History. And Stuff.
Mr. President, the Senator himself and the evidence coming from our two commanders, General Otis and Admiral Dewey, and witnesses for whom they vouch, refute every one of the propositions of fact on which my honorable friend has built his glittering temple of glass. He describes the impotence and ineffectual attempt of Spain for three hundred years to reduce that people to subjection: tells us that she had failed. He counsels us to avoid the errors and the mistakes and the sins she has committed. If that be true, Mr. President, where did Spain get the right to sell the people of the Philippine Islands to us? They had risen against that effete and impotent and ineffectual effort of Spain; they had driven her from the entire soil of their island, save a single city; they hemmed in her troops in that single city of Manila by a cordon of their troops stretching from water to water; and Spain surrendered to us only because her soldiers could not get out of reach of the American guns without being compelled to surrender to the Filipinos.
I think you will have to enlarge the doctrines of the American Declaration of Independence. I think you will have to build anew a Constitution which, he says, is only an instrument and not a rule of duty, before you can find your right to buy and sell that people like sheep."
The Internet might be a useful tool for activists and organizers, in episodes from the Arab Spring to the Ice Bucket Challenge. But over all, it has diminished rather than enhanced political participation, according to new data.
Social media, like Twitter and Facebook, has the effect of tamping down diversity of opinion and stifling debate about public affairs. It makes people less likely to voice opinions, particularly when they think their views differ from those of their friends, according to a report published Tuesday by researchers at Pew Research Center and Rutgers University."
It seems to me that the task of legal philosophy today is twofold. It must keep clear its intrinsic relationship with, and dependence upon, all the truths of moral and political philosophy, not least by providing a constant critique of every form of legal philosophy that denies or distorts that relationship. And by its mastery, and its foundational explanatory understanding, of the law‘s technical instrumentarium it must remain in a position to criticize and expose – in the hope of deflecting — every manipulation of it for purposes destructive of the common good, a good that includes but is not exhausted by the upholding of juridically cognizable rights.
Of special importance in the coming decades will be a recovery of awareness amongst legal philosophers that law‘s paradigmatic form, the ius civile, is the law of a people, posited by a constituent act (or constitutive custom) and ongoing legislative acts of their self-determination as a people, acts which can and should be consistent with their obligations to do and respect right (human rights, as contained in the ius naturale) and their responsibilities towards other peoples and those other peoples‘ self-determination, rights and needs. Just as countless thinkers in the nineteenth and twentieth centuries too casually assumed the justice of communist notions of a propertyless community, notions inadequately attentive to the long-term conditions of a sustainable, prosperous and just society of free persons, with the result that countless millions of people suffered more or less directly from the application in their polities of these errors of practical thought, so likewise many thinkers today too casually assume (explicitly or implicitly) the justice of quasi-communist notions of a borderless humanity, notions incompatible with the long-term conditions of a sustainably just and civilly free political order and Rule of Law. Even in the short term, this kind of error of practical thought results in the kind of political community increasingly familiar, whose peoples‘ multi-cultural internal diversity of ultimate allegiances is both promoted and countered by an ever-growing apparatus of security and surveillance, a severe diminution in freedom of political and intellectual discourse, and an explosion of law-making and regulatory bureaucracy indifferent to the benefit of having a society whose self-determination takes in large measure the form of that sharing of expectations which Ulpian and Aquinas called common custom.
Practitioners of the philosophy of law may be especially susceptible to this kind of error, to the extent that they envision legal systems simply as sets of norms, rather than as the principles, norms and institutions adopted by a people extended in time and in territorial bounds, in more or less adequate fulfilment of its moral responsibility to do so.24"
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country."
- J. Carpio, Lambino v COMELEC
1. J. Carpio rightly seems concerned with the hypothetical tyranny of the majority and the subversion of constitutional processes by whomever holds power in government.
2. Sledge. Hammer.
On August 26, 2013 as the multitude of angry protesters convened in historic Rizal Park to hold the Million People March I spoke in Pinky Webb’s Mornings at ANC program and said “I am against the outright abolition of the Priority Development Assistance Fund (PDAF) because it is a simplistic solution to a complex problem.”
I received a lot of flak for that statement including allegations that I have become the spokesperson for Congress and Malacañang. But my position is clear and simple. The issue is not the abolition of the PDAF, or the later and more controversial Development Acceleration Fund (DAP), or graft and corruption. The issue is about “discretion” in the use of public funds.
Over time, we have given a small number of elected and appointed officials in government vast powers, and broad discretion, to determine how public funds will be appropriated and spent.
Many of these decisions are done behind closed doors and are not subject to public scrutiny and transparency. The broad discretion, lack of transparency, weak accountability mechanisms, and poor government controls breed corruption.
If “pork” is defined as lump sum appropriations, the disposition of which is left solely to the discretion of an office holder, then it now exists in all branches of government. It is called PDAF in Congress; includes the Social Fund and Malampaya Funds of the President; and lump sum appropriations in every department for “intelligence,” livelihood, farmers’ assistance, public safety, peace building, pollution control, road safety, and capital outlay for various purposes. There is the Judicial Development Fund (JDF) in the Supreme Court, and pork barrel in all provincial boards and city councils.
When we say “we should abolish all pork” what exactly do we mean? Abolish all funds that are subject to the discretion of public officials?
While abolishing all “pork” will pander to the public outcry against corruption it will create more problems than solutions. How do we expect the President (or key cabinet members) and local governments to respond to the needs of affected communities hit by disasters?
Will the President tell victims to wait for the next year’s budget so funds can be appropriated for the relief and reconstruction of their communities?
And if we abolish PDAF will corruption suddenly disappear in government projects? What about corruption in executive agencies? Will shifting expenditures exclusive to executive departments reduce corruption?
This is what I mean when I say we should not have simplistic solutions to complex problems.
The issue of discretion and misuse of public funds can only be discussed and resolved if we do the following:
First, we need to see the whole picture on the misuse of public funds. How much public funds are subject to the discretion of public officials? Where are these funds? What are the lump sum appropriations that are worded in generic terms such that these can be misused? We know that the PDAF amounts to about P25B but beyond that we don’t know the numbers. We might be shocked when we find out that the “pork” in the other branches of government (and local governments) is much bigger than the PDAF that we are so agitated about.
If we find out that discretion results in the misuse of public funds, then we must make sure that these officials must be punished. This is non-negotiable. I support not only the filing of cases against corrupt government officials but also the public shaming of these officials to make sure they will not win in the next election.
We must then decide—should discretion be stopped altogether? Or do we still allow discretion but put stronger control mechanisms in place? We also decide who among the government officials should have some discretion in the use of public funds.
Finally, once we know the amount of public funds subject to discretion, how discretion has been exercised, and determine the officials and offices that should continue having some discretion, then we debate on the proper allocation of public funds. I support the call for re-channeling these funds for education and health care but this must be decided upon in full public debate, not just by politicians and bureaucrats in the executive and legislative branches of government.
The recent Supreme Court decision on the PDAF has put in place some of the reforms in the use of pork. Legislators now cannot be involved in the identification of, and amounts to be given for, projects in their district or any part of the country. Even before the SC decision, the House of Representatives required its members to submit a list of infrastructure projects (worth P25M) to be implemented in their districts in 2014. This list will be included in the proposed 2014 General Appropriations Act (GAA) and will be implemented by the Department of Public Works and Highways (DPWH). This reform is consistent with the SC decision and takes the form of “earmarks” in the US model of pork barrel.
This is possible for “hard pork” or infrastructure projects which can be pre-identified but impossible for “soft pork” such as scholarships or medical assistance for constituents. The PDAF allocation for scholarships and medical assistance has been put in CHED and DoH with a provision that there will be “consultation with the representative in the district”.
This violates the SC decision. The CHED and the House of Representatives must now find creative ways to allow legislators to participate in the selection of beneficiaries.
Sixteen senators have decided to forego their P200M PDAF allocation and want it deducted from the proposed 2014 budget. The question is—what happens to the other senators who want to continue receiving PDAF? How will this lump sum appropriation appear in the GAA? What would be the mechanism will be used in the implementation of this fund? Will this mechanism be consistent with the SC decision?
Interestingly, the SC decision can now be used to question the pork barrel in local governments. Local legislators enjoy broader and wider discretion in the use of pork compared to their counterparts in Congress. Control mechanisms are weaker at the local level, and NGOs and the media are not as active in monitoring public expenditures. It is about time that we look into the local government pork.
There are other reforms that need to be undertaken if we want to make sure that public funds are used judiciously, effectively, and go to targeted beneficiaries. One, we need serious and drastic reforms in our auditing system. The Commission on Audit must immediately make public all audit reports in the past years, explain why some agencies and years were not audited, and penalize their personnel who failed to audit agency expenditures.
The knee jerk response of COA is to say that they lack the personnel. COA must now think out of the box and partner with private audit companies and associations like the Philippine Institute of Certified Public Accountants (PICPA) to effectively undertake its audit responsibilities. This is a standard practice in many developed countries and is allowed under the constitutional provisions creating the COA.
Two, we must hold the Securities and Exchange Commission (SEC) and the Department of Agriculture (DA) accountable for their systems and procedures that allowed the Napoles NGOs to conduct business. These NGOs had the proper papers from SEC and accreditation from DA. The congressional hearings have identified these lapses. People must now be held accountable and new systems have to be put in place.
Three, the DBM must also make public all the projects funded through DAP if it is true, as the agency claims, that these accelerated the economy. I know a lot of projects funded through DAP that were beneficial, implemented well, and were not accompanied by corruption allegation. But I do not know whether this is the same situation across agencies and regions. The piece-meal and “by installment” approach of showing beneficial projects funded from DAP does not allow for full public debate and the negative public perception on the DAP will continue.
Finally, we need serious budget reform in this country. The line item veto power of the President and the mechanism for automatic appropriations must be abolished because these unduly tilts the balance of power towards the executive branch, creates an imperial presidency, and creates fiscal irresponsibility among legislative and executive officials."