Doy Laurel: EDSA's unsung hero

02/25/14 As published in Rappler.com

Much has been said about the 1986 EDSA Revolution that ended the 20-year Marcos dictatorship. Yet there a good number of stories left unsaid, stories of unsung heroes that were systematically suppressed by the victors of history. While many people tend to associate that popular revolt with Cory, I chose to go the other way around. Thus, when I hear the song Impossible Dream, I can’t help but recall a quintessential statesman long forgotten by history. No, I don’t mean the perceived martyr Ninoy, but the distinguished Batangueño whose dream to selflessly serve our country as president (and probably could have been one of the best Philippine presidents in our history) was made impossible by an unfortunate string of historical events.

Today marks the EDSA Revolution’s 28th year yet our vision is still blurred, if not myopic. I state with no intention to undermine the church, EDSA was far from being miraculous. It was bloodless not because of divinity but of overflowing patriotism with the ailing Marcos to no exception. EDSA therefore is not singly the Aquinos, nor the church but also the other unsung heroes who marshalled the people into this noble fray - one of whom is Salvador “Doy” Laurel.

Unido

Flashback to the ‘80s. Because most of the opposition cowed in fear, Doy et. al. had no choice but to continue the fight even on dangerous grounds. Some even went to the extent of supporting the red armed struggle. Doy of course disagreed. His unfettered optimism, devotion to constitutional principles and faith in the Filipino people inspired him to do what he was destined to do; and so came the United Nationalist Democratic Organization (UNIDO).

The genesis of this organization was to foster the marriage of convenience between two erstwhile formidable opposition parties: Liberal and Nacionalista, under the joint leadership of Senator Gerry Roxas (Liberal) and Speaker Pepe Laurel (Nacionalista), older brother of Doy. But with the untimely death of Senator Roxas, the party, disregarded the previous dual leadership arrangement and ended with Doy’s election as the new sole president. UNIDO was to become the opposition’s potent umbrella organization in the ‘80s under Doy’s audacious tutelage; cobbling together disparate opposition groups seeking to remove Marcos from power through peaceful means.

UNIDO despite its limited resources, managed to win the elections entirely dominated by KBL candidates. From makeshift stages, rallies in Plaza Miranda to noise barrage, UNIDO under his leadership became the people’s sounding board against the repressive regime. Finally in 1983, UNIDO came out of its cocoon and became a full grown opposition party with capabilities of destroying the manacles of dictatorship.

The turning point

The nation was stunned when Ninoy Aquino was shot dead in broad daylight. Naturally, Anti-Marcos protests soon reached its peak. In utter disgust, Doy Laurel resigned immediately from the farcical parliament of Marcos. A few days later, as he was about to deliver his valedictory speech in the halls of Batasan, lights were shut off but Doy refused to be silenced. In front of local and foreign media, Doy Laurel stepped outside of the building and right there and then delivered his fiery speech in honour of his fallen comrade.

Cory and Doy

Fast forward to the days following President Marcos’ call for a snap election. Undoubtedly, Doy was the logical candidate to represent the Opposition for no other person had the balls to stand up squarely against Marcos except him. At this juncture, rumours had been going around that Ninoy’s widow intends to run as president. Of course, Doy, ever the gentleman that he is, went out of his way to sort it out with Cory. This was denied a number of times over by her and if I may so, has denied it even up to her very last breath. Much to Doy’s surprise, Cory endorsed his candidacy on June 12, 1985 at the unprecedented UNIDO national convention attended by 25,000 delegates from all over the country.

Later however, it was Cory who became the opposition’s banner holder. Doy peacefully acceded and slided to the vice presidency. And the rest, as they say is history. Living what his father reared him to be, it was not surprising that Doy faithfully followed, “Ang bayan, higit sa lahat.”

Opposition united?

To my end, it is not about if Doy could indeed beat Marcos in the 1986 snap election. In fact, given Marcos’ unbounded powers, resources and machinery, Doy surely would have been defeated. But the decisive question is who led the opposition when everyone else was silenced by fear? Who inflamed the hearts and minds of Filipinos at a critical time when they needed someone to look up to? EDSA Revolution therefore is the culmination of that long arduous anti-Marcos struggle led by Doy and other opposition figures who were with him one way or another.

The events that happened from 1980 to 1983 are the “missing links” in Philippine history. Those crucial moments were deliberately expunged from the collective memory of Filipinos. Surely, these are the times when Doy was at his best! On my end, more than his accomplishments as a senator during the pre-martial law years, not even his magnanimous decision to step aside as a presidential contender in favour of Cory would equal his role as a freedom fighter and opposition leader at the onset of the ‘80s.

When the mists of partisan passion gradually lift with time, the full extent of Doy’s service to his nation will be revealed. In his acceptance speech at the UNIDO convention dubbed as “The Final Battle,” Doy, the champion orator, delivered an impassionate plea: “Democracy cannot take root amidst violence. Bloody revolution is not the only path to freedom. All confrontation must end in reconciliation.” He could not have said it better because these very same words had served as pattern for the rest of his political life.

The 1986 People Power Revolution now belongs to the entire nation, and not just a few personalities who claim to be its posthumous heroes. No political clan can therefore rightfully claim notoriety to it. EDSA is also about the forlorn heroes and heroines, Doy being one of them, a first-rate Filipino leader with a masterful grasp of our nation's destiny.

Ultimately though, EDSA belongs to the people, as its name verily suggests. I bet to this, Doy Laurel would agree no less.

PS: The author would like to thank RAPPLER.COM for publishing this article.

Concerning Nukes and International Law

Sovereignty has long been defined as the supreme, uncontrollable power inherent in a state by which that state is governed. To be precise, it is the supreme power of the state to command and enforce obedience, the power to which, legally speaking, all interest are practically subject and all wills subordinate. Under international law, sovereignty or independence has two aspects, namely, internal and external sovereignty. The latter signifies the freedom of state to control its own foreign affairs while the former refers to the power of the state to direct its domestic affairs. Obviously, domestic independence enable states to organize its form of government, enact its own constitution and laws suitable to its needs, and adopt national policies consistent with its national interest. In the same vein, the second aspect of independence concerns the right of the State to conduct its foreign relations with other States without interference by other States. Charles G. Fenwick, one of the noted authorities in the field of international law, offers one vital qualification to the word ‘independence’; he said: “Independence only means freedom from control by any other state and not freedom from the restrictions that are binding on all states forming the family of nations.” Thus, as a rule, sovereignty is absolute and all-encompassing on the domestic level but subject to restrictions and limitations voluntarily agreed by States expressly or impliedly, as a member of the family of nations.

It is undeniable fact that State practice for some fifty (50) years clearly demonstrates the idea that possession of nuclear weapon per se is not illegal under international law. It is for this reason that most States consented and even supported the possession of nuclear weapons by the “Big Five” pursuant to the Treaty on Non-Proliferation of Nuclear Weapons (NPT). The perceived acquiescence by the international community of NPT has created the impression that these nuclear powers are legally entitled not only to possess, but also to use nuclear weapons under certain circumstances and to threaten their use. Vice-President Stephen Schwebel of the International Court of Justice opined:

This nuclear practice is not a practice of a lone and secondary persistent objector. This is not a practice of a pariah Government crying out in the wilderness of otherwise adverse international opinion. This is the practice five of the world’s major powers, of the permanent members of the Security Council, significantly supported for almost 50 years by their allies and other States sheltering under their nuclear umbrellas.

From the foregoing observation, it is crystal clear that this practice has been recognized, accommodated and to some extent, accepted by the majority of States forming part of the international community. The arguments posed by nuclear-weapons States are mainly based on the fundamental principle of independence and respect in the conduct of their foreign relations. It is precisely for this reason that they adopted the so- called, “policy of deterrence” to justify their position. Under this policy, in order to lessen or eliminate the risk of unlawful attack, states signal that they possess certain weapons to use in self-defense against any State violating their territorial integrity or political independence.

Under Article 2, par. 4 of the UN Charter, members of the United Nations shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. This provision must be read in conjunction with Article 51 of the same charter recognizing every state’s inherent right of individual or collective self-defense if an armed conflict occurs. Clearly, the provisions cited do not refer to specific weapons. They apply to any use of force, regardless of the type of weapon employed. In the advisory opinion rendered by the World Court concerning the legality of nuclear weapons, it noted that the UN Charter neither expressly prohibits nor permits the use of any specific weapon. Accordingly, whatever the means of forced used in self-defense, the dual customary condition of necessity and proportionality and the law applicable to armed conflict apply, including such further considerations as to the very nature of nuclear weapons and the profound risk associated with their use. This pronouncement by the International Court of Justice implicitly affirms the right to use nuclear weapons under extreme circumstances in the exercise of legitimate self-defense. But as vividly pointed out by the court, the invocation of self-defense must comply with the principles of necessity and proportionality. As held in case of Nicaragua v. United States of America,” there is a specific rule whereby self-defense would only warrant measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary law.” Verily, the Proportionality principle thus not in itself excludes the use of nuclear weapons in all circumstances so long it complies with the principles and rules of humanitarian law. It must be stressed that in the said advisory opinion the court pointed out that mere possession of nuclear weapons would not constitute unlawful “threat” to use force contrary to Article 2 (4), unless the particular use of force envisaged would be directed against the territorial integrity or political independence of any state; or in any event that it were intended as a means of defense; such envisaged use of force would violate the principles of necessity and proportionality. Settled is the rule under international law that opinions rendered by the International Court of Justice are highly persuasive and entitled to great respect in resolving issues pertaining to international law. Likewise, decisions and opinions of the World Court offer direct evidence of the existence of a rule of international law.

One of the recognized primary sources of international law is customary law. In many occasions, international tribunals have been using international customs in resolving controversies involving questions and application of international law. In accordance with Article 38, par.1 (b), the International Court of Justice is directed to apply international custom in deciding disputes involving interpretation of international law. In addition, even national courts of most States when confronted with issues pertaining to general principles of international law, the most decisive and effective way in deciding the case is to rely on international customary law.

In legal parlance, international customary law is defined as the "general and consistent practice of states followed by them a sense of legal obligation.” From this definition, the elements of customary law are the following: duration, consistency, generality of practice and the belief that such practice is obligatory. The most important element to consider in determining whether a practice has been transformed into customary law is the existence of opinio juris or the belief that a certain form of behavior is obligatory. Sans this element, practice is not law. As the Nicaragua case puts it: “for a new customary rule to be formed, not only must the acts concerned amount to a settled practice, but they must be accompanied by the opinio juris sive necessitates.” Corollary, a very important question needs to be answered: does prohibition against the use of nuclear weapons amount to international customary law? In answering this question, the General Assembly of the United Nations attempted to forge a consensus in the form of Resolution 1653, aptly titled, “Declaration on the Prohibition of Use of Nuclear and Thermonuclear Weapons.” To support its claim, Resolution 1653 painstakingly enumerated several age-old international declarations and treaties from the Declaration of St. Petersburg of 1868 to the Geneva Protocol of 1925. It only goes to show, however, that there has been no specific rule under customary international law that expressly prohibits the use of nuclear weapons; otherwise if such a rule existed, the General Assembly could simply have referred to it and would not have needed to undertake such an exercise of legal qualification.

Declarations of legal principles and resolutions by the United Nations General Assembly are generally considered “recommendatory” in nature. As a rule, the General Assembly has no authority to enact international law; but if these resolutions are supported by all states they are an expression of opinio juris communis─ thus it becomes part of customary law. Clearly then, did Resolution 1653 gain overwhelming support from member-states? The response leaves much to be desired; for not only did it fail to gather support from all member-states, it likewise failed to secure the approval of all nuclear-weapon States.

It is therefore the view of this writer that a contrary opinion prevails. To support this contention, one need not look further; the Treaty on the Non-Proliferation of Nuclear Weapons provides us with an answer. The fact that said treaty allows possession of nuclear weapons by the five nuclear-weapon States highlights a startling recognition that such dangerous weapons may be used under highly extreme circumstances. It is imperative to note that in so far as customary law is concerned, there appears to be no hard-and-fast rule authorizing the threat or use of nuclear weapon or any other weapon in general. But if the situation calls for it, international customary law impliedly sanctions its ‘use’ on two compelling grounds: in the exercise of legitimate self-defense and if the dual customary conditions of “proportionality” and “necessity” are complied.

In sum, there can be no doubt that nuclear weapons may be used under the most looming circumstances signalling a major conflict─ when the very survival of a state is at stake. International law therefore must strike a balance between two compelling interests: state's inherent right to existence and self-defense vis a vis right to life.

NB: This is a recycled material. I've written this piece way back in 2002, one year before I entered law school.

My Friend Boy

I never had the opportunity to mourn the passing of a dear friend. His was a tragic death that happened two years ago; he was gunned down in the privacy of his own home. The lone assassin escaped into the darkness, etching sharp outlines of a cold-blooded murder. Gasping for breath, Boy was rushed to a local hospital in an effort to save his life. There his children gathered around him desperately trying to keep him out of the light, coaching him to breathe. He remained buoyantly responsive for a few minutes. But the worst is yet to come. Suddenly, it was time to go. And yet, in a matter of seconds Boy summoned enough strength to say his final words. Amid the excruciating pain educed by the multiple gunshot injuries, Boy audibly muttered “I love you” to his children. Then he diligently passed out. Consumatum est! Henceforth, my friend’s journey in the afterlife began.

In a strange twist of irony, both of us knew that his days were numbered but often chose to allay our fears so as not to spoil our once-in-a-lifetime coffee discussions. It was a big mistake to have never talked about those “threats” seriously. Either we had brushed it aside or had simply trivialized everything under the rag. But I mourned his death privately. And mourn him still to this day. What happened next was the last thing I had expected. The death of my friend had forcefully sapped out whatever idealistic ardor I once had for my hometown─ Isabela de Basilan. And so my political career abruptly ended before it even started rolling.

I would like to remember Nickarter “Boy” Gonzalo as the “writer” whose idealism represents the impression of the times we lived in. I have lots of stories to tell about Boy but decided to shorten it. You know, my friend Boy hates it when I write long and dense. And so in deference to his wish I will keep it simple and nice.

Boy was a lot older than me. Like my father, Boy was a highly respected elder in church and the whole of evangelical community. I came to know him personally through my older brother Ernani, then a budding seminarian. Boy frequented in our house almost every other day except Sundays. From what I recall, the two spent long hours together discussing about theology and books. Both displayed erudition and spoke English fluently and lengthily. I was then in my teens during their conclaves wandering around the house. It used to annoy me really, because his diurnal visits interrupted my television ritual in the living room. Their relationship however went into hiatus when my brother had a change of heart. He decided to leave the seminary for good and pursue his life in law.

Albeit not a journalist by profession, Boy was a prolific writer─ a fine wordsmith with a poisonous pen. His choice of words and the rhythm of his prose complement each other in a mordant legible scrawl that often illuminates the political malaise of our hometown. One after the other, Boy exposed in his essays unscrupulous practices of local politicians with much gusto. He minces no words the moment he fires his guns at rapacious politicos: Bato bato sa langit and tamaan bukol! Many people back home are unaware that Boy was a regular contributor for local dailies, but one thing that he was really proud of was his (under a pseudonym) extensive piece about Basilan Province which was printed in the Philippine Daily Inquirer many years ago.

It was in this field that we became close friends later. Early 2002, Boy singlehandedly organized a Christian writers group that would showcase local talents who are audacious enough to express their staid political and biblical views on many things. First to be invited to join the group was my older brother, a law student at that time. I pleaded Boy if I could join the group but he was quite unsure about my participation because it had something to do with writing. Once I even heard him say that he didn’t know that I was into writing too. Yes, Boy was right. I was not. At that time, I was still in the process of getting my life fixed, setting my academic record straight. I thought joining the group would be a big leap from sheer boredom and callousness to something more productive. Yet Boy remained somewhat indifferent with me for quite some time. I could not blame him. I was in fact a happy-go-lucky-guy. I hardly read books except guitar tablatures and other rock n roll stuff. But I guess my brother noticed something. I was changing. I’m not really sure how it started though. He then prodded Boy to consider me in the group on the condition that I would be submitting a write-up. I did. As things turned out, Boy eventually conceded after reading my article. “Mar de Gracia,” our very first publication, and ironically our last, came out late December of 2002. It was Boy, ever the philanthropist, who shouldered the expenses from printing to publication, to distribution and all. The journal received critical and positive reviews from the local evangelical community because of its unorthodox content.

Inspired by the initial success of the publication, the group flexed its muscles and channeled its energy on political reforms. In one of our meetings, Boy brought to our attention about a certain lawyer-councilman whose election in office was highly questionable and suspicious. Boy vehemently decried the political apathy of the public despite blatant violation of the law and the Constitution. Boy pleaded that we should do something about the situation, to which we all agreed in principle. Later on, after much discussion, our adherence to law and sense of patriotism prevailed. We then decided to support Boy’s advocacy all the way. Indeed like cowardice, courage can be infectious too. An overwhelming sense of hope must have filled Boy’s idealism when my brother, Atty. Ernani Diaz Bonoan, agreed to handle the case for free.

I was already in Manila when the triumvirate of Boy, Ernani and Marlon Espina (another bona fide member of the group) buckled down to business. Through the DILG, my brother submitted a legal brief citing constitutional rules and legal principles that would clearly show the illegality of the councilman’s assumption of office. The DILG concurred in toto with the legal arguments presented by my brother. At first, the arrogant Councilman remained adamant. He defended not only himself but also two of his colleagues who were in a similar position. In his privilege speech before the city council, he pompously declared that his seat was legally sanctioned by the Local Government Code. Believing perhaps that he might need to sound lawyerly in front of his colleagues, the goner even cited anachronistic Supreme Court decisions just to bone his case. He argued with so much flare that although not elected directly by the people, nonetheless the city mayor appointed him as a councilman representing marginalized sectors in the city. Unfortunately the die was cast. No one believed a word he said on that day. Of course, any law student taking up municipal corporations or laws on public officers would know that his arguments were a big joke. To make the story short, the city mayor immediately withdrew the appointments and ordered the culprits to voluntarily step down from office. It was a wise decision on his part because the legal ramifications alone could reach all the way to the top, clearly implicating him as the appointing authority responsible for the fiasco. Jettisoned by their padrino in the middle of a shipwreck, the culprits quickly jumped ship and renounced their positions. Obviously, the illusion that they were entitled to the same rank and privileges as city councillors soon came to an end.

Boy was definitely in high spirits as soon as the news reached him. It was a stunning team victory. Although I was not there, I could easily imagine Boy’s elation as he was talking to me on the phone breaking the news. Oh yes, he was really proud of our team. While credit goes to my brother for his legal acumen, everything else could not have been possible without Boy’s steering idealism and passion. It was indeed his finest hour, his quiet yet puissant legacy for his fellow Isabelenos.

Looking back, I think that single event changed Boy’s perspective on so many things, especially in politics. It must have dawned on him that political reforms in our hometown might not be a far-fetched dream after all. He vowed to continue the fight. He even dared to dream 'dreams' when everyone else were seemingly wide-awake doing nothing, Boy eventually took matters into his own hands. Twice, he lost the elections. It has been said that politics can bring out the best and the worst in people. True enough, politics brought out the best in Boy and the worse in the people of Isabela City. But Boy came out of the snake pit unscathed, alive and kicking.

Idealism rarely presents itself in paradoxical terms. A case in point is Boy Gonzalo. Surely, the undiluted purity of idealism is often equated with recklessness, naiveté or innocence─ with youth. But Boy could barely qualify as youth. He was way over the bracket. And yet he poignantly embraced the idealism of youth like romance in the moonlight, thrusting its warmth with the passion of a lover so to speak. I have been told a number of times that when a person grows older, plunging himself in the real world, youthful idealism slowly withers away with age. And in one fell swoop, this thing called “realism” takes over. For a time, I was inclined to accept this notion until my friend Boy came along. Years later after reflecting Boy’s life as a political activist and a writer, I’ve realized that Boy’s brand of “idealism” involved a great deal of conviction and hope influenced by the teachings of Christ. And so finally, I got the equation.

Nickarter “Boy” Gonzalo may have been silenced by an assassin’s bullet but certainly not his ideals ─ his steadfast belief that Isabela de Basilan will rise again; not economically, but by bringing back decency and respect in public office. To the end, my friend Boy was in his usual self chaffing at the leash, defying the status quo. Now that Boy has passed on to the Great Beyond, his essays will serve as his last will and testament ─or to put it bluntly─ his death wish to the people of Basilan.NB:

Here is a sample of Boy Gonzalo's essay: MAKING MORAL CHOICES DURING ELECTIONS

The Stench of Pork Barrel Politics

The recent talks these days, edging out debates among lawmakers over what to do with pork barrel funds disguised as Priority Development Assistance Fund (PDAF), reminds me of former Soviet Premier Nikita Khrushchev. He said: Politicians are the same all over. They promise to build bridge even where there is no river. In a way, the same can be said of our very own politicians in general. But Khrushchev’s apt description is quite inaccurate when applied to our honorable congressmen; in a unique way, lawmakers in this country exhibit some sort of edifice complex, a pejorative term once attributed to former First Lady Imelda Marcos. In this part of the globe, lawmakers strive to make good of their promises. They feign generosity to their constituents through pork funds to cover up their lackluster performance in law-making and parliamentary debates.

As promised, policymakers in this country are rather preoccupied with the construction of bridges, roads, waiting sheds, and health centers; the only problem though is that these public works projects are─ substandard. Because our lawmakers visualize themselves as pseudo-DPWH, they utilize pork funds to support pet projects, mostly public works, to impress upon their constituents that they have done well with their fund. But beneath all this, lawmakers wallow in a grand conspiracy to deceive the public. These rent-seeking vultures are more concerned with paperless deals that would put them in a better light come election time. But the stench of institutionalized corruption is hard to contain. It stinks. And most Filipinos are not unaware of the fact that pork barrel is a source of evil.

The scenario is all too familiar: Mr. Congressman identifies his pet projects for his district. The pork fund is channeled through the implementing agency, say DPWH, to execute the public works project. Next is the bidding process. Studies show, and rightly so, that PDAF projects normally attracts just one bidder for each of the competitive tenders conducted by the implementing agency. Consequently, with no real competition in the bidding process, your mighty Congressman exerts influence in the selection of contractors to carry out PDAF-funded projects. The favored contractor, the one tasked to undertake the project, is obligated to hand over at least 30-50 percent rebates of the pork fund, known as kick back or cuts, to your honorable congressman. 30 percent goes to the contractor, the remainder, or 20 percent of the Fund would now go to the cost of the project. This is why most public works projects are substandard, and are in need of continuous repairs despite hefty allocations ostensibly given to them. Worse, in between these projects, lawmakers would get to flaunt their names and vapid faces on project tarps to make sure that constituents would praise their hallowed names to high heavens during elections. Now, whether the pork barrel funds go to the deep pockets of politicians, LGUs, and bogus NGOs the underlying purpose is the same: It’s all for the money. What nerve, what conceit!

The term "pork barrel” is of American etymology. History has it that during the pre-American Civil War, black slaves were traditionally provided with barrels of salted pork as gift, mostly left over food, on holidays. The slaves would grapple frantically, fighting like pigs over barrels of food like it was manna descended from heaven. But the slavery days are long gone. Yet, a new form of servility had emerged in Philippine politics at the inception of the Commonwealth era.

The pork barrel system landed on our shores courtesy of the Americans whose concept of government greatly inspired and influenced the framers of the 1935 Philippine Constitution. It was through the 1934 Constitutional Convention when “discretionary funds” officially saw the light of day in Philippine politics. There was a clamor against it but it did not receive much public attention. Briefly, the proposal to scrap “pork barrel” in the Constitutional Convention was defeated without much debate. I surmise corruption in those days were not as brazen as it is now. From then on, the pork barrel system has become a tradition, a way of life for most politicians. The thrust of pork barrel system signaled the entry of feudal patronage that would greatly define the relationship between two co-equal branches of government.

As defined by PDAF Watch, a civil society organization, pork barrel funds are those allocated to politicians such as congresspersons and senators, to be used, based on their decision to fund programs or projects in their districts. We could use a much technical definition but this will do for this staid article. In reality, pork barrel is a spoiling incentive used by the President to gain political support in both houses of Congress. In return, he gets to have his wishes done, warts and all.

Under the principle of separation of powers, the Constitution distributed the powers of government among its three distinct departments, each superior in its own sphere-- the legislative makes laws, the executive implements it, and the judiciary interprets the law. But the separation is not absolute. There are instances when these powers blend with each other owing to its corollary mechanism of checks and balances. In essence, the Constitution bestowed upon Congress the power of appropriation subject only to the veto power of the President. But the President is not totally out of the picture. He prepares the budget then proposes it to Congress. In turn, Congress has the final say on what to do with the budget proposal prepared by the President before money from the treasury can be released. So far, this is how our government works. One department cannot act with finality without the approval or participation of other departments. In this way, at least in theory, separation of powers enables the three great branches to check each other thereby preventing concentration of powers that might result to tyranny.

There is, however, a flipside to it. The principle of separation of powers was never intended to promote efficiency. The price of interdependence among the great departments, while notable for its purpose, exacts a high price that could create an impasse in the workings of the government. Needless to say, political compromises are often the result of executive-legislative gridlocks especially when their personal interests transcend constitutional boundaries. It is my view that even if the theory of separation of powers rests on the premise that tyranny can be avoided by allocating distinct powers among the three departments, the same line of argument is no guarantee against determined despots. What if the holders of powers decide to band themselves together in a grand conspiracy to something that is oppressive like the infamous pork barrel system?

Before me is copy of a 1994 Supreme Court decision (PHILCONSA v. Enriquez, G.R.No.113105, August 19, 1994) on the constitutionality of pork barrel funds. This was during the Ramos administration. The challenge centered on the Countrywide Development Fund (CDF) in the General Appropriation Act of 1994 which petitioners claim to be an encroachment by the legislature on executive power. Petitioners were of the view that the proposal and identification of projects do not involve the power of appropriation but relates to the power of spending which is the prerogative of the executive. The Court ruled in the negative. In ruling in favor of CDF, the Court held that the law merely allowed congressmen to recommend projects. If the proposed projects qualified for funding under the CDF, execution or implementation is lodged on the president. Beyond the legal gobbledygook, the Supreme Court took notice of the realities concomitant to the dynamics of executive-legislative politics in its mutual quest to serve the needs of the people. The Court, through the pen of Mr. Justice Camilo Quiason, said in part:

The Constitution is a framework of a workable government and its interpretation must take into account the complexities, realities and politics attendant to the operation of the political branches of the government. Prior to the GAA of 1991, there was an uneven allocation of appropriations for the constituents of the members of Congress, with the members close to the Congressional leadership or who holds cards for “horse-trading,” getting more than their less favored colleagues. The members of Congress also had to reckon with an unsympathetic President who could exercise his veto power to cancel from the appropriation bill a pet project of a Representative or Senator.

The Countrywide Development Funds attempts to make equal the unequal. It is also a recognition that individual members of Congress, far more than the President and their congressional colleagues are likely to be knowledgeable about the needs of their constituents and the priority given each project.

Essentially, this is how the dynamics of executive-legislative work: legislation is the exclusive domain of Congress, but the Constitution does not prohibit the president to introduce legislation through party lines in the legislature. Because party-principles in Philippine politics are subservient to personal interests or patronage network, alliances and coalitions usually appear like mushrooms, frantically aligning themselves to the central leadership of the ruling party. What made them tow the line? The 1987 Constitution provides as with a simple answer: Discretionary funds appropriated for a particular official shall be disbursed only for public purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law. Discretionary funds had evolved in various names hoping to dispel the negative connotation of the term. But whether you call it as Discretionary Fund or Countrywide Development Fund or Priority Development Assistance Development Fund still, the stench of a sullen past exudes a venal odor of anomaly—it institutionalizes patronage politics. “In the Philippines”, as one American legislator observed, “all politics is local.” Congressional power depends largely at the local level. Members of the House of Representative are elected by legislative districts where patronage politics is at its all time high. Thus politicians, especially the incumbents, have an immense advantage in protecting local networks through their control of pork barrel, and they will do almost anything to preserve the system of corruption. Senators, on the other hand, although elected at large had their fair share of a systematize distribution of spoils. Except for some lawmakers who eschewed their pork barrel allocations, most senators had funneled their shares on the basis of specific geographic vote-rich districts. Most of these areas or political districts are highly urbanized cities and provinces with dense population obviously with high voter’s turnout every election. In the end, all things being equal, the pork barrel system hardly benefits the people in terms of goods and services. Instead, the pork barrel system has further cemented the hold of political dynasties and money politics in local fiefdoms.

What then does all of this come down to? You have a Supreme Court that says pork barrel is a necessary evil that seeks to equal the unequal distribution of spoiling incentives for legislators regardless of party politics. A President who pledges to leave a legacy of matuwid na daan by curbing corruption in the system and yet tolerates the pernicious practice of pork barrel politics to political allies. Congress, on the other hand, supposedly an institution for policymakers, has transmuted itself into an open sanctuary for lawmakers who prioritized kickbacks, corruption, patronage politics and wasteful spending of taxpayer’s money. I thus sympathize with those who find pork barrel politics appalling. What makes the spectacle more disgraceful is that almost every election, voters elect the same kinds of buffoons in public office which only signifies that they have shamelessly consented to patronage politics without token resistance. What a pity, what a shame.

I support the call to junk PDAF altogether. Lawmakers are supposed to make laws, repeal laws, and alter laws. That is their primary duty as enshrined in the Constitution. Public works implementation ostensibly through PDAF, is an executive function. Notwithstanding the 1994 ruling of the Supreme Court, I submit that the pork barrel system runs contrary to the letter and spirit of the Constitution when it reminded us that public office is a public trust. It also frontally violates the time-honored principle of separation of powers by sneaking loopholes through the backdoor, masquerading PDAF-funded projects as executive function when in fact lawmakers have taken responsibility over project implementation more than passing laws. One of the lessons I learned in construing provisions of the Constitution is the rule which says, “What cannot be legally done directly cannot be done indirectly.” I think the rule finds application, one way or another, with the pork barrel funds in relation to constitutional proscriptions. But more that the legality of PDAF, it takes a strong leadership to eradicate corruption. The President, as one commentator opined, can easily abolish pork barrel by not including in its budgetary proposals. Congress, by way of tradition and under the 1987 Constitution, cannot add anything outside the specified budget recommended by the President, the most that they can do is to decrease the figures. Now it is up to P-Noy’s “Matuwid na daan,” to walk its talk. Or has P-Noy succumbed to the dynamics of executive-legislative politics over principles?

Note: The ruling in Philconsa concerning the constitutionality of CDF, was reiterated in SC Resolution titled, ANDRES SARMIENTO et al. vs. THE TREASURER OF THE PHILIPPINES et al, [G.R. No. 125680 & 126313.September 4, 2001]. For reference see link: http://www.chanrobles.com/scresolutions/resolutions/2001/september/125680.php

Online Sources:

The Flow of Pork by Karol Ilagan see: http://pcij.org/stories/the-flow-of-pork/

Pork Barrel, Philippine Politics and the Economy by Adrian M. Tamayo see:http://philippine-democracy.blogspot.com/2011/07/pork-barrel-and-philippine-politics-and.html

PHILCONSA v. Enriquez see: http://www.lawphil.net/judjuris/juri1994/aug1994/gr_113105_1994.html