for which the impounded savings were spent.

Will Budget Secretary Florencio Abad resign or stay? Aquino tells him to stay put.

The main problem with good faith as an excuse is that it was never intended to be a defence for illegal behaviour. Where it was borrowed, primarily from the law of contracts and obligations, good faith is meant to be a precondition or an implied term in any contract between parties, such as the sale of goods or in negotiations of commercial transactions. It is the general presumption in contract law that parties to a contract deal with each other in good faith, honestly and fairly to temper inequalities in their relationship – the end in view is to preserve the right of the parties to receive the benefits of the contract.

 

The principle of good faith or the duty to act in good faith is frowned upon in most common law jurisdictions, unlike in civil law regimes where it is generally accepted although its application in contract determinations has also created certain legal uncertainties. But that is not the subject of this blog, however.

 

How the covenant of good faith in contract law can easily be transposed to the affairs of government is therefore a challenging conundrum. It could be the rationale for the Supreme Court in avoiding this issue. Instead, the high court looked at previous precedents and invoked the doctrine of operative fact, that the consequences of a declared unconstitutional law or executive act cannot always be erased or disregarded. In other words, while a law could be nullified on constitutional grounds, it effects however may be sustained. Why? Because it would pose a big burden for the government to undo what has been done, and equity alleviates this burden.

 

Imagine if the President and his entire cabinet can seek refuge every time under the cloak of good faith for all their actions, it would be like bestowing papal infallibility to this cabal. They would be emboldened to do whatever they wish for they could never do wrong. It’s also like imposing a Machiavellian sense of justice, that the end justifies the means, which is not the sort of moral standard government officials must observe.

 

Having said that, it is however clear that the President cannot use good faith as defence for his or his staff’s mistakes in the execution of laws or government programs. Perhaps, the President should revisit his oath of office. In taking his oath he has sworn to preserve and defend the Constitution and revisiting it might have a calming effect on his feelings of vindictiveness and resentment toward the Supreme Court’s decision in striking down the DAP.

 

In defending the Constitution, the President must also recognize that all laws or decrees like the Administrative Code he has been dangling, although not inconsistent with the fundamental law of the land, have only secondary importance.

 

The President’s allies in Congress are now contemplating scrapping the Judiciary Development Fund (JDF), apparently in response to the high court’s rebuke. Arguing that the JDF is a form of judicial pork barrel, the President’s allies are also insinuating a lack of transparency in the accounting and reporting of the said fund by the Supreme Court Chief Justice. If the true motivation was to diminish the integrity of the Supreme Court, perhaps the President’s allies should take a step back and consider the constitutional ramifications of their counter threat. The Constitution guarantees fiscal autonomy for the judiciary and any attempts to dilute it will again be struck down as unconstitutional, if not an infantile response to the Supreme Court’s reproach of the President.

 

In striking down the DAP, the Supreme Court did not find the President guilty of a criminal act. There was therefore no need for childish tantrum. The Supreme Court merely nullifies the DAP, which, by the way, the President’s Solicitor General has argued is moot since it was no longer being implemented. Why would then the President decide to speak on nationwide television to unleash his attack against the Supreme Court under the guise that he was merely reporting to his “bosses,” the Filipino people?

Time to show your true colours, President Aquino asks supporters to wear
yellow ribbons to show their support for his administration.

President Aquino’s latest public behaviour betrays the vindictiveness and ignorance of a child in the body of a grown man.

 

As leader of his country, the President should realize that ours is a representative democracy where the people have agreed to delegate their power to the institutions of government as envisaged by the fundamental law of the land. While it is true that the people are the real “bosses,” the President is not supposed to run to them for help whenever another co-equal branch of government chastises his illegal actions. Unless the President is invoking the constitutional right of the people to initiate legislation by initiative or referendum. Or perhaps, if he is mobilizing the people to a nationwide revolution or another people power to abolish the government and install a better one. But that certainly is not the case, not for this President who is simply hanging on to the legacy of his more popular parents in restoring democracy in the country after twenty years of political repression and dictatorship.

 

His argument that the DAP was good for the people, albeit being unconstitutional, is also a false message because reality does not support it. The DAP was supposed to perk up government spending to stimulate a laggard economy. Whether it was accomplished could probably mitigate the finding of illegality by the Supreme Court – the doctrine of operative fact.

 

But reality bites and it is scathing and harsh.

 

President Aquino and his officials claimed that the DAP stimulated the economy in 2011, with DAP spending contributing to 1.3 percentage points in the growth of the gross domestic product in the last quarter of 2011. The World Bank however disputed the GDP growth, pointing that the 1.3 percentage gain in government consumption and public construction was not due to DAP alone.

 

Another Philippine think-tank organization estimated the real contribution of DAP-related spending to economic growth to likely one-fourth of a percentage point in the fourth quarter of 2011 and less than a tenth of a percentage point for the whole year.

 

In defending the controversial implementation of the DAP, President Aquino told businessmen and the World Bank that the Philippine economy grew under his watch and warned that the Supreme Court rebuke of the DAP may reverse this progress.

 

Truth be told, the Aquino government failed to install significant structural reforms in the real economy to spur any improvement. This is no different from the earlier hype over the Philippines’ credit rating upgrade which was used by the current administration to distract from the country’s real economic woes like rising inequality and unemployment.

 

In grossly exaggerating the true impact of the DAP on the economy, the President is now resorting to making the Supreme Court’s decision a scapegoat to explain the current economic slowdown. And if there is truth to the allegations that portions of the DAP were lost to corruption, such as the alleged payment of bribes to members of Congress in return for the impeachment of former Supreme Court Chief Justice Renato Corona, this would further undermine the President’s argument that the DAP was a good program because it benefited the economy and improved the general welfare of Filipinos.

Seemingly lost in the controversy surrounding the Supreme Court’s decision to invalidate the DAP, and previously, the Priority Development Assistance Fund (PDAF) or the pork barrel for members of Congress, is the Malampaya Fund  which is commonly referred to as the Presidential Social Fund. The Malampaya Fund, which consists of royalties paid to the government by the operators of the Malampaya Gas Project in Palawan, is not subject to congressional oversight and could be the mother of all pork barrels, much bigger than the PDAF and DAP combined. Since 2001, the government has received a whopping US$1 billion annually in royalties.

President Aquino must be worried by now about his legacy, if any, which is slowly being eroded by his failure and inability to accept responsibility for the shortcomings of his administration. If there’s any consolation, he still has two more years to salvage his sinking presidency. But if the President continues to stubbornly defend the debunked DAP only to heighten an unnecessary confrontation with the judiciary, he would just be validating a Filipino psychic’s prediction that he will be ousted from power amid growing public discontent, with the possibility of spending jail time for charges of corruption.

Such a comical twist to the President’s mantra of daang matuwid.

Depoliticizing Malampaya

 

 

So much of the controversy about the Malampaya Fund focuses on whether the President has the authority to use the Fund for purposes other than to finance energy resource development and exploitation programs as originally intended.

 

While the Malampaya gas field off the shores of Palawan would be discovered 18 years later, this is the intent of the Special Fund established by Presidential Decree 910 issued by Ferdinand Marcos during the second year of martial law in 1973. The aforementioned Fund shall be collected from fees, revenues, fines and penalties under the old Petroleum Act of 1949, as well as the government’s share representing royalties from service contracts and similar payments on the exploration, development and exploitation of the country’s energy resources.

The Malampaya Natural Gas Platform on the Palawan shore

The controversy surrounding the Malampaya Fund, however, is not just about the shifting of government funds, which came about only after the Commission on Audit reported that P900-million from the Fund were allegedly diverted to bogus NGOs by the pork barrel queen, Janet Napoles. This was on top of the enormous P10-billion congressional pork barrel that was also attributed to the plundering Napoles.

 

At the outset, the Malampaya Deep Water Gas-to-Power project—inaugurated in 2001 and now the biggest single source of the President’s Special Fund—is a Pandora’s Box filled with schemes of fraud, abuse of political power, usurpation of legislative authority, violation of the Constitution, and a host of possible irregularities by the current and previous administrations.

 

One of the largest and most significant industrial endeavors in Philippine history, the Malampaya natural gas project was considered a milestone for a country that has been hitherto been solely dependent on imported fuel. Malampaya changes this dependency as it now provides 40 to 45 percent of Luzon’s power generation requirements, thus enabling the Philippines to import less fuel for power generation.

 

Led by the Philippine Department of Energy (DOE), the Malampaya project was developed and operated by Shell Philippines Exploration B.V. (SPEX) on behalf of joint venture partners Chevron Malampaya LLC and the PNOC Exploration Corporation. At first blush, the project appears to be a perfect model for public and private cooperation, until one understands the investment structure and profit sharing arrangement of the Malampaya project.

 

When inaugurated in 2001, the $4.5-billion Malampaya natural gas project is and remains the largest single foreign investment in the history of the Philippines. The project is 45% owned by Shell Philippines Exploration, 45% by Chevron-Texaco and only 10 percent by Philippine National Oil Company (PNOC). What seems wrong with this picture?

 

Shell and Chevron-Texaco thus control virtually all of the country's proven natural gas reserves, and at the same time, ensnare the largest share of benefits from its exploitation. In return for their investment, Shell and Chevron-Texaco expect to get $14 billion back over 20 years, or P574 billion at current exchange rates.

 

What does the Philippine Constitution say about foreign exploration, development and utilization of our natural resources?

 

Article 12 of the 1987 Constitution allows ventures or production-sharing agreements with foreign companies up to 40 percent capitalization. This means that at least sixty percent of the capitalization of such joint ventures or projects must be owned by Filipino citizens.

 

The Malampaya natural gas project was an exception, if not an anomaly. It clearly violates the Constitutional limit on foreign capitalization to 40% on exploration, development and utilization of natural resources. The Philippine government has therefore allowed Shell and Chevron-Texaco to disproportionately benefit from our natural gas resources against the interests of the country.

 

In addition to their return on investment, Shell and Chevron-Texaco would also benefit from significant incentives under Presidential Decree No. 87 of 1972, the precursor to PD 910, and other related decrees leading to the creation of the Department of Energy. Among these incentives are tax credits that are exempted from income taxation, duty-free importation and unrestricted entry of foreign personnel. There could be more but without Freedom of Information legislation, the average Filipino would never know the exact details of Service Contract No. 38 that granted Shell and Chevron-Texaco free rein to exploit our natural gas reserves. The government also failed to negotiate any kind of meaningful technology transfer, which is important if we wish to end our perpetual reliance on foreign firms for exploitation of our energy resources.

 

Is it too late to correct this situation?

 

The current Constitution of the Philippines, which was adopted after the fall of the Marcos dictatorship, provides that existing laws, decrees, executive orders, proclamations, letters of instructions, and other executive issuances not inconsistent with this Constitution shall remain operative until amended, repealed, or revoked. Quite clearly, all presidential decrees made by Ferdinand Marcos are inconsistent with who has legislative authority under the Constitution. Besides, how can one morally justify perpetuating the vestigial decrees of a much-hated dictatorship? It amounts to continuing the dictatorship and its oppressive laws.

 

The Malampaya natural gas project is clearly unconstitutional because it violates the provisions of the Constitution on national economy and patrimony. The Special Fund created by PD 910 could likewise be inconsistent with the present Constitution because it was a law not passed by Congress but issued by a hold-over president under a dictatorship. If we can borrow an analogy from criminal law, the provisions of any presidential decree issued by Marcos during his dictatorship are tainted and are fruits from the same poisonous tree. We should junk all presidential decrees issued by the Marcos dictatorship if we are serious in enforcing the constitutional delineation of the power to legislate.

 

In the words of Supreme Court Justice Antonio Carpio, “PD 910 is functus officio [no force or authority].”

 

In view of the huge royalties from the Malampaya gas project, it appears ludicrous that allies of President Aquino in Congress would now like to amend PD 910 insofar as limiting the Special Fund to the financing of energy–related projects. President Noynoy Aquino apparently wants his authority to use the Special Fund for other purposes be clearly defined so that it would give him the discretion to use the Fund as he pleases. Of course, Congress can pass a law to this effect which makes it more legally palatable under the Constitution instead of relying on the provisions of a Marcos-issued presidential decree.

 

Even if Congress amends PD 910 or enacts a new law that would define and expand the authority of the President in using the Malampaya Fund, this is not a foolproof escape route from the onerous provisions of a martial law presidential decree and it will certainly not prevent misappropriation and misuse of the Fund and future pork barrel scams. By and large, it only enhances the probability of more abuses and opportunities for economic plunder by this administration and succeeding governments since the pie would be significantly enlarged, not to mention the broad discretion to use it.

 

It was estimated that the Malampaya project would yield over P12 billion annually in royalty shares for the national government. In 2012 and 2013, the royalty shares reached $1 billion or P40 billion annually.

 

During the Arroyo Administration, about P25 billion was spent while P15 billion has been used under President Noynoy Aquino. The Malampaya royalty will get larger and the opportunities for its misappropriation and abuse will increase exponentially. In fact, the Malampaya Fund has become a huge political pork barrel.

 

There is also an ongoing dispute before the Supreme Court regarding the legal framework on natural wealth sharing. Under the Local Government Code, the local government unit where a natural gas field, in this case the Malampaya gas project, is located gets 40 percent of the royalties while the national government, 60 percent. But Palawan has been denied by the national government of its share and it’s taking the Supreme Court an inordinate time to rule on the territorial jurisdiction issue.

 

The interim sharing between the national government and Palawan has not been subjected to public scrutiny and transparency. Although an initial release of P3.9 billion to Palawan has been made in 2008, the disposition of the fund did not follow the general provisions of PD 910 which prescribed that 80% must be spent in energy-related projects benefitting the local population.

 

As it was the case for the congressional pork barrel, local political leaders determined the projects and manipulated bidding rules to favour certain public works contractors. Like the Napoles pork barrel scam, there were ghost and overpriced projects.

 

To reverse the current situation, Congress must regain its power to legislate under the Constitution by revoking all presidential decrees issued by the Marcos dictatorship. It must exercise congressional oversight of the Malampaya royalty fund, with the end in view of depoliticizing the fund as a pork barrel.

 

In addition, the Supreme Court should now decide on the sharing arrangement between the national government and Palawan: the Malampaya royalty should be used where the law intends it to and the local population gets the benefits from the exploitation of their natural resource.

Breaking bad

 

 

The P10-billion pork barrel scam allegedly masterminded by Janet Napoles is a real huge can of worms. With the likelihood that the scam could cause the downfall of some high-ranking members of the opposition in Congress, who would have known that the current administration is equally complicit in the entire pork barrel mess? Including the pork only the President controls at his discretion, the whole issue of corruption in government is now completely exposed.

Malacañang apologists and targeted members of the opposition are scrambling for their respective good reasons to cover up their involvement in the scandal that could make the anti-corruption crusade of President Noynoy Aquino a big farce. To the incensed public, it is becoming apparent that the President’s straight path is also a crooked road, after all. 

“Development” is a term often abused by those in charge of governance. The congressional pork barrel is euphemistically called Priority Development Assistance Fund (PDAF). The President’s pork consisting of the Presidential Social Fund, the Malampaya Fund, and the Special Purpose Fund, which he can disburse at his discretion without oversight and audit, is supposedly allocated for development purposes. Even the latest exposé about the so-called bribe given to senators who voted for the impeachment of former Supreme Court Chief Justice Renato Corona referred to the said incentive as Disbursement Acceleration Program (DAP), designed to speed up government spending for development projects.

 

According to the Department of Budget and Management (DBM), the allocations from the DAP were government savings or unprogrammed funds that had to be spent because the government was underspending at the time and it was necessary to stimulate the country’s declining GDP. If you believe the DBM, the Philippines must be enjoying a bubbling economy compared to the rest of the world’s larger economies which are imposing austerity measures and reductions in government spending.

 

No matter what newer rationale the DBM or the President’s principal ally in Congress, Senate President Franklin Drilon, spins out to the public, it will not wash away the dirty hands of the administration in the current pork barrel mess. President Aquino’s much-ballyhooed anti-corruption crusade is being visibly reduced into one great deception and hypocrisy.

 

The underlying purpose of development in the Third World is to escape from misery and poverty that have become the bane of suffering for more than a majority of the population in these areas. To improve the lives of these people by giving them access to basic social services and opportunities for employment has always been the ubiquitous undertone to human development. Wars, colonization, natural calamities, and in great part, the lack of moral integrity among the people’s representatives in government, have been generally identified as obstacles to growth.

 

Public corruption in the Philippines, for instance, has been acknowledged as pervasive as early as the American colonial administration. The current pork barrel mess is yet the latest incarnation of government corruption on a national scale. Both the mainstream news media and the bustling social media are exploiting the pork scandal as a fodder for entertainment. Nothing is new about corruption in government. The corruption we detest so much now is as old as the government we have.

 

The social tableau of our country’s underdevelopment is painted with an unimaginable landscape of poverty, inequality, and monopoly of political and economic power in the hands of the oligarchic elite. Despite the good news of rising confidence by foreign investors in our local economy, this has not been translated in job creation and reduction in poverty. Local migration of labour from the rural to the urban areas only exacerbates chronic unemployment in the cities while landless farm labourers continue to wallow in extreme poverty and insecurity. Equal economic opportunities remain inaccessible, thus forcing the migration of skilled labour to other more developed countries where chances of a better life are greater.

 

On the other hand, the promise of democracy continues to linger. Our kind of democracy remains a failed one. Political power is dominated by traditional oligarchic families who also control access to business opportunities.

 

This is the raw background from which our national development must be forged, yet our elected representatives and bureaucrats in government keep a blind eye. Power and fame have consumed them. Even worse, many members of a crucial class of intellectuals and professionals in our country tend to be swayed rather than be critical of government abuse and excess simply because they find the prospect of an alternative leader or system of government more frightening than the status quo.

 

Thus, no matter how vociferously or constructively you criticize the current government for its complicity with corruption, there are those—and they are a legion—who would immediately drown and silence you out. The activists and student radicals of the sixties and seventies have joined the ranks of government apologists while the true and non-partisan social critics remain handcuffed and restricted to the margins of dissent.

 

One may ask with a sinking heart how development can be possible with all this dramatis personae in our society.

 

The pork barrel scam has exposed the rottenness of our entire political system. Our people are deeply disgusted and disenchanted. We are watching corruption in government unfold as our own national morality play where the principal actors— members of Congress, both opposition and those loyal to the President, and the Executive branch battle their wits for days on end. Is the solution to this mess within the reach of these actors? How will this play segue to its dramatic conclusion?

 

If only last Sunday’s final episode of Breaking Bad on TV could be the right formula for an ending to the pork barrel scam, then we could be hoping for almost an uplifting denouement. After all, a relatively happy ending is that crime doesn’t pay, and we hope the characters in our own morality play also lose their ill-gotten wealth and political stature, including their souls.

But this is not going to happen. Who are we kidding? There is no room here for contrition, confession, and conciliation as in Breaking Bad.

 

The pork barrel mess has accumulated so many layers of lies and betrayals that the truth may not be that easy to disentangle. Investigations will bog down the search for a final determination of this scam, with the dreamt trial of the year not commencing before the incumbent President—the one so rabid to catch the corrupt—finishes his term of office. Remember that his predecessor is still languishing in hospital detention for plunder charges not even fully prepared for court trial after more than two years. Judging by the slow wheels of justice in our country, this pork scam may not actually see the end of day.

 

We need a clear ending to this mess created by our elected representatives and by our government. The people therefore must persevere with their public protests, short of running to the hills if nonviolence as a means to a resolution doesn’t work.

 

Briberies, kickbacks and all forms of corruption involving pork barrel funds have been routinely perpetrated in various guises by our elected senators and representatives in Congress and those we entrust the daily running and operation of government. This was long before Janet Napoles surfaced before our eyes. Corruption has become an integral part of our political culture, a way of life not easy to break.

Plunderers’ row

 

 

Anyone with an Internet connection can check the Philippine Center for Investigative Journalism (PCIJ) website to find out if his or her favourite or most detested public official, whether a police chief or mayor, governor or cabinet member, has faced charges of graft and corruption. The PCIJ website has accumulated a database of Sandiganbayan cases against Philippine public officials from 1979 to 2012.

 

It’s no surprise if you find in the PCIJ database the three highest ranking government officials ever charged with plunder: former presidents Ferdinand Marcos, Joseph Estrada and Gloria Arroyo-Macapagal.  

Protests against corruption in government heat up as Napoles, 37 others face
plunder, graft raps. Click link to view press conference of the Dept. of Justice,
http://newsinfo.inquirer.net/488567/napoles-3-senators-face-plunder-raps-over-pork-barrel-scam

Ferdinand Marcos had been implicated in several cases involving bribery and other forms of corruption in government for all the years he had ruled the country with an iron fist. Whether by a stroke of luck or aggressive lawyering by his defence team, the Sandiganbayan simply failed to find any liability against Marcos.

 

Take the case of Herminio Disini, a Marcos crony who was found by the Sandiganbayan in 2012 guilty for receiving bribes in connection with the Bataan Nuclear Power Plant (BNPP). Disini was ordered to return to the government $50.6 million in commissions he received for helping two foreign firms win the BNPP contract. While the Sandiganbayan found Marcos to have had a “personal financial interest” in the transaction, the court could not find evidence to show that either Marcos or his wife, Imelda, received any part of the commissions from the BNPP deal.

 

Disini is still a free man and rumoured to be living somewhere in Europe in a castle he bought for himself. Marcos died a long time ago but his family is back in political power. Although there is no statute of limitation in recovering the Marcos’ ill-gotten wealth, the government has simply not done anything as if this has been a forgotten issue.

 

Everyone knows what happened to Joseph Estrada. Two years into his presidency, he was charged with plunder and convicted by the Sandiganbayan. Estrada was sentenced to life imprisonment or reclusion perpetua until he was pardoned by his successor, Gloria Macapagal-Arroyo. Arroyo, who herself would be charged with plunder after her presidency and more than two years into her supposed trial by the Sandiganbayan, remains in hospital custody while eagerly waiting for her day in court. Estrada has been elected mayor of Manila while Arroyo has been re-elected as her district’s representative in Congress.

 

The Sandiganbayan as an anti-graft court was established during the term of the dictator Marcos, apparently not a serious feature of his repressive government, or to be expected to become an effective arm of the government in combating corruption of public service employees. According to Senator Frank Drilon, the current Senate President, there are at least 2,600 graft cases still pending before Sandiganbayan, which is only able to resolve less than 100 cases yearly.

 

Overwhelmed with an enormous number of unresolved cases, how then can we expect the Sandiganbayan to speed up the much-awaited trial of the senators and members of Congress who were named in the complaint filed by the Department of Justice in the recent pork barrel scam? Judging by the Sandiganbayan’s appalling inefficiency, there is virtually no hope for the public for a swift and early dispensation of justice for the nation’s collective indignation. What a waste for the people’s hue and cry?

 

The unpleasant track record of the Sandiganbayan merely confirms that morality is rigged in favour of the powerful. The mighty that have stood up in trial for their high misdemeanours against the nation are either pardoned or simply locked up for the moment until everyone has learned to forget, even perhaps, to forgive. Or better yet, waiting for the right moment for all their charges to be swept under the rug.

 

Public consciousness has been aroused about the evils of corruption in government. The people are now getting more and more exposed to the various camouflages that conceal corruption that goes unrecognized. But it is the government and the powers it yields that now prove weak in wrestling with this conundrum. Or maybe, the government and our current crop of leaders are not serious enough, like their predecessors, in combing out corruption because if they were, they would similarly be the object of public lynching. Not by the organized opposition but because their own hands are also dirty and the public knows it.

 

This is clearly evident in the current complaint filed by the Department of Justice against 38 defendants—three senators, some members of Congress, and others allegedly involved in scamming the Priority Development Assistance Fund (PDAF). All lawmakers named in the complaint are known stalwarts of Noynoy Aquino’s opposition, which could rightfully infer bias and political motivation to stymie the potential rivals of the current government’s anointed successors.

 

The information contained in the complaint is very shoddy and alludes to pieces of evidence yet to be gathered. It smacks of a fishing expedition, a careless preparation just to allay a restive public that is bent on holding more and bigger protests against the government’s feeble response to the nation’s outcry.

 

According to the special report of the Commission on Audit (COA) for the years 2007 to 2009, nongovernmental organizations (NGOs) have been violating the use of funds under PDAF without an appropriation law or ordinance earmarking such amounts for their projects. NGOs were simply endorsed by legislators, thus funds were allowed to be transferred to NGOs whose status and existence turned out to be questionable, such as those run or incorporated by Janet Napoles, the alleged pork barrel queen.

 

It is also doubtful that the named defendants in the complaint were the only ones involved in the PDAF fiasco. The current president who was a congressman for nine years and a senator for three years before being elected president would certainly have received his share of PDAF allocations, whether through his own network of supporters or NGOs. Besides, as president, Noynoy Aquino has the discretionary spending power without audit and oversight which could tap into almost P1.5 trillion of revenues from the Malampaya fund and PAGCOR operations through regulation of amusements and gaming facilities. PDAF makes up only about 1.3 percent of the yearly national budget. It means that there are other potential sources for massive corruption that remain untouched if we simply focus on the PDAF scam.

 

But then, all the president’s loyal men claim Noynoy Aquino is incorruptible, honest and super clean—therefore, he should be spared of the people’s collective indignation against corruption in government. Of course.

 

In the same COA report, it also identified 54 PDAF-funded projects which were constructed on private properties belonging to members of Congress not named in the complaint. Obviously, these members of Congress are affiliated with the president’s party or known to be supportive of the current administration. Such use of funds, as pointed out by COA, is prohibited. According to law, public funds must be used to promote public welfare or purposes, and not individual advantage.

 

In the grand scheme of public corruption, we might as well declare all members of Congress in both houses, and the office of the president, or even the entire bureaucracy, as a big plunderers’ row. But as official morality seems to reside in the hands of the powerful, the sitting president and his party and supporters control the government. They have at their disposal all agencies and offices, including the media, to prosecute and persecute those they have deemed as enemies of the state.

 

Janet Napoles and the PDAF scam have become our national morality play. From the perspective of institutionalized corruption, this entire mess, according to the Center for People Empowerment in Governance (CenPEG), “dramatizes only one aspect of a long entrenched tradition of lack of accountability by politicians and a culture of impunity enjoyed by the powerful.”

A case for resistance

 

 

After the August 26th people march at Luneta, September looks like a spirited month for Filipinos to sustain and maintain their opposition to the pork barrel system.

 

It’s not just the congressional pork barrel, known otherwise by its euphemism, the Priority Development Assistance Fund (PDAF), that the people want to abolish, but also the presidential social fund or discretionary fund which is many times larger than the pork Congress allots to its members.  

Public protests against pork barrel intensify after the August 26th people march
in Luneta. Photo by AFP.

The president’s pork is reported to be more than 1.5 trillion pesos, and that easily makes the P25-billion congressional pork barrel a drop in the bucket. With that amount of money at the discretion of the president, there is a lot for a corrupt president and his cabinet of close allies and friends to be tempted to plunder.

 

What enhances the opportunity and motivation to steal from this enormous fund is the absence of review by the Commission on Audit (COA) and congressional oversight. Right now, the current administration dips into this fund whenever the government needs money to finance the President’s favourite programs like the conditional cash transfer fund (the 4Ps) and public-private partnership projects. Money for national emergencies due to unforeseen natural events such as typhoons and other calamities also comes from this fund, which the administration uses as a blanket justification for its discretionary spending.

 

Where does this president’s huge discretionary fund come from? It’s all easy money – royalties ($1 billion this year) from the Malampaya Deepwater Gas-to-Power project, a consortium between Shell, Chevron and the Philippine Department of Energy which was criticized as a sell-out by the Philippine government to foreign corporations; revenues from the Philippine Amusement and Gaming Corporation (PAGCOR) operation of casinos and slot VIP Clubs; the sale of sweepstakes and lotto tickets by the Philippine Charity Sweepstakes Office (PCSO); and, revenues from other income-generating public corporations which are too many to enumerate here.

 

The Aquino government faces a September offensive of protests from various sectors of Philippine society for its stand on pork barrel. Aquino has been ambivalent on whether to scrap PDAF although it is Congress which has the power to repeal the dreaded pork barrel legislation. But the President remains adamant to preserve his discretionary fund which he said is exclusively for the purpose of implementing the government’s social programs and its response to national emergencies and calamities.

 

First off, the Catholic Bishops Conference of the Philippines (CBCP) has called for prayer vigils across the country on September 7 which coincided with Pope Francis’ plea for a “Day of Atonement” as Catholics around the world celebrate the vigil of the birthday of the Blessed Virgin Mary. The Pope has asked all Catholics to offer prayers in atonement for their sins against world peace and in particular pray for the restoration of peace in Syria.

 

For its part, the CBCP also declared September 7 as a day of atonement for Filipino Catholics for sins against peace in our country. “According to our moral judgment, the present pork barrel practice in government is fertile ground for graft and corruption. Promoting the politics of patronage, it is contrary to the principles of stewardship, transparency and accountability. It is immoral to continue this practice,” the CBCP further said.

 

On September 11, Filipinos from different faiths will hold a prayer vigil at the Edsa Shrine under the initiative of a new movement called Edsa Tayo. There will be an inter-faith prayer, the lighting of the vigil candle and Freedom Flame, and some singing, all part of the continuing protest after the August 26th march to completely abolish pork barrel. According to the organizers, “Edsa Tayo will only be the kick-off a wider prayer vigil.”

 

Two days after Edsa Tayo, militant groups will also hold a mass action against the pork barrel system on September 13 at Rizal Park in Manila. Then on September 19, millions of overseas Filipino workers (OFWs) will temporarily suspend their remittances to the Philippine government, which organizers dubbed as “Zero Remittance Day,” in support of the growing nationwide movement to abolish the pork barrel system.

 

President Noynoy Aquino’s spokesperson Edwin Lacierda immediately downplayed the planned demonstrations. He questioned why the organizers of the September 11 prayer vigil decided to hold their rally on the birth anniversary of the former dictator Ferdinand Marcos. Lacierda likewise belittled the announcement of Migrante International that some 112 Filipino migrant workers’ organizations from all over the world have agreed not to send remittances as part of the protest. He doesn’t think OFWs would be able to hold their remittances because it’s their families who would eventually  suffer. 

Anti-pork barrel protests zoom in on President Noynoy Aquino for insisting
that he should keep his presidential pork. Photo by anti-pinoy.com

Lacierda and his boss, by extension, both miss the point of these September rallies. The Edsa Tayo organizers insist that they never thought of celebrating the birthday of the late dictator and that September 11 was just a convenient date.

 

But President Aquino and his spokesperson showed their brazen lack of appreciation of the OFWs’ decision to suspend their remittances. Overseas Filipino workers agreed not to remit on September 19 as a symbolic protest and a political exercise for Filipino immigrants to collectively demonstrate their outrage on issues that affect them. OFWs chose September 19 because it was on this day when the Philippine government implemented the Overseas Workers Welfare Assistance Omnibus Policies (OOP) that effectively made the $25 contributions to the Overseas Workers Welfare Fund mandatory per contract.

 

Describing the Overseas Omnibus Policies as “anti-migrant,” Migrante International said the Zero Remittance Day on September 19 will enable the voices of OFWs “to be heard in the call to abolish the pork barrel and re-channel funds for the people’s interest, including more efficient services and welfare assistance to overseas Filipino workers in distress.” Filipino migrant organizations from all over the world agreed not to send remittances to their families in the Philippines to express their outrage against the “widespread corruption, patronage politics and social injustice” in the Philippines.

 

The Zero Remittance Day by Filipino overseas workers is more than symbolic. It is beyond expression of their collective indignation. More than anything else, it is imagination in action, a call for resistance that could signal the beginning of more protests of civil disobedience against the current administration.

 

One Philippine newspaper wrote in its editorial that migrant workers have the right to be angry. These workers sacrifice their future so that the families they leave behind can afford a better life. With their income remittances, they have long been considered a lifeline to our troubled economy. But when the leaders they elect betray their trust, their hopes of returning to a better country are likewise crushed.

 

But not just migrant workers have the right to be angry. Every Filipino must be enraged with a government that doesn’t follow what it says. “Kung walang korap, walang mahirap,” the Aquino government proudly proclaims. Yet, its actions betray its words. Poverty is on the rise because this government is no match against corruption, more so with its complicity with the very venal act it condemns.

 

Our migrant workers are showing us the way to peaceful resistance. Their call for Zero Remittance Day is based on the belief that the pork barrel system is immoral, unjust and a dangerous policy. It is the kind of civil disobedience that is justified because it challenges a government that tolerates its own injustice to the people. Henry David Thoreau wrote of this form of civil disobedience as accomplishing a “peaceable revolution.”

 

While President Aquino and his administration may deem the migrant workers’ decision to suspend their remittances on September 19 as ineffective, perhaps absurd because it would affect their families even more as Lacierda claims, the harmlessness of such entirely symbolic protest may serve a higher purpose. It shows that collectively, Filipinos, short of a true revolution, are not without the means to redress their grievances. It also demonstrates other ways in the people’s arsenal of protests which they can unleash against a government that is not merely corrupt but also insensitive to their outrage.

 

There have been many historical instances of civil disobedience, such as those of Thoreau, Gandhi and Martin Luther King. Civil disobedience is a classic way of expressing defiance toward government and unwillingness to support its policies. Other forms of civil disobedience like boycotts, refusal to pay taxes, sit-ins like the Occupy movement, and general strikes will make it more difficult for a government to function. True, there could be public discomfort, but not for a long time, because the government will become more responsive and sensitive to the purposes of civil disobedience.

 

Rallies, prayer vigils, disobeying morally repugnant laws and policies, and other forms of public demonstrations must continue against the pork barrel system until the government engages the people in a moral dialogue toward an acceptable resolution. On the other hand, the government should not resort to heavy-handedness by using its coercive powers in silencing the people’s protest.

Boulevard of broken dreams

 

 

A million or so Filipinos marched Monday, August 26, to Rizal Park, formerly known as Luneta, to collectively show their outrage against the system of pork barrel that has been at the front and centre of Philippine politics for quite sometime. Janet Napoles, the pork-barrel queen, made sure this issue won’t die down as she continues to elude authorities. The euphoria of last Monday’s protest is over now and we’re back to base one, with reality staring down hard at us.

 

Even before the march, President Noynoy Aquino has already pronounced he would abolish the Priority Assistance Development Fund or PDAF, the congressional pork barrel. Although at first Aquino was for retaining PDAF because he believes that it has some benefits to local governments and other civil organizations like cause-oriented NGOs, he had to backtrack after realizing the huge swell of opposition on the eve of the people’s march. The truth, however, is he could not unilaterally make this decision on his own without involving Congress.



Protesters during the August 26th one million people  pork barrel march at Rizal
Park demanding the abolition of the Priority Development Assistance Fund (PDAF),
Congress' pork barrel and the president's pork barrel. Photo courtesy of Demotix.

Malacañang lauded the people who marched last Monday calling them Noynoy Aquino's new allies in his campaign against corruption. Naturally, people were mad because President Aquino stood his ground in preserving the much bigger presidential pork barrel, the discretionary funds he can use anytime at his will without congressional approval, especially the billions of dollars paid as royalties to the Philippine government from the Malampaya gas project.

 

With PDAF’s abolition uncertain and the president’s pork barrel safe in place, perhaps what the people need to do next time is to assemble another protest, but bigger and more boisterous, not in Luneta but in front of Malacañang.

 

Assuming another protest march would make the President eventually buckle down to pressure, both congressional and presidential pork barrels even if they are abolished will not solve the problem of corruption. The sum total of all stolen possessions by politicians, their families and cronies, past and present, is still much larger, enough to make the whole nation shudder. We need a bigger intervention, one that is not only going to wipe out pork barrels, whether presidential or congressional.

 

French political thinker Charles-Louis de Secondat, better known as Montesquieu, wrote about the corruption of principles and the decline of the state in De l’Espirit des lois (The Spirit of the Laws):

 

“The corruption of each government begins almost always with the corruption of its principles…

 

“Once the principles of a government have been corrupted, even the best laws become bad and will turn against the State, whereas when principles remain healthy, bad laws may have the effect of good ones because the force of principle carries everything with it.

 

“Few laws are not good when the State has not lost its principles, and, as Epicurus relates in speaking of wealth: ‘It is not the liquor which has become corrupted, but the vessel that holds it.’”

 

This observation doesn’t apply only to the Philippines but also to its model of governance, the United States, a far more advanced political system. In a 2005 Harper’s Magazine article, “The Great American Pork Barrel,” Ken Silverstein outlined how a simple piece of legislation like the Foreign Operations bill could undergo a startling metastasis.

 

Calling it the biggest single piece of pork barrel legislation in American history, Silverstein noted that the aforementioned bill started with a mere nine earmarks (Americans call their pork barrel as earmarks) but ended with 11,772 separate earmarks scattered throughout the bill.

 

Silverstein wrote: “There was$100,000 for goat-meat research in Texas, $549,000 for “Future Foods” development in Illinois, $569,000 for “Cool Season Legume Research” in Idaho and Washington, $63,000 for a program to combat noxious weeds in the desert Southwest, $175,000 for obesity research in Texas. In the end, the bill’s earmarks were worth a combined total of nearly $16 billion—a figure almost as large as the annual budget of the Department of Agriculture and roughly twice that of the Environmental Protection Agency.”

 

Napoles’s P10-billion pork barrel scam simply pales in comparison. Nor the presidential pork barrel which was reported to be largely allotted for calamity funds. The pork barrel system in both the US and Philippine settings obviously protects incumbents of Congress and the President. There is very little incentive to reform the system. As what has happened in the Philippines, the most President Aquino, for instance, can do is to mouth his slogan of “matuwid na daan” which is nothing but an empty shibboleth.

 

Keith Ashdown, who served as research director for Citizens for Responsibility and Ethics in Washington (CREW) and a nationally recognized expert in tracking political paybacks and corruption, calls the American pork barrel or system of earmarks as one of the most fundamental rights of members of Congress, whether one is Republican or Democrat. “Getting between a lawmaker and an earmark is like trying to take a rib eye away from a dog,” says Ashdown.

 

Since 1822 when US President James Monroe limited financial support from Washington “to great national works only,” the pork barrel has become central to America’s national political culture. It has long been a foregone conclusion that whenever the federal government builds a road, or erects a dam, or constructs a power plant, members of Congress will artfully pad the bill with hometown “pork.” In fact, this is the same political culture that the Americans transplanted in the Philippines during their colonial administration of the islands.

 

Filipino politicians are astute learners of the American political system. With the hue and cry about pork barrel, President Aquino is now suggesting reforms that would in effect only streamline the means of corruption. Eliminating the PDAF and introducing a more palatable program with virtually the same purpose will not solve the problem. 

Filipino seafarers join protest vs. pork barrel system and corruption. Photo by
Edgardo Tuangtuang, courtesy of Migrante International.

The trust of the Filipino people in their leaders is now at a record low. In fact, it has been in the dumps since the two decades of martial law regime under Ferdinand Marcos. Despite a resurrection of trust in the early stages of the Cory Aquino administration, we have never fully recovered, especially after the years of plunder under Joseph Estrada and Gloria Macapagal-Arroyo.

 

President Noynoy Aquino, with his awkward and lacklustre leadership and policies, has failed to restore trust in government. All the president’s men—Lacierda, Ochoa, Abad, and others—can do is to keep on refurbishing Aquino’s image as trustworthy even if he is a weak leader.

 

Political cynicism is growing in leaps and bounds, and if the President and the men around him continue to be in a state of denial, which the smug yellow media helps to foster, the last three years of the Aquino administration will surely be headed towards a boulevard of broken dreams and failed promises.