Why federalism is not the answer

Vicente V. Mendoza
Writes a retired Supreme Court justice: 'We don’t need to change to a federal system but only push hard for decentralization to break up the concentration of power in the central government'

 For better or for worse, the proposal to change our present unitary system of government to a federal system and to do this through Congress acting as a constituent assembly, if accomplished, will be a truly revolutionary one, a real paradigm shift in our constitutional order .

Those calling for the change justify it by describing the object of change “Imperial Manila” or worse “Imperialist Manila.” Wikipedia defines the term as follows: “Imperial Manila is a pejorative epithet used by sectors of Philippine society and non-Manilans to express the idea that all the affairs of the Philippines, whether in politics, economy or culture, are decided by what goes on in the capital region, Metro Manila, without considering the needs of the rest of the country, largely because of centralized government and urbanite snobbery.”

The once “distinguished and ever loyal city” of Manila must have become so hated that vivid metaphors have been employed to describe how it should be ended: “Destroy Imperial Manila,” “Castrate Imperial Manila,” and “Decapitate Imperial Manila.”

Complaint vs Imperial Manila

We have a unitary system of government, which in theory holds all power and from which all authority emanates. The complaint is that the power given to local governments is so little that they have failed to realize their fullest development as self reliant communities. With respect to public finance, the share of LGUs in the revenue from taxes, fees and charges collected by the government is fixed at 60-40 percent in favor of the central government. In addition, the complaint is that the age-old conflicts and secessionist movements in Mindanao continue to defy solution.

All these – the failure of the LGUs to develop and the seemingly insoluble conflict in Mindanao – have been laid at the doorstep of Imperial Manila.  

Those calling for an end to Imperial Manila call for the federalization of the government as a means of breaking up its power and distributing it to several states so that there will be several centers of power throughout the nation. For this purpose the advocates propose the conversion of the 12 existing administrative regions into 11 states. For example, Region V, which is at present composed of Albay with Legazpi City, Camarines Norte, Camarines Sur, including the Cities of Naga and Iriga, Catanduanes, Masbate, and Sorsogon will become the State of Bicol, to be composed of the same provinces and cities, minus Masbate.

Under a federal system, each of the states will be independent. Each will have its own constitution, its own government, and its own court system, in contrast to local governments which only exercise power given to them by the central government. 

Given the condition of the local government units, however, thoughtful citizens are asking whether we are ready for the federal system. Take for example the Bicol Region, is it ready for statehood? Dr. Jose V. Abueva, fervent advocate of federalism, estimates that ten years would be enough to make the proposed states viable. That does not seem to be a realistic estimate.  

What federalization will entail

Each state, as I have said, will have to have its own constitution. This is necessary to give the states a sense that they are directors of their own political will and their political destiny. The state constitution should be prepared and approved by the local population in a plebiscite. Give the adoption of the state constitution three years. 

Each state must also have its own government, consisting of legislative, executive, and judicial branches, and hold elections for some of its officials. Give the organization of the government of the state another three years. 

Each state will have to have its own court system, with the jurisdiction of each court clearly defined, and provide for appeals to the National Supreme Court in some cases. The National Supreme Court will exercise original jurisdiction over interstate commerce and transportation and appellate jurisdiction over cases arising from or between the states which involve the application and interpretation of the Federal Constitution and the federal laws. Give the establishment of a state court system and the appellate or review processes up to the national level another three years. This matter should be given careful study. Much of the business of the US Supreme Court consists of adjudicating cases involving diversity of jurisdiction because of its dual court system.

That already is a total of nine years. But what about the training of leaders in public policy, since each state is now going to determine its policies? What about the development of its economy, how long will it take to grow the region so that each state can stand on its own two feet? What about preparing people for the duties and responsibilities of statehood, all cast in the context of duties and responsibilities to the broader Nation? More than the amendment of the Constitution is the amendment of men’s nature. This is likely to take a much longer period, not just years but perhaps a whole generation or several epochs.

Curiously, the ten-year period is similar to the ten-year transition period given by America to Filipinos before the grant of independence to them.When well-meaning leaders doubted whether ten years would be sufficient to prepare Filipinos for independence, President Quezon said dismissively, “I prefer a government run like hell by Filipinos to a government run like heaven by Americans.” But can we dismiss apprehensions about changing the system of government when it also calls for changing the mindset and habits of thinking of people who for over a 100 years have not known of any regime but unitary system? 

Indeed, the whole process of federalization will involve dividing governmental powers between the national government, on the one hand, and the several states on the other. The national government will have power over matters of national concern, like foreign relations, national security, immigration, citizenship and naturalization, postal service, monetary currency, interstate commerce and transportation and communication. The state governments will take charge of local matters like peace and order, trade and commerce, taxation, natural resources, etc. It will be splitting the atom of sovereignty in order to produce several nuclei, this can be done in ten years? 

Proposed federalization, a reverse process

This process of federalization as proposed is in the opposite historical direction of the formation of federal states. Federal systems are usually the results either of the agreement of several states to form a union or of the organization of several territories or colonies into a federal system by a colonial power. 

 For example, the United States of America was formed out of 13 colonies which, after declaring their independence from Great Britain in 1776, formed a confederation or “perpetual Union” and, when this proved to be weak, adopted the present US Constitution which provides for the present federal system of government.

Another example is the Federation of Malaysia, which was formed out of several separate units or territories held successively by Portugal, the Netherlands, and Great Britain. In 1944, the British government tried to organize them (except Singapore) into a single state, the Malayan Union, but strong opposition forced it to abandon the plan. Instead, on February 1, 1948 the Federation of Malaya, which later became the present Federation of Malaysia, was formed.

The creation in reverse of a Federal Republic of the Philippines is likely to bring about a host of undesirable effects, to wit:

  1. The division of powers between the national and state governments will weaken the Philippines. For states coming together to form a federal system, federalism means strength. In union there is strength. Such, for example, is the United States of America, whose motto is “E Pluribus Unum,” (“Out of Many, One”). But to a unitary state converted into a federal state, federalism can mean the fragmentation, if not the disintegration, of what was once a nation.
  2. Should the federal system thus formed fail, there will be no turning back and returning to the old system. The breakup will be more devastating in its effect on the component states than on the states in a federal system formed by the coming together of independent states. While the failure of this latter type of federation will simply mean the return of the component states to their former status as separate independent states, in the case of the Philippines, however, each component state will find itself without moorings and become prey to annexation by other states. God forbid, the breakup will not presage the spread of strife throughout the land.
  3. Federalism will magnify or encourage regional differences. The rise of village tyrants and village despots will be more probable than the rise of a national dictator.
  4. States may become so focused on local development and security that they neglect national concerns and issues.

At a time when regional federations are breaking up and threats to our territorial integrity are getting to be more real than imagined, is there truly a need to divide the government into national and state governments? 

Decentralization is the way

Indeed, in classic political theory, concentration of power is never an issue against a unitary system of government. 

In Federalist Paper No. 51 Madison saw the vertical division of power between national and state governments, along with its horizontal division into legislative, executive and judicial, as providing double protection for individual rights. Similarly, Lord Acton, wary of absolute power, thought that “by multiplying the centers of government and discussion [federalism becomes] . . . the protectorate of minorities, and the consecration of self-government.” Protection of individual rights was thus a reason for federalism. 

On the other hand, Dean Roscoe Pound saw federalism as the only way for governing a large country of continental extent, like the United States, by which national policies can be fully realized by permitting regional variations according to local needs. The effective administration of a continental domain was another purpose of federalism. 

No one, however, has advocated federalism as a cure for the concentration of powers per se. 

The truth is that we don’t really have a fully centralized unitary government, but one with a decentralized system of local governments. Local autonomy is a constitutional policy and decentralization a constitutional mandate. Both are rights of local governments which cannot be taken away from them. Local officials are elected, not appointed by the central government, and their tenure is guaranteed. They have the power to create their own sources of revenue and raise taxes. They have a right to share in the taxes, charges and fees collected by the central government as well in the utilization and development of natural resources within their areas.  

Senator Aquilino Q. Pimentel Jr. argues that a federal state would enable Moros to run their government according to their customs and traditions. The Constitution already provides for autonomous regions in the Cordilleras and Muslim Mindanao with recognition of the fact that the people of these regions have a different historical and cultural heritage and different economic and social structures. Autonomous regions have their own organic acts, their own government, consisting of an executive department and legislative assembly, and special courts with personal, family and property law jurisdiction. No reason has been shown why these provisions for autonomous regions are inadequate to address the Mindanao problem. If the Bangsamoro Basic Law failed passage in the last Congress, it was because several of its provisions were perceived to be unconstitutional and that what it provided for was the creation of a Bangsamoro substate.

The argument that federalization will promote local development and encourage citizen participation in government is precisely a policy argument for decentralization. In 1967 Congress enacted the Decentralization Act (R.A. No. 5185) granting “local governments greater freedom and ampler means to respond to the needs of their people and promote their prosperity and happiness and to effect a more equitable and systematic distribution of governmental powers and resources.” Thus, “the performance of those functions that are more properly administered [at] the local level” are entrusted to local governments which are granted “as much autonomous powers and financial resources as are required for the more effective discharge of these responsibilities.”

The coming into force of the 1987 Constitution added impetus to the decentralization of the government. It mandates Congress to “enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization.” The Local Government Code (R.A. 7160), provides in its Section 3 “Operative Principles of Decentralization” in passing local legislation. If then there is still excessive concentration of power in the central government, it is because constitutional and statutory provisions for decentralization have not been fully implemented. 

We have reduced the President’s power over local governments to “general supervision.” We need to do something similar to Congress’ powers over local legislation to implement fully the constitutional policy of local autonomy. There should be not merely decentralization of local administration and functions but delegation of legislative powers, to give local governments greater autonomy. They should have power to determine what ordinances to enact, subject only to such terms and conditions as Congress may provide, with a sufficient standard to guide them in the exercise of this power. This is permissible under the Constitution. It is in fact a mandate to Congress with respect to local governments. In addition, the share of local governments in the internal revenue collection should be increased from 60-40, in favor of the national government, to 30-70, in favor of local governments given the increased responsibilities that they will now shoulder.

This is not the same as federalizing the government. Power will not be granted to the local governments as independent entities but simply delegated to them as political subdivisions of the state. National policies will still be determined by the central government, but local governments will be given broad discretion to make variations to adapt them to local conditions.

All these can be done without changing to a federal system and without having to amend or revise the Constitution, which is problematical because of controversy in the interpretation of its Amendment Clause. 

For, indeed, apart from the risks of failure of the experiment, there are procedural problems to be considered as well. 

Vexing problem

It is generally agreed that to change from a unitary to a federal system would require the revision of the Constitution.  Revisions of the Constitution can be proposed either by Congress acting as a constituent assembly or by a constitutional convention composed of delegates elected by the people. While the President had originally expressed preference for a constitutional convention, it was subsequently announced that he chose a Con-Ass to undertake the job of overhauling the Constitution after being told of the cost of holding a Con-Con. 

This decision is likely to raise anew a vexing problem that has been with us since the adoption of the Constitution in 1987: how the two Houses of Congress, when acting as a constituent assembly, should sit, whether jointly or separately. The Constitution’s meager provision gives no answer to this question. Its Article XVII, Section 1 simply states that “Any amendment to, or revision of, this Constitution may be proposed by (1) The Congress, upon a vote of three-fourths of all its Members.”

In the last Congress, views were expressed that in amending the Constitution so as to change some of its economic provisions, Congress could follow the same procedure for enacting bills. 

This problem has arisen because the constitutional provision in question was originally written on the assumption that the legislative body would be unicameral. However, toward the closing days of its session, the Commission decided to have a bicameral Congress instead. Accordingly, the relevant provisions of the draft Constitution, except the Amendment Clause, were rewritten to reflect the change.

Thus, in the following cases, it was provided that the two Houses of Congress must meet in joint session but vote separately:

  • To declare the “existence of a state of war.” (Art. VI, Sec. 23 (1))
  • To confirm the President’s nomination of a Vice President whenever there is a vacancy in the office during the term of the Vice President. (Art. VII, Sec. 9)
  • To revoke the President’s declaration of martial law or suspension of the privilege of the writ of habeas corpus. (Art. VII, Sec.18)
  • To canvass the votes for President and Vice President and proclaim the winners and, in case of a tie, to break the tie. (Art. VII, Sec. 4)
  • To decide whether the President, who has declared himself unable to discharge the duties of his office and subsequently claims to be fit to resume but his cabinet disagrees, is fit to discharge the powers and functions of the Presidency. (Art. VII, Sec. 11)

It was only through oversight that the Commission failed to make the corresponding changes in the Amendment Clause. But, as  Commissioner Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, said when asked what his committee would do in the event the Commission decided to have a bicameral legislative body, they would include the words “IN JOINT SESSION ASSEMBLED.”  

Indeed, if Congress is required to meet in joint session but vote separately in performing the functions just enumerated, it stands to reason it must be required to observe this same procedure when performing its highest function of amending or revising the fundamental law. To contend that Congress can propose amendments to the Constitution in the same way as in passing ordinary legislation is to forget the lesson of Marbury v. Madison that “as a superior paramount law, the Constitution is unchangeable by ordinary legislative acts.” 

There is furthermore a benefit to be gained by having Senators and Representatives meet and discuss matters together face to face. As the Supreme Court has pointed out, the “Senators and members of the House of Representatives act, not as members of Congress, but as component elements of a constituent assembly.” (Gonzales v. Comelec, 21 SCRA 774, 785 (1967); Tolentino v. Comelec, 41 SCRA 702, 714 (1971)). 

To sum up, we don’t need to change to a federal system but only push hard for decentralization to break up the concentration of power in the central government, and therefore we don’t need to amend or revise the Constitution. And if Congress has to act at all as a constituent assembly, its two Houses must meet in joint session but vote separately. – Rappler.com

 

The author is a retired justice of the Philippines’ Supreme Court and a professor of constitutional law at the UP College of Law.