The law of unintended consequences and constitutional reform

THE law of unintended consequences, though called a law, is not a legislation passed by Congress. It refers to the statement popularized by Robert K. Merton (a Columbia University sociologist) describing actions whose results were not foreseen and are different from those originally intended. The statement has become “an adage or idiomatic warning that an intervention in a complex system tends to create unanticipated and often undesirable outcomes.”

An easily understandable example is the case of Freddie Gray, a black man from a poor neighborhood in Baltimore, who had a checkered criminal record (among them, drug offenses), and who died in a police van in 2015 after his arrest for illegal possession of a switchblade.

Protests and riots followed Gray’s death. Allegations of police violations of constitutional rights of minorities were widely aired. The government launched wide-ranging investigations of police abuses, resulting in the admission that there had been lapses in the police standard procedures in Gray’s case. Six police officers were indicted but the case was abandoned after three of them were acquitted.

Soon after all these, the police stopped their proactive stance against crimes and restricted themselves to complaints they received and to crimes committed in their presence. They avoided incidents that could expose them to duty-related charges. The consequence was a phenomenal rise in the Baltimore crime rate: killings and murders surged, and drug dealers plied their trade with hardly any police interference.

To this day, the dust has not settled on what – to the ordinary citizen – has become a scary Baltimore environment. To a large extent, the development was one that the higher authorities and the protesters did not foresee.

In the Philippine setting, I cannot help but think of the Baltimore experience when I view the constitution drafted by the ConCom to propose systemic changes to our complex governmental system.

From a centralized unitary government, the ConCom proposed a federal structure whose main feature is a division of powers and sovereign functions between the national government and new federal regions. Federalism largely dictated the configuration of their proposed governmental structure.

From the clean and simple lines of our present courts (characterized by one constitutionally created Supreme Court and lower courts created by legislation), the draft creates four specialized higher courts at the national level; the federal regions shall establish counterpart and local courts. Appointments to the four high courts are apportioned among the courts involved, the President, and the Commission of Appointments.

Similar changes are planned for the legislative department with a national Senate and a House of Representatives whose memberships are apportioned among the federal regions. Two senators shall come from each region and a total of 400 congressmen shall share in representing the regions through electoral district representatives and sectoral representatives from sectors yet to be named.

The federal regions shall have their counterpart legislative bodies – regional assemblies – which shall exercise lawmaking on the sovereign functions assigned to or shared with them, as well as on local concerns.

The executive department likewise undergoes changes, but these are relatively minor; the President’s and the Vice President’s essential duties remain the same, less the executive powers devolved by the federal structure to the regions, but with strengthened martial law powers and the active participation by the President in the transition to a federal system, and the cabinet membership for the Vice President.

The underlying reason for these deep and systemic proposals may not directly concern an ordinary citizen but he/she may want to pose the following practical questions:

• Will these changes affect the government’s way of discharging its functions, in particular, its efficiency, its responsiveness to people’s needs, or lessen the incidents of corruption?

• Will federalism give us a bloated and expensive bureaucracy?

• What impact will the federal system have on the personal and cultural make-up of the people who will adjust to and live with the new system?

• Will it change their attitudes on pakikisama, utang na loob, the padrino system, and the nations’s preoccupation with politics?

• Will it result in more cooperation and cohesiveness among our leaders and our citizens in bringing our country out of its Third World status, or will the result be the further proliferation and intrusion of politics into our everyday lives and the worsening of the regressive aspects of our old cultural traits?

A lawyer may want to pose the following law-related questions:

• What can federalism do what that our present Constitution cannot do?

• Can’t the perceived weaknesses in the present government structure be sufficiently addressed by implementing the provisions of our present Constitution that has been with us for the past 30 years?

• Can’t the problems of imbalance of resources and lack of opportunities be resolved through the purposive implementation of its present decentralization provisions, or by statutory amendments if our current statutes prove to be insufficient?

• Will a federal structure result in a tug of loyalties between the home regions and the nation, or breed inter-regional conflicts?

The Muslims in Mindanao and the people of the Cordilleras already have their autonomous regions, characterized by their special treatment by the Constitution and by the laws; more can perhaps be granted to them short of secession, if necessary. If they indeed have to be federal regions, must the rest of the country likewise become federal?

With federalism, will the country end up in a situation similar to where Baltimore finds itself now? In their case, the cause is racial intolerance and lack of concern for their community. In our case, the recurrent corrosive cause could be our excessive politics with its accompanying selfinterest that overrides the welfare of the nation as a whole.

I believe that the ConCom’s intention is to obtain the best for a whole and undivided republic. What still terrifies me are the unforeseen and unintended consequences lurking out there that may thwart this intention.