Sunday, July 14, 2019

Episode 23: Bayanihan federalism by stealth or initiative


One of the crucial factors in determining whether charter change will succeed or not is the public’s perception regarding the motives behind it. Are its proponents really sincere in bringing about much needed change for ordinary Filipinos, or are they simply looking out for their own interests?

We’re going to examine the case for federalism in the country. Is it justified? Or is it just a cover for unwinding the democratic system of checks and balances that were painstakingly restored over three decades ago.



When President Duterte spoke before an assembly of local government officials, he expressed his frustration with the current set-up of our constitution that he said needed change to root out various forms of corruption. He said one term of office was not enough to do it under our current charter.

To both his supporters and critics alike, this is code for removing our system of checks and balances, to enable a strong leader to effect change as quickly and as drastically as possible. For supporters, nothing short of a complete overhaul of the 1987 constitution to make this possible, is needed. For critics, not one word, syllable or punctuation mark must be touched, lest it pave the way for one man rule.

Having a strong leader in Malacanang has historically created a stable environment, which supports growth. Thus when we have had strong leadership in the palace, people have tried to extend the leader’s term of office, first under Ramos, then Arroyo, and now Duterte. This is the reason why many oppose any attempt at charter change. It has become synonymous with term extension.

The question, however, is what change has Pres. Duterte really instituted to deserve term extension? By his own words the president has admitted failure in his war on drugs, crime and corruption. He promised to rid the country of these within six months, but now he says he underestimated the scale of these problems, and one term is not enough.

There is now a strong belief that the problems confronting our republic are much too great, complex and confounding to our national leaders and institutions, whether it is corruption, criminality or congestion in our cities. We tried dealing with them through virtue, under daang matuwid, and saw what a failure that was.

Many feel that enabling a leader with emergency powers to deal with them is the only way out. We are caught between a rock and a hard place. If we rely on our current set-up, the problems will only fester. But if we empower a strongman to deal with them, then in time, he might not be accountable to the people anymore and may abuse his powers. Furthermore, as we discovered from Marcos, and perhaps now from Duterte, empowering a strongman might not fix the problems of the country, either. So what should we do?

Does dealing with these problems effectively necessarily mean making governments less accountable to the people and vice versa?

An effective government that is accountable and observes the rule of law: these are the three ingredients for building a modern state, according to Francis Fukuyama in the Origins of Political Order. If Arroyo and Duterte represent the strong state (or ‘matatag na republica’), the Aquinos and his supporters represent democratic accountability (‘daang matuwid’).

Rule of law is the missing ingredient, as the two camps battle it out. Their enmity is but an illusion. They are simply approaching the same goal from different angles, and appeal to different constituents with varying preferences and views in life. But both are needed. With federalism, there is an opportunity to make our democracy work better and more effectively, that is produce better results, while observing democratic accountability. How, you ask?

The political philosopher Montesquieu in the 18th century said that democracy, the kind of self-rule which was invented by the Greeks could only flourish within small republics. The problem with smaller states though was that they become susceptible to invasion by larger powers. The problem with large republics, on the other hand, is they become unwieldy and governments become less accountable to the people, more prone to corruption, as what happened to the Roman republic when it grew to become an empire.

The solution that Montesquieu came up with was for a federation of smaller republics to be formed, where the constituent subnational governments would be closer to the people, and act as intermediary powers to counter any tendency towards despotism from the central government. This was the rationale adopted by the American federalists in justifying a strong central government in 1788 under a federal system, from the previously loose confederation of states created in 1781.

When you reflect on this, you might consider that some regions in our country have grown so large, as in the case of Greater Manila, that managing them requires having a powerful executive, who could override the parochial interests of its constituent parts, namely the 13 mayors that make up the region.

Some provinces, on the other hand, have too sparse a population, or have too little economic clout to gain attention from our national economic development planners, unless they band together. This problem is dealt with to a certain extent by our regional development councils, made up of provincial governors. But these RDCs merely wield recommendatory power to the national government on what the regional infrastructure development plans should be. They don’t have full autonomy, and they suffer from parochialism and lack of political mandates from the people to exercise their function.

In both instances, there are coordination failures in our present set-up, which could be addressed by granting regional autonomy, down from the central government, or aggregating power up from the local level to meet these challenges.

Contrary to the caricature painted by some that the bayanihan constitution drafted by Duterte’s Consultative Commission would cause a disintegration of the country, or that it would exacerbate the inequality across regions, the cooperative design of the bayanihan constitution could actually promote greater engagement from the citizenry who would no longer feel that government is too distant or disempowered to deal with their problems. In other words, you get better, more effective governance that is also more directly accountable to the people.

Under the model, internal revenue allotments would be raised to 50% from the current 40% of all government revenues including royalties from the extraction of natural resources. On top of that, there will be an equalisation fund set up with not less than 3% of the general appropriations act. This will correct, not just the vertical imbalances, but the inter-regional or horizontal imbalances as well.

The bayanihan constitution states that “The Fund shall be distributed based on the
needs of each region, with priority to those that require support to achieve financial viability
and economic sustainability” as determined by an intergovernmental federal commission.

Devolving power to regional governments would make them much more responsible and accountable for the development that occurs, or doesn’t, in their region. As part of the bayanihan constitution’s division of labor, regional governments will be responsible for regional development planning, transport, housing and infrastructure. There would be no need to give the president emergency powers, as the problems of traffic, garbage and other services would be handled by local regional executives. These executives and their cabinet would be members of a regional assembly directly elected by the people, as per the bayanihan constitution.

For proponents of a parliamentary form of government, take heart. This will mean our regions would observe a parliamentary set-up, while the national government would be presidential. It would be a hybrid, uniquely Filipino. Not French, German or British.

By all accounts, the Philippines has been approximating federalism through greater local autonomy since this was enshrined in the 1987 Constitution. Its framers’ defined it as “a kind of maximum decentralization, short of federalization.”

This is why many scholars have noted that the Philippines already enjoys greater local autonomy within its unitary set-up than some federal states. The irony is that under the presidency of Rodrigo Duterte, a self-styled strongman, the push towards greater devolution through federalism is occuring. But many who ought to be on the side of empowering the regions distrust the process for decentralising power, saying it would only create mini-fiefdoms and elements of warlordism writ large in the regions.

It is true to a certain extent. While local autonomy has increased the capacity for LGU self-rule, the stranglehold of political dynasties over them has gotten stronger through the years. So while political centres have been dispersed, these centres have been increasingly dominated by a few families.

The bayanihan federal constitution hard codes anti-dynasty provisions with no need for an enabling law. It also provides for state financed elections, campaign finance reform that limits the size and sources of political donations, and provides extra safeguards in the auditing of these sources of campaign expenses.

Despite many forms of political patronage in congress are being done away with through programs that provide free, universal access to public services like health and education, the stranglehold of public office by the aristocrats will remain, unless the people fight to democratise who can run for office with these reforms. Otherwise the entry cost of running and winning at elections will be too high. It creates an adverse selection problem where only the corrupt can afford to run for office, win and stay in office. Thus, only the corrupt will choose to run for office. The honest people won’t. Hence the rise of political dynasties that have a tighter grip on power now compared to 1988 when they first re-emerged.

The Marcos era was an interregnum between the dynastic oligarchies of the post-war era and their resurrection post-EDSA. In between Mr Marcos stripped them of power, but had to fill the vacuum that they left by appointing his own cronies to replace them. The classic case of a monarch who appoints men on the make to replace barons of the land to maintain control.

We’ve seen how problematic that is. So rather than turning to a strongmen, it is best to empower ordinary people to seek public office and win. Giving every Juan an equal chance to run through state electoral campaigns and political party reforms, term limits and bans on political dynasties would bring about cleaner politics and better, more effective and accountable governance, and make everyone more equal before the law.

So now, we come to the problem of how to effect these changes. Many pro-democratic opponents of federalism don’t oppose bringing government closer to the people as such. They are fearful of the other changes that opening a can of worms like charter change might bring, including erosions to our system of checks and balances, term limits and so forth.

One way is to introduce federalism by stealth. A mere inclusion of “regions” in the definition of political and territorial subdivisions of the republic under Article X Section 1 of the 1987 constitution could pave the way for the formation of autonomous regional governments. This would fulfill the vision of its framers to have maximum autonomy, short of federalism. The enabling law would only need a majority in both houses once the amendment has been made.

Performing a surgical change to the constitution in this manner, rather than an open ended one, under a constitutional convention would achieve the same goal, but without too much divisiveness or disruption, which is what economic managers fear. It would deliver federalism in everything but name.

Art. XVII, Sec. 1 of the 1987 constitution says any amendment or revision to it may be proposed by Congress and passed with three fourths of all its members. To avoid legal problems down the track, it is best to interpret this as three fourths of both houses voting separately. Thus, some opposition senators might come to party if a surgical revision is proposed in this manner, as the shift isn’t tied to term extension. The problem is, such a surgical amendment wouldn’t come with the political and electoral reforms, found elsewhere in the bayanihan draft. Pushing for too many amendments to the constitution could prove too taxing. There might not be enough time to debate it in congress within Duterte’s remaining term of office, especially if controversial amendments are proposed.

A people’s initiative could deliver several amendments and bypass congress, but this would require organisation and funding to be achieved. It has one virtue though, a people’s initiative could bring about changes undiluted by political realities in Congress. The political and electoral reforms contained in the bayanihan constitution that would deal with political dynasties, campaign finance and political party reforms would not need to be watered down to gain the support of three fourths of each house. The resources required for a people’s initiative might turn out to be less than having to, for want of a better term, “buy votes” in congress to get to three fourths of both houses.

Getting the people behind it will be difficult, but not impossible. Consider that the Pulse Asia survey in June of 2018 showed that close to 30% of Filipinos wanted a shift to federalism “at this time”. The fact of the matter is you only need 12% of registered voters, 3% from each district, to sign a people’s initiative to put it to a referendum. If you consider that another 30% were open to a shift to federalism “sometime in the future” and 10% were undecided or didn’t hold a view, then with the right campaign, it might garner enough popular support in a referendum to pass.

The downside is that it will require mobilisation without the machinery from traditional politicians who will balk at the anti-dynasty provisions. Koko Pimentel the president of PDP-Laban and Manny Paquiao have said that they would push for the bayanihan draft, leaving out the judicial reforms, which is a different debate altogether. The question is whether the dynastic politicians that are members of their coalition led by Hugpong will fall in line, especially if Sara Duterte is opposed to it, as she has stated she is. If they are opposed by their own partymates, are they willing to sponsor a people’s initiative?

Much will depend on what the president’s position is. But, if he sits back as he is wont and doesn’t provide direction, then this is where the push for charter change as well as political and electoral reform could fail. I doubt whether federalism would pass in the lower house, if Hugpong is against it. A people’s initiative might succeed with help from the DILG U/Sec Jonathan Malaya who was the convenor of PDP-Laban’s Federal study group. But if liberal forces in the country don’t get behind it, this too will probably fail.

So there you have it, if the bayanihan constitution is debated in congress, it will surely be watered down, its political and electoral reforms in particular, and in fact may result in unlimited terms for congress and the president. If it goes through a people’s initiative, the reforms might have a better chance of remaining intact, but the challenge will be to get it going without the political machinery of the aristocracy that rules the country.

As the song goes, change don’t come easy. But let’s think of the concept of bayanihan, which isn’t just a local tradition or custom, but a collaborative ethos that could help drive much needed reforms. If we put the term bayanihan into practice, it might allow the forces seeking genuine and positive change to move forward.

No comments:

Post a Comment