“Comparative “Comparative Analysis of Separation of Powers in Parliamentary Parliamentary and Presidential Systems in relation to Corruption in the Philippines” By: Gian Carlo E. Miranda
he !ilemma: he Por" Barrel Controversy
In the third quarter of 2014, the government of the Philippines has conducted inve invest stig igat atio ions ns on the the misa misall lloc ocat atio ion n and and funn funnel elli ling ng of publ public ic fund funds s to bogu bogus s nong nongov over ernm nmen entt orga organi niza zati tion ons. s. It has has led led to the the expo exposu sure re of the the ide ide scal scale e corruption orchestrated b! prominent government o"cials in the legislature. #his began from the usage of the Priorit! $evelopment %ssistance &und 'P$%&( or locall! )non as the *por) barrel+, here legislators had an unbridled discretion in u tilizing the mone! for proects that ere not subect to audit, ma)ing it non-transparent and vulnerable to corruption. ince 1/0s, it has become a political practice in the Philippines here each member of the ongress and enate ould receive 2 million and 4 million dollars respe respecti ctivel vel! ! from from the nation national al budget budget,, hich hich suppos supposedl edl! ! be used used for proe proects cts beneting their constituencies. #his predicament shoc)ed the nation upon discover! that that maori maorit! t! of proe proects cts e ere re docume documented nted in paper paper but inexis inexisten tentt in reali realit! t!.. Politicians in collusion ith in3uential private individuals put up fa)e 56s and enlisted them as beneciaries, plundered the mone! and made their transactions appear legitimate. Prio Priorr to this this alar alarmi ming ng scan scanda dal, l, this this prac practi tice ce had had been been legi legiti tima mate ted d b! a decision of the upreme ourt in the case of Philippine onstitution %ssociation vs. 7nriquez,1 lauding the ingenious a! of a decentralized approach to development. #he ourt opined that the legislators are in a perfect vantage point to identif! the needs of their constituents. 8ence, it as considered proper and practical that the! ere in direct control of the mone! for hat the! deemed best for the public good. 8oever, in a more recent decision of the upreme ourt in the case of 9elgica vs. 7xecutiv 7xecutive e ecretar!, ecretar!,2 the usage of the por) barrel fund as declared unconstitutional due to its violation of the principle of separation of poers. #his principle is a fundamental legal tenet and one of the cornerstones of a democratic regime. It has been embedded in the Philippine urisdiction since 1/:0s as a result of adopting the %merican structure of government. In the Philippine setup, setup, the government government is composed composed of the 7xecutive, 7xecutive, ;egislatur ;egislature e and
Philippine onstitutional onstitutional %ssociation vs. 7nriquez, 7nriquez, 5.=. o. o. 11:10>, %ugust 1/, 1//4. 9elgica vs 7xecutive ecretar!, 5.=. o. 20?>, ov 1/, 201:.
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each other. 8oever, one must thin) that it is inevitable that the demarcation lines ould be blurred in the political process, and intrusion into another domain is not far from impossible. #mportan$e of Separation of Powers
#he principle of separation of poers and its concepts of autonom! and independence originated from the notion that the poers of government must be divided to avoid concentration of these poers in an! one branch. &urther, the division is hoped to avoid an! single branch from lording its poer over the other branches or the citizenr!. : #o full! attain this purpose, the divided poer must be ielded b! co-equal branches of government that are equall! capable of independent action in exercising their respective mandates. #hus, the absence of independence ould result in the inabilit! of one branch of government to chec) the arbitrar! or self-interest assertions of the others. 4 In the case of the por) barrel fund, the ourt en banc elucidated that legislators are inherentl! involved in the enactment of policies. 9ut the involvement extended in the post-enactment stage hich required the holding of funds and implementation of proects, and is tantamount to an encroachment on the function of the executive. @ith this so-called *development fund+, a ongressman can simpl! b!pass the local development council and initiate proects on his on, and even ta)e sole credit for its execution. Indeed, this proect identication has not onl! contributed little to the overall development of the district, but has even contributed to Afurther ea)ening infrastructure planning and coordination eBorts of the government.A> #hus, the violation of the principle of separation of poers in this incident poses a great dilemma, one must surmise hether assuming the function of another political unit is practical or chaotic. Comparative %oo": Presidential vs. Parliamentary
In other countries adhering to a @estminster parliamentar! form of government such as CD, ingapore, %ustralia, and other common la countries, there is considerabl! no strict separation of poers primaril! because of the merger of the executive and the legislative .
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=eE 6% 6pinion on the omputation of the %ppraised Falue of the Properties Purchased b! the =etired hiefG%ssociate
2 '1/>(, cited in 2 Hd. ;. =ev. 21 '1//:(. 4 2 Hd. ;. =ev. 21 '1//:(. > Id. at 2. =onald < Drotosz!ns)i, J#he separation of legislative and executive poersK in #om 5insburg, =osalind $ixon 'eds( omparative onstitutional ;a, heltenhamE 7dard 7lgar, 2011, p 2:4
In the CD, the executive and legislature are closel! intertined. #he Prime Hinister and a maorit! of his ministers are members of Parliament and sit in the 8ouse of ommons. In %ustralia, the executive and the udiciar! overlap. &or example, the Prime Hinister and ministers are part of the 7xecutive and the Parliament. #he members of the 8igh ourt, the Prime Hinister and ministers are o"ciall! appointed b! the 5overnor-5eneral, ho is part of the Parliament and the 7xecutive.? @hile in ingapore, the Hinisters from the abinet are also selected from the members of the Parliament in order to assist the Hinisters in government operations./ 9! contrast in the Philippines and the Cnited tates, having a presidential t!pe of government, presupposes a clearer division of poer. #he executive function is onl! vested upon the President, and the legislature cannot meddle ith the aBairs of the executive, except for some constitutionall! recognized exceptions. #he President cannot be a member of the legislature, and is elected separatel! from congressional elections. 10 %ccording to recent studies, the fusion of the executive and legislative in parliamentar! s!stems has predominantl! produced great political outcomes. 11 In principle, there is less separation of poers hich allos the parliament to actualize their government goals ithout fear of deadloc) brought about b! political diBerences. 9ut in the Philippines, such fusion here the legislature is involved in executive or) has given the members of the ongress more leverage in misappropriating the public funds. onetheless, it is interesting to note that studies claim that parliamentar! s!stems are more decentralized, herein a lesser separation of poers as proven productive. 9ut such paradigm is not true for the case of the Philippines. Separation of Powers and Corruption
#he ultimate goal of separation of poers is to ensure a mechanism of chec)s and balances. %ccording to #homas
9enell, =ichard and 5a!, 6onagh. Separation of Powers, leEGGGEGCsersGneL20userG$onloadsGsn00>:L20'1(.pdf. ? Separation of Powers: Parliament, Executive and Judiciary , httpEGG.peo.gov.auGlearningGfact-sheetsGseparation-of-poers.html. / httpEGG.singaporela.sgGsglaGlas-ofSingapore Legal System , singaporeGovervieGchapter-1 . 10 Id. at . 11 9agehot, 6xford Cniversit! Press , the 7nglish onstitution 1/? 12 %lve!, (.
It is noteorth! to ascertain hether a separation of poers in its strict sense ould impl! a direct causal relationship ith corruption, considering the t!pe of government and political infrastructures. In a stud! conducted b! scholars from 8arvard, a divided presidential government in %merica had been associated ith loer corruption, providing a more stringent s!stem of chec)s and balances. 1: 8oever, a stud! made b! the @orld 9an) contends that countries ith parliamentar! governments are less prone to corruption. 14 It is characterized b! its mature and stable political part! s!stem as opposed to a personalit!-driven politics and fragmentation in a presidential s!stem. 1> In a parliament, there is unit! and singleness in terms of their political agenda, hich is often lac)ing in a presidential structure because of political diBerences. 1 8oever, it must be ta)en into account that institutional separation of poers does not ala!s impl! a functional separation of poers if institutional actors can collude, leading to a serious degree of corruption.1 In conclusion, the case of separation of poers, decentralization and corruption is peculiar to the Philippines. It is true that decentralization could be a panacea to various institutional illnesses. 5iving the legislators the poer to manage public funds can be gleaned as decentralization, but the fusion of executive and legislative resulting to decentralization can have diBerent eBects on the level of corruption. It is a *double edged sord+ polic! mechanism, for it can either promote collusion and patronage politics or improve e"cienc! b! expediting the operations of the government.1? 9ut the political culture of the Philippines must also be ta)en into account here corruption is s!stemic, and that structural change of government ill not automaticall! create a signicant development.
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%lt, eudorfer, 9enamin and edorfer, atasha, 'ecentrali/ation and Political "orruption in Presidential and Parliamentary %overnment, httpEGG.fal.vuGMmlgGpapersGeudorferNdecentralizationL20politicalL20s!stem L20corruption.pdf , *+01. 1 Id. 1 Id. at 1:. 1? Id. at 14.
