[OPINION] Notes of caution on Duterte’s preferred constitutional overhaul

(First of two parts)

This is a modified version of the statement the author read in the joint hearing of the Senate committee on constitutional amendments and revision of codes and the committee on electoral reforms and people’s participation on March 13, 2018.

Reforms in the Local Government Code can address the delegation of more power and resources from the central to the local governments in the Philippines without shifting to federalism. Moreover, legislation can do it without the drawbacks, dangers, and divisiveness of overhauling the Constitution just to shift to a federal system of government.  

My argument is based on the insights of the institutional design literature in political science – the very literature that specializes in the institutional questions the Philippines is currently grappling with. Ironically, it has barely been recruited to shed light on these questions.

The institutional design literature studies how the specific design (or redesign) of a country’s political institutions, such as the form of government and system of government, affects or will affect, among others, the accountability, representation, popular empowerment, elite capture, and coherent policymaking of the state.

The institutional design literature counts some of the biggest names in the political science discipline, including the winners of the Johan Skytte Prize in Political Science, which is considered as the most prestigious prize in political science. Think of it as our discipline’s Nobel Prize. 

Because of time limitation, I could only share two of the many cautionary insights available from the institutional design literature when attempting constitutional overhauls, especially when involving democratic regimes. 

No consensus on superiority

The first cautionary insight is that there is no consensus on the superiority of a federal to a unitary system of government. This is also true in the case of the form-of-government debate, where there is no consensus on the superiority of a parliamentary/semi-presidential to a presidential form of government. 

While some scholars argue that federal systems are superior to unitary systems of government, other scholars find that there is no meaningful difference in the performance between federal and unitary systems on several key indicators. These key indicators include human development, economic performance, income inequality, democratic stability, quality of democracy, rule of law, and anti-corruption campaign. 

This lack of consensus among scholars of institutional design makes problematic the argument of the overwhelming majority of the pro-federalism literature in the Philippines that takes as gospel truth the superiority of the federal system to a unitary system of government.  

Reform, not overhaul 

The second cautionary insight involves the recommendation of top institutional design scholars for democratic countries with already functioning systems or forms of government to reform rather than overhaul their systems or forms of government.  

The first reason an overhaul is strongly discouraged is because it is unnecessary. If there is no superiority, then there is no need for an overhaul. 

The second reason is because an overhaul is unbelievable. Institutional overhaul tasks are too institutionally and intellectually complex for the lofty goals that proponents talk about.  

This institutional complexity is especially true for federalism, where, depending on which proposed federal constitution for the Philippines one is reading, state or regional governments, constitutions or organic laws, courts, and bureaucracy would have to be created. 

Of the 4 federal constitutions introduced since 2005, only two bother to give explicit time frames, and they range from the minimum of 6 years and a half of PDP-Laban to a minimum of 10 years of Dr Jose Abueva, and this is just to start the process of federalism going. This, of course, easily goes beyond the single term of the president currently allowed under the 1987 Constitution, and immediately raises questions on the role of the presidency in the transition. 

If overhauling either the form of government or the system of government is already frowned upon, it becomes even more problematic in the Philippines because the proposed constitutional overhaul preferred by President Rodrigo Duterte involves both the form of government and the system of government. No democratic country with an existing unitary-presidential setup has been crazy enough to make these constitutional overhauls at the same time!

In terms of intellectual complexity, the institutional design literature has sobered from the enthusiasm of the early 1990s on the power to get right the institutional design of political institutions. A good part of this sobering is the realization that actual empirical outcomes of institutional reforms did not conform to the glowing theoretical predictions of reformers. This is true for parliamentarism/semi-presidentialism and also true for federalism. 

For instance, political scientist Jonathan Rodden, a leading expert on fiscal federalism, argues in a book chapter entitled Federalism: 

The classic economics literature yielded some testable positive claims, most of which linked federalism and decentralization to broad improvements in efficiency, giving the literature a strong normative flavor that found its way into policy debates. As decentralization and federalism spread around the world along with democratization in the 1990s, these claims seemed increasingly anachronistic in the face of subnational debt accumulation and bailouts among large federations and evidence of corruption and inefficiency associated with decentralization programs. Furthermore, crossnational empirical studies linked federalism with macroeconomic distress (Wibbels 2000; Treisman 2000b) and corruption (Treisman 2000a).

This is a very different assessment of the recent experience of federalism from the rosy pictures being sold in this country. 

Thus, the Philippines’ constitutional overhaul project circa 2016-2018 is the height of intellectual irony. As the scholars of the literature on institutional design – the real experts on these issues – have counseled caution and moderation, most proponents of charter change in this country have instead become gung-ho in campaigning to overhaul both system and form of government and at one go! This raises the question whether, intellectually, the Philippines’ constitutional overhaul project is a matter of hubris or sheer ignorance of expert literature. 

The third reason against overhaul is because it is unsafe, especially if the body that will do the rewriting is the same body that benefited from the old unitary setup, like the Philippine Congress constituted as a constituent assembly. This is partly because of the multitude of institutional features needed to make a federal system work properly. Since most of these features are subject to the inevitable compromises with existing vested interests from government officials who profit from the current unitary system, scholars warn of the grave danger that a constitutional overhaul may produce institutional Frankensteinian outcomes that combine the worst of the old unitary and the new federal systems.

On the other hand, piecemeal reforms that move the current setup to a more federal-like direction (such as increased local and regional autonomy in the Philippines) usually involve only legislation. Scholars argue that if there are errors in the reforms, it would be easier to return to the old setup or to address these shortcomings through new legislation. This will be excruciatingly difficult to do in a messed-up constitutional overhaul, especially involving federalism with its principle of constitutional entrenchment, where the federal features of the constitution could no longer be changed without the concurrence of the newly created constituent governments. – Rappler.com 

(Part 2: Suspending elections involves shameless power grab)

Gene Lacza Pilapil is an assistant professor of political science at the University of the Philippines Diliman. He has an ongoing research project entitled “A Critical Review of the Federalism Project of the Duterte Administration” funded by the Office of the Chancellor of the University of the Philippines Diliman, through the Office of the Vice Chancellor for Research and Development’s Outright Research Grant.