In a previous column, “The Supreme Court as political reformer” (7/3/14), I noted that the recent rulings of the high court striking down the Priority Development Assistance Fund and the Disbursement Acceleration Program may give the impression that the judicial branch has taken on the role of political reformer. The PDAF and the DAP, as we know, quickly emerged as the twin faces of patronage and corruption, following the exposé of Janet Lim Napoles’ pork barrel scam.
But, even as we welcome the positive effects of these rulings on our political life, we have to bear in mind that political reform is not a function of the courts. The role of the judicial system is to interpret the laws, and to determine what is legal and what is illegal. It is not its business to say whether a piece of legislation, a political practice, or a policy measure is good or bad for the country.
This is the point that Chief Justice John Roberts of the US Supreme Court puts across in the decision affirming the constitutionality of the controversial Obama healthcare law: “Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.”
This makes it easier for us to say that the Philippine Supreme Court struck down the PDAF and the DAP not because these were tools of political patronage but because, in its view, these acts of the political branches of government violated the principle of separation of powers enshrined in the Constitution. The distinction may strike the nonlawyer as superfluous. But, in fact, it is the inability to see the difference that causes confusion.
Political patronage is a prominent feature of premodern political systems. Even so, it is not a crime. As far as I know, we have no laws prohibiting politicians from extending personal favors to their constituents—like recommending them for appointment to government jobs, or to be the recipients of state-sponsored educational grants, or as beneficiaries of state-funded healthcare services. These practices are found everywhere, particularly in hierarchical societies like ours characterized by sharp disparities in wealth and power.
What the Supreme Court’s decision on the PDAF explicitly struck down was the practice of setting aside lump sums in the national budget whose manner of use or purpose was to be determined by individual lawmakers after the budget had been enacted. The Court declared that lawmakers do not have such powers under the Constitution. Those functions properly belong to the executive branch.
It is naive to think that the Court’s decision would effectively put an end to political patronage. Indeed, our situation proves that we may have the most progressive constitution and laws in the world, and yet be saddled by an obsolete political system. The dysfunctions of politics cannot be solved by law; they can only be corrected by political means. The political system itself continually evolves, sometimes resisting, but, in the main, reflecting the basic contours of its societal environment.
So, it should not at all come as a surprise that the pork barrel funds in the 2014 national budget that were stranded after the PDAF was pronounced unconstitutional would resurface in another form while still bearing the mark of patronage. The government had previously announced that these funds would be reallocated to the relevant government agencies in order to take care of the students and patients who had been dependent on the PDAF for financial assistance. It did not say exactly how these scholarship and medical aid funds were to be administered. Presumably, the Commission on Higher Education and the Department of Health would find ways of rationalizing the disbursement of these funds.
Now, as a result of ACT Teachers Rep. Antonio Tinio’s exposé, we have information that CHEd Chair Patricia Licuanan and Health Undersecretary Janet Garin had made a commitment to give priority access to these funds to those individuals recommended by lawmakers. The party-list representative cries that this arrangement violates the Supreme Court’s ruling on the PDAF, and wants President Aquino impeached for this.
One may indeed read the statements made by the heads of these two agencies in executive session as a genuflection before the gods of patronage politics. But it is difficult to see how they violate the separation of powers, which was the Supreme Court’s basis for striking down the PDAF. Unlike the lump sums that were formally inserted in the annual General Appropriations Act, there is nothing official about prioritizing lawmakers’ recommendations in the disbursement of scholarship and health funds. I don’t think any court would find any reason to act—unless a real case turns up in which a qualified person is denied these benefits because he/she does not have a legislator’s endorsement. Or, unless a clearly unqualified individual can be shown to be enjoying these privileges solely on the strength of a lawmaker’s letter.
Quite obviously, neither will Representative Tinio get much sympathy from his colleagues in the House, whose careers have been built on the resources of patronage. The true addressees of any program of political reform are the voters, the ones who ultimately decide what kind of leaders the nation needs. Alas, many of them can’t see what’s wrong with patronage.