A constitution for each state

Jude Josue Sabio

THE shift to federalism was proposed by Duterte prior to and during the presidential campaign.  At that time, the Aquino administration vigorously pushed for the passage of the Bangsamoro Basic Law (BBL).

Under the then proposed BBL, a separate sovereign entity or sub-state was provided for the Bangsamoro. It also provided for a parliamentary system of government for the Bangsamoro, even as our Constitution provides for a presidential system for our national government.

In this concrete  political context, the Duterte proposal is really meant to accommodate the proposal for a separate sovereign entity for the Bangsamoro. In the ultimate sense, this political accommodation proceeds from a fatal legal flaw in the BBL.

The fact is our Constitution provides for only one state for the country. It does not allow the creation of another state within that one state. The Constitution provides only for local government units and autonomous regions.

What we have now are local government units like cities, municipalities and provinces.  We also have the Armm or the Autonomous Region in Muslim Mindanao.  Our Constitution provides for these political subdivisions only and nothing else.

The BBL was just a waste of time, because it would have met sure death in the Supreme Court for being unconstitutional.

Clearly, it is because of this insurmountable constitutional obstacle that the proposal for  federalism was and is being made.  Logically, it will require a complete overhaul of the political provisions of the Constitution.

However, the political provisions of the Constitution readily show that these provisions were merely copied, almost verbatim, from the US Constitution and transplanted to our country.

As copied, these provisions provide for a presidential system of government in which the president is elected at large directly by the people.  What we did not copy is the election of the president by the electoral college. These provisions also provide for the tripartite system of government, with the executive, legislative and judiciary.

What we also did not copy from the United States is the federal system. Although the term “federalism” is not mentioned in the American Constitution, the Federalist Papers authored by Alexander Hay and James Madison campaigned for a federal system as against the Confederacy existing at that time.

Under the American federal system, there are two sovereign entities, namely; the US Federal State and the several states comprising the federal state. At first, the Federal State was composed of only 13 states and later more states  joined the federal union.

In its fundamental essence, as understood in political science, federalism is characterized by the sharing of sovereignty. Two different sovereigns share sovereignty in one political system.

A clear example considered in political science to be a federal structure would be the United States where, at a higher level,  there is a national sovereign or the federal state and, at a lower level, the different states. The federal state and the different states share sovereignty within one political system.

Another example considered by political scientists to be a federal union is the European Union where, at a national level, there is a European Union, and at a lower level, there are different states comprising the union.

Since our Constitution is copied from the US, it is significant to realize that in the United States, the different states are states in the strict sense of the term in political science.  Each state has its own  territory, government and people.

As a separate sovereign entity, each state in the US Federal system has its own constitution.  Each state does not derive its sovereignty from the federal constitution.  It derives its sovereignty instead from the will of its own people as expressed in its own Constitution, consistent with the republican principle that sovereignty resides in the people.

In fact, one prerequisite for the inclusion of a state in the US federal state is that a state must have its own constitution ratified  by its people and approved by the federal congress.

Also, each US state has its own tripartite form of government provided for in its own constitution.  It has an executive, legislature and judiciary, just like the federal state.

The proposal of former Senate President Nene Pimentel speaks about borrowing from the best practices of the federal models of Germany, Brazil, France and other federal countries. But nothing is mentioned about the constitution of the different states to comprise the federal state.

Senate President Koko Pimentel speaks about just one constitution that presumably will create the federal state and the different states.

Will it be like the US Federal system? Will it be like some other type of federalism probably that of France, Germany, Brazil or Spain? Or will it be some form of quasi-federalism or just more devolution of governmental powers provided for in a single constitution that will apply to the federal state as well as the different states?

As earlier proposed, the BBL was intended to be the organic law for the Bangsamoro. An organic law is in the nature of a constitution. A shift to federalism should require no less than that. If it can done for the Bangsmoro, albeit not in a federal system, why can’t it be done to all the states proposed to be created by venerable Nene Pimentel in a federal system. An organic law or basic law, or a constitution, must form the basis for a separate state in a federal Philippine state.

 (The author, Jude Josue L. Sabio, is a lawyer.)