J.A.B. Bulao & Associates

LEGAL NOTE 0141:  THE HISTORY OF THE PORK BARREL SYSTEM IN THE PHILIPPINES.

SOURCE: SC DECISION ON PDAF (G.R. NOS. G.R. NO. 208566; G.R. NO. 208493 AND G.R. NO. 209251, 19 NOVEMBER 2013, PERLAS-BERNABE, J.) (BRIEF TITLE: BELGICA ET AL VS. HON. EXEC. SECRETARY).

WHAT IS CONSIDERED AS THE EARLIEST FORM OF CONGRESSIONAL PORK BARREL?

ACT 3044 OR THE PUBLIC WORKS ACT OF 1922.

WHAT DOES ACT 3044 PROVIDE?

IT PROVIDES THAT MONEYS APPROPRIATED FOR CERTAIN PUBLIC WORKS SHALL BE DISTRIBUTED SUBJECT TO THE APPROVAL OF A JOINT COMMITTEE ELECTED BY THE SENATE AND HOUSE OF REPRESENTATIVES.

WHO MAY INITIALLY PROPOSE HOW THE FUNDS MAY BE DISTRIBUTED?

THE SECRETARY OF COMMERCE AND COMMUNICATIONS.

BUT IT MUST BE APPROVED BY CONGRESS THROUGH THE JOINT COMMITTEE WHO MAY ACT THROUGH AUTHORIZED MEMBERS.

SUPPOSE THERE ARE UNEXPENDED PORTION FOR A CERTAIN ITEM. WHAT MAY BE DONE TO IT?

IT MAY BE TRANSFERRED TO ANY OTHER ITEM WITH THE APPROVAL OF THE JOINT COMMITTEE OR OF THE AUTHRORIZED MEMBERS THEREOF.

IN SUM THE LEGISLATORS CONTROL TWO THINGS: FUND RELEASE AND REALLIGNMENT.

WHO IDENTIFIES THE PROJECTS TO BE FUNDED?

AT FIRST IT WAS THE SECRETARY OF COMMERCE AND COMMUNICATIONS.

THEN IN 1950 PROJECT IDENTIFICATION WAS TRANSFERRED TO THE LEGISLATORS.

IN SUM, IN 1950 THE LEGISLATORS CONTROL THREE THINGS: PROJECT IDENTIFICATION, FUND RELEASE AND REALIGNMENT.

WHAT THEN WAS THE PROCESS?

THE LOCAL GOVERNMENT COUNCILS, CIVIL GROUPS, AND INDIVIDUALS WOULD MAKE PETITIONS  TO CONGRESSMEN OR SENATORS FOR PROJECTS.

THEIR PETITIONS,  IF ACCOMMODATED, WOULD FORM PART OF A LEGISLATOR’S ALLOCATION AND THE AMOUNT EACH LEGISLATOR WOULD EVENTUALLY GET IS DETERMINED IN A CAUCUS CONVENED BY THE MAJORITY.

THE AMOUNT WAS THEN INTEGRATED INTO THE ADMINISTRATION BILL PREPARED BY THE DEPARTMENT OF PUBLIC WORKS AND COMMUNICATIONS.

THEREAFTER, THE SENATE AND THE HOUSE OF REPRESENTATIVES ADDED THEIR OWN PROVISIONS TO THE BILL UNTIL IT WAS SIGNED INTO LAW BY THE PRESIDENT – THE PUBLIC WORKS ACT.

DID THIS PROCESS CONTINUE?

NO. IT STOPPED IN THE 1960‘’S IN VIEW OF THE STALEMATE BETWEEN THE HOUSE OF REPRESENTATIVES AND THE SENATE.

WHEN WAS IT CONTINUED?

IN 1982.

THE BATASANG PAMBANSA INTRODUCED A NEW ITEM IN THE GENERAL APPROPRIATIONS ACT (GAA) CALLED THE ―SUPPORT FOR LOCAL DEVELOPMENT PROJECTS‖ OF SLDP  UNDER THE ARTICLE ON ―NATIONAL AID TO LOCAL GOVERNMENT UNITS‖.

WHAT THEN WAS THE PROCESS?

P500,000.00 WAS ALLOCATED TO EACH ASSEMBLYMAN.

THEN THE ASSEMBLYMAN WOULD COMMUNICATE THEIR PROJECT PREFERENCES TO THE MINISTRY OF BUDGET AND MANAGEMENT FOR APPROVAL.

THEN, THE SAID MINISTRY WOULD RELEASE THE ALLOCATION PAPERS TO THE MINISTRY OF LOCAL GOVERNMENTS, WHICH WOULD, IN TURN, ISSUE THE CHECKS TO THE CITY OR MUNICIPAL TREASURERS IN THE ASSEMBLYMAN‘S LOCALITY.

WHAT PROJECTS WERE COVERED?

NOT ONLY PUBLIC WORKS OR HARD PROJECTS BUT ALSO SOFT PROJECTS SUCH AS THOSE RELATED TO EDUCATION, HEALTH AND LIVELIHOOD.

THIS WAS DURING MARTIAL LAW.

WHAT HAPPENED AFTER MARTIAL LAW?

IN 1989 THE PORK BARREL SYSTEM WAS REVIVED.

CONGRESS CREATED LUMP-SUM APPROPRIATIONS OF P480 MILLION AND P240 MILLION, RESPECTIVELY, FOR THE FUNDING OF DEVELOPMENT PROJECTS IN THE MINDANAO AND VISAYAS AREAS.

WHAT WAS THE REACTION OF THE LUZON CONGRESSMEN AND THE SENATORS?

THEY RAISED CLAMOR. THUS IN 1990 THE COUNTRYWIDE DEVELOPMENT FUND OR CDF WAS INTEGRATED INTO THE GENERAL APPROPRIATIONS ACT OR GAA.

HOW MUCH WAS THE CDF IN 1990?

P2.3 BILLION TO COVER ―SMALL LOCAL INFRASTRUCTURE AND OTHER PRIORITY COMMUNITY PROJECTS.‖

HOW WAS THE CDF RELEASED?

FOR THE YEARS 1991 AND 1992,  CDF FUNDS WERE, WITH THE APPROVAL OF THE PRESIDENT, TO BE RELEASED DIRECTLY TO THE IMPLEMENTING AGENCIES BUT ―SUBJECT TO THE SUBMISSION OF THE REQUIRED LIST OF PROJECTS AND ACTIVITIES.‖

HOW MUCH DID EACH LEGISLATOR RECEIVE?

BY 1992, REPRESENTATIVES WERE RECEIVING P12.5 MILLION EACH IN CDF FUNDS, WHILE SENATORS WERE RECEIVING P18 MILLION EACH, WITHOUT ANY LIMITATION OR QUALIFICATION, AND THAT THEY COULD IDENTIFY ANY KIND OF PROJECT, FROM HARD OR INFRASTRUCTURE PROJECTS SUCH AS ROADS, BRIDGES, AND BUILDINGS TO ―SOFT PROJECTS‖ SUCH AS TEXTBOOKS, MEDICINES, AND SCHOLARSHIPS.27

WHAT WAS THE SYSTEM IN 1993?

IN 1993, THE GAA EXPLICITLY STATED THAT THE RELEASE OF CDF FUNDS WAS TO BE MADE UPON THE SUBMISSION OF THE LIST OF PROJECTS AND ACTIVITIES IDENTIFIED BY, AMONG OTHERS, INDIVIDUAL LEGISLATORS.

FOR THE FIRST TIME, THE 1993 CDF ARTICLE INCLUDED AN ALLOCATION FOR THE VICE-PRESIDENT.

AS SUCH, REPRESENTATIVES WERE ALLOCATED P12.5 MILLION EACH IN CDF FUNDS, SENATORS, P18 MILLION EACH, AND THE VICE-PRESIDENT, P20 MILLION.

HOW ABOUT IN 1994?

IN 1994, 1995, AND 1996, THE GAAS CONTAINED THE SAME PROVISIONS ON PROJECT IDENTIFICATION AND FUND RELEASE AS FOUND IN THE 1993 CDF ARTICLE.

BUT  IN ADDITION, THE DEPARTMENT OF BUDGET AND MANAGEMENT (DBM) WAS DIRECTED TO SUBMIT REPORTS TO THE SENATE COMMITTEE ON FINANCE AND THE HOUSE COMMITTEE ON APPROPRIATIONS ON THE RELEASES MADE FROM THE FUNDS.

HOW ABOUT IN 1997?

UNDER THE 1997 CDF ARTICLE, MEMBERS OF CONGRESS AND THE VICE-PRESIDENT, IN CONSULTATION WITH THE IMPLEMENTING AGENCY CONCERNED, WERE DIRECTED TO SUBMIT TO THE DBM THE LIST OF 50% OF PROJECTS TO BE FUNDED FROM THEIR RESPECTIVE CDF ALLOCATIONS WHICH SHALL BE DULY ENDORSED BY (A) THE SENATE PRESIDENT AND THE CHAIRMAN OF THE COMMITTEE ON FINANCE, IN THE CASE OF THE SENATE, AND (B) THE SPEAKER OF THE HOUSE OF REPRESENTATIVES AND THE CHAIRMAN OF THE COMMITTEE ON APPROPRIATIONS, IN THE CASE OF THE HOUSE OF REPRESENTATIVES; WHILE THE LIST FOR THE REMAINING 50% WAS TO BE SUBMITTED WITHIN SIX (6) MONTHS THEREAFTER.

THE PROJECT LIST, WHICH WOULD BE PUBLISHED BY THE DBM, ―SHALL BE THE BASIS FOR THE RELEASE OF FUNDS” AND THAT ―[N]O FUNDS APPROPRIATED HEREIN SHALL BE DISBURSED FOR PROJECTS NOT INCLUDED IN THE LIST HEREIN REQUIRED.‖

HOW ABOUT IN 1998?

THE FOLLOWING YEAR, OR IN 1998, THE FOREGOING PROVISIONS REGARDING THE REQUIRED LISTS AND ENDORSEMENTS WERE REPRODUCED.

BUT  THAT THE PUBLICATION OF THE PROJECT LIST WAS NO LONGER REQUIRED AS THE LIST ITSELF SUFFICED FOR THE RELEASE OF CDF FUNDS.

WAS THE CDF THE ONLY FORM OF CONGRESSIONAL PORK BARREL?

NO.

THERE WAS ALSO THE CONGRESSIONAL INSERTIONS OR CIs. THESE WERE FUNDS INSERTED INTO THE GAA. THEY WERE PART OF THE BUDGETS OF EXECUTIVE DEPARTMENTS.

GIVE EXAMPLES OF CIs?

DEPARTMENT OF EDUCATION (DEPED) SCHOOL BUILDING FUND, THE CONGRESSIONAL INITIATIVE ALLOCATIONS, THE PUBLIC WORKS FUND, THE EL NIÑO FUND, AND THE POVERTY ALLEVIATION FUND.39

WHAT WAS THE PURPOSE OF CONGRESSIONAL INSERTIONS?

TO PERPETUATE THE ADMINISTRATION‘S POLITICAL AGENDA.

IT HAS BEEN ARTICULATED THAT SINCE CIS ―FORMED PART AND PARCEL OF THE BUDGETS OF EXECUTIVE DEPARTMENTS, THEY WERE NOT EASILY IDENTIFIABLE AND WERE THUS HARDER TO MONITOR.‖ NONETHELESS, THE LAWMAKERS THEMSELVES AS WELL AS THE FINANCE AND BUDGET OFFICIALS OF THE IMPLEMENTING AGENCIES, AS WELL AS THE DBM, PURPORTEDLY KNEW ABOUT THE INSERTIONS.

WHAT HAPPENED IN 1999?

IN 1999, THE CDF WAS REMOVED IN THE GAA AND REPLACED BY THREE (3) SEPARATE FORMS OF CIS, NAMELY, THE ―FOOD SECURITY PROGRAM FUND,‖ THE ―LINGAP PARA SA MAHIHIRAP PROGRAM FUND,‖ AND THE ―RURAL/URBAN DEVELOPMENT INFRASTRUCTURE PROGRAM FUND,‖.

ALL THESE  CONTAINED A SPECIAL PROVISION REQUIRING “PRIOR CONSULTATION” WITH THE MEMBERS OF CONGRESS FOR THE RELEASE OF THE FUNDS.

HOW ABOUT IN 2000?

IN 2000 THE PRIORITY DEVELOPMENT ASSISTANCE FUND OR PDAF  APPEARED IN THE GAA.

THE REQUIREMENT OF ―PRIOR CONSULTATION WITH THE RESPECTIVE REPRESENTATIVE OF THE DISTRICT‖ BEFORE PDAF FUNDS WERE DIRECTLY RELEASED TO THE IMPLEMENTING AGENCY CONCERNED WAS EXPLICITLY STATED IN THE 2000 PDAF ARTICLE.

MOREOVER, REALIGNMENT OF FUNDS TO ANY EXPENSE CATEGORY WAS EXPRESSLY ALLOWED, WITH THE SOLE CONDITION THAT NO AMOUNT SHALL BE USED TO FUND PERSONAL SERVICES AND OTHER PERSONNEL BENEFITS.

HOW ABOUT IN 2001?

THE SUCCEEDING PDAF PROVISIONS REMAINED THE SAME IN VIEW OF THE RE-ENACTMENT48 OF THE 2000 GAA FOR THE YEAR 2001.

HOW ABOUT IN 2002?

THE 200249 PDAF ARTICLE WAS BRIEF AND STRAIGHTFORWARD AS IT MERELY CONTAINED A SINGLE SPECIAL PROVISION ORDERING THE RELEASE OF THE FUNDS DIRECTLY TO THE IMPLEMENTING AGENCY OR LOCAL GOVERNMENT UNIT CONCERNED, WITHOUT FURTHER QUALIFICATIONS.

HOW ABOUT IN 2003?

THE FOLLOWING YEAR, 2003, THE SAME SINGLE PROVISION WAS PRESENT, WITH SIMPLY AN EXPANSION OF PURPOSE AND EXPRESS AUTHORITY TO REALIGN.

NEVERTHELESS, THE PROVISIONS IN THE 2003 BUDGETS OF THE DEPARTMENT OF PUBLIC WORKS AND HIGHWAYS51 (DPWH) AND THE DEPED52 REQUIRED PRIOR CONSULTATION WITH MEMBERS OF CONGRESS ON THE ASPECTS OF IMPLEMENTATION DELEGATION AND PROJECT LIST SUBMISSION, RESPECTIVELY.

HOW ABOUT IN 2004?

IN 2004, THE 2003 GAA WAS RE-ENACTED.

HOW ABOUT IN 2005?

IN 2005,  THE PDAF ARTICLE PROVIDED THAT THE PDAF SHALL BE USED ―TO FUND PRIORITY PROGRAMS AND PROJECTS UNDER THE TEN POINT AGENDA OF THE NATIONAL GOVERNMENT AND SHALL BE RELEASED DIRECTLY TO THE IMPLEMENTING AGENCIES.‖

IT ALSO INTRODUCED THE PROGRAM MENU CONCEPT, WHICH IS ESSENTIALLY A LIST OF GENERAL PROGRAMS AND IMPLEMENTING AGENCIES FROM WHICH A PARTICULAR PDAF PROJECT MAY BE SUBSEQUENTLY CHOSEN BY THE IDENTIFYING AUTHORITY.

HOW ABOUT IN 2006?

THE 2005 GAA WAS RE-ENACTED56 IN 2006 AND HENCE,

OPERATED ON THE SAME BASES.

HOW ABOUT IN 2007?

IN SIMILAR REGARD, THE PROGRAM MENU CONCEPT WAS CONSISTENTLY INTEGRATED INTO THE 2007,57 2008, 2009, AND 2010 GAAS.

TEXTUALLY, THE PDAF ARTICLES FROM 2002 TO 2010 WERE SILENT WITH RESPECT TO THE SPECIFIC AMOUNTS ALLOCATED FOR THE INDIVIDUAL LEGISLATORS, AS WELL AS THEIR PARTICIPATION IN THE PROPOSAL AND IDENTIFICATION OF PDAF PROJECTS TO BE FUNDED. IN CONTRAST TO THE PDAF ARTICLES, HOWEVER, THE PROVISIONS UNDER THE DEPED SCHOOL BUILDING PROGRAM AND THE DPWH BUDGET, SIMILAR TO ITS PREDECESSORS, EXPLICITLY REQUIRED PRIOR CONSULTATION WITH THE CONCERNED MEMBER OF CONGRESS61 ANENT CERTAIN ASPECTS OF PROJECT IMPLEMENTATION.

SIGNIFICANTLY, IT WAS DURING THIS ERA THAT PROVISIONS WHICH ALLOWED FORMAL PARTICIPATION OF NON-GOVERNMENTAL ORGANIZATIONS (NGO) IN THE IMPLEMENTATION OF GOVERNMENT PROJECTS WERE INTRODUCED.

HOW ABOUT WITH RESPECT TO NGO’S?

IN THE SUPPLEMENTAL BUDGET FOR 2006, WITH RESPECT TO THE APPROPRIATION FOR SCHOOL BUILDINGS, NGOS WERE, BY LAW, ENCOURAGED TO PARTICIPATE.

FOR SUCH PURPOSE, THE LAW STATED THAT ―THE AMOUNT OF AT LEAST P250 MILLION OF THE P500 MILLION ALLOTTED FOR THE CONSTRUCTION AND COMPLETION OF SCHOOL BUILDINGS SHALL BE MADE AVAILABLE TO NGOS INCLUDING THE FEDERATION OF FILIPINO-CHINESE CHAMBERS OF COMMERCE AND INDUSTRY, INC. FOR ITS ―OPERATION BARRIO SCHOOL PROGRAM[,] WITH CAPABILITY AND PROVEN TRACK RECORDS IN THE CONSTRUCTION OF PUBLIC SCHOOL BUILDINGS X X X.‖

THE SAME ALLOCATION WAS MADE AVAILABLE TO NGOS IN THE 2007 AND 2009 GAAS UNDER THE DEPED BUDGET.

ALSO, IT WAS IN 2007 THAT THE GOVERNMENT PROCUREMENT POLICY BOARD (GPPB) ISSUED RESOLUTION NO. 12-2007 DATED JUNE 29, 2007 (GPPB RESOLUTION 12-2007), AMENDING THE IMPLEMENTING RULES AND REGULATIONS65 OF RA 9184,66 THE GOVERNMENT PROCUREMENT REFORM ACT, TO INCLUDE, AS A FORM OF NEGOTIATED PROCUREMENT, THE PROCEDURE WHEREBY THE PROCURING ENTITY (THE IMPLEMENTING AGENCY) MAY ENTER INTO A MEMORANDUM OF AGREEMENT WITH AN NGO, PROVIDED THAT ―AN APPROPRIATION LAW OR ORDINANCE EARMARKS AN AMOUNT TO BE SPECIFICALLY CONTRACTED OUT TO NGOS.‖

HOW ABOUT IN 2011?

THE 2011 PDAF ARTICLE INCLUDED AN EXPRESS STATEMENT ON LUMPSUM AMOUNTS ALLOCATED FOR INDIVIDUAL LEGISLATORS AND THE VICE-PRESIDENT.

REPRESENTATIVES WERE GIVEN P70 MILLION EACH, BROKEN DOWN INTO P40 MILLION FOR ―HARD PROJECTS‖ AND P30 MILLION FOR ―SOFT PROJECTS‖;

WHILE P200 MILLION WAS GIVEN TO EACH SENATOR AS WELL AS THE VICE-PRESIDENT, WITH A P100 MILLION ALLOCATION EACH FOR ―HARD‖ AND ―SOFT PROJECTS.‖

LIKEWISE, A PROVISION ON REALIGNMENT OF FUNDS WAS INCLUDED, BUT WITH THE QUALIFICATION THAT IT MAY BE ALLOWED ONLY ONCE.

THE SAME PROVISION ALSO ALLOWED THE SECRETARIES OF EDUCATION, HEALTH, SOCIAL WELFARE AND DEVELOPMENT, INTERIOR AND LOCAL GOVERNMENT, ENVIRONMENT AND NATURAL RESOURCES, ENERGY, AND PUBLIC WORKS AND HIGHWAYS TO REALIGN PDAF FUNDS, WITH THE FURTHER CONDITIONS THAT: (A) REALIGNMENT IS WITHIN THE SAME IMPLEMENTING UNIT AND SAME PROJECT CATEGORY AS THE ORIGINAL PROJECT, FOR INFRASTRUCTURE PROJECTS; (B) ALLOTMENT RELEASED HAS NOT YET BEEN OBLIGATED FOR THE ORIGINAL SCOPE OF WORK, AND (C) THE REQUEST FOR REALIGNMENT IS WITH THE CONCURRENCE OF THE LEGISLATOR CONCERNED.

HOW ABOUT IN 2012 AND 2013?

IN THE 2012 AND 2013 PDAF ARTICLES, IT IS STATED THAT THE ―[I]DENTIFICATION OF PROJECTS AND/OR DESIGNATION OF BENEFICIARIES SHALL CONFORM TO THE PRIORITY LIST, STANDARD OR DESIGN PREPARED BY EACH IMPLEMENTING AGENCY [(PRIORITY LIST REQUIREMENT)] X X X.‖

HOWEVER, AS PRACTICED, IT WOULD STILL BE THE INDIVIDUAL LEGISLATOR WHO WOULD CHOOSE AND IDENTIFY THE PROJECT FROM THE SAID PRIORITY LIST.

PROVISIONS ON LEGISLATOR ALLOCATIONS75 AS WELL AS FUND REALIGNMENT WERE INCLUDED IN THE 2012 AND 2013 PDAF ARTICLES; BUT THE ALLOCATION FOR THE VICE-PRESIDENT, WHICH WAS PEGGED AT P200 MILLION IN THE 2011 GAA, HAD BEEN DELETED.

IN ADDITION, THE 2013 PDAF ARTICLE NOW ALLOWED LGUS TO BE IDENTIFIED AS IMPLEMENTING AGENCIES IF THEY HAVE THE TECHNICAL CAPABILITY TO IMPLEMENT THE PROJECTS.

LEGISLATORS WERE ALSO ALLOWED TO IDENTIFY PROGRAMS/PROJECTS, EXCEPT FOR ASSISTANCE TO INDIGENT PATIENTS AND SCHOLARSHIPS, OUTSIDE OF HIS LEGISLATIVE DISTRICT PROVIDED THAT HE SECURES THE WRITTEN CONCURRENCE OF THE LEGISLATOR OF THE INTENDED OUTSIDE-DISTRICT, ENDORSED BY THE SPEAKER OF THE HOUSE.

FINALLY, ANY REALIGNMENT OF PDAF FUNDS, MODIFICATION AND REVISION OF PROJECT IDENTIFICATION, AS WELL AS REQUESTS FOR RELEASE OF FUNDS, WERE ALL REQUIRED TO BE FAVORABLY ENDORSED BY THE HOUSE COMMITTEE ON APPROPRIATIONS AND THE SENATE COMMITTEE ON FINANCE, AS THE CASE MAY BE.

TO READ THE SOURCE, JUST DOWNLOAD THE FILE BELOW:

SCD-2013-0027 – NOV 2013 – PDAF