Federalism Deal Killers
[Photo source: Georgia Bankruptcy Attorney]
By JoeAm
This blog article will be revised from time to time as new information comes forth. The goal is to track the progress on development of the Federalism Constitution and build our understanding of the document being written.
A constitution is a contract between the people and government. As such, the development of a final version of the constitution ought to be a dialogue between the two parties. I’m taking on the hypothetical role of a proxy representing the People to the best of my ability, and you are free to represent them, too, by commenting in the discussion section of the blog.
If you believe there are other ‘deal killers’, please briefly cite the problem and how it can be resolved. Always proceed in good faith, even if you don’t trust the government one iota.
Right now, we the People are trying to identify the “deal killers” in the current draft so that we can work on language that will give us the assurances we demand. Here is what we have so far:
Date: August 16, 2018
These remarks refer to the draft of the proposed constitution handed to President Duterte on July 9, 2018, by the Consultative Committee (ConCom). Needed changes are highlighted in italics.
Deal killers:
- Transition Mechanism. The transition to the new government is placed under President Duterte as Head of the Transition Commission. This is unacceptable to us as there is ample evidence that President Duterte seeks to become a dictator. If this is not true, he should have no problem stepping aside so a non-political advocate of democracy can head the Transition Commission. We would cite Supreme Court Justice Carpio as an example of the credentials needed to assure the People of an objective, not political, document. Furthermore, the workings and restraints on the Transition Commission need to be explained in more detail so that we may be assured there will be no material change in course from what is stated.
- Human Rights and Elections. First, both of these vital services are granted independent commission stature within the proposed Constitution . . . that’s good . . . but they are also recognized as elements over which the Federal Government has sole authority. This is sure to cause problems because human rights is naturally adversarial to the executive function. The two independent commissions, Human Rights and Elections, need to stand alone. Second, the commitment to human rights has been removed from State policies. That suggests a weak commitment to human rights. The people want a strong, protective commitment. These flaws can be corrected to the People’s satisfaction by removing these two functions from being under the sole authority of the Federal Government and by returning human rights to the Policies section as worded in the 1987 Constitution.
- The need for speed. The People fail to see the need to rush a revision that is this vitally important to the nation’s well-being. The existing Constitution is functioning well and the Philippines is experiencing steady economic growth and improving prosperity. There is no pressing need outside of what personalities apparently want, and personalities should be irrelevant to the development of a constitution. It is appropriate to set target dates, but the rush to meet the target date of a draft before the President’s 2018 SONA left many holes in the published document. The schedule for development of the Constitution needs to be slowed so that work is done carefully and in consultation with the People.
- Regional judiciaries. The single brief paragraph about regional judiciaries in the proposed constitution is wholly inadequate. This seems to be the result of the ComCon’s rush to conclusion to produce a draft. How do regional rulings affect national rulings and vice versa? What are qualifications for regional judges? How are they removed from office if they don’t perform well? What cases will be tried? Or not? How may the courts be assured of adequate funding? The text should be expanded to clarify how the court system will work. The People would want to be confident that the regional courts have a clear reason for being, are capable, fit well with the Federal courts, and are sustainable.
- Fiscal formulas. The funding of regions is based on formulas that appear not to have been tested by drawing up scenarios for each region. A Consulting Committee member acknowledged that the fiscal formulas set forth in the draft document are merely placeholders and need to be refined and adjusted based on what the nation’s economists advise. Regions are concerned about regional financial viability. Economists are concerned about national financial viability. For example, treatment of the nation’s sizable debt is not even mentioned in the draft Constitution. The People would like to see the actual final formulas along with economist’s worksheets for each region . . as well as the Federal Government . . . showing how they will be made fiscally whole and sustainable. Without a clear understanding of financial impacts, it would be folly to approve the document.
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Constitutions (pdf files)
The Society of Honor by Joe America 
Raissa Robles has her take on The transition mechanism and she told us to be very afraid.
Human Rights has been discussed in this space extensively.
As to the Comelec, time to have them run by Managers and not by lawyers.
Regional judiciaries, actually not so different thsn the regional trial courts, the thing that will change is there are many co equal court for elections, human rigjts and I forgot the rest.
As for the fiscal formulas- We all wonder where they lifted their formulae. Where poor regions becomes very rich and the rich regions will become a tad poorer and same can be said the population of the tegions.
As for speed, reader Jose Guevarra opined on the need for education and this can not be done by fistributing fliers to the barangays.
Yes, indeed. COMELEC is a huge vulnerability for the nation. On speed, the problem with the way the ComCon worked is they took their guidance only from the President, not from the People the document serves, or the Pros who could have made sure the document did not have holes. It is embarrassing to think these distinguished old fellows and one lady did not think that . . . as any business executives would know . . . to throw the nation up in the air with no financial projection as to how it will land is pure folly.
This can not be ramned to our throats, thanks to the senators with their future in mind.
This coalition of Duterte Marcos Villar seems formidable, but I guess the Villars would bolt and shift to the winners whomever they maybe.
The Federalism push of Philippines is about a unitary state (Nation) agreeing ot break up into smaller regions (state) but still bound together under a Federal Constitution. It’s not about independent states agreeing to come together under a bigger unitary constitution.
Under the circumstances, what strikes me is that the people has no say about how the break up into regions should be done. On whose authority a group of guys has the right to delineate the country the way they deem fit? Should’nt that decision be left to the people?
A plebiscite is required for the people to vote for Federalism. Similarly a plebiscite should be required for people to choose the regions. Certainly someone in Bataan cannot chose for their area to be included in NCR Region for example, but borderline areas should be allowed to have their say.
Right. There is absolutely no demand-pull for federalism from the people. They are not even represented in the dialogue, except through legislators who have no principles other than self empowerment, which means doing as told. By the powerful, not the people. It is all a farce, but I have to go through the steps so that if the matter should, by any chance, proceed, then we know the negotiating points that at least represent the People as if they mattered.
Federalism CAN increase representation for different regions in a state with different folks. There is the Swiss example. BUT Switzerland got started by getting rid of the lords first.
Some real democracy has evolved in places like Naga and Cebu (even noted by the now defunct Why Nations Fail blog) but I guess that was because central government pushed back against the old warlords/thug politicians. Still way too many of them elsewhere.
Without institutionalization,
The flowers die among the weeds.
I have 3 important suggestions :
1. Trash it.
2. Shred it.
3. Junk it.
The transition to federalism is one big useless nauseating endeavor that serve no purpose other than to distract people from the failures and crimes committed by the current occupant of Malacanang.
Right. But until it is dead, it is alive, and we must deal with it.
Proponents of federalism offer no clear and convincing rationale for why we should be doing the shift. Politicians from Mindanao are the most gung-ho about this, perhaps owing to their sentiment that Mindanao had been, for the most part, neglected by the central gov’t in Luzon.
Justified or not, the solution to their complaint is not necessarily federalism for the whole country as there were already efforts and commitments to grant their request for autonomy (BBL, ARMM).
Pimentel, Adaza, Lobregat, and others seem to erroneously think that what is good for Mindanao is, by default, also good for the rest of the country.
The author wanted to show that in Federalism, the devil is in the details, and the Devils are the politicians.
The author also enumerated six terrible things that can happen with Federalism.
http://www.bworldonline.com/the-problem-with-federalism-its-the-politicians-stupid/
1. Multiplying, overlayering, and overloading the bureaucracy — Everyone who has managed a company must be familiar with this dynamic. When you promote an assistant, he will ask for an assistant for himself. Soon, he will promote his assistant who will then want his own assistant, and so on. Apply that dynamic to a change from a centralized system of government to a federal system and you can bet that the tendency to multiply departments and overlayer and overload them will manifest itself. I believe Sonny Dominguez has a much bigger fear as applied to government expenditures.
2. Control over the system of justice — We have all witnessed how Alvarez, as House Speaker, threatened to DISSOLVE the Court of Appeals and to have several justices disbarred over a decision by the justices involving six Ilocos Norte officials. We have also witnessed how Duterte and the Legislature have virtually placed the Supreme Court under their thumb and how they succeeded in dislodging Chief Justice Lourdes Sereno. In a federal system, this abuse of power will surely happen as sure as night follows day.
3. Private armies and the imposition of a virtual police state — Duterte’s war on drugs will be replicated at the local level with a war against anything and anyone who dares to protest abuse of authority. If, under the spotlight of international condemnation, the thousands who have been salvaged by the police still have not found justice, does anyone believe localized salvaging and disappearances will fare any better? At present, private armies are being maintained by political overlords. Federalism WILL formalize their existence.
4. Imposition of punitive and frivolous taxes and business regulations — This is already happening even under the present system of government. A federal system will simply make the situation worse.
5. Wholesale graft, corruption, and raiding of the treasury — The Commission on Audit has been rendered toothless in its efforts to extract accountability from national and local officials, starting from charging for ghost employees (which the Dutertes have been questioned about) to overpricing on public works projects and official purchases of materials and supplies. Autonomy will give the green light for raiding the treasury of each region.
6. The danger of secession — The Confederate States of America that the Southern states in the US attempted to establish should serve as a warning to those who still do not know how to handle the Moro secessionist sword of Damocles. In this regard, watch out for the Federation of Malaysia. It may be tempted to offer to include parts of Mindanao in the federation, given a chance. Remember Sabah!
Thanks. I need to start following Business World. They do much better stuff than the Inquirer, from what I can tell. I don’t know of Greg B. Macabenta, but he certainly nails this one.
Joe, way before the Internet, I have followed the columns (stateside) of Greg Macabenta because of his depth and flowing style of writing. You reminded me of him. 🙂
Ah, my. Most of the time I feel like I’m either Larry, Moe, or Curly throwing pies. But I much appreciate your thinking kindly of the translation my typewriter manages to eke out. 🙂
And then too, the logic and style of Larry, Moe & Curly are final and above reproach. 🙂
🙂 🙂 🙂
I used to be pro-Federalism as the Philippines has different regions and languages.
What makes Federalism unworkable in the Philippines is that things go towards entropy there:
https://simple.wikipedia.org/wiki/Entropy – a measure of the amount of energy which is unavailable to do work.. a measure of uncertainty or randomness. Or, left to themselves, things in the Philippines are swallowed by the jungle – literally, or by the jungle of general chaos.
One just has to see how the Local Government Code gave LGUs autonomy they misused. Some borrowing money from loansharks, some whose mayors basically became jueteng lords. And of course the IRA may have increased dependency and destroyed accountability.
Add to that all kinds of silly rules LGUs make, and are allowed to make. Look at Metro Manila.
Federalism does work if every level commits to certain responsibilities and to color within the dots. Unfortunately Filipinos seem to like coloring outside the dots, even ignoring the Constitution itself.
They used IRA as collateral, if the practice continues, they will use their revenue share as collateral.
https://www.rappler.com/newsbreak/flashback/16412-loan-sharks-fund-election-campaigns-lgus
IRA is Internal Revenue Allotment, or the money given to LGU’s by National based on an automatic appropriation formula? It makes up most of their income. And for sure, the LGUs are irresponsible, in the main. The cities that run well are condemned by Duterte because they are a threat.
I also note there is quite a battle going on in Cebu where hit men ambushed a city official but his guards shot the shooter, who proved to be a policeman (CIDG). Charges were then levied by the police against the victim for killing the assassin. There have been numerous shootings in the city, and the Mayor accuses the PNP of being behind them. The new chief was formerly head of the Davao killer police squad. It is a new level of wild west and shows the national government to be either out of control or running things like the mob.
The Mayor (another Osmena) also has a running battle going on with Tugade in Department of Transportation about the Bus Rapid Transit Line which Osmena wants but Tugade does not. It is the kind of thing that federalism might end if regions are responsible for the highways and transportation in their area. Egos and turf battles galore these days.
What I am about to say pertains to #1 Transition Mechanism, most especially, the Transition Team. We already know that Duterte is positioned as the transition Team Leader. Lately, he seems to be having “transition jitters” or bouts of insecurity towards his competence to do the job as he had been talking about being old and tired and wanting someone younger in his position. He already floated the names of BongBong Marcos, Chiz Escudero and in somewhat subliminal way, Sarah Duterte and Bong Go. None of these people will pass the muster of constitutionality. Should he step down, VP Leni Robredo is the rightful/lawful heir to that position. Not unless, as some here are opining, that he may willfully tamper with the PET to ram Marcos down the People’s throat. The lack of transparency about what is about to happen if the charter change is passed leads to a guessing game, and is a deal killer.
Adding to the already complex situation is the party waltz that is going on and the ruling party’s fixation in cozying up to one party countries. The People demand transparency in what they are leading the country to. The People like democracy and are vehemently opposed to any form of autocracy. While PH is still a democracy, this should not happen. Pimentel and Alvarez need a lot of explaining to do.
The transitional Federal organizational chart containing the title and names of those in specific positions should be made public. The draft makes it look like the President will single handedly roll out Federalism. We all know that is not the case. The Transition Team Leader will have a delegation (his political party? If so, PDP or Hugpong?) who will shape the new government. The People need their names in case taking names and taking actions prove to be necessary.
Reading through the draft, one has a foreboding feeling that the country is being taken into a different direction other than giving the power to the people. If that is not so, greater transparency of everyone involved need to be shown.
A government is only as good as those who run it. Likewise, a country is only as good as its People. Good governance plus good citizen equals progress…
Here is a superb article about the President and AFP. I hope the author is correct in his assessment of things. http://verafiles.org/articles/most-dangerous-president-philippines-has-ever-seen
Good ideas on the transition.
I think protections are being removed from the people (human rights, AFP, elections) and the whole thing is just formalizing a new system of enduring power sharing.
You’re right. That is an excellent article about the dynamics between PDuterte and the AFP. It is heartening to find validations of AFP’s fidelity to the Constitution. My personal trust of AFP had been waxing and waning since the declaration of Martial Law in Mindanao. The only tethers that keep me believing in the military are people like Senator Trillanes and Congressman Alejano. I keep hoping that they are not just the outliers but what the military is as a collective.
I hope I am wrong but the ruling party has been showing signs of the making of a Politburo system. And we all know that does not bode well for democracy.
If I may transgress a line of thought, a salesperson wanting to sell a bad apple will put in a basket some good apples to waylay buyers. Caveat emptor. or Who just will sell cheap all the bad apples after some make overs.
there you go I could be misunderstood because I did not name names.
Filipino military should and is different, but think of these few names: Pinochet, Il doce, Noriega, Nawaz, Napoleon, Goering, etc. etcetera and the junta generals of Myanmar.
That is deceitful, Tweeto. But I get what you mean. Strongmen will use every manipulative strategy to get what they want and that includes deceit.
At the risk of being redundant, let me try summarize some of the thoughts expressed in the article and relevant comments on the federalization proposal, as well as my own views. This might make it easier to grasp the case for opposing a new constitution that implements federalization but removes the safeguards against constitutional and human rights abuses written in our existing one.
The proposal to change or replace the current constitution is in its essence a complete sham. Its conception and sponsorship comes from a duly elected president whose actions and desire for power are in conflict with the spirit if not the letter of the current constitution. The real rationale for the proposal “that cannot be said” (ala H. Potter) is to seek the legitimacy to wield absolute or dictatorial power. Like President Marcos, the use of martial law or bending the judicuary and legislative branches to ones will is only a temporary and limited means to transition to a constitutional dictatorship.
The goal of federalization which is its avowed purpose and justification is one that is neither clearly needed by the country or clamored for by its citizens. The details of how the federalization would work are obscure if not missing and whatever is known are financially or conceptually unworkable.
The process the proposal outlines to achieve this goal is undemocratic from beginning to end. The citizenry has little or no input and may not have primary and final say in approving the proposal but instead it may be left to a clique who would benefit most from its implementation.
Even if the flaws in the envisioned federalization and the proposal approval process are fixed, the transition provisions are extremely dangerous in allowing an individual the power to unilaterally amend the proposal as he or she thinks fit. If that individual is Duterte, it would be his stepping stone to make constitutional changes to grant absolute and permanent power to himself, his family, or whomever he chooses. If he is assassinated or overthrown, the country could be at the mercy of a crazed military or political leader worse than Duterte and who might use the traditional provisions to legitimize his or her rule.
Yes, accurate statement of the motives and means behind the whole federalism push, I think. There is no ideal behind it, in favor of Filipino well-being. It is simply an exercise in the accumulation of power.
Metaphors done on concepts, dogma and ideology can be abstract and powerful imagination. Rape began as crime and abomination against defenseless young, mature and even old women. Then rape is already applicable–being done on young boys and young men. Not too long after and rape is expertly, if not malevolently done on dogma, ISMs –and the result is rapist galore and high orgasms for the Perfs.
Can the concept of communism be raped into a progressive capitalism and vice versa? What then has been raped into Nazism, into Fascism, into smiling Martial Law? Communists raped to become capitalists. Capitalists slowly turned into communists. The perfs or metaphs who gets the most high are few and far between. Can Federalism as sired by the US Founding Fathers by itself be corrupted and changed into something else? The rape of concepts or ideology is not a victimless crime. The details are discussed here in the Society.
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1. There are several ways of killing the Federalism Constitution.
1.1. The first way is to scan the document for “deal killers.”
1.2. A second way is to analyze the motivations behind the document. Essentially, is the document meant to advance the country or to advance the proponents?
1.3. A third way is to analyze the need for federalism. What is the essential problem that federalism is a solution to?
1.4. This leads to a fourth way: kill the idea of federalism and thereby kill the Federal Constitution.
2. Heretofore, my stance is an offshoot of the second way. There is no need to analyze the document because the motives – and the capacities — of the proponents are suspect. They do not have a real and concrete idea of what federalism means. This is obvious in the haphazard way they have gone about in producing the draft and in the deluded ideas of how many regions there should be; whether the regions will be viable in different ways – administratively, socially, judicially, and financially; and what the details of the transition arrangements are.
3. The first way is perhaps the finest way because it is methodical. However, it has several weaknesses. It requires an in-depth study of both the present and proposed constitutions. It not only requires a deep understanding of what is proposed and how it is different from the present constitution but also an understanding of why what is proposed will not work. It also assumes that the proposed constitution is in a final form that will not be substantially modified by Congress (or a constitutional convention.) In other words, it is a moving target.
4. The third way is an extension of the first way but it begins at the beginning. It requires an analysis of the present constitution and its shortcomings. More importantly, it requires an analysis of the present system, why it is not working, and why and how federalism is the solution. This basic undertaking should have been done first ahead of proposing federalism as a solution. I am not aware that this has been done. Again, in systems thinking: always define the problem before arriving at a solution. That this task has not been done leads us to the fourth and final way.
5. If the second way is the easiest, then the fourth way is the next easiest. Kill the idea of federalism and you kill the Federal Constitution. There is no doubt the system of Federalism works. But will it work in the Philippines? The article by Greg Macabenta is a good place to start.
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I believe we are flogging a dead horse.
The horse of “pederalism” was effectively shot down by “Malacañang’s resident communications genius.”
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What a comedy of false news, este false words! Federalism into pekpekderalism, into pederalism, into peddlerisms; oh what a unique and rare expertise in the world of discourse to name names by another name stretching the obnoxious and abominable.
I saw Nene Pimentel on television still promoting federalism, along with the committee member responsible for communications. They talked in broad concepts and there was no oppositionist there to rebut the arguments. So it is not yet dead.
I think for you, as an individual, the ways you suggest are excellent. My way takes an institutional course, and presumes our way is not something the President or Congress cares about. In that event, if one opposed Federalism, one would proceed on every path of objection under the sun. Going back to my interest, I wanted to know more about the document and merely wrote up my education in a format that could be shared with others in an argumentative style. If the federalism constitution is discussed in Congress, I will continue my study and continue to share what I learn. Being educated never hurts.
Many thanks Joe for your path to enlighten, I am indeed, piece by piece, because of all the posts and commnents related to the Federalism issue.
Good to know!
Seems to me the federalism being discussed in and for the Philippines should take into account both edgar’s points and yours as staging area for further discussions: “institutional course … ” vs “killing the federalism Constitution … ” i.e. division of the house vs preparatory pedagogy on federalism. Caliphman’s comments merges well into such staging. IMO.
US federalism’s clear provenance/history and development makes for a good reference point too.
Yes, I agree that would be the rational way to go. I don’t think rational is quite the way things work these days.