FEDERALISM AND THE

CONSTITUTION

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
What is it to be “federal”?
• 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.
Unity in Diversity
• Michael Burgess: Federalism is
a constitutional arrangement
by which the principle of unity Federated
Region
in diversity is adopted as a
constitutional principle.
• You federalize: When you seek
to maintain unity while
preserving the diversity of Federated National
Asymmetrical
Autonomous
constituent sub-national Region Government
Region
entities.
• In a federal state, the Central
Government and the Sub-
national Entities are loci of Asymmetrical
Autonomous
PROPER (not merely Region
delegated) governmental
power.
W. Livingston, “A Note on the Nature
of Federalism”
• Embraces diversities that are
territorially grouped by
RECOGNIZING RIGHTS of the
territorial units to exist as
components of the federal
system. Religious
bonds
• Uniting into a single polity a Ethic bonds

number of diversified groups

or component polities so that
the personality and Geographical Historical
bonds bonds
individuality of the
component parts are largely
preserved while creating in
the new totality a separate
and distinct political unit.”
In the Philippines
• Federalism takes the form of DIVIDING the foci of
governmental power into
– The National Government (the Central Government)
– The Federated Regions (the Sub-National Entities)
• Each has proper and inherent powers
• The existence and the powers of the federated regions ARE
NOT AT THE SUFFERANCE of the national government.
• But the singularity of the Republic is maintained,
safeguarded even.
– In our case, the transfer of autonomy to the federated regions
offers a solution to the problem of the threat of secession.
Federalism is MORE than
decentralization:
Decentralization Federalism
NATIONAL
GOVERNMENT Federated
National
Region (Sub –
Government
National Entity)
Province
Local Governments
Symmetrical •Cities
Federated Regions •Municipalities
•Barangays

City Municipality

Asymmetrical
Federated Regions
Barangay
Why go federal?
• 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.
Who governs the citizen and his
community?

National
government

The
individual
and his
community
Federated
Region
How it then goes…

The
Constitution

The
The National
Federated
Government
Regions

The Offices of The Local

National Government
Government Unit
Constitutional marks of a federal
system:
• 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 and residual powers
• 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.
The powers of the Federal
Government
• Defense and security
• Foreign Affairs
• International Trade
• Customs and tariffs
• Citizenship, immigration and naturalization
• National socio-economic planning
• National infrastructure and public utilities
• Promotion and protection of human rights
• Education, science and technology
The powers of the Federated Regions
• Socio-economic development planning
• Creation of sources of revenue
• Financial administration and management
• Tourism, investment and trade development
• Infrastructure and public utilities
• Economic zones
• Land use and housing
• Local government units
• IP rights and welfare
How do you finance the federal
republic?
Federated Regions Federal Government
• Real property tax • All duties, fess, charges and
• Estate Tax other impositions NOT
• Donor’s Tax granted to the federated
regions.
• Franchise Tax
• Games and Amusement Tax
• Professional Tax
• Road Users Tax
• Environmental Tax,
Pollution Tax
The wherewithal…

Equalization Fund
= 3% of the GAA

50% of net
revenues derived
50% of collected,
from EDU of
specified taxes
natural resources
in the region

Federated
Regions
Making it all hang together:

Services
and
Operations

Federated
Region

Federal
Intergovernmental
Commission
Legislatures
Federal Congress
• Bi-cameral
– Senate
– House of Representatives
• Senate: composed of two
senators elected by Federated
Region
• House of Representatives: not
more than 400 members
– 60%: district representatives
– 40% Proportional
Representation
Regional Assemblies
• One half of the
membership:
– Province
– Highly Urbanized City
– Independent chartered city
• One half: Political parties
through Proportional
Representation
– The 4 parties with the highest
number of votes
Preliminary figures…it can work!
Dispelling the fears of a bloated
bureaucracy!
ConCom 2018 – PICC Heroes’ Hall
Our ConCom Draft
• 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
Principles and Policies

• 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
Expanding and Enhancing the Bill of Rights
• 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.
Caucuses
 PARTIES AND ELECTIONS
• “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
Dynasties:
• “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.”
The Executive
• 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
Judiciary
• High Courts:
– Supreme Court
– Constitutional Court
– Administrative Court
– Electoral Court
• No President can pack any court.
• Constitutional Court: constitutionality issues;
impeachment court; advisory jurisdiction
Federated Regions:
• 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
The Federated Regions
The future?
• New business for the new Congress
• Very likely:
– Constitutional Convention
– Convention of Appointed members?
• Possible
• No constitutional provision on the composition of a
Constitutional Convention
– No possibility under for People’s Initiative