Federalism: A Legal Research

FEDERALISM A Legal Research 1i- LAW Bautista, Rianne Mae Espiritu, Adrian Gapuz, Golda Gonzales, Jenny Gonzales, Rozzalie Lansang, Lea Joyce Ontog, Christopher Martin

Atty. Ulpiano Sarmiento 24 October 2008

TABLE OF CONTENTS

I.

Federalism: What Is It? The Principle of Subsidiarity

II.

Federalism in the Word

III.

The Federalism Debate in the Philippines The Philippines as a State Attempts in Constitutional Change The Recent Federalism Debate Consequences of Federalism

IV.

Constitutional Effects of Federalism

V.

Our Stand: AGAINST Federalism Federalism Would Not Solve the Peace Conflict in Mindanao. The Political Subdivisions of the Philippines are Not Apt for Federalism Federalism Would Bring Confusion as to the Structure of Constitution and Government Federalism Would Entail Impractical Expenditures for the Constitutional Amendment

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FEDERALISM: WHAT IS IT? (By Adrian Espiritu)

Federalism is the theory or advocacy of federal political orders, where final authority is divided between sub-units and a center. Unlike a unitary state, sovereignty is constitutionally split between at least two territorial levels so that units at each level have final authority and can act independently of the others in some area. Citizens thus have political obligations to two authorities. The allocation of authority between the sub-unit and center may vary, typically the center has powers regarding defense and foreign policy, but sub-units may also have international roles. The sub-units may also participate in central decision-making bodies. Much recent philosophical attention is spurred by renewed political interest in federalism, coupled with empirical findings concerning the requisite and legitimate basis for stability and trust among citizens in federations.

The essential thought behind federalism can be very simply stated: The relations between states should be conducted under the rule of law. Conflict and disagreement should be determined through peaceful means rather than through coercion or war. Federalism is a political theory and an ideal. It is concerned with the control and proper use of power. It deals with the reality of authority in government and, by strictly defining where, how and by whom such power shall be exercised; it protects the people from the excesses of rulers. It requires a settled constitution, the division of powers and a democratic temper in the citizens to enable it to function properly1.

Federal systems may be categorized according to: (a) Process of adoption of federalism; and (b) Distribution of powers and functions between the federal government and state or 1

Buchanan, James (2001). Federalism, Liberty and the Law. Collected Works, Vol. 18.

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local governments. According to the process of adoption of federalism, there may be (a) “Born” federations – the federal structure and distinct entities at the foundation of the country played a major role in the development of the political and fiscal structure of the country (e.g. Canada, India and Switzerland); (b) Countries that “became” federations – federations was adopted in order to preserve the nations and enhance peaceful coexistence among distinct communities (e.g. South Africa); and (c) Countries where federalism was “thrust upon them” – federalism became a desperate attempt to keep a nation alive by weakening the central government2.

Moreover, federal systems can be classified into: (1) Cooperative federalism is where both the federal and the state governments share responsibilities in certain areas or services to ensure the operation of national programs throughout the country 3. Examples of countries with this type of federalism are Ethiopia, Germany, South Africa, United Arabs Emirates, United States, Venezuela and Yugoslavia. (2) Competitive federalism is where the federal government has a reduced role in state or local government. On the other hand, state or local governments have an increased role in managing their own affairs. Examples of countries with this type of federalism are the Pakistan, Belgium, Austria, Brazil, Micronesia, Switzerland and UK. (3) Coercive federalism is where the federal government continues to “direct” both national and state policy. Laws of state or local governments may be presented by the federal government. An example is Nigeria which has a federal military government. (4) Permissive federalism is where the federal system is almost like a unitary system. The state or local governments have only those powers and authorities permitted to them by the federal government.4

In Federalism, the government can retain exclusive powers and functions over the following areas,: a) National security and external defense b) Foreign relations 2

Filippov, Mikhail, Peter C. Ordeshook, and Olga Shvetsova (2004). Designing Federalism: A Theory of Self-sustainable Federal Institutions 3 Kymlicka, Will (2001). "Minority Nationalism and Multination Federalism" 4 Trechsel, Alexander (Ed). (2006). Towards a Federal Europe.

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c) Monetary system d) External trade e) Citizenship f) Civil, political, human rights g) Immigration, emigration, extradition h) National elections i) Supreme Court Decision j) Protection of intellectual property, property rights, and copyrights5.

The most important aspect of a federal system is that it recognizes that there are different types of political issue which need different types of institution to deal with them. Some affect only a local area; others are more widespread in their scope 6. In a federal system, the power to deal with an issue is held by institutions at a level as low as possible, and only as high as necessary. This is the famous principle of subsidiarity.

The second major feature of a federal system is that it is democratic. Each level of government has its own direct relationship with the citizens. Its laws apply directly to the citizens and not solely to the constituent states. This system consists of the federal or national government and constituent states and local governments in each state. Also, power is dissolved but coordinated. For this reason, federalism is often seen as a means of protecting pluralism and the rights of the individual against an “over-powerful” government7.

Federalism developed as a response to the need to link separate political communities together in order to effectively pursue objectives that each could not obtain on its own, but without subsuming their respective identities.

The central government is prevented from

becoming all-powerful and is only provided with the necessary powers. In federalism, state governments are established as “regional localities,” free to handle local affairs according to the political desires of their constituents.

5

Trechsel, Alexander, ed. 2006, Towards a Federal Europe

6

Stepan, Alfred, 1999, "Federalism and Democracy: Beyond the U.S. Model." Kymlicka, Will, and Wayne Norman, eds., 2000, Citizenship in Diverse Societies

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5

Federalists believe that government has the power to do things for the benefit of society as a whole. There is a conservative, neo-liberal twist of thought which argues that government is the problem and not a solution. Also, they believe that law is a means of restraining the strong and protecting the weak. We do not pretend that the world is perfect, but nevertheless the building blocks of society remain as they always were. Federal arrangements may protect against central authorities by securing immunity and nondomination. Constitutional allocation of powers to a sub-unit protects individuals from the center, while interlocking arrangements provide influence on central decisions via sub-unit bodies. Sub-units may thus check central authorities and prevent undue action contrary to the will of minorities: "A great democracy must either sacrifice self-government to unity or preserve it by federalism. The coexistence of several nations under the same State is a test, as well as the best security of its freedom . . . The combination of different nations in one State is as necessary a condition of civilized life as the combination of men in society8"

THE PRINCIPLE OF SUBSIDIARITY

The underlying principle on which every federal constitution rests is the principle of subsidiarity. This stipulates that decision-making power should rest as close as possible to those it affects. This is obviously a basic liberal principle which reaches far beyond the constitutional structure of a state. Freedom is the ultimate principle of liberalism, which is just another term for “self-determination or autonomy 9.” If liberals speak of freedom, they first and foremost think of the freedom or the autonomy of the individual. Accordingly, liberals believe that the right to make decisions should first and foremost rest with the individual. In a political context, this is not always possible for practical reasons. For instance, we cannot decide individually on which side of the road we would like to drive our cars. 8 9

Nerenberg, Karl, ed. “Federations: What’s New in Federalism Worldwide.” Stepan, Alfred, 1999, "Federalism and Democracy: Beyond the U.S. Model."

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Still, the autonomy of a small group leaves more freedom with its members than that of a large group as fewer fellow-members engage in the decision-making process. From a liberal standpoint, therefore, wherever collective decision-making is unavoidable, this should be exercised in the smallest possible unit 10. Consequently, any delegation of power from smaller to larger units should be subjected to the burden of proof that the smaller unit is unable to cope with the problem in question. In practice, this means that all those matters should be left in private hands for which a need of government interference has not explicitly been proven. This is the essence of the principle of subsidiarity, which is not only a core principle of liberalism but also the essence of the concept of civil society. Applied to the organization of the state, subsidiarity will result in a decentralized form of government where only those matters are dealt with at a central level that cannot be dealt with adequately at lower levels.

FEDERALISM IN THE WORLD (By Golda Gapuz)

A number of countries adopt federalism in response to internal problems of efficient state administration brought about by diversity; and in response to the international call for integrity. In federalist countries, the legal and political structures that distribute power territorially within a state are henceforth more succinctly defined. The central government takes charge of external relations such as defense, foreign affairs and immigration and common domestic functions, such as currency. The states or the provinces are charged with the regulation of education, law enforcement and local government.

Federalism is one of the recognized solutions in resolving the problem of organizing the territorial distribution of power in geographically huge countries like the USA, Canada, Brazil,

10

Ibid.

7

Australia, Mexico, and India.

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The heterogeneous cultural and ethnic characteristics of the

people of these countries have paved the way for a decentralization of power in which each unit is granted the privilege to exercise governance according to their needs.

Canada, for example, adopted federalism to reconcile, balance and accommodate diversity12. The British and the French, being the two founding nations of Canada, led the creation of a new federation. Currently, Canada, as well as Australia, employs executive federalism. In executive federalism, the federal balance is determined largely by the relationship between the executives of each level of government.

India, also had the need to reconcile diversity—the religious differences amongst Hindus, Muslims, Sikhs and Christians. Belgium more so proclaimed itself as a federation to bridge the language diversity of three groups—French-speaking Wallonia, and the Dutch-speaking Flanders and Brussels.

Aside from the need to reconcile and balance diversity, federalism is treated as a consequence of the existence of an external threat or desire to play a more effective role in international affairs. Federalism secures economic and military advantages while retaining and encouraging, cultural diversity. It is in this very premise that the establishment of federalism in the United States traces its roots. The United States, felt their vulnerability in the predatory world and found federalism as a means to fortify their country. In the words of Benjamin Franklin (1706-90), “we (Americans) must indeed all hang together or, most assuredly, we shall all hang separately”.

The United States of America, however, went to a transition from one type of federalism to the other. The country first adopted dual federalism, wherein national and state governments 11 12

Heywood, A (2002). Politics Second Edition. New York: Palgrave, 161. Simeon, R (2002). Federalism in Canada, A Visitor's Guide.

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operated independently, and each tier acts autonomously in its own sphere. Dual federalism was abandoned due to the overwhelming demands of an integrated economy and global war. This apparently was long before the arrival of terrorist threats.

Presently, the type of federalism in the United States signifies a strong “intergovernmental relations”13. This is characterized by the two levels of government exercising direct authority simultaneously over people within their territory. Dual citizenship exists in this type of federalism, and individuals can claim a wide range of rights and privileges from both state and national governments. Federalism in the USA enables positive cooperation between state and national governments in programs pertaining to education, interstate highway construction, environmental protection, health, employment and social security concerns. Each state also has its own constitution. Like the national government, state governments are divided into legislative, executive and judicial branches. In each state there are state senators and representatives, state court systems, and like the President of the country, a governor of the state.

Aside from the two types of federalism mentioned, there exists cooperative federalism that emphasizes the "general welfare"14 clause and the "necessary and proper"15 clause of the Constitution. This is a situation where the power of the national government may be expanded even if the actions of the national government touch or overlap with traditional state functions.

Let us take Germany and the European Union per se as points of comparison. While federalism in the USA is based on a contract in which the states join together to form a central government with limited functions, the European system in Germany rests on the idea of cooperation between levels. The usual norm is solidarity and the operating principle is 13

Drake, F. D. & Nelson, L.R. (2001). Civic Intelligence and Liberal Intelligence in the History Education of Social Studies Teachers and Students. Bloomington, Indiana: ERIC Clearing House. 14

Section 8 Article Iof the U. S. Constitution grants Congress the power to "lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States." 15 “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (United States Constitution)

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subsidiarity – the idea that decisions should be taken at the lowest feasible level. The central government offers overall leadership but leaves implementation to lower levels. German federalism is based on interdependence, not independence. All Länder (states) are expected to contribute to

the success of the whole, in exchange, they are entitled to be treated with respect by the center. The federal government makes policy but the Länder implements it. There is a division of labour expressed in the constitutional requirement that ‘the Länders shall execute federal laws as matters of their own concern’. The provinces being the implementing agent s, must approve bills affecting them through the upper chamber of parliament called the Bundesrat.16

On the other hand, the European Union is a proponent of multilevel governance.17 The influential European Court of Justice adjudicates disputes between levels of government. Court decisions apply directly to citizens and must be implemented by member governments. Citizens of the European Union are free to reside anywhere within the Union’s territory. States within the European Union still possess such important markers of external sovereignty as membership of the United Nations.18

Based on the aforementioned discussions, it is henceforth clear that countries adhere to different types of federalism in response to specific needs. To further illustrate, Mexico has a federal presidential representative with a democratic republican form of government; Canada is a federal system of parliamentary government with strong democratic traditions; Russia is a federal presidential republic; India has a framework of a federal parliamentary multi-party representative democratic republic. In federalist Australia, the President is the head of state of a multi-party system with executive power exercised by the government. The government is headed by the Prime Minister, who in turn is appointed by the President with the parliament’s approval. The United States has a presidential, federal republic form of government where the President of the United States, United States Congress, and the judiciary share federal powers, 16

Hague, R. & Harrop, M. (2002). Comparative Government and Politics. New York: Palgrave Macmillan. 17 Ibid. 18 Ibid.

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and the federal government share sovereignty with the state governments.

Provided herewith is a two country comparison of Canada and Germany. This is to show a clear cut illustration of the disparity of powers in their federalist form of governments. 19

Type of allocation

Canada

Germany

a. Exclusive jurisdiction (functions allocated entirely to one level)

The national government exclusively controls 29 functions, including criminal law, the currency and defense.

The federal government’s responsibilities include defense, citizenship, immigration and the internal market.

The provinces control all matters of a merely local or private nature in the province including local government.

No specific powers are explicitly granted to the Länder but the provinces implement federal laws in their own right.

b. Concurrent jurisdiction (functions shared between levels)

Both national and provincial governments can pass laws dealing with agriculture and immigration

Concurrent powers include criminal law and employment. A Constitutional Amendment (1969/70) created a new category of joint tasks including regional, economic policy and agriculture.

c. Residual powers (the level responsible for functions not specifically allocated by the constitution)

National parliament can make laws for peace, order and good government

Any task not otherwise allocated remains with the Länder

THE FEDERALISM DEBATE IN THE PHILIPPINES (By Rozzalie Gonzales)

The Philippines as State 19

Magadia, Jose J. State Society Dynamics: Policy-Making in a Restored Democracy, 2003.

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Under Section 1 Article II of the 1987 Constitution, “the Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.” Democracy is a form of government which is directed according to the will of the people, and a republic is a representative government, run by and for the people.20 Based on the foregoing, it can be surmised that our form of government is not simply democratic but a combination of democracy and republicanism. In adopting democracy, we exercise and recognize the sovereign power of the state as we are empowered to choose the people who would govern us and lead us, on the other hand, as a republican government, we entrust the management of the state in the hands of a few people. We, as a state or as a community, are the ones who decide, through an election, a referendum, or a plebiscite, on matters concerning the state because sovereignty resides in us.

Sovereignty is defined as the supreme and uncontrollable power inherent in a State by which the State is governed.21 State is defined as a community of persons, more or less numerous, permanently occupying a fixed territory, and possessed of an independent government organized for political ends to which the great body of inhabitants render habitual obedience. 22 The territory of the Philippines is defined in Article 1 of the 1987 Constitution. Under the said article it states that, “The national territory comprises of the Philippine archipelago, with all the islands and waters embraced therein, and all other territories over which the Philippines has sovereignty or jurisdiction, consisting of its terrestrial, fluvial, and aerial domains, including its territorial sea, the seabed, the subsoil, the insular shelves, and other submarine areas. The waters around, between, and connecting the islands of the archipelago, regardless of their breadth and dimensions, form part of the internal waters of the Philippines.”23 20

Cruz, Isagani A. (2002). Philippine Political Law, Quezon City: Central Lawbook Publishing Co., Inc., 52. 21 Ibid., 26. 22 Ibid., 14. 23 Article I of the 1987 Constitution.

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Attempts in Constitutional Change Starting from the administration of President Aquino, various attempts were made in changing the 1987 Constitution. The proposed amendments primarily pivoted around the shift from a unitary to a parliamentary form of government. The first attempt in amending the 1987 Constitution can be traced back from the Ramos Administration. Included in the proposal were the shift from presidential unitary to parliamentary federal form of government, and the lifting of term limits of public officials. A parliament is a national representative body having supreme legislative power within the state.24 Under the parliamentary form of government, there is no clear-cut separation of powers between the executive and legislative department. The Prime Minister is chosen by the National Assembly from elected representatives of the Parliament with the assistance of a Cabinet which is composed of the heads of various departments or ministries and the executive power is vested upon him. The Prime minister and the members of the cabinet do not have a fixed term of office. Under the parliamentary setup, the legislature can be unicameral or bicameral and the government may either be unitary or federal.25

The CHA-CHA (Charter Change) was originally part of the policy agenda of Ramos. PIRMA (People's Initiative for Reform, Modernization and Action) conducted a signature campaign calling for the amendment of the Constitution through the “People’s Initiative.” Chief Justice Andres Narvasa and the Supreme Court however dismissed the petition for lack of enabling laws in the conduct of “People’s Initiative.” Had the PIRMA petition been successful, a national plebiscite would have been held for the proposed changes.

Moreover, the Estrada Administration witnessed another attempt to amend the Constitution. Coined as CONCORD or Constitutional Correction for Development, the proposal 24

(1984). The Grolier International Dictionary, Vol. 2. (2003) Congressional Planning and Budget Department. A Reader on Charter Change, Retrieved September 24, 2008, from http://www.geocities.com/cpbo_hor/specialstudies/reader.pdf 25

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was to amend only the 'restrictive' economic provisions of the constitution that were considered impediments in the entry of foreign investors. Said proposal failed due to strong opposition.

Under the present Administration, President Gloria-Macapagal Arroyo and some proponents heed the call for Charter Change. GMA even made certain the inclusion of CHACHA in her 2004 election campaign platform. By virtue of Executive Order No. 453, GMA created the Consultative Commission and appointed Dr. Jose V. Abueva as its chairman. The Commission proposed, among others, the shift from a bicameral presidential to a unicameral parliamentary-federal form of government; economic liberalization; further decentralization of national government and more empowerment of local governments via such transition. Such proposal to change the constitution for the purpose of changing the form government was opposed by Makati Business Club.

In December 2006, House Speaker Jose de Venecia, Jr. (JDV) explicitly pushed for the constitutional change process by convening the House of Representatives of the Philippines and the Senate of the Philippines into a Constituent Assembly or "Con-Ass". Strong opposition once more staged, which threatened to conduct a major massive protest through a “prayer rally”. A few days before the scheduled prayer rally, Speaker JDV however gave up on the Constituent Assembly mode and gave way for a Constitutional Convention mode for CHA-CHA. None of which pushed through.

The Recent Federalism Debate

Recently, there have been discussions of changing our form of government from the unitary system of government to the federalist form of government. WHAT COULD HAVE TRIGGERED THE RECENT FEDERALISM DEBATE?

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The Federalism Debate is traced back from the dire need to bring peace in Mindanao. The Government of the Philippines, led by the Government Peace Negotiating Panel, and the Moro Islamic Liberation Front (MILF) entered into a Memorandum of Agreement (MOA) for the creation of a Bangsamoro Juridical Entity (BJE). The MOA, supposedly signed on 5 August 2008 in Kuala Lumpur, Malaysia, contained the framework for the creation of the Bangsamoro Juridical Entity wherein the entire Muslim-Palawan-Sulu geographical territory will be ceded to the Moro Islamic Liberation Front—an establishment thereof of a separate and distinct Republic of the Philippines. The creation of the BJE is henceforth analogous to federalism, which apparently is unconstitutional. The MOA grants the will-be-expanded Autonomous Region in Muslim Mindanao (ARMM) its own basic law, an internal security force, a system of banking and finance, civil service, education and legislative institutions, full authority to develop and dispose of minerals and natural resources.26 As coined by legal and political scholars, the BJE will be “a state within a state.” This is unconstitutional because our present Constitution does not recognize the creation of such entity. Making it constitutional entails the revision of the 1987 Constitution —the changing of the form of government from unitary to federalism. Therewith, the Philippine form of government has to be shifted from unitary to federalism. Pursuant to the MOA, Rep. Monico O. Puentevella on May 7, 2008, filed House Concurrent Resolution No. 15 which supported Senate Resolution No. 10 of Senator Nene Pimentel which was backed by 16 senators. The joint Senate resolution called for the creation of 11 federal states in the country, by convening of Congress “into a constituent assembly for the purpose of revising the Constitution to establish a federal system of government.”

Consequences of Federalism

26

“RP, MILF set to sign pact in Malaysia” by Leila Salaverria, DJ Yap, Nikko Dizon, Christine Avendaño. Aug. 4, 2008. Philippine Daily Inquirer

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What are the consequences of embracing a federal form of government? What are the benefits that will be derived from federalism? Is the federal system of government better than the unitary system of government? Is the Philippines ready for such a change in government? Do we have enough resources to effect such change? Will this really resolve the conflict in Mindanao and unite our people or will it just make matters worse and break up the country which may even lead to civil war?

In the annual convention of the Integrated Bar of the Philippines in April 27, 2002 in Tacloban City, Senator Aquilino Q. Pimentel Jr. discussed the following:27 •

Why is the federal system of government a better one than the present unitary system that we have? There are two main reasons in favor of federalism. The federal system has the structures needed to: a.

hasten the economic development among the various regions of the country; and

b.

dissipate the causes of the recurrent armed Moro challenges against the government and, thereby, lay the basis for a just and lasting peace in Central and Southwestern Mindanao.

•

How will the federal system hasten the economic development of the country?

It will hasten the economic development of the country by allocating power heretofore concentrated in the central government to the regions that will now be converted into federal states. With power in their hands, the federal states may now mobilize their resources for development without being hindered or controlled by the central government. •

What is the intended result of the federal system power-sharing between the central government and the federal states?

27

A primer by Senator Aquilino Q. Pimentel Jr. on the federal system presented to the Integrated Bar of the Philippines at its annual convention, Tacloban City, April 27, 2002, Retrieved September 10, 2008, from http://www.nenepimentel.org/speeches

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The power-sharing under the federal system will: a.

unleash the spirit of friendly competition for development purposes among the various federal states composing the Republic;

b.

end the dependence of the regions, now federal states, on the central government for development purposes; and

c.

enable the federal states to exercise their power and utilize their resources for development purposes to the utmost without constraints aside from those imposed by the Federal Constitution.

In view of the discussion of Senator Pimental, first, let us analyze the positive effect of a federal system of government. The following are the advantages listed by the following sources: •

According to Jose Abueva, the Chairman of the Consultative Commission and a UP Professor Emeritus of Political Science and Public Administration28

•

According to the Bundesrat, "federal council" or "upper house of German parliament" who is the representation of the 16 Federal States (Bundesländer) of Germany at the federal level29

One of the advantages of a federal system of government concerns the distribution of power. “Under the federal system of government, the classical horizontal division of the powers of state (legislative - executive - judicial) is complemented by a vertical division of power between the state as a whole and the individual member states. Distribution of power ensures that there are checks and balances, helping to prevent abuse of power.”30 Secondly, there will be more democracy. How will this be achieved? “Sub-division into smaller political units makes state action clearer and more comprehensible, thus fostering active participation and co-determination. Furthermore, each citizen has two opportunities to exercise the most fundamental democratic right. First of all is the right to vote. In a federation, elections 28

Jose V. Abueva, Why Change Our Unitary Republic to the Federal Republic of the Philippines.? A Primer, Retrieved September 10, 2008, from http://www.isite.ph/Focus/ConCom 29

Advantages of a Federal State Compared with a Unitary State, Retrieved September 21, 2008, from http://www.bundesrat.de 30 Ibid.

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are held both for the national parliament and for the parliaments of the individual member states.”31 Thirdly, federalism increases the leadership opportunities. “Political parties have more opportunities to hold power and competition between parties is encouraged, as they can exercise political responsibility in the individual member states even if they are in the minority nationally. This gives parties an opportunity to test and prove their capacity for leadership by offering them a chance to demonstrate how they perform once elected.”32 “Federalism through autonomous territories will specifically strengthen the powers of the provincial governors, city and municipal mayors, and other elected local government leaders. It will be proposed that the organic acts of Parliament will make key local government executives members of the assembly of the autonomous territories and regions that will become federal states in the Federal Republic.”33 “In a federation, public bodies are closer to regional problems than in a unitary state. There are no remote, forgotten provinces. Furthermore, citizens enjoy more rapid access to the public authorities. It is easier for them to contact politicians and the public authorities than in a unitary state with a remote and anonymous centre.”34 “The Federal Republic will empower our citizens through their autonomous local and regional governments. It will enable the people to raise their standard of living and enhance their political awareness through their participation and efficacy in elections and the making of government decisions at the local and regional local levels.”35 As pointed out by Senator Pimentel, federalism establishes the independence of each state from the central government.

31

Ibid. Ibid. 33 Abueva, Jose V., Why Change Our Unitary Republic to the Federal Republic of the Philippines.? A Primer, Retrieved September 10, 2008, from http://www.isite.ph/Focus/ConCom 34 Advantages of a Federal State Compared with a Unitary State, Retrieved September 21, 2008, from http://www.bundesrat.de 35 Abueva, Jose V., Why Change Our Unitary Republic to the Federal Republic of the Philippines.? A Primer, Retrieved September 10, 2008, from http://www.isite.ph/Focus/ConCom 32

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“The states that make up a federation are always competing with one another, making them more vital. Exchange of experience fosters progress and helps to avoid undesirable developments at the national level.”36 “This results to friendly competition for development purposes among the various federal states composing the Republic. Federalism, together with parliamentary government, will improve governance by promoting the development of strong, united, disciplined, and program-oriented political parties that are responsible and accountable to the people for their conduct and performance in and out of power.”37

“Mutual control, reciprocal consideration and the need to seek compromises prevent or at least hinder extreme positions. Federalism has a balancing and a stabilizing effect.”38 It provides a barrier to the dominance of the majority. 39

“The division of the country into federal states guarantees that many economic, political and cultural centres develop. This provides a more favorable environment to preserve and develop specific regional, historical, economic and cultural features. This diversity can lead to more freedom.”40 “The creation of autonomous territories and autonomous regions that will become federal states under a federal system will improve governance by challenging and energizing local and regional leaders, entrepreneurs, and citizens around the country. It will release them from the costly, time-consuming, stifling, and demoralizing effects of excessive central government controls and regulation in our traditional unitary system.”41

36

Advantages of a Federal State Compared with a Unitary State, supra. Abueva, supra 38 Advantages of a Federal State Compared with a Unitary State , supra. 39 Abueva, supra. 40 Advantages of a Federal State Compared with a Unitary State, supra. 41 Abueva, supra. 37

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And most importantly, the federalism will build a just and enduring framework for peace through unity in our ethnic, religious, and cultural diversity, especially in relation to Bangsa Moro and our lumad/ indigenous peoples everywhere.42

“Thus, federalism will stimulate and hasten the country’s political, economic, social, and cultural development and modernization. Gradually, with a parliamentary government, federalism will broaden and deepen our democracy. In other words — with political will and sustained effort for the common good — federalism and a parliamentary government would gradually enable our democracy to deliver on the constitutional promise of human rights, a better life for all, a just and humane society, and responsible and accountable political leadership and governance.”43 In view of the foregoing advantages, let us now take into account the dispositive effect of federalism as discussed by Dr. Jose Abueva and the Congressional Planning and Budget Departmet of 2003. The shift to a federal structure entails another tier of government financial costs. It would require additional appropriations for the establishment of State Governments, Courts and Legislatures.44 Considering the Filipino political set up, there is a possibility that political clans will strengthen their stranglehold in the regions and perpetuate political dynasties.45

42

Ibid.

43

Ibid. Congressional Planning and Budget Department, 2003. A Reader on Charter Change, Retrieved September 24, 2008, from http://www.geocities.com/cpbo_hor/specialstudies/reader.pdf 45 Ibid. 44

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Given the varying degrees of development and resources in the different regions, the poorer regions may be further left behind in development. This will cause greater migration to richer regions with its attendant social ills. There may be greater uneven development.46 “The federal states' autonomy necessarily means there are differences between the states. Diversity is the opposite of uniformity. This can result in some difficulties, for instance, for school children if a family moves from one federal state to another.”47 It can lead to inequality between the states and lead to unhealthy competition and rivalry between them. “As decisions are taken in many different centers in the Federal Republic, and power is shared between the Federation and the federal states, it is essential that the various tiers of government cooperate and show consideration for each other. The different bodies that hold power exercise mutual oversight and function in a checks-and-balances system. This interweaving of responsibility is complex and sometimes hard for citizens to understand.”48 It creates confusion as to who has the power to decide how powers are allocated between the two levels. Who decides how much power each of the two levels of government should actually have in the federalist system? “The parliaments, governments and administrations of the Federation and the federal states have to wait for initiatives, decisions or consent from each other and engage in lengthy negotiations in order to arrive at joint solutions. This can be a time-consuming process.”49 “Running individual parliaments, governments and administrations in the Federation and the federal states is considered, on the whole, to be more expensive than maintaining the corresponding bodies in a unitary state. It is debatable whether this is indeed a valid assumption, because federal states could not simply be closed down in a unitary state, but would have to be

46 47

48 49

Ibid. Abueva, supra. Ibid. Ibid.

21

replaced. Federal institutions would certainly have to be expanded and mammoth centralized bodies might not ultimately prove to be cheaper.”50 Federalism can lead to duplication of government and inefficient, over-lapping or contradictory policies in different parts of the country. It can lead to over-government that will result to corruption. But the question still remains. Are we prepared for this kind of transition? Is it advisable for our country to change the government into federal? By changing the system of governance, would it in itself solve the economic and political crises considering that the nation lack social cohesion and suffers from public confidence? Will this lead our country toward development and prosperity? Will it resolve the existing problems of the present government, such as graft and corruption? Is it really a viable solution in solving the systematic and structural problems in Philippine governance? Or is it just another ploy of those few people to grab more power or stay in power or for their own benefit?

CONSTITUTIONAL EFFECTS OF FEDERALISM (By Rozzalie Gonzales)

In view of the fact that our Constitution is not set for this kind of transition and that the form of government recognized by our Constitution is that of a unitary form of government, the need to modify or revise our Constitution is inevitable. The following should be implemented to effect the transition: A. Pertinent Provisions 50

Ibid.

22

1987 CONSTITUTION, ARTICLE 17. Amendments or Revisions Section 1. Any amendment to, or revision of, this Constitution may be proposed by: 1) The Congress, upon a vote of three-fourths of all its Members; or 2) A constitutional convention. Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered votes therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution not oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right. Section 3.The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention. Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast, in a plebescite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratification by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification.

B. Constitutional Requirements or Procedures to be Undertaken to Shift from Unitary System of Government to Federalist Form of Government

What are the things to be considered in changing our form of government from unitary to federal?

First, we must establish the type of federal system of government that will be adopted. Will it be a presidential federalism or parliamentary federalism? 23

Second, the number of federal states must be determined and identified. The criteria for creating such states must be established. Jose Abueva, UP Professor Emeritus of Political Science and Public Administration and Chairman of the Consultative Commission, listed the following suggested criteria in creating the federal states:51 a.

Some common ethnic, linguistic and cultural features,

b.

Geographic contiguity or proximity (nearness),

c.

Economic potential and viability of the proposed regional governments or states.

Third, we must identify the jurisdiction, functions and powers of the federal government and the state government. In the speech delivered by Senator Aquilino Q. Pimentel Jr. in the annual convention of the Integrated Bar of the Philippines in April 27, 2002 in Tacloban City, he presented the following suggested powers vested upon the federal government and the federal states:52 1. The central government may exercise, among other things, powers1 relative to:53 a.

Foreign affairs;

b.

Armed forces;

c.

Monetary system;

d.

Basic education;

e.

Basic justice;

f.

Citizenship, rights & duties;

g.

National suffrage;

h.

National taxation & customs;

i.

National public works, and

j.

Postal & telecommunications.

2. The federal states may exercise, among other things, powers1 over:54

51

a.

Local development;

b.

Mineral resources;

Abueva, supra.

52

A primer by Senator Aquilino Q. Pimentel Jr. on the federal system. Ibid. 54 Ibid. 53

24

c.

Marine and aquatic resources;

d.

Forest and other natural resources;

e.

Trade and commerce;

f.

Police;

g.

Local taxation; and

h. Education.

In Lebanon, the following are the distribution of powers and functions among the federal government and the federal states: 1. A federal government can retain exclusive powers and functions over the following areas, among others:55 a.

National security and external defense

b.

Foreign relations

c.

Currency/Monetary system

d.

External trade/commerce

e.

Citizenship

f.

Civil rights/political rights/human rights

g.

Immigration, emigration, extradition

h.

National elections

i.

Supreme Court Decision

j.

Protection of intellectual property, property rights, and copyrights

2. State governments can have jurisdiction over the following areas, among the others:56 a.

State/local elections

b.

Regional trial courts/Metropolitan trial courts

c.

Licensure of public utilities

d.

Administration and enforcement of State laws and programs

e.

State socio-economic planning

f.

State finance – taxation, customs, budget and audit

g.

Grants-in-Aid to local governments

h.

Police, public safety, law and order

i.

State and local infrastructure

55

Primer on Federalism,Lebanese Forces Organization, Retrieved September 10, 2008, from http:// www.lebaneseforces.org, www.lebanese-forces.ca 56 Ibid.

25

3. Functions and powers in the following areas, among others, may be the concurrent jurisdiction of the federal state governments:57 a.

Health

b.

Education

c.

Social welfare

d.

Cultural development

e.

Sports development

f.

Environmental protection

g.

Energy

h.

Tourism

i.

Roads and Highways

Fourth, the Constitution should be revised to effect the transition from unitary to federal system of government. Amendment of, or revision to, the Constitution is stated under Article 17 Section 1 to 4. The following procedure shall be undertaken to revise the Constitution: a.

A proposal for the revision or amendment of the Constitution should be initiated either by the Congress, upon a vote of three-fourths of all its Members, or by a constitutional convention. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention.

b.

The proposed amendments to or revisions of the Constitution shall be ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision.

It should be noted that each state or future state will have legislative, executive and administrative powers. And finally, the law will be implemented and the provinces or local government unit will be restructured to conform to the new system of government. A time frame for the transition should be set. A transition period is needed to enable the Federal Government and the various 57

Ibid.

26

States to prepare for, and adjust to, the redistribution of powers, functions and tax bases between the Federal Government (National Government) and the several States (Regional Governments) and their local governments.58

ISSUE #1

FEDERALISM WOULD NOT SOLVE THE PEACE CONFLICT IN MINDANAO. (By Lea Lansang)

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society and establish a government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth, justice, freedom, love, equality, and peace, do ordain and promulgate this constitution.59

The preamble says it. We want to build a just and humane society. Who wouldn’t? It is the function of all governments—to promote the general welfare of the people. But whenever a state decides to give up a part of its sovereignty due to ethnic problems, is the state promoting the general welfare of the people? The answer is relative, but in the case of the Philippines, the answer is in the negative. Giving up a part of sovereignty to appease the Moros in Mindanao is not the promotion of general welfare. Federalism is not the answer to the peace conflict in Mindanao. To approve on federalism is rendering yet another wrong solution to the problem.

58 59

Abueva, supra. 1987 Constitution.

27

THERE ARE ODDS OF FEDERALISM FOR PEACE.

First and foremost, federalism will not cure the peace problems because it does not rest upon the concept of general welfare.

Section 5 Article II on Declaration of Principles and State Policies states that “the maintenance of peace and order, the protection of life, liberty, and property, and the promotion of the general welfare are essential for the enjoyment by all the people of the blessings of democracy.” In correlation to the aforementioned contention, federalism violates the general welfare principle.

General welfare as defined by Utilitarianism is the “greatest good for the greatest number of people.” In the case of Mindanao, the huge question lies on who constitutes the greatest number—whether or not we count it from Mindanao per se or from the entire Philippine population. I strongly believe that this has to be settled prior to the adoption of federalism. Failure to do so would result into more insurgencies, worse, the inhabitants going against their own state or regional government.

What is the point?

With federalism, the dire need of the Government to appease the Muslims would result into disrupting the peace within the federation. Mindanao is not only about Muslims. It is not only the home of Moros. I have spent half of my life in Mindanao and my friends and relatives who are all Christians reside in Mindanao. Muslims are a plain sight, but when you go to the South, you would mostly see Christians. Mindanao is not a Muslim country. It is the Philippines. The cultures in the South and in Manila are basically the same. The only difference is the 28

historical origin—the Moros claiming part of the territory that their ancestors won over the colonizing West. The only difference is that the insurgents find more opportunities and confidence instigating terror in the South.

Let us get a grip of the “greatest number.” In the proposed federation system60, the Bangsamoro state would consist of Lanao del Sur, Marawi City, Maguindanao, Basilan, Sulu, Tawi-Tawi. Given that the greatest number consists of Muslims, we can presume that they prefer federalism. Federalism thus is in their favor, and we can presume they would render utmost loyalty to the Bangsamoro state. Second proposed estado is Davao Region and Central Mindanao. It would consist of Compostela Valley, Davao, Davao Oriental, Davao del Sur, South Cotabato, Sarangani, Cotabato, Sultan Kudarat, and Lanao del Norte. Third state (amongst the eleven states) is Zamboanga Peninsula and Northern Mindanao that would consist of Zamboanga del Norte, Zamboanga del Sur, Zamboanga Sibugay, Bukidnon, Camiguin, Misamis Occidental, Misamis Oriental, Agusan del Norte, and Agusan del Sur.

With the last two states, there indeed is a problem. A number of Christians reside in these provinces. Having spent 10 years in Misamis Oriental and Occidental, I can attest that Christians in these provinces do not like the idea of being led by Muslims who would be more politically powerful through federalism. There is a strong stereotyping against Moros. In Misamis Occidental, for example, one can normally hear “these Muslims make the Philippines sick.” Most of these people, like my politically-active grandparents, are not only Christians, but they associate Moros with belligerence, and economic and political turmoil. If this is the mindset of the people of Mindanao, federalism can neither do away nor mitigate the former.

In a Manila Bulletin article61, Senator Aquilino Pimentel states that the Philippines needs federalism for “they (Moros) do not wish their identity as Muslims to be erased by their 60

Abueva, Jose. (Ed). CMFP Draft Constitution for a Federal Republic of the Philippines with a Parliamentary Government. 61 Pimentel, Aquilino. (2007, July). Federalization: An idea whose time has come. Manila Bulletin, 355 (27), 11.

29

integration into the mainly Christian culture of the people.” Accordingly, all the Government efforts in bringing lasting peace in Mindanao are “superficial”—the creation of ARMM, the local government devolution of power, and the military pacification campaigns. 62

Federalism, thus, must not be superficial.

This brings to our second point: federalism offers no certainty. One cannot contend that federalism is not another superficial approach of the Government. Federalism cannot cure the peace conflict because the problem does not take its roots from the political system. The peace problem is culturally and historically rooted.

In the University of the Philippines, two schools of thought conflict each other vis-à-vis federalism. The Department of Political Science says “no” and the College of Public Administration63 says “yes”. On the other hand, The Ateneo School of Government conducted a two-man debate wherein the other party, the law professor64, argued in accordance with the UP political scientists. Summing it up, they say “no” to the question of “aptness of federalism”, and “yes” to the question of “federalism as good governance.”

Henceforth, we are faced with a dilemma between good governance and necessity. Being a political scientist myself, I apparently take the latter side. A number of political theories and models offer a convincing explanation. Everything that would lead us to the conclusion that federalism, like all else (ARMM region, pacification campaigns), aims good governance; and federalism does not suit the Philippine political and cultural setting. Being a law student on one hand, there is a societal responsibility of awareness and formation of a wise opinion. 62

Ibid. Abueva, Jose. (Ed). CMFP Draft Constitution for a Federal Republic of the Philippines with a Parliamentary Government. 64 Gonzalez, Dennis. (Ed). (2005 December 2). Shift to Federalism: Is It Necessary Today?. Ateneo School of Good Government Center for Social Policy. 63

30

WHAT THE LAW SAYS.

Federalism is not necessary because Article X on Local Autonomy already offers “federal-like policies on local autonomy, decentralization, devolution, and subsidiarity65”66 Decentralization is “the expansion of local autonomy through the transfer of powers and responsibilities away from national bodies.”67 Devolution is “the transfer of power from central government to subordinate regional bodies without (unlike federalism) leading to shared sovereignty.”68 Quoting Atty. Alberto Agra: Autonomy is already a constitutional and fundamental right of our local governments, which possess residual powers, unlike local governments in some federal States, and those powers include powers not given by law to the National Government and those not prohibited by the 1987 Constitution and statutes. XXX. There is not a need for federalism because the Local Government Code can be amended by Congress to increase local powers. XXX. What the Constitution guarantees in terms of fiscal autonomy of local governments makes federalism not strictly necessary. Local Government Units on the other hand have power over sources of revenues and their taxing authorities. XXX. It is therefore not necessary for the Philippines to adopt federalism.

To wit, Section 3 Article X of the 1987 Constitution states: The Congress shall enact a local government code which shall provide for a more responsive and accountable local government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to the organization and operation of the local units.

65

Refer to introduction part of this paper, Federalism: What Is It?¸ for definition of subsidiarity. 66 Ibid. 67 Heywood, Andrew. (2002). Politics (2nd Edition). New York: Palgrave. 68 Ibid.

31

Section 4 Article X states: The President of the Philippines shall exercise general supervision over local governments. Provinces with respect to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure that the acts of their component units are within the scope of their prescribed powers and functions.

Emphasis is given to decentralization and supervision. They are in contrast to state government and control, respectively. Federalism is the sharing of sovereignty between the central or federal government and the provincial or state governments. Thus, the present government structure already offers a sharing of sovereignty as stipulated by the above mentioned provisions.

The adoption of federalism to solve the peace problem does not ensure that the oppressed will stop revolting against the well-off and the powerful because economy and social services would be better administered in federalism.

WHAT POLITICS SAYS.

Federalism does not offer the best solution to the peace conflict in the Mindanao because it does not suit the current political system. The provinces are home of the powerful families— they being both armed and politically influential. Moros or the MILFs in Mindanao can be taken as an example. They however exercise more of the hard power (through an arms race) than the soft power (being able to convince without the need of violence).

In the Weak-State Strong-Society model of Joel Migdal, a state is strong or hard when it exercises autonomy, or the state has the ability to enforce laws on everyone. A hard state entails a 32

weak society or the presence of weak social movements and groups in society. A soft state on the other hand entails a strong society. Soft states are evident in third world countries or the so-called former colonies, i. e. the Philippines.

Following this model, federalism would strengthen more the social movements, i. e. MILFs; therefore rendering a weaker grip of the central or federal government. The sharing of sovereignty to states that wage independence from the Philippine government is detrimental— particularly detrimental to the peace and order situation in Mindanao. At the onset of federalism, they might be satisfied with the mere sharing of sovereignty. After which, they would go back and re-examine the original objective—the establishment of a Bangsamoro country. A mere sharing of sovereignty would not suffice and the Philippines can expect for more peace conflicts thereafter.

Adopting federalism to address ethnic problems is a common scenario, but it cannot be applied in the Philippines. Cultural or ethnic heterogeneity, in fact, is one of the factors influencing formation of federations—along with historical similarities (as in the case of the US), presence of external threat (the US and France), and geographical size (India, Australia, Brazil).69 These federations however have built a strong sense of nationalism prior to their adoption of federalism. The USA for example was built as a nation prior to the coming together of the regions. A nation is defined as a group of people who share a common cultural inheritance and regard themselves as a natural political community 70.

To iterate, the peace conflict does not take its root from the structure of government, but is rooted from historical, cultural, and social diversities. A lasting peace would not result overnight from changing the form of government. The culture and the sentiment of people, as a Filipino and as civilized human beings, need be given primary consideration. With failure of the Moros to recognize their importance in nation-building, any change in the form of government 69 70

Op. cit.,161. Op. cit., 106.

33

would not lead to a lasting peace. The Bangsamoro people need to take their pie of social interaction and cooperation in order to build a “Strong Republic.” Alongside, any governmental effort in bringing lasting peace in Mindanao has to come with a sincere effort to ameliorate the oppressive conditions in the South—more jobs, higher salaries, and better education. FEDERALISM per se, THEREFORE, IS NOT THE KEY TO A JUST AND LASTING PEACE IN MINDANAO.

ISSUE #2

THE POLITICAL SUBDIVISIONS OF THE PHILIPPINES ARE NOT APT FOR FEDERALISM. (By Jenny Gonzales)

The political subdivisions of the Philippines are not apt for federalism because of several compelling reasons. To have a better grasp of this issue, let us first determine the scope of political subdivisions.

Section 1 Article X of the 1987 Constitution stipulates that the territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as herein provided. Section 2 of the same article states that “the territorial and political subdivisions shall enjoy local autonomy.” Section 1 Article X of the Local Government Code iterates the same provision but eliminates “political” and only addresses the subdivisions as “territorial 34

subdivisions.” For the purpose of looking into the dynamics of politics and administration, we shall herein utilize the term political subdivisions.

As the long held political setup in the country, each division at each level from the provinces down to the barangays is a local government unit. The provinces and cities are grouped into regions for administrative purposes. The President has the prerogative to create, abolish and determine the composition of regions, which is done so most often in consultation with the local government units affected; with the exception of autonomous region where the residents of the local government units have to ratify in a plebiscite their inclusion in such a setup. 71 As of June 2008, the National Statistics Coordination Board statistics show a total of 17 regions, 81 provinces, 136 cities, 1,495 municipalities and 41, 995 barangays.72

In the issue at hand, political subdivisions of the Philippines are held subjects of the recent call for a government shift to federalism. I would like to call it political subdivisions as “captives” of federalism, but for purposes of fairness, let us first examine how these subdivisions become affected, altered, or modified.

Federalism through autonomous territories will specifically strengthen the powers of the provincial governors, city and municipal mayors, and other elected local government leaders. The organic acts of Parliament will make key local government executives members of the assembly of the autonomous territories and regions that will become federal states in the Federal Republic.

71

Administrative Divisions of the Philippines. Retrieved September 20, 2008, from http://en.wikipedia.org/wiki/Administrative_divisions_of_the_Philippines 72

National Statistic Coordination Board. Retrieved September 20, 2008, from http://www.nscb.gov.ph/

35

In view of this, the creation of autonomous territories and autonomous regions that will become federal states under a federal system will improve governance by challenging and energizing local and regional leaders, entrepreneurs, and citizens around the country. In effect, there will be no remote and unforgotten provinces. Moreover, citizens will enjoy more rapid access to public authorities since it would be easier for them to communicate with their representatives than in a unitary state. Citizens will not only be empowered through their autonomous local and regional governments but their political awareness will also be enhanced through their participation and efficacy in elections and the making of government decisions at the local and regional levels.

The pro-federalism party contends the need for a shift due to the unresponsiveness of the central government to the needs of the political subdivisions. Accordingly, the Philippines, as a unitary form of government and although highly centralized, fails to efficiently look after and provide for the needs of its periphery. WE, HOWEVER, BEG TO DISAGREE ON THE GROUND THAT POLITICAL SUBDIVISIONS OF THE PHILIPPINES ARE NOT SUITABLE FOR FEDERALISM.

For one, federalism can promote unequal development of regions when universal equal development is necessary. Most of the time, federalism is ineffective and inefficient, particularly in developing countries with non-existent or under-developed infrastructure i.e., Sri Lanka, Vietnam, India and Pakistan.73

In the Philippines, the fragmentation of the state would lead to units too small to be economically viable, environmentally sustainable and geographically homogenous.

74

Basically,

federalism would make the states too small to provide for the basic needs of the people and 73

Developing Countries List. Retrieved October 6, 2008 from http://www.ams.org/membership/develop.html 74 2nd International Conference on Decentralization on Federalism: The Future of Decentralizing States, July 25-27, 2002

36

limited available resources within states would make it difficult to achieve economic growth and development as compared to other states that have abundant resources.

In line with this, federalism would emphasize uneven distribution of wealth among local units. Recent studies conducted by the Industry Statistics Division clearly show the inequalities in local and regional economy. Accordingly, the combined regions of CALABARZON (Cavite, Laguna, Batangas, Rizal, Quezon) and MIMAROPA (Occidental Mindoro, Oriental Mindora, Marinduque, Romblon, Palawan) generated the highest output valued at Php 1,328.7 billion in 2005, which was nearly half (45.6%) of the total output value of the entire manufacturing sector. NCR and the Central Luzon followed with Php 562.9 billion (19.3%) and Php 387.8 billion (13.3%), respectively. Altogether, the 3 regions accounted for 78.3% of the total output of the manufacturing sector.75

Certainly, these statistics manifest that there is an uneven distribution of economic opportunities amongst the Philippine regions. This reality will be more evident if a federal state government is established. Regions which are performing well would definitely become more forceful because opportunities, from the national government and those coming from within, would then be concentrated on these regions. Meanwhile, less performing regions would remain stagnant. This is because these regions would have fewer opportunities because most of these opportunities are already in the hands of the well performing ones. Another consideration is that regions differ in the availability of natural resources and ability to raise revenues

This was encountered by the USA in recent years. Alaska, with few people and much wealth, has almost four-times the taxing capacity of Mississippi, which has a lot of people and few mineral resources. The Sunbelt-Frostbelt economic conflict in America is another case. Economic conditions in the Frostbelt, especially New England, have improved with the growth 75

Viray, J. (2005). Federalism: Issues, Risks and Disadvantages. Retrieved September 20, 2008 from http://www.pdfcoke.com/doc/2052348/Federalism-Issues-Risks-and-Disadvantages

37

of high-tech industries while those in Sunbelt, dependent upon oil and other resources have declined.76

Furthermore, activities undertaken in one region can affect the activities and well-being in other regions particularly on spillovers. A neighboring state can be positively or negatively affected by the excesses of prosperity of another state. Positive spillover creates advantages for other regions. For example, when a region has a very good educational system, some of the welleducated citizens will eventually move to other regions. These regions will then also benefit from the better educational system in other regions. There are however negative effects to be considered. Negative spillover effects mostly have to do with pollution created in one region which spreads to other regions.

The provision of public goods that produce positive spillovers will be too low. This is because the benefit that the public good produces for other regions is not taken into account by the region which produces the public good. Production which creates negative spillovers on the other hand will be too high because regional governments will fail to internalize the costs imposed on other regions. The result is an inefficient allocation of resources because regions only care about their own benefits and costs and do not consider the effects of the policies on other regions.77

Aside from economic inequalities, the number of votes of each region also has an effect on the uneven distribution of wealth and opportunities. Regions like NCR and Central Visayas that have big number of voters would have advantage in terms of opportunities coming from the 76

MacGregor, J. (1987). Government by the People: Bicentennial Edition 1987-1989. Retrieved September 20, 2008 from http://www.pdfcoke.com/doc/2052348/Federalism-IssuesRisks-and-Disadvantages

77

Rosen, H.S (2002). Public Finance, (New York: MacGraw Hill, 2002).

38

national leadership. As a result, national politicians would tend to concentrate government grants to regions with big number of voters. 78

Moreover, Federalism will only give way to a more convenient corruption for the regional or state government leaders. This is a clear violation of Section 27 Article 2 of the 1987 Constitution stipulating that “the state shall maintain honesty and integrity in the public service and take positive and effective measures against graft and corruption.”

Federalism by definition means a system of government in which power is divided between a central government and constituent political units. Federalism thereby allows self-rule on the part of the constituent unit. 79 The local government may be more susceptible to corruption because interactions between private individuals and officials happen at greater level of intimacy and with more frequency at more decentralized levels.80 There is no doubt that leaders per state can easily rob hefty money in a lesser complicated, lesser bureaucratic form of government.

Another consideration is the fact that local political clans may gain more power and influence under a federal system of government. This is a vivid violation of Article 2 Section 26 of the 1987 Constitution stipulating that “the State shall guarantee equal access to opportunities for public service and prohibit political dynasties as may be defined by law.” In Philippine politics, we have been accustomed with political clans that swell in various regions from up to down south. For example, the Marcos clan dominates the province of Ilocos Norte while the Farinas clan controls Laoag City, Ilocos Sur. Federalism does not dismantle these well entrenched political clans. In fact, there is even a high probability that they would be more powerful and influential because of the decentralization of authority and power. 78

Viray, J. (2005). Federalism: Issues, Risks and Disadvatages. Retrieved September 20, 2008 from http://www.pdfcoke.com/doc/2052348/Federalism-Issues-Risks-and-Disadvantages 79 Montes, R. (2006). Understanding Federalism: Federalism and Multi-Culturalism. 80 Treisman, T. (2001). The Causes of Corruption: A Cross-National Study. Retrieved September 20, 2008 from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=282092

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Furthermore, the pursuit of federal system of government requires parallel movement which in the case of the Philippines entails the local governments having the capacity and resources to function effectively as states under a federal government. The current political subdivisions, however, of the Philippines are not yet ready to respond to the needs and demands of the community and fulfill their roles under a federal set-up. 81

With the above considerations, there is certainly no need to consolidate provinces into states. As mentioned by Alex B. Brillantes, Jr., PhD, a Dean and Professor of UP National College of Public Administration and Governance, “whoever wrote that federalism is the next logical step after devolution is far from being logical.”82 Federalism that banks on decentralization and fragmentation will actually further divide our country. In the words of Professor De Leon, “what we need is to focus upon our oneness as a people. It is important that we highlight on the positive things we have done in common, rather than our differences. The essence of nationhood is thinking, feeling, and caring for the nation as a whole, not only for an elite, minority, one’s region or sector but for the vast majority of our people”83 Herewith, there is certainly no need for federalism.

ISSUE #3

81

Brillantes, A. (2002). Decentralization and Federalism in the Philippines: Lessons from Global Economy. 82 Brillantes, A. (2008). Federalism vs. Local Autonomy. Retrieved September 20, 2008 from http://fedecentralize.wordpress.com/2008/09/15/federalism-vs-local-autonomy/ 83 De Leon, F. Cultural Awareness: Keystone to National Development.

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FEDERALISM WOULD BRING CONFUSION AS TO THE STRUCTURE OF CONSTITUTION AND GOVERNMENT. (By Rianne Bautista)

Once again, we are faced with the issue on whether or not there is a need to shift to a federal type of government and what would be the effect of this change in relation to the structure of our Constitution and government.

The Philippines adheres to a democratic-republican type of government and is now contemplating on adopting a federalist structure. Before going into the depth of the issue, let me first define democracy, republicanism federalism and constitution. Democracy is a form of government in which supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodic free elections. 84 Republicanism, on the other hand, is a form of government in which a state is ruled by representatives elected by its populace. The term was originally applied to a form of government in which the leader is periodically appointed under a constitution; it was contrasted with governments in which leadership is hereditary.85 A republic is a state in which all segments of society are enfranchised and in which the state's power is constitutionally limited.86

Moreover, federalism is a political system that binds a group of states into a larger, noncentralized, superior state while allowing them to maintain their own political identities. 84

Britannica Concise Encyclopedia. Retrieved October 1, 2008, from http://www.answers.com/topic/democracy 85 Ibid., http://www.answers.com/topic/republic 86 Columbia Encyclopedia. Retrieved October 1, 2008, from http://www.answers.com/topic/republic

41

Certain characteristics and principles are common to all successful federal systems: a written constitution or basic law stipulating the distribution of powers; diffusion of power among the constituent elements, which are substantially self-sustaining; and territorial divisions to ensure neutrality and equality in the representation of various groups and interests. Changes require the consent of those affected.87 The basic law or Constitution is straightforwardly defined as the set of doctrines and practices that form the fundamental organizing principle of a political state. 88 Stated differently, constitution is the fundamental law, written or unwritten, that establishes the character of a government by defining the basic principles to which society must conform; by describing the organization of the government and regulation, distribution, and limitations on the functions of different government departments; and by prescribing the extent and manner of the exercise of its sovereign powers.89

In line with the definitions above mentioned, we could easily see that there is a significant difference between democratic-republicanism and federalism – the type of government we presently have and the type of government we are considering to adopt. One striking difference between the two types of government is the division of sovereignty. Based on the abovementioned definition of federalism, we could deduce that sovereignty is constitutionally divided between a central governing authority and constituent political units like states or provinces, whereas in republicanism “sovereignty is the supreme uncontrollable power inherent in a State by which the state is governed90 and that, sovereignty is permanent, exclusive, comprehensive, absolute, indivisible, inalienable and imprescriptible.”91

Another difference is in terms of the territorial and political subdivisions of the country. There are at least two territorial levels where units at each level have final authority and can act 87

Op. cit., http://www.answers.com/topic/federalism Ibid., http://www.answers.com/topic/constitution 89 Law Encyclopedia. Retrieved October 1, 2008, from http://www.answers.com/topic/constitution 90 Cruz, Isagani. (2002) Philippine Political Law. Quezon City: Central Lawbook Publishing Co., Inc. 91 Ibid. 88

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independently of the others in some area. Citizens thus have political obligations to two authorities, while the territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays where sovereignty resides in the people and all government authority emanates from them.

First point: each state in a federal type of government may exercise a distinct policy from other states which would create perplexity in the minds of the inhabitants.

To further give a concrete picture of these noteworthy differences, let me cite some provisions in our Constitution. Article 2, Section 1. The Philippines is a democratic and republican State. Sovereignty resides in the people and all government authority emanates from them.92 Article 10, Section 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter provided.93

With the foregoing provisions, the Constitution explicitly states the kind of government our country has and the territorial and political subdivisions the people have recognized. In switching to a federal type of government, the division of territorial and political subdivisions and sovereignty have to be altered and here is where the change in our Constitution comes in. In this case, aside from being laborious, making changes in our Constitution would bring confusion to the people with respect to familiarity. One major transformation that the country has to undergo in shifting to a federal type of government is the change in the current political subdivisions of the Philippines. As stated in 92 93

The 1987 Constitution of the Philippines The 1987 Constitution of the Philippines

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Section 1 Article X of the 1987 Constitution, “the territorial and political subdivisions of the Republic of the Philippines are the provinces, cities, municipalities, and barangays and there shall be autonomous regions in Muslim Mindanao and the Cordilleras as provided by the Constitution.” However, in a federal type of government, the country is divided into different states where units at each level have final authority and can act independently of the others in some area. With this alone, we would know that change in the Constitution is inevitable if we swing to a federal type of government.

In federalism, there are differences between the states in terms of autonomy. Each state in a federal type of government may exercise a distinct policy from other states which would create perplexity in the minds of the inhabitants. As a result, complexity may arise – as in the case of a family moving from one federal state to another which has a different policy as compared to another state. This can result to having difficulty in adapting to the sudden change. Adaptation, in terms of how an individual would react to variation, may be considered as an advantage if people would see it as a constructive transformation; but a predicament may arise if people see it otherwise. Some people may be adamant and refuse to abide by policies imposed and this may result to the ineffectiveness of governance and eventually lead to the downfall of the state.

Second point: the exigent process we have to go through in order to modify our Constitution, and with the mentality most of us have in this day and age, we could not expect the people to completely understand the pros and cons of amending the constitution Let us take the Santiago vs. Commission on Elections case.94 The right of the people to directly propose amendments to the Constitution through the system of initiative under Section 2 of Article XVII of the 1987 Constitution was discussed in this case. To wit, Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered 94

Santiago v COMELEC: G.R. No. 127325. March 19, 1997

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voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter.

The Congress shall provide for the implementation of the exercise of this right.95 One of the pertinent issues conferred in the Santiago case is whether or not the lifting of term limits of elective national and local officials, as proposed in the draft "Petition for Initiative on the 1987 Constitution," would constitute a revision of, or an amendment to, the Constitution. It was held that extending or lifting of term limits constitutes a revision and is, therefore, outside the power of the people's initiative. "Amendment envisages an alteration of one or a few specific provisions of the constitution. Revision contemplates a re-examination of the entire document to determine how and to what extent it should be altered.96 It was also held that resolution to the case is not necessary, if not academic, thus the petition for prohibition against COMELEC to “be permanently enjoined from entertaining or taking cognizance of any petition for initiative on amendments on the Constitution until a sufficient law shall have been validly enacted to provide for the implementation of the system”97 was granted.

Aside from a three fourths vote of all the Members of Congress, amendments to or revisions of the Constitution may be proposed by a constitutional convention or by the direct proposal of the people through initiative as stated in Section 2 Article XVII. Just by going through this provision, we would know that it takes a lot of effort and hard work before a revision or amendment may be proposed.

To iterate, the exigent process we have to go through in order to modify our Constitution and with the mentality most of us have in this day and age, we could not expect the people to completely understand the pros and cons of amending the constitution. People have the tendency 95 96 97

The 1987 Constitution of the Philippines Ibid. Ibid.

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to leave the discussion and so is the decision to the influential people when in fact, they have the right to speak their mind. Having said this, it is bound to happen that people would just choose to be silent about the matter and eventually get mystified with the alteration that has taken place.

Third point: The people have to understand, acknowledge and more imperatively, exercise their right to freedom of expression (Section 4 Article III) and information (Section 7 Article III) as stated in the present Constitution. The fact that these rights are assured by our Constitution; there is no reason for the people to be anxious about expressing what they really think especially if their visions are vital to the enrichment of the country. To wit, Article 3, Section 4. No law shall be passed abridging the freedom of speech, of expression, or of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances.98 Article 3, Section 7. The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as may be provided by law.99

Fourth point: We have to work as a team in building our nation. It is not enough that there is a Constitution that would provide the rules and principles that define the nature and extent of government. Being a Filipino, we have to constantly take into account the welfare of the people and the country. What matters is how the people comprehend and apply this Constitution not just for the benefit of the individual but more importantly, for the advancement of the country. If not us, who would? 98 99

The 1987 Constitution of the Philippines The 1987 Constitution of the Philippines

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We have to admit that we have yet to know by heart the Constitution we currently hold and still, here we are, thinking of changing it again. Would this not be a great dilemma that we have to consider prior to making any change in the structure of our government not to mention that the mere proposal of making that change would entail different views from the people and may result to the carving up of the state?

Let us face it, not all people are open to change. Some would just choose not to react and would just “go with the flow” or worse, keep taciturn with regard to voicing out what they really think and feel about the change or proposal being presented to them. In view of this, we may not genuinely achieve the true purpose of changing the current government to a federal type of government - that is to develop a better, stable and more effective way of governance in the country. How can we obtain that stability if we keep on confusing the people by consistently proposing change in our Constitution – in our government? Perhaps, “change” is not always the solution after all.

Issue #4

FEDERALISM WOULD ENTAIL IMPRACTICAL EXPENDITURES FOR THE CONSTITUTIONAL AMENDMENT. 47

(By Christopher Ontog)

ARTICLE XVII on Amendments or Revisions

Section 1. Any amendment to, or revision of, this Constitution may be proposed by: (1) The Congress, upon a vote of three-fourths of all its Members; or (2) A constitutional convention.

Section 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative upon a petition of at least twelve per centum of the total number of registered voters, of which every legislative district must be represented by at least three per centum of the registered voters therein. No amendment under this section shall be authorized within five years following the ratification of this Constitution nor oftener than once every five years thereafter. The Congress shall provide for the implementation of the exercise of this right.

Section 3. The Congress may, by a vote of two-thirds of all its Members, call a constitutional convention, or by a majority vote of all its Members, submit to the electorate the question of calling such a convention.

Section 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the approval of such amendment or revision. Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of the sufficiency of the petition.

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Article VI on The Legislative Department Section 25. (1) The Congress may not increase the appropriations recommended by the President for the operation of the Government as specified in the budget. The form, content, and manner of preparation of the budget shall be prescribed by law.

(4) A special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as certified by the National Treasurer, or to be raised by a corresponding revenue proposal therein.

Section 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.

(2) No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any penal institution, or government orphanage or leprosarium.

(3) All money collected on any tax levied for a special purpose shall be treated as a special fund and paid out for such purpose only. If the purpose for which a special fund was created has been fulfilled or abandoned, the balance, if any, shall be transferred to the general funds of the Government.

According to Article XVII in our 1987 Constitution, there are 3 possible ways for an amendment or a revision of the Constitution. The first one is through a Constitutional Convention. Second is through a Constituent Assembly. Third and final is through a People Initiative. A general constitutional convention is called to create the first constitution of a political unit or to entirely replace an existing constitution. An unlimited constitutional 49

convention is called to revise an existing constitution to the extent that it deems to be proper; whereas a limited constitutional convention is restricted to revising only the areas of the current constitution named in the convention's call.

With a Constituent Assembly, the entire process is broken into two stages. The first stage involves proposing amendments to the Constitution and holding plebiscite or plebiscites that are needed; and the second stage would be on creating state and federal governments.

Based from a comprehensive report in 2003, the partial cost for the first stage of the Constitutional Convention would be more or less Php 95,600,000. The said Constituent Assembly will only operate for about 6 months. Recalculated and adjusted, the cost would reach to Php 142,628,374. The Php 142,628,374 amount does not even include the salaries of 261 Employee and of the salaries of the two consultants. As a rule, the two consultants need be paid the same rate as the regular Constituent Assembly member. The salaries of the 261 Members would amount to roughly 500,000,000 pesos or more. If the rental cost for the office would also be amounted to, it would be approximately reach Php 300,000,000. Presently, a rough estimate of the expenditure for a Constituent Assembly would reach Php 900,000,000. This estimate is calculated for a six-month expenditure. Anything beyond the 6th month would apparently escalate the expenditure to enormous proportions.100

Following the above mentioned stage is an efficient information dissemination. After completion of the proposed amendments, plebiscite campaigns are to be held. One could imagine how much funds are to be expended for such activities.

100

Briones, Liling Magtolis (2008). The Business of Governance.

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The next phase, the plebiscite, more over adds on to the overwhelming expenditure. The calculated cost of a plebiscite in 2007 was around Php 2,900,000,000. Adjusted, the cost would presently be around Php 3,419,628,374- Php 5,000,000,000.101

The Constituent Assembly, in contrast to a Constitutional Convention, entails lesser expenditures.102 A Con Ass is deemed the most practical and least expensive mode of Constitutional amendment due to the following reasons: (1) There is no need to hold another costly election since members of both the Senate and House of Representatives, who have been directly elected by the people, will be the ones who will constitute the Assembly. (2) The Joint Resolution that will create a Constituent Assembly can limit the agenda of amendments and protect the good provisions of the current constitution. (3) Further in the ratification of the proposed amendments, the people can approve only those that will benefit the country and disapprove the amendments they deem unacceptable. (4) Moreover, members of Congress already know what agenda to pursue, thus reducing horse trading and political accommodations. Having been directly elected by the people they are responsible for their actions to the electorate. (5) To address the concern of perceived lack of trust, the proceedings should be made transparent and civil society organizations can serve as watchdogs to the process. The Constituent Assembly will solicit and consider the concerns of all sectors in their

101

Ibid. (2003). A Reader on Charter Change, Congressional Planning and Budgetary Department of 2003 102

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discussion, as they do in considering legislation.103

Regardless of the aforementioned expenditures, it is CERTAINLY impractical to hold a Constitutional Amendment. The Philippine population recorded as of July 2007 already reached a whooping 91,077,287.104 Alongside is the growing budget deficit. The billions of pesos to be expended for an Amendment would of course be better allocated for social services, for debt financing, for loans and investments. Some would contend that a Constitutional Amendment is a form of investment. It sure is. An investment would earn provided it is a blue chip. The amendment that we are faced with, due to the dire need to effect a Bangsamoro country and a federalist Philippines, is not a blue chip. To begin with, the “earnings” are very much idealistic. I do not say the objectives are not possible, but they are less likely attainable in a timeframe that needs expedient positive results. We cannot let the people die from hunger while waiting for the effects of Federalism. First things first. Invest on social services—on health, education, and employment—and we move out into allocating a huge budget for any change of governmental form.

To add with, Section 29 of Article VI provides a more compelling reason not to pursue the Constitutional Amendment. Accordingly, no money shall be paid out of the National Treasury except in pursuance of an appropriation made by law. Where do we henceforth take the budget for the amendment? Wherever it may be, there certainly has to be a letting go of another—a decrease in foreign debt financing, or the military budget, or worst the budget for health and education.

103

104

Ibid. CIA WORLD FACTBOOK 2008

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