Four constitutional reforms fundamental to a federal system

ACCORDING to the scholar, Raphael N. Montes: “Besides its basic principles, federalism is very customizable. The peculiarities of a country would define the different features of its own brand of federalism.”

With this caveat in mind, hereunder are four constitutional reforms that are necessary to establish a viable federal system in the Philippines, to wit:

1. Subnational government framework

2. Defining the constituent units 3. Division of Competencies 4. Senate as a federal upper chamber

SUBNATIONAL GOVERNMENT FRAMEWORK

A key feature of a federal system is the presence of different levels of government, usually a central/ national level and regional/subnational level with each responsible for their mandated duties and functions.

For the federal system to work in the Philippines the regional government structure itself must be configured to facilitate a community-oriented governance mind-set. 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 can be parliamentary with members elected through single-member legislative districts and though political party representation. The chief executive of the regional government shall then be elected by the regional parliament from its ranks.

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.

But the federal charter must have clear mechanisms for the sub-national unit to reorganize its governance structure. This power must be vested in the regional parliaments concerned subject to concurrence of the federal parliament and the people of the region.

DEFINING THE CONSTITUENT UNITS

The shift to a federal system will be a huge challenge for all Filipinos. Hence, drawing the territorial boundaries must not result in drastic and immediate disruptions to the public. The people’s deep familiarity to the current geographical organization of the Philippines must be seriously considered in naming the constituent units of the federal republic.

Ostensibly, the regional administrative infrastructure currently existing could be the basis for defining the territorial boundaries of the constituent states of the new federal republic. This would also mean there are already working institutional offices ready to carry out any new mandates. Doing this will be relatively easier and perfunctory because these regional administrative bodies already enjoy familiarity among communities within their respective territorial jurisdictions.

But the federal charter must also have clear mechanisms for these sub-national units to reorganize themselves if they see fit. In other words, let the regions themselves decide, when the conditions are suitable, to amalgamate or to separate as well as initiate the process to do so. The power over this course of action must not be vested on the central government (i.e. federal legislature) alone like in the 1987 Constitution concerning the Cordilleras and the Bangsamoro. This power must be vested in the regional parliaments concerned subject to concurrence of the federal parliament and the people of the affected regions.

DIVISION OF COMPETENCIES

As mentioned earlier, one key feature of a federal setup is the presence of two tiers of government with each solely responsible for its assigned duties and functions. There are two vital requirements in allocating competencies to the different levels of government.

First, the assignment of responsibilities between the central and regional governments must be clear and coherent. The distribution scheme must be formulated in such a way that the designation of accountability is unequivocal. We do not want the political culture of blame-shifting and credit-grabbing to persist in the new federal regime.

Second, this division of duties and functions among the different tiers of government is very critical because the correct allocation of tax powers and other revenue-raising measures depends on it. Particularly, how the revenue-raising powers of the region are defined in the federal constitution itself.

The general rule of course is “the funds follow the functions.” Meaning, the assignment of funds must be accompanied by the appropriate revenue raising power.

Hence, if the regional level of government is given more autonomy, which means more duties and responsibilities, then it only follows that it must be given more power to raise revenues.

Whatever the fiscal arrangement may be, it must be self-evident in the new charter and selfexecutory as well. The details be maybe left to the appropriate lawmaking body, but the fundamental operating principles must be clear in the new federal constitution.

SENATE AS A FEDERAL UPPER CHAMBER

A federal setup is not just about the devolution of political and fiscal powers to the subnational level. It is also about institutionalizing coordinated efforts towards national development. Hence, for the federal system to work properly, mechanisms must be established to foster cooperation and collaboration among the subnational governments in addressing national concerns.

The Senate as a federal upper chamber can be this institution. In this scenario, senators shall be elected in each region. The new charter can set a minimum number of senators to be elected but there should be mechanism in place for the number to increase depending on the population growth of a given region.

DEGREE OF AUTONOMY

According to Ronald Watts, considered as 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 the autonomy of the regional government must be selfevident in the new federal charter. The reforms suggested here which directly relate to the establishment of the federal system must be selfexecutory. Simply put, there should be no need for an enabling law to operationalize the federal structure.