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Commentary

Federalism, for what?

01:00 AM August 08, 2016

President Duterte has made the project of federalism a core deliverable of his administration. This seems consistent with his penchant for going deep as he examines our society’s basic institutions and proposes structural changes by way of revisiting first principles for social organizations. To the extent that we have a President who is not interested in superficial solutions or glamorous facelifts, this clearly has to be celebrated. He’s gunning for the big waves, and the payoffs are potentially massive.

Even then, we must tab the fact that federalism, as a concept, does not really have any content beyond ideas such as having clear lines of separation between the state and the federal government, or dual sovereignty, or subsidiarity, or some other fancy legal term. The truth is that federalism is as federalism does, and only the details of any federalism project can reveal its various practical meanings.

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The relevant question is therefore not whether we should become a federal republic, but what we want to use federalism for. Federalism is but an instrument, a vehicle for carrying solutions in a new constitution. It is a structural platform that will constitute the base in which the nuts-and-bolts solution to our social problems will be grounded and fastened. You cannot judge the beauty of a house by just looking at its foundation.

The way to unpack the President’s federalism project is through a clarification of purpose(s), by asking which problems he is trying to solve.

Here’s a basic laundry list: Is this about the inefficiencies and injustices caused by “Imperial Manila”? Does he see our unitary state as a source of the political and bureaucratic bottleneck that has only served as a barrier to provincial growth? Has our Manila-centric politics failed to unlock the vast potential of the other regions, and sapped resources away from them? Is the attention lavished on Manila so undue as to suppress the identities of the various ethnic communities in the country? Is this about the flow of taxes and wealth, such

that we need a constitutional repiping of the channels of resources to allow a more equitable distribution of income? Is this about who gets to control our natural resources? Or is this about the sale of agricultural lands? How will a federal structure change the way basic services are conceptualized and delivered?

We need to see the fine print so we can compute costs and benefits.

At the same time, while federalism may be able to offer theoretical advantages, that certainly is only half the picture. How the text of the new constitution will interact with Philippine society is the other half. Will the paper change result in a transformation of political culture and governance? The interaction between law and culture is an entirely separate challenge. Convincing the people to ratify a new constitution is easier than making them change their ways. There are simply no models that can predict the impact of a new constitution on individual consciousness and institutional practices.

Our biggest problems, bad governance and corruption, are problems about people, not (necessarily) of political structure or political consciousness, not (necessarily) political institutions. They are subjective, not objective, concerns. People will not wake up to a new constitution that will magically confer upon them the ability to govern themselves well or make them less corrupt.

These questions must be raised not only so that we can have reasonable bases for buying into the project (or rejecting the offer) but also because we need to assess whether such out-of-the-box, extraconstitutional measures can be accommodated by more modest, less expensive, within-the-box solutions. Ultimately, the question may be: Do we need a revolutionary or incremental remaking of the legal construct? Is there a need to burn the house down and build a new one, or will a serial renovation of the rooms suffice?

For instance, the goal of decentralization may be remedied by a more potent local government code. Redistribution of bureaucratic powers may also be done through a revision of the administrative code. We can also do constitutional amendments for autonomous regions. In other words, once made aware of the problems, we just might realize that the patient need not be opened up and can be cured by minor operations requiring local, not general, anesthesia.

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Intertwined with the substance of the proposal to change the Constitution is the proposed procedure for doing so—that is, either by way of constitutional convention or constituent assembly. The bottom line here is control: A constitutional convention will be institutionally independent from both the legislative and executive branches, and less immune to the usual motives and pressures that are viewed as having a gravitational influence on decisions made by our legislators. It is likely that the credibility of the final proposals will depend on who gets to propose them, independent of the substance of the proposals.

Regardless of the situation, we should take advantage of the President’s open-mindedness and willingness to propose solutions that he believes are commensurate to the gravity of the problems our society is facing. After all, when political scientists talk about a shift toward a federalist structure, what we have is an academic discussion; when it is the President who speaks about it, what we have is a real conversation.

Former solicitor general Florin T. Hilbay teaches at the UP College of Law, where he offers a course on constitution drafting.

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