Tuesday, October 11, 2016

Federalism is not the answer

I believe that this idea of Federalism gained traction as a consequence of feelings of frustration about the failure of past governments and elected leaders to lift the country to a high level of economic development that it deserves, and of desperation in the fruitless search for a solution that works. Federalism is now seen as the solution. But I am afraid it is not and I beg to disagree. I am convinced, in fact, that its adoption will only prolong the economic hardships of a large number of our people who find themselves stuck in poverty.

My position against Federalism as the solution is anchored on two broad factors which I will now discuss, setting aside less significant details for the time being. These two factors are, one, the incompatible condition of the present political and economic setting from where the proposed Federalism will rise and, two, the huge complexity of the resource allocation that its successful implementation will entail.

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.

 Kakainin kita ng buhay
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?

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.

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.

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.”

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.”

 Think before you speak
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.”

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.

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