I start with asking a question many have asked me in these past three weeks—is it possible at all to totally abolish the pork barrel system? Isn’t the pork barrel a necessary, even a desirable component of a republican system where citizens choose their representatives in the government through elections? Some have even raised the question on whether we should now abolish Congress because of this.

Let me very clear where I stand on this. I would rather have our messy democracy than any form of authoritarianism. We went that route before and corruption was just as bad, even worse.

When the pork barrel controversy erupted, I was at first ambivalent about the abolition of Priority Development Assistant Fund. The President’s argument regarding the utility of the PDAF for both basic needs of people and development interventions actually made sense to me. In fact, I have a number of personal experiences myself of the good use of PDAF, among others because the Ateneo School of Government (where I am Dean) has had projects with local governments supported through it. Through the years I have been Dean, and that is since June 2006, we must have had gotten around P10 million from PDAF allocations, most of which were used for scholarships.

In my view, it is wrong and unfair to say that all PDAF has been misused.  This is especially true in the provinces where district representatives are often the last resort of constituents for health or other urgent needs. This was confirmed to me by friends and colleagues this week when I visited my hometown Cagayan de Oro during our fiesta.

While recognizing however that the pork barrel system can sometime be used for the good, the PDAF and its predecessor mechanism, the Countrywide Development Fund, clearly provide many opportunities for irrational decision-making as well as corruption. By its very nature, pork barrel mechanisms are potentially anomalous because, when designed badly, they violate the constitutional principle of separation of powers. In the case of Philippine Constitution Association v Enriquez, decided in 1994, the Supreme Court actually ruled that the CDF program was constitutional because the authority given to the members of Congress under it was “merely recommendatory”. The CDF was, according to the Court, a way of equalizing the unequal. But as one scholar has pointed out, the conclusion that legislators only make recommendations was in fact not entirely accurate. We know now that legislators actually meddled with implementation, among others, by endorsing favored contractors and/or NGOs. It would be interesting to know if the Supreme Court today would decide the same way given what we know about how the pork barrel system has been manipulated for personal gain.

As I have written elsewhere, it is however not correct to say that legisIators should stick only to passing laws. They do have other functions as representatives of the people. This includes a role in identifying projects in their localities and in enacting the national budget that funds these projects. The national appropriations act itself is the most important law the Congress passes every year and obviously senators and representatives participate in its deliberation and enactment.

I believe the President means well and is motivated by the public good in overhauling the pork barrel system. I also think that the proposed reforms, as elaborated by Secretary Butch Abad, would make the process more rational and transparent. However, as I always emphasize to my law students, citing my mentor Prof. W. Michael Reisman of Yale Law School, there is a big difference between “black-letter law” (the official policies, rules and regulations) and the “operational code” (how things really work). The CDF and PDAF would actually pass scrutiny if one only looked at the former but fail when we examine their implementation. Even before this recent scam exploded, so many safeguards were already in place, including the Procurement Act or R.A. 9184 and many COA issuances, yet the operators still managed to circumvent them with impunity.

I have proposed a three pronged control-entitlement test for the abolition of the pork barrel or for its authentic reform if it cannot be totally eliminated. Citizens should ask three questions: (1) How is the project to be decided? Is it solely the legislator’s discretion? (2) Is there an entitlement to the fund? In other words, does the legislator believe that s/he has control of the fund? (3) Does the legislator have a say on who implements the project and how it is implemented? That is, can s/he influence who the agency/implementor/contractor will be? A yes answer to these questions means there is no iron wall between the executive and legislative branches of government and that patronage politics lives on. The bottom line is to totally remove the legislator’s discretion in the use of funds and how the project will be implemented, including making endorsements of contractors/suppliers. Project determination shall be undertaken as a collective action of stakeholders, including the legislator himself.

The control-entitlement test will help but it will not ensure a corruption-free budgeting system. Citizen vigilance is critical and must continue. Convictions must be obtained against those who have manipulated the system and gained from their corrupt acts. Above all, as I have said again and again, we must have a Freedom of Information Act so that we are not dependent on the next whistleblower to catch wrongdoing.

EAGLE EYES is Dean Tony La Viña's column in Manila Standard Today. Follow him on Facebook: This email address is being protected from spambots. You need JavaScript enabled to view it. and Twitter: @tonylavs.