Federalism: a constitutional response to secession

Written on Wednesday, August 13th, 2008 at 11:30 pm | by Abe N. Margallo

(The piece below was first published in the moribund Pinoy-rin.net and Inq7.net on April 10, 2001. When I reposted it in PCIJ on July 29, 2005 as a reaction to Sheila Coronel’s “Dreaming of Federalism,” it elicited some purposeful exchanges among commenters; it was also picked up, and a shorter form of it was published with my permission, by Canada-based Federations Magazine in November 2005( together with Sheila’s essay).

I’m sharing here in FV another abbreviated version of my article and some of the relevant posts in the PCIJ comment thread because I do find them offering some very interesting hindsight in terms of having a thorough and sober debate of the hot issue of the moment.)

A Constitutional response to secession

By Abe N. Margallo

The last time our constitution underwent an overhaul was in 1986 after the Marcos regime was ended following a dramatic wave of people’s power led by Cory Aquino.

Foremost among the changes introduced were the limitation of the presidential term of office to six years without re‑election, the abolition of death penalty, and, more prominently, the premium put on human rights and on the Philippines as a “welfare state” where the state is called upon to act as Parens Patriae. That was the temper of the times in response to the political, economic, and societal malaise that so afflicted the country.

During the 1973 constitutional revision and shift to a hybrid parliamentary system under the shadow of martial law, President Marcos cited seven threats to the Republic: Communist revolutionaries; rightist coup; secessionist movement in the south; private armies and political warlords; the criminal elements who take advantage of the situation; the oligarchy who sought to maintain the status quo; and foreign interventionists.

In expounding on the limits of his martial law powers, Marcos conceded, “martial rule could not, in the long run, secure the Philippine Republic unless the social inequities and old habits which precipitated the military necessity were stamped out.”

The Mindanao conflict has generated a recent rumbling to amend the charter with a number of senators proposing the adoption of a federal system of government as a constitutional option to solve the Mindanao problem. I find this issue as deserving a full debate.

To dismiss it as nothing less than an attempt to “balkanize” the country, as former senator Raul Roco once put it, glosses over the merits of federalism that has sustained for more than 200 years the existence and integrity of the United States, the most prosperous and the strongest nation of the world.

It is apposite to take note that this proposal to adopt federalism appears to follow the historical trend towards fuller autonomy for local governments. All that the 1935 Charter provided on the subject of local autonomy was to limit the executive authority to the exercise of general supervision over local governments, thereby denying the executive the more pervasive power of control. On the other hand, the 1973 Constitution declared as one of its fundamental principles that: “The State shall guarantee and promote the autonomy of local government units, especially the barrio, to ensure their fullest development as self‑reliant communities.” That was not all.

The 1973 Constitution in fact devoted an entire article (Article XI) to local government mandating therein the enactment of a local government code. The present Constitution further expanded the 1973 provisions likewise in a separate article dedicated to local government while creating in addition “the autonomous regions in Muslim Mindanao and in the Cordilleras consisting of provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage, economic and social structures.” Consistent however with the unitary form of government, the present Constitution provides that “(a)ll powers, functions, and responsibilities not granted by this Constitution or by law to the autonomous regions shall be vested in the national government.”

In certain federal forms of government such as that of the United States, powers not granted by the constitution to the national government are deemed reserved to the states. The fundamental difference lies there. However, it is not “balkanization” contrary to how Senator Raul Roco views it. It is autonomy in its truest sense.

The one fundamental principles of federalism that could have a mollifying effect on the secessionist movement in Mindanao would be the concept of shared or dual sovereignty.

What this means is that states are sovereign, separate and independent in relation to each other and the national government. As such the people of the states, functioning as laboratories of democracy, are free, subject only to restrictions in the constitution itself or in constitutionally authorized statues enacted by the national legislature, to define and experiment the moral, political, cultural and legal structure of their lives and to meet the needs of the people according to their own desires and creativity.

Under this concept, for instance, interstates relations are handled much like foreign affairs, i.e., states can negotiate and enter into treaties with other states. The states may also decide to adopt for their local governments units such as the municipalities, the mayor‑council governments, commission governments, council‑manager governments, the barangay governments or similar and other forms of governance that reflect the distinctive nature of the constituents.

Policy borrowing is one of the important features of federalism. According to this practice, the states are free to develop and experiment their own educational, law enforcement and economic development policies, or to borrow from the several approaches employed in different states to address the same problems. States learn from the successes or failures of those programs, thus helping to ease administration.

The other significant trend in federalism today is the devolution of administrative control over programs from the national to state and local governments. Devolution is empowerment not separatism. The decentralized decision‑making process provides greater proximity to the people, compelling governments to be more responsive to the concerns of the citizenry.

There is also evidence supporting the finding that fiscal decentralization reduces corruption, a salutary effect of federalism that only those who benefit from corrupt practices could possibly abjure.

Arguably, a perfect constitution is not a warrant to solve the ills that scourge a society. There is thus no guarantee that federalism will work for the indigenous people, the Christians, or the Muslims in Mindanao. For, except possibly for the concept of shared or dual sovereignty, the other benefits of federalism as above discussed might well be approximated even under the present unitary system.

The Russian constitution, for example, is an excellent piece of document that enshrines the fundamental aspirations of a people. But so far it has not also served as a flattering measure of the nation’s political stability. Both in form and in substance, the Philippine Constitution is equally commendable. Nevertheless, even the U.S. Constitution, without the passion and commitment of the founding fathers and the succeeding generations to build and secure a just and tranquil society based on the ideals they believed in, and to safeguard that society against those people intent to trifle with it, would have become just another empty shibboleth.

__________

COMMENTS (remember these exchanges took place in August 2005 or three years ago):

ZORROS: As much as I would like to, i am not going to comment anything regarding con-ass or cha-cha, to do so would be like being “fished-in” by GMAs media diversionary tactics.

ABE: I guess this is a tactical move that many concerned Pinoys are considering to adopt. In some ways, this may be similar to the position now being taken by many “people power” practitioners not to march in the streets at this stage there being no clarity as to: 1) who will replace GMA if she is ousted (the immediate goal), and 2) what to do next (the vision), given the potency of the system in place to subsist.

You will recall that when People Power II has swept GMA into power, there was at least the sense of anticipation that something would turn out quite right. Now we know that GMA blew her chances.

Today, instead of anticipation and expectation, there is this sense of dread and equivocation from day one (except possibly those who have already plans “for themselves”). But for those who like to see a more meaningful Philippine society, the difficult dilemma lingers: Is it better to preserve against the worse or take the risk to change for the better.

The dread, the inaction and the cynicism appear to preponderate not so much as the answer to the question is unknowable at this point as GMA’s breach of the expectation is so callous and her sense of accountability for it so flippant that someone like you is surely at a loss whether “betrayal of trust” in the constitutional sense is even sufficient to describe the conduct of the President. Well, so much has been said and blogged about GMA’s “lapse in judgment” here and in other forums and I’m not going to belabor it any further for the purpose of this reply.

Anyway, I have always thought that true federalism complements high-powered democracy and that the latter is the anti-thesis of oligarchy or of its other guises. That you have changed your position somewhat after my post on federalism above is to me an indication of your perception of the salutary nature of federalism. This goes to show that dangling federalism not only to the “hooting few” in the Batasan but in effect to the larger community outside of it is as clever as a Machiavellian ploy of wagging the banner of the promised land of New Society. Marcos’ Bagong Lipunan was however an illusion. Federalism as an end is not.

So, specifically, you seem to have this subset of a dilemma for now: Shall I be apathetic to a salutary end which is federalism, to avoid being ambushed or “fished-in” by GMA’s diversionary tactics?

Once more, I would like to think of your situation in terms of the tentativeness of people power practitioners to run the parliament of the streets at this juncture. In one of my posts here (“A season to be jolly”), I have justified this behavior by postulating that people power is a real power and very extant (the energies expended in PCIJ is one veritable proof) but what we are witnessing is in fact the more positive dimension of the power, the “communicative” rather than the “hooting” aspect of it, that people power practitioners are wising up, or thinking through matters critically instead of acting precipitately, and that they are also beginning to realize that maybe they should be making fundamental political decisions by themselves when called for instead of entrusting that function to an agency or political personalities who could turn out to be just another cheating and stealing leader or perhaps worse. xxx

I guess what I’m trying to point out is that the power can be “held off” (yes, CONCERNED CITIZEN, “no cha cha for the moment,” that’s fine too), and that stand is possibly in the concept of civil disobedience or election boycott, as a counter-tactic against the erring regime as well as a strategic scheme versus any pseudo-movements vying for power. However, please remember that the larger issue is not GMA (because she too will pass away soon, not later) but how to attain the higher end of high-powered democracy through federalism for instance, among other means.

PROF. PAT ABINALES: Abe, just one response to the insightful comments you wrote in 2001. First, it may be necessary to revise and update the argument that federalism is necessary to prevent Mindanao separatism. While the belief that Mindanao had been always at the wrong end of all deals vis-a-vis Manila has spread to even the so-called Christian provinces, there is really no potent force to bring this sentiment to the next phase: active political (and perhaps military) push for separation. The MILF is all ready to talk peace, the MNLF is virtually a spent force, while the Americans have contained the Abu Sayyaf. The Muslim politicians shout to high heavens about separatism and preserving the Muslim identity, but at the ground, they are working closely with Manila to try to craft some form of lasting peace in Mindanao (while pushing for their own interest). I saw this last April [2005] as I watch Gov. Ben Loong of Jolo assert the need to preserve Moro identity but also discussing development plans with Jess Dureza and aid with the US-AID people.

Hence, one of the premises that prompted calls for federalism — Mindanao secession — is not there anymore and this perhaps may make the discussions of the alternative much “better” and even manageable.

We are thinking of including a panel on federalism/parliamentarism in the upcoming conference of the Philippine Political Science Association (in Bohol!) and I would like to propose to my colleagues that we invite you as well as Prof. Mojares.

P.S. But a note of caution: American federalism was built on a history of a bloody civil war, and over two hundred years of local state power (up to 1901, the Secretary of State was really just that — a secretary). It was only at the beginning of the 20th century that the federal state began to assert its control over Congress. The Russian constitution was also a compromise document where the “Republics” agreed to remain with the “Russian” commonwealth. And already Ukraine and Lithuania are trying to break away and join NATO and the European Union.

ABE: Pat, I think I wrote the above article during the first three months of GMA’s presidency while: it was yet too early to speculate on how the new administration would approach the effects of the “wristband” policy of Erap in Mindanao; MILF was out of the loop; Abu Sayaff, yet a band of “local bandits”; and Nur Misauri, roaming free between Manila and ARMM in shiny leather jacket but complaining of TA (Tripoli Agreement of 1976) and FPA (Final Peace Agreement of 1996) “impurities” (e.g., “the majority rule” requirement in the plebiscite that was held to form the ARMM in “Christian majority” territories).

I’m not sure if MNLF is “virtually a spent force” or Abu Sayaff has been “contained” by GI Joe (the last time I’ve heard their “mass base” remains strong), but if MILF is IN, and is ready to talk peace, then bless all the peacemakers.

Anyway, it was unstated in the article but in my other blogs surrounding it, I remember arguing that a “purified” TA and FPA would have virtually created a federal state out of ARMM if the political will on the part of GRP was there to grant genuine autonomy. The article then, while arguing for federalism for Muslim Mindanao, was in fact also promoting the merits of federalism for the other regions in the archipelago, a good reason then as now.

However, given the perceived motivations of the Charter change initiative today and the announced preference for a constituent assembly by the GMA government, if the intention is really genuine to grant fuller autonomy to other regions than Muslim Mindanao and the Cordilleras, it make sense to go first for a piecemeal Charter amendment (instead of something close to an overhaul) such as by granting the other regions equal autonomous status as the two constitutionally mandated and, in addition: 1) recognizing that the regions shall have “reserved powers,” meaning powers not specifically delegated to the national government shall be reserved to the regions or the people; 2) removing the power of general supervision by the President over the autonomous regions and instead requiring the coordination of the national and regional governments; and 3) empowering the regions to define the structure of their government and those of their local government units. These powers may be enough for the regions to serve as “laboratories of democracy.”

I do not see any compelling reasons now for a shift from a presidential to a parliamentary form of government as regards the obligation of the state to provide the people a decent life with all the social services they are entitled to. If there is “the will to develop” on the part of the powers-that-be, the economic elites in particular, the country will develop regardless of the form of the government [shades of benignOism?].

Now, if there is any provision that needs immediate extraction from the Charter, a matter more imperative than the proposed shift to a federal or parliamentary form of government, it is the so-called expanded certiorari jurisdiction of the Supreme Court under Article VIII, Section1, paragraph 2 of the Constitution. This provision, as utilized now by the current Court, has the potential of allowing the Supreme Court to assume greater despotic powers than Marcos could have arrogated unto himself under martial law.

_______

The nation today is all ears: Will the Shamans come out to bury the queen?

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About The Author: Abe N. Margallo is a teacher, lawyer, author, columnist, and activist. When not running, advising community associations, or teaching, he studies events, and reacts accordingly by writing, blogging (at Red’s Herring) or acting on them, alone or with others

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15 Responses to “Federalism: a constitutional response to secession”

  1. cvj on August 14th, 2008 3:48 am

    Abe, excellent and timely re-post. It’s particularly informative in what Federalism entails. Although, i still have my reservations on matters concerning how and when, i think you’re right in pointing out that going federal is the most promising solution to the conflict. You might be interested in this blog post on lessons learnt from the Sinhalese-Tamil conflict in Sri Lanka. It also contains a link to a paper by the author on a proposed federal setup.

  2. Ding G. Gagelonia on August 14th, 2008 5:14 am

    Prof. Abe, Here we are in full agreement and your repost is truly enlightening.

    It makes me wonder then how why retired police general Rodolfo Garcia and retired military general Hermogenes Esperon, whose credentials as peace-makers are bogus as far as I am concerned, connived with their MILF opposite numbers to draft that blasted MoA-AD without so much as directly acknowledging the Constitution, citing only “legal framework.”

    The two gentlemen who swore oaths to uphold the Constitution turned their backs on it, agreed to abrogate Philippine sovereignty with nary a demobilization nor disarmament of the MILF and swallowed the ancestral domain paradigm instead of anchoring the pact with the MILF on federalism.

    If we surrender to the AD paradigm, cannot even Tondo be claimed, and surrendered as ancestral domain?

  3. DJB Rizalist on August 14th, 2008 9:38 am

    Abe,

    If you will allow, and as it is my chosen role at FV to be something of a Devil’s Advocate and contrarian, some caveats…

    When the Thirteen Colonies united to form the United States of America, they agree that such perpetual union would be deemed ratified when just nine of the thirteen federating states had themselves held successful plebiscites approving of the Union. Under Joint Resolution no. 10, the new Federal Republic of the Philippines, (a United States of the Philippines) would be composed of eleven new States which are enumerted in the joint resolution, but which do not in fact exist today as legal, political juridical entities. Which came first, the Union or the States that formed it? I ask this only to see if you would agree the States must first be created and established in plebiscites like the proposed BjE plebiscites, before a Federal Union can be perfected. Also, that ONLY those yet-to-be-ratified States may enter into that federal union.

    Federalists have their work cut out for them. Each of the eleven states must undertake to ratify two Constitutions–the State Constitution that governs it and the Federal Constitution that will govern them all as states and citiens both.

  4. Abe N. Margallo on August 14th, 2008 1:20 pm

    Ding,

    I’m not sure if it’s wise for the executive branch to be bound by strict constitutionalism when deciding to negotiate for peace or to resume hostilities. And I don’t think it’s appropriate for the judiciary either to meddle in this delicate political matter while the process being pursued as to one option or the other is still continuing.

    I have also suggested in the other thread that the GRP negotiating panel could rely not only on the various constitutional provisions on indigenous communities and their rights to their ancestral domain but also on broader constitutional principles such as the due process clause and the national policy of peace and amity to go about the provisions on national territory and patrimony.

    In answer to similar concern by cvj and DJB, I have tried to explain that “rebels and secessionists are expected to negotiate outside the constitutional context of that order they are defying” and “such expectation includes the ability of the negotiating panel of the other side (that is, the GRP in the instant case) to go through certain structural reforms that may take into account the adoption of a new constitutional system embracing the negotiated political settlement.”

    Thus, “in the case of the MILF as regards the MoA-AD, we should take them to understand that the proposed MoA is still basically an interim agreement and conditional upon a final “comprehensive pact” that must pass muster the existing legal framework or otherwise (if the constitutional envelope is pushed to the extreme) a restructuring of that framework (via federalism, for instance) to accommodate the negotiated settlement.

    DJB,

    First, you have to remember that the individual states of the Union have decided to federalize in order to centralize (to empower a stronger national government that’s superior to the states). In the Philippines, federalization is being proposed in order to decentralize a too powerful imperial Manila to devolve power to the component states.

    Honestly, I have not read yet Joint Resolution No.10 and the mechanics proposed therein on how to create the 11 states but to save I guess it’s possible (altho it would be a challenge) to have only one national plebiscite to adopt the new system.

    cvj, thanks for the link. I’ll be reading it.

  5. Ding G. Gagelonia on August 14th, 2008 1:58 pm

    Prof,

    Am sure the real crux here is the crisis of confidence hanging over GMA.

    If we are to believe the surveys, granting even a bigger margin of error, GMA has negative political capital left, withn even her own allies in Congress appearing, at times, to be playing along or giving her their sufferance.

    With each passing day, she is really becoming a lame duck.

    Just last night, over 80 solons signed a resolution junking the MoA-AD.

    The Supreme Court Session could very well make or break that Bangsamoro deal.

  6. Abe N. Margallo on August 14th, 2008 10:14 pm

    Ding, as once suggested by political pundit Mario Taguiwalo at John Nery’s Newsstand at the height of the “Hello, Garci” tape controversy, GMA has been lameducked as early as the revelation of the existence of the tapes. So that even if her government pursues real reforms (e.g., federalism initiative to resolve the Mindanao conflict) she would not only be politically hamstrung but economically as well because having lost her political capital, the “marginal cost” could be prohibitive, meaning consensus will require more uneven trade-offs.

    The TRO’d interim MoA-AD, the resulting embarrassment of the Philippine government before the international community and the potential judicial intervention in what normally is executive sphere are proofs of how politically prohibitive the cost is to the office of the presidency and the nation’s standing in the diplomatic community.

  7. Bencard on August 15th, 2008 3:58 am

    abe, pardon my saying so but your comment regarding gma as “lameduck” since the wiretapping controversy doesn’t make much sense. we only have one president at a time and the powers and tenure of such president are defined by law and the constitution. no amount of criticism, accusation, political or personal attacks can diminish that power or shorten his/her term of office.

    by definition of “lameduck”, all presidents on their last term are lameducks from day one. but until their term actually ends according to law, they are president no less.

  8. Abe N. Margallo on August 15th, 2008 5:15 am

    Bencard, I think it was American political scientist Richard Neustadt who said that presidential power is largely potential, meaning actual powers depends on the ability of the president to leverage formal powers in the process of governance.

    A president for example with 80 percent approval rating is likely to exert greater leverage than one with a negative rating (although they may have identical formal powers) in the give and take of politics.

    That GMA has lost considerable political power (i.e., “lameducked”) following her illegitimation, as perceived by millions of Filipinos because of the “Hello, Garci” tape scandal, is a fair and sensible reading of recent events in Philippine politics.

  9. Bencard on August 15th, 2008 7:36 am

    abe, in the darkest hours of the american civil war, your namesake and my favorite u.s president of all time, abraham lincoln, was the most maligned and despised person in the country, disliked not only by the confederates and political enemies but also by his own political party. he never wavered in the exercise of his powers under the constitution and prosecuted the war to its victorious end. he is now considered one of the greatest, if not the greatest, of american presidents, past and present.

    this so-called “moral ascendancy” is the most misused term in philippine politics. in all practicality, it has nothing to do with the powers of the president of a republic.

  10. DJB Rizalist on August 15th, 2008 9:33 am

    ABE,

    First, you have to remember that the individual states of the Union have decided to federalize in order to centralize (to empower a stronger national government that’s superior to the states). In the Philippines, federalization is being proposed in order to decentralize a too powerful imperial Manila to devolve power to the component states.

    “What ‘component states’ are you talking about?” is my question.

    Everyone has their pet theory about the right way to divide up the Philippines into States, from the existing divisions into provinces, cities, villages and barangays. Luzon-Visayas-Mindanao is charming. But whether eleven or twenty seven, there are many, many possible combinations and permutations of combining the available pieces from the provinces, cities and barangays.

    Whether as ‘centralization’ by already existing states, or ‘decentralization’ to them, the component States must exist, be viable, and be properly, not arbitrarily constituted. What’s good enough for the Bangsamoro, should be good enough for all 110 indigenous and 50 non indigenous Filipino people if we are to ‘devolve’ the central power to ourselves. State-creating Plebiscites have to proceed the ratification of any Federal Constitution.

    It is in that process of defining, creating and establishing of those component States that the federalist enterprise (or de-federalist?) will meet its first conceptual challenge.

  11. Abe N. Margallo on August 15th, 2008 1:24 pm

    DJB,

    You seem to be arguing that it’s quite impossible for a state under a unitary system to federalize. But Spain is a very good example of a federation that developed from a unitary state basically to grant autonomy to regions on the basis of historical identity or to prevent secession or separatism.

    U.S., on the other hand, created a federation the other way around. The 13 independent states formed a federation by pooling sovereign powers to create a “perfect Union.”

    Bencard,

    Lincoln and GMA? Gross.

    Maybe, GMA and Dubya. Check this one out.

  12. Bencard on August 16th, 2008 7:35 am

    gross, abe? it’s a matter of taste. one man’s delicious lechon is another man’s abomination.

    i don’t give a hoot about partisan blogger’s
    opinion. a leftist commentator (choudry) is not exactly my kind of authority. then again, let’s not deviate from the bone of contention. assuming both gma and bush are “lameducks”, their respective powers are intact and are functioning not a bit less than when they first assumed office.

  13. DJB 76 on August 16th, 2008 11:00 am

    ABE,
    I concede the two modes of producing Federations: by many States coming together (US Model), or by a unitary state devolving power to many States (Spanish model). As you say, the latter applies here. But I should be clear. It is not the impossibility of Spanish style devolution I am arguing against, but its irrelevance to the existence of war or peace with rebels, insurgents, terrorists, criminals and guerillas, both legal and covert.

  14. Abe N. Margallo on August 16th, 2008 11:43 pm

    Dean, I guess one such relevance is articulated in the “whereas” clauses of SR 10: the present “lopsided arrangement has spawned a host of problems including massive nationwide poverty to runaway insurgencies and rebellions that feed on the societal inequalities in the nation.”

    I have also noted:

    Elitism, patrimonialism, and hierarchy are traditional values that have been secured by a unitary system introduced by the Americans and adopted in the Philippine Constitution. As thus entrenched, even the formal superimposition of what ought to be a republican framework in the American mold has failed to upend the culture since the underlying structures —elitist, patrimonlialist, and hierarchical— have in fact been mutated into a more potent brute of sort. These core structures are at the heart of the malevolence of the patron-client system in the Philippines. While the old values may not be held commonly now, the various formal structures of the unitary system, such as centralization or centralized governance, have been quite successful in preventing the so-called Western egalitarian traditions from being genuinely and substantively embedded. At least, formally dispersing the powers tightly concentrated in a few could be one way to overcome this fundamental flaw. The other is to establish republicanism through participatory governance.

  15. The Folly of Good Intensions | Filipino Voices on August 18th, 2008 8:17 am

    […] this talk of federalism is really a push for charter change.” Lastly, Abe Margallo’s Federalism: a Consitutional response to secession is a must read […]

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