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On establishing a federal system

Michael Henry Yusingco .

THE Consultative Committee organized by President Rodrigo Duterte is presently designing a federal structure for the country which he plans to announce in his State of the Nation address in July.

In this context, an exchange in the 1986 Constitutional Commission between Commissioner Blas Ople and Commissioner Ricardo Romulo on the nature and depth of local autonomy is worth recalling:

“Mr. Ople: I think what we want to establish is a kind of maximum decentralization, short of federalization, at this moment in history.

Mr. Romulo: That sounds like someone being half pregnant.

Mr. Ople: No, that is what local autonomy ought to mean.

Mr. Romulo: That is what I am trying to say. Is the Gentleman talking of local autonomy or is he talking of federalism?

Mr. Ople: Local autonomy, Madam President.” (Record of the Constitutional Commission, Volume 3, August 11, 1986, pp178-179)

The phrase, “a kind of maximum decentralization, short of federalization”, is how local autonomy under the 1987 Constitution must be understood. This means the current local autonomy framework established in Article X already has federal features. I am referring to the revenue-raising power sections (5, 6 and 7) and the “consolidation of efforts” sections (13 and 14).

But the non-federalist aspect of these provisions is represented by the fact that these prescriptions are not immediately enforceable. To be implemented, they either need an enabling law or the initiative of the President.

Indeed, Section 3 provides that, “Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization.”

Pertinently, according to the Supreme Court, “Autonomy, in the constitutional sense, is subject to the guiding star, though not control, of the legislature, albeit the legislative responsibility under the Constitution and as the ‘supervision clause’ itself suggest-is to wean local government units from over-dependence on the central government.”

The sad fact is Congress has failed to meet this mandate. Local governments are still utterly dependent on Malacañang despite the enactment of the Local Government Code of 1991. And this provision, which requires a local government code to establish a system of decentralization, is the very reason why our local autonomy framework is not federal.

According to Ronald Watts, considered as the preeminent authority on federalism, “The key is not the degree of decentralization, but the degree of constitutionally guaranteed autonomy that the constituent units may exercise.”

Therefore, in designing the federal set-up for the Philippines, the autonomy of the regional government must be self-evident in the new federal charter. We do not want a repeat of the, “a kind of maximum decentralization, short of federalization”, structure in the 1987 Constitution. Simply put, there should be no need for an enabling law to operationalize the federal system.

Moreover, for the federal system to work the regional government structure itself must be configured to facilitate a community-oriented governance mindset. Pertinently, a regional government framework meeting this requirement is found in the proposed Bangsamoro Basic Law.

Accordingly, the regional governance structure in the new federal constitution must be parliamentary with members elected through single-member legislative districts and through political party representation. The chief executive of the regional government shall then be elected by the regional parliament from its ranks.

Members of the regional executive cabinet shall also be members of the regional parliament. However, non-members may be designated to a cabinet post subject to confirmation by the regional parliament.

One necessary change that must be made here is to remove the supervisory power of the president over the regional executive and over local government units. This institutional link undermines the autonomy of the subnational level of government. Indeed, it is a peculiar facet of a presidential-unitary structure and has no place in a federal system.

Note however that the regional parliament shall function as the check and balance mechanism to the regional executive. Moreover, it must have oversight functions over local government units within the region.

Most important of all, the principle of subsidiarity must be self-evident in the federal charter itself. But simply defining this principle in the constitution will not suffice. This must be expressed in constitutional language as immediately enforceable. For example, in the Constitution of the Swiss Confederation, Article 3: “The cantons are sovereign insofar as their sovereignty is not limited by the federal constitution; they exercise all rights not transferred to the federation.”

The Australian Constitution, particularly in Chapter V—The States, 107. Saving of power of State Parliaments, provides: “Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be..”

These are examples of federal constitutions and clearly, they limit the powers and functions of the national government. A charter establishing a unitary structure would be the exact opposite because the central government primarily holds state power and merely devolves some functions to the subnational level government. This is our current governance framework. A federal constitution for us should therefore have this provision clearly stipulated:

“Regions shall enjoy full autonomy subject only to limitations set forth in the federal constitution and shall exercise all powers not vested on the national government.”

To conclude, we must remember that if the goal of charter change is to establish a federal system, then the new charter must not be a substantial carbon copy Article X of the 1987 Constitution.

Constitutional reform must result to the improvement of the current system. If the same ill-designed institutions and mechanism are retained, then the entire process would be all for nothing.

 

(Michael Henry Ll. Yusingco is a practicing lawyer. He is the author of the book, ‘Rethinking the Bangsamoro Perspective.’ He researches on current issues in state-building, decentralization and constitutionalism.)

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