Fr.

Ranhilio Callangan Aquino

Vice-President for Administration and Finance, Cagayan
State University
Dean, Graduate School of Law, San Beda University
Member, Consultative Committee to Study the 1987
Constitution
• K.C. Wheare: a method for the division of
powers
– General and regional governments are
COORDINATE and INDEPENDENT in their own
spheres.
• I.D. Duchacheck: constitutional division of
power between one general government and
a series of sub-national governments, the
latter with independent authority over their
own territories.
• Michael Burgess: Federalism is a
constitutional arrangement by which the
principle of unity in diversity is adopted as a
constitutional principle.
• You federalize: When you seek to maintain
unity while preserving the diversity of
constituent sub-national entities.
• Federalism embraces both CENTRIPETAL
and CENTRIFUGAL forces.
• Embraces diversities that are territorially
grouped by RECOGNISIGN RIGHTS of the
territorial units to exist as components of the
federal system.
• Uniting into a single polity a number of
diversified groups or component polities so
that the personality and indivduality of the
component parts are largely preserved while
creating in the new totality a separate and
distinct political unit.”
• More than provisional, conditioned or
contingent decentralization: rather, a
territorial de-centering of government;
• Constitutional requirement: distribution of
power between the central government and
the regional governments.
• Both governments: equal and independent of
each other within their exclusive spheres of
jurisdiction.
 Andrew Harding: helpful in situations
where the independence of the regional
units and their absorption into a unitary
state is compromised.
 Separation of powers between central
government and regions: a check against
abuse of power by either;
 Adoption of federalism: calls for the
adoption of the institutions of a federal
republic.
• Power of central government: exercised directly
in relation to individual citizens rather than
indirectly through states or provinces.
• The regional government IS NOT A CHANNEL
of national government.
• Dicey:
– Distribution of powers: limited and coordinate
– Supremacy of the constitution
– Authority of courts as interpreters of the constitution.
 Legislative powers are distributed between a
central and a regional government
 The powers of the central and regional
governments are not subject to change by
the other levels of government
 Individual citizens are subject to laws
enacted by both the central and regional
governments.
• Distribution of powers: between Central
government and the units
• Supremacy of the Constitution: binding on
the federal and state governments
• Written constitution: difficult to maintain
constitutional supremacy without its
provisions written
• Rigidity: power to rewrite the Constitution
should be exclusive neither to the central
government nor to the units
• Authority of the courts: a court independent
of federal and state authority.
• Enumerated powers:
– In the US, the Federal Government is a government
of ENUMERATED powers because of the evolution
of federalism there.
– In the Philippines, it is the federated regions that
have governments of enumerated powers: a
holding-together federation.
• Residual powers: In any power needed that
is not vested expressly in the Federal
government or in the federated regions is
deemed vested in the federal government.
• 1949: Meeting of representatives of the
Länder, and subsequent drafting of the new
Constitution that was approved by the
parliaments of the Länder.
• Federalism: protected by the perpetuity
clause that forbids changes in the division of
the federation into Länder.
• Legislative authority: exclusive, concurrent
and framework legislation.
• The federation is largely responsible for
legislation, but the Länder are principally
responsible for administration.
• Distinguished from the American concept of
“dual federalism”: duality exists between the
federal government and its executive and
legislative powers on the one hand, and the
states and their executive and legislative
powers on the other hand.
• Administration solely by federal officials: rather
uncommon; takes place in state agencies;
• Administration of federal laws by the Länder of
federal laws delegated to them; federally
delegated administration occurs only if
provided by the Basic Law or because of a
constitutionally authorized federal law;
• Administration by the Länder themselves;
whatever federal involvement there is occurs
only with the approval of the Bundesrat; the
Länder establish the agencies and regulatory
procedures.
• Constitutionalizes the law on archipelagic baselines
• Regime of Islands
• Incorporating judgment of arbitral tribunal
– “over islands and features outside the archipelagic
baselines pursuant to the laws of the Federal
Republic, the law of nations and the judgments of
competent international courts or tribunals”
– historic right or legal title
• Sovereign rights:
– Maritime expanse beyond the territorial sea
– Extended continental shelf: Philippine Rise
 Sect. 5: Benevolent neutrality
 Sect. 7: Freedom from weapons of mass
destruction
 Consistent with national interest

 Sec. 13: dignity of every human person

 More comprehensive than “human rights”
 Legal understanding of “human rights”: Violations
committed by agents of state against citizens
• Sec. 1: Demandable against non-State agents
– Enforcement consistent with international standards
• Sec. 4: Data protection
• Sec. 5: Writ of Surveillance
• Sec. 8: Public expression of religion (or lack thereof)
• Sec. 14: Availability of the writs of amparo and habeas data
even when the privilege of the writ of habeas corpus is
suspended
• Sec. 17: Determination of strength of evidence -- summary
proceedings
• Recognizance: probationable offense and low risk of flight
• Sec. 22: Compensation for persons unjustly and wrongfully
accused, convicted and imprisoned but subsequently
acquitted
• Sec. 26: Social and economic rights
• Sec. 28: Environmental and Ecological rights
– Writ of Kalikasan and other protective writs.
• “The Federal Republic shall guarantee the public
nature of elections, ensure full transparency and
accessibility of the electoral process, and the
verifiability and integrity of the electoral results,
regardless of the mode of election.” (Art. V, Sec. 1)
• Strengthening of political parties:
– A positive measure countering dynasties
– Financial contributions to parties: tax rebate
– Democracy Fund: tax rebate

• Regulation of turn-coatism
– When elected: no turn-coatism allowed
– Two years after, and two years before elections: no change of
party
• “No persion related to an incumbent elective official within the second
civil degree of consanguinity or affinity as described abgove, can run
for the same position in the immediately following election.
• Persons related within the second civil degree of consanguinity or
affinity, as described above, are prohibited from running
simultaneously for more than one national and one regional or local
position. However, in the event that two or more members of the same
family are running, the memgber who shall be allowed to be a
candidate shall be determined by the drawing of lots.”
 Senate: two senators per federated region
 House of Representatives: proportional
representation
 Requirement of a college degree
 Chambers to comply with final and executory orders
of judicial or quasi-=judicial authorities
 Strengthened power of initiative
 Constitutionalizing the Bi-Cam Committee
• Lawless violence as additional ground for the
suspension of the privilege of the writ of
habeas corpus or the declaration of martial
law.
• President and Vice-President: elected as a
team
• May refer to the Constitutional Court any
enrolled bill for Advisory Opinion on
constitutionality
 High Courts:
 Supreme Court
 Constitutional Court
 Administrative Court
 Electoral Court

 No President can pack any court.

 Constitutional Court: constitutionality issues;
impeachment court; advisory jurisdiction
• 18 Federated Regions: asymmetrically
related
• Legislature: Regional Assembly
– A representative each from every province,
independent chartered city or highly urbanized
city within the region;
– The other half of the Regional Assembly:
Proportional Representation: four parties obtaining
the the highest number of votes
• Regional Budget: appropriations to be
proposed by the Regional Governor
• Regional Governor: elected by a majority of the
Regional Assembly
• Deputy Regional Governor: Presiding Officer of
the Regional Assembly;
– R.G. and D.R.G. elected as a team.

• Power of the Regional Governor to declare a

state of emergency
• Powers of clemency in respect to regional laws
• Exclusive federal powers:
– Defense
– Foreign affairs
– International trade
– Customs and tariffs
– Basic Education
– Promotion and Protection of human rights
– Civil and Commercial Relations
– Science and Technology
– Elections

• Doctrine of Residual Powers

• Socio-economic and development planning
• Creation of sources of revenue
• Financial administration and management
• Tourism, investment and trade development
• Infrastructure, public utilities and public works
• Land use and housing
• LGUs
• IPs
• Business permits and licenses
 Real property tax
 Estate tax, donor's tax, professional tax
 Transport franchise fees, road users tax,
environmental tax, games and amusement
 Federated Regions: entitled to 50% of all net
revenues derived from the exploration,
develoment and utilization of all natural
resources within their territory.
• Constituent provinces:
– Abra, Apayao, Benguet, Ifugao, Kalinga, Mountain Province,
City of Baguio, component City of Tabuk
• 75% of all net revenues in the EDU of natural
resources in the Cordilleras
• Regional Governor: universal suffrage
• Organic Act: to be drawn up by Regional Assembly
• To be appended as Ordinance to the Constitution:
therefore constitutional status.