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Commentary

Take 2: Federal vs decentralized

05:06 AM April 09, 2018

Says Ronald Watts, considered 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 setup 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 “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.

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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.

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Members of the regional executive Cabinet shall also be members of the regional parliament. However, nonmembers 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. According to the International Guidelines on Decentralization and Strengthening of Local Authorities issued by the UN-Habitat: “The principle of subsidiarity constitutes the rationale underlying to the process of decentralization. According to that principle, public responsibilities should be exercised by those elected authorities, which are closest to the citizens.”

Simply describing 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:

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“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.”

In all three Philippine constitutions, political elites were successful in instituting a presidential and unitary system for the country that paved the way for an extremely centralized government structure. Hence, this time around we must ensure that Charter change is focused on diffusing the overconcentration of economic and political power in the national government.

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Lawyer Michael Henry Ll. Yusingco is a nonresident research fellow at the Ateneo School of Government and a lecturer at the School of Law and Governance of the University of Asia and the Pacific.

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TAGS: charter change, decentralization, federalism, Inquirer Commentary, Michael Henry Ll. Yusingco, Ronald Watts
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