Federalism 104: Cha-cha challenges

The Senate committee on constitutional amendments, chaired by Sen. Franklin Drilon, will soon start public hearings on President Duterte’s proposal to adopt the federal system. The proposal will require Charter change (Cha-cha).

Theory and reality. Theoretically, the President has no formal role in Cha-cha. Ordinary legislative bills require presidential action before they become laws. In contrast, proposals to change our Constitution do not need formal presidential intervention. This is the textual legal theory.

But political reality impels the opposite. Being the country’s top elected leader, the Chief Executive dictates every major political twist and turn, especially constitutional change.

This reality explains why, despite the persistent advocacy of then Speaker Feliciano Belmonte Jr. to amend the nationalistic economic provisions of the Charter, the last Congress ignored calls for Cha-cha. Then President Benigno Aquino III simply did not allow any alteration of the 1987 Constitution that his mother, President Cory Aquino, presented to the country.

This time, however, the incumbent President himself is beating the Cha-cha drums. And the House of Representatives, led by Speaker Pantaleon Alvarez, steadfastly marches with the presidential tempo. But, as will be shown later, the Senate is the real pivot. Its pivotal role will be immediately apparent in the many questions and challenges that, I think, will surface during the public hearings. Ten of them are:

Why Cha-cha? 1) Should the Charter be changed at all? Why should we dance the federalism Cha-cha? Can we not swing to other tunes to attain the same goal of devolving power, like enacting laws to grant more autonomy, to delegate more powers and to appropriate more funds to local government units? Why Cha-cha when we can swing?

2) If we must Cha-cha, to what mode should we sway? Is it by constitutional convention (Con-con), by constituent assembly (Con-ass), or by people’s initiative (PI)? The last is plainly inapplicable because the Supreme Court, in Lambino vs Comelec (Oct. 25, 2006), ruled that PI can be used only for simple amendments, not for complicated ones that alter the government’s nature and structure, like federalism.

3) Though initially the mode of choice, the Con-con has lately been rejected by the President and the Speaker. So, it will not happen unless, of course, they change their mind midstream. If it is by Con-ass, should both chambers of Congress pass separate resolutions to convene themselves as constitution makers, no longer as lawmakers?

4) If so, should the two chambers convene jointly or separately? To pass ordinary legislation, they convene and vote separately. But to propose constitutional revisions, should they also convene separately? After convening (whether jointly or separately), should they vote jointly or separately? This question is crucial for the Senate because voting separately solidifies its institutional equality with the bigger House. But voting jointly (gathering together all the senators and congresspersons and letting them vote as equals in one assembly) eliminates the Senate. The 24 senators will be drowned into insignificance by the 292 members of the House.

5) In fact, will the senators agree to convene the Con-ass without any assurance of separate voting?  Will they (or their sympathizers) first ask the Supreme Court to require the Con-ass to vote separately, not jointly? And failing to get such ruling in advance, will they vote at all for the convening of a Con-ass?

Which federal system? 6) Assuming they get their wish for separate voting, will the senators agree to a federal system that is parliamentary in form? Parliamentary governments are usually unicameral, which eliminates the Senate, or demotes it to a mere ceremonial rubber stamp that cannot disapprove or change bills passed by the district-elected Parliament.

7) So far, the federalism proposal is generic and has no specifics. Which form of federal system is best suited for us: the presidential model in the United States, or the parliamentary model in most federal states, like France, Germany, Malaysia and Canada? Or will the Con-ass, given the desire to “Filipinize” the system, revive the hybrid parliamentary system instituted under the 1973 Constitution of Ferdinand Marcos with a strong president and a weak parliament? Will there be party-list members?

8) Is there any country in the world that began with a centralized government and then successfully metamorphosed into a federal state? If not, how can we be sure that our new federal state will stand the test of time after the proponents of federalism fade from the national scene?

9) Most governments are evolved through time and metamorphose slowly along with the historical experience of a people. Can the federal system be imposed from theoretical and philosophical assumptions only? On the other hand, are there empirical and historical bases from which a truly Filipino federal system can be crafted?

10) Given our many urgent national concerns, like the budget, traffic congestion, death penalty, freedom of information, tax restructuring, public-private partnerships, agrarian reform, and peace process with various rebel groups, will the Senate have the time, energy and competence to overcome these challenges and to craft a new and viable Constitution that would change radically the nature and structure of our government and would attain the desired goal of devolution?

We should know soon enough.

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