Professional Documents
Culture Documents
TEN Fundamental
What’s inside?
Constitutional Reforms
By Atty. Michael Henry Ll. Yusingco, LL.M
Ten Fundamental Constitutional
Reforms:
a) Imperial Manila provisions A ccording to the scholar, Raphael N. Montes: “Designing a federal
system is not a very easy task. Besides its basic principles, federalism is
b) Exercise of Political Rights very customizable. The peculiarities of a country would define the different
features of its own brand of federalism. It would be useful to seek out
c) Senate as a federal upper relevant models but these models would only serve as guideposts since a
chamber country’s federal system should reflect the unique conditions of its society.”1
d) Subnational government
With this caveat in mind, hereunder are 10 constitutional reforms that are
framework
necessary to establish a viable federal system in the Philippines, to wit:
e) Defining the constituent units
I. Imperial Manila provisions
f) Term limits and the Power of II. Exercise of Political Rights
Recall III. Senate as a federal upper chamber
IV. Subnational government framework
g) Division of Competencies V. Defining the constituent units
VI. Term limits and the Power of Recall
h) Anti-Graft Mechanisms VII. Division of Competencies
VIII. Anti-Graft Mechanism
i) National Languange
IX. National Language
X. Transition Process
1
Raphael N. Montes, “Understanding Federalism”, Federalism and Multiculturalism, 2006, pp157-176 at http://localgov.up.edu.ph/
uploads/1/4/0/0/14001967/montes_understanding_federalism.pdf.
Editor: Benedicto R. Bacani Associate Editor: Ramie P. Toledo Lay-out Artist: Hazelyn A. Gaudiano
Apolinario Mabini believed that federalism, “besides being the most perfect among the republican forms, According to the dean of the Ateneo de Manila University’s School of Government, Dr. Ronald Mendoza:
is best suited to the topography of our country”. Clearly, this is an endorsement of federalization that must
be highlighted.
But the ultimate caveat that must not be ignored comes from noted federalism expert and constitutional “Why did Manila remain imperial? There are many factors, but one fundamental one is that the
scholar from the Melbourne Law School, Professor Cheryl Saunders. She warns that whatever the final Philippine Presidency remains a “winner-take-all” contest that hands over the country’s still
federal design is, there should be amongst the people both a shared understanding of what has been largely centralized public finances to Malacanañg’s occupant. Roughly 80% of tax revenues
created and a shared commitment to making the new system work.2 Otherwise, federalization may not are collected by central government agencies – and about the same share in terms of public
produce the outcomes many Filipinos are so excited about right now. spending is allocated through central government budget processes.”4
The goal of this paper is to ensure Professor Saunders’ warning is heeded and to help make sure the As the revision process moves along, Filipinos must remember that the federalism initiative is a means
federal set-up is a palpable improvement from the current system. to improve the current political system. It is worth highlighting therefore that if the goal of constitutional
reform is to decentralize governance over the country, then the articulation of executive authority must
be changed.
I. Imperial Manila provisions
For instance, executive authority should be expressed as follows─“The executive power shall be vested
Sections 1, 16 and 17 of Article VII of the 1987 Constitution in the Executive Branch headed by the President of the Philippines.” Here the power is vested in the
I
institution not to the person.
refer to these sections in Article VII as Imperial Manila provisions because they comprise the constitutional
foundation of our highly centralized government structure. Section 1 on the Executive Department which Moreover, the appointing power of the president ought to be specifically limited to upper level officials
states that, “The executive power shall be vested in the President of the Philippines.” Note that executive only. Doing this can potentially remove the politics in organization of the bureaucracy. And can thus give
power is vested not in the office but in the person occupying the office. meritocracy in the civil service, particularly at the Cabinet level, a chance to be firmly established.
Then read this provision in conjunction with this specific portion of Section 16, “He shall also appoint all With regards to the President’s control over the executive branch, it can be expressed this way─“The
other officers of the Government whose appointments are not otherwise provided for by law, and those President shall ensure that laws are faithfully executed by departments, bureaus, and offices in the
whom he may be authorized by law to appoint.” executive branch.”
The power to appointment officials in the executive branch is obviously part and parcel of executive This articulation does not remove the control power of the Chief Executive over the bureaucracy, but it
power. But pursuant to this constitutional provision, the President of the Philippines has complete and puts the focus on the same being a responsibility of the holder rather than a supreme privilege attendant
almost limitless authority to appoint officials within the executive branch. to the office.
Such far-reaching command takes on a more autocratic tenor when read together with this part of Section But while the particular reform suggested here is fundamental, more changes in the present political
17, “The President shall have control of all the executive departments, bureaus, and offices.” system still need to be done to establish a genuine and meaningful decentralized governance framework
in the Philippines.
The control power of the President means he can overturn the decisions of any officer within the executive
branch. He can substitute his own view about any issue over that of his subordinate.
Under the national charter, the President himself is the sole wielder of executive power. He appoints for
PDP-Laban’s Constitution of the HOR sub-committee on constitutional
practically all positions in the central bureaucracy including the armed forces and the police. He has sole
control over the entire executive branch from department secretaries down to the rank-and-file.3
Federal Republic of the Philippines amendments report dated Jan. 16, 2018
[Salient features]
Correspondingly, the President has a direct hand in all matters of government. From public housing
to agriculture to solid waste management to foreign investment to tax collection to sports to water Executive power is shared by a strong As head of state, the President has oversight
management to foreign trade and affairs, and so forth. In all of these public functions, the President plays President and an equally influential Prime powers over all branches, heads foreign
a very prominent role. Ostensibly, control over the dispersal of public funds is also heavily concentrated Minister. See Sections 14, 15, 22 and 25 of relations. He will be the commander-in-chief
in his office. Article VII. of the Armed Forces of the Philippines, and
will have appointing, pardoning, and residual
2
Cheryl Saunders, Melbourne Law School, “Options for Decentralizing Power: Federalism to Decentralization”, available at http://comparativeconstitutionsproject.org/files/
powers, among others.
federalism.pdf.
3
See Marcos vs. Manglapus [G.R. No. 88211 (October 27, 1989)]; Carpio vs. Executive Secretary [G.R. No. 96409, February 14, 1992]; and, Pimentel vs. Aquirre[G.R. No.
4
132988 (July 19, 2000)]. See https://www.rappler.com/thought-leaders/158130-federalism-silver-bullet.
Section 3. Filipinos shall have the right to form political parties, coalitions and other forms of organization
in a free and open party system. Political parties shall be democratic in their objectives, formation and III. Senate as a federal upper chamber
activities.
One solid truth about federalism is that it does not diminish the integrity of the nation-state. Indeed,
Political parties must facilitate the advancement of the people’s will. It shall be a pre-requisite for the federation is not just about the devolution of political and fiscal powers to the sub-national level, but it
political party’s formation and continued existence to maintain a public policy agenda and program of is also about institutionalizing coordinated efforts towards national development. Hence, for the federal
governance. system to work properly, mechanisms must be established to foster cooperation and collaboration
among the regional governments in addressing national concerns.
It shall also be mandatory for a political party, coalition or organization to maintain a website containing
their principles and platform and a principal office to conduct their advocacy. The Senate as a federal upper chamber can be this institution. In this scenario, senators shall be elected
per region. The new charter can set a minimum number of senators to be elected in each region. But
Any member of the political party or coalition occupying public office or is running for public office who there should be mechanism in place for the number to increase depending on the population growth
shall act contrary to the avowed principles, policies and programs of the party shall be held to account as of a given region.
provided by law.
The state may provide subsidies for political organizations and other regulatory measures as provided
by law.
PDP-Laban’s Constitution of the HOR sub-committee on constitutional
Section 4. No person shall be allowed to join a political party, coalition or organization within one year Federal Republic of the Philippines amendments report dated Jan. 16, 2018
from the termination, either by voluntary removal or by expulsion, of membership in another political party, [Salient features]
coalition or organization.
The Senate is the federal upper chamber. The Senate is the federal upper chamber.
Section 5. Political authority must never be concentrated, consolidated, or perpetuated by persons related See Sections 1 and 5 of Article VI.
to one another.
No spouse or persons related within the second civil degree of consanguinity or affinity shall be allowed
to run for any elective office within the same province, city, or municipality in the same election. The
A key feature of a federal system is the presence of different levels of government, usually a central/
power of supervision over local governments.
See Section 37.
national level and regional/subnational level with each responsible for their mandated duties and
functions.
For the federal system to work in the Philippines the regional government structure itself must be
V. Defining the constituent units
configured to facilitate a community-oriented governance mindset. Pertinently, a regional government
framework meeting this requirement is found in the proposed Bangsamoro Basic Law. T he shift to a federal system will be a huge challenge for all Filipinos. It stands to reason therefore
that the drawing of territorial boundaries must not result to drastic and immediate disruptions to the
Accordingly, the regional governance structure in the new federal constitution can be parliamentary with public. The people’s deep familiarity to the current geographical organization of the Philippines must
members elected through single-member legislative districts and though political party representation. be seriously considered in naming the constituent units of the federal state.
The chief executive of the regional government shall then be elected by the regional parliament from
its ranks. Ostensibly, the regional administrative infrastructure currently existing could be the basis for defining
the territorial boundaries of the constituent states of the new federal republic. This would also mean
Members of the regional executive cabinet shall also be members of the regional parliament. However, there are already working institutional offices ready to carry out any new mandates. Doing this will be
non-members may be designated to a cabinet post subject to confirmation by the regional parliament. relatively easier and perfunctory because these regional administrative bodies already enjoy familiarity
amongst communities within their respective territorial jurisdictions.
One necessary change that must be made here is to remove the supervisory power of the president
over the regional executive and over local government units. This institutional link undermines the But the federal charter must also have clear mechanisms for these sub-national units to re-organize
autonomy of the subnational level of government. Indeed, it is a peculiar facet of a presidential-unitary themselves if they see fit. In other words, let the regions themselves decide, when the conditions are
structure and has no place in a federal system. suitable, to amalgamate or to separate as well as initiate the process to do so. The power over this
course of action must not be vested on the central government (i.e. federal legislature) alone like in
Note however that the regional parliament shall function as the check and balance mechanism to the the 1987 Constitution concerning the Cordilleras and the Bangsamoro. This power must be vested in
regional executive. Moreover, it shall have oversight functions over local government units within the the regional parliaments concerned subject to concurrence of the federal parliament.
region.
The most important feature of this reform is that the autonomy of the regional government must be PDP-Laban’s Constitution of the HOR sub-committee on constitutional
self-evident in the new charter and self-executory. Meaning, there should be no need for an enabling Federal Republic of the Philippines amendments report dated Jan. 16, 2018
law to operationalize the autonomy of the regional level government. The new constitutional itself is [Salient features]
the source of its autonomy.
As per Sections 6 (2) and 9 of Article X: “THE Federal republic shall be composed of
TERRITORIES AND BOUNDARIES OF constituent units, namely the States of:
PDP-Laban’s Constitution of the HOR sub-committee on constitutional THE REGIONS SHALL BE AS LISTED AND Luzon, Visayas, Mindanao, the Bangsamoro
Federal Republic of the Philippines amendments report dated Jan. 16, 2018 DESCRIBED IN AN ORDINANCE WHICH and Metro Manila.
[Salient features] SHALL BE AN INTEGRAL PART OF THE
CONSTITUTION.”
It describes a parliamentary regional It describes a parliamentary regional
governance framework to be established governance framework to be established by Section 9. THE REGIONS AND REGIONAL
by a regional and local government code. a State and Local government code. AUTONOMY IN ACCORDANCE WITH THIS
The federal assembly tasked to enact ARTICLE SHALL BE DEEMED CREATED
this enabling law when they deem fit. See The Prime Minister exercises the power of AND EFFECTIVE WHEN APPROVED BY
Sections 6 (3) and 13 of Article X. supervision over the state governments. MAJORITY OF THE VOTES CAST BY
REGISTERED VOTERS IN A REGION IN A
The Federal government, through the PLEBISCITE CALLED FOR THE PURPOSE:
Prime Minister, shall exercise the power of
supervision over regional governments. See
Section 21.
The rationale for the imposition of a specific time frame for elected office was best expressed by one The terms of office of elective regional and No mention about term limits of subnational
of the members of the 1986 Constitutional Commission. Mr. Edmundo G. Garcia made the following local officials, except barangay officials, elected officials and the power of recall.
argument during the debates on this very particular issue: which shall be provided by law, shall be five
(5) years and no such official shall serve for
“I know that some of us here have been in politics for a long time and I do not wish to offend them.
more than two (2) consecutive terms. See
But I simply think that there should be no special caste of professional politicians. It should not be
a life-time profession or a career, but rather an opportunity for public service to be broadened to as Section 14 of Article X.
great number of people and there should be no effort to accumulate power. Accumulation of power, at
one time, really brings about the desire to accumulate more, and rather than providing a structure or No mention about the power of recall.
a setup which strengthens this trend, the alternative must be to provide structural safeguards for this
kind of practice. Therefore, I would not subscribe to more than one reelection for Senators and more
than two reelections for Representatives or local officials.”
Unfortunately, Mr. Garcia did not foresee that the imposition of term limits would actually push
VII. Division of Competencies
politicians to use members of their family to circumvent this rule.
A s mentioned earlier, one key feature of a federal set-up is the presence of two tiers of government
Indeed, by employing this revolving door scheme amongst family members, politicians have not only with each solely responsible for its assigned duties and functions. There are two vital requirements in
found a way to beat the three-term limit but have also expanded the reach of their political power allocating competencies to the different levels of government.
within government. By some ironic twist of fate, they have also arrived at a legal and democratic way
to firmly entrenched their families in local politics. First, the assignment of responsibilities between the central and regional governments must be clear
and coherent. The distribution scheme must be formulated in such a way that the designation of
The three-term limitation in the 1987 charter also means we have triennial local elections. Again, the accountability is unequivocal. We do not want the political culture of blame-shifting and credit-grabbing
original intent for this system of local elections is to allow voters to remove and replace leaders who to persist in the new federal regime.
have failed their expectations at the earliest chance possible. But this has never been the case.
Second, this division of duties and functions amongst the different tiers of government is very critical
The triennial local elections system has in fact bred local officials who only have a short-sighted because the correct allocation of tax powers and other revenue-raising measures depends on it.
development outlook and therefore can only be bothered by projects that have an immediate and
But should the regions still have a share in the national taxes or should they simply get block grants? Following the Singapore standard therefore, the most viable and sound approach to fight corruption in
Should regional governments be vested a high degree of taxing powers and at the same time be given a federal system is to explicitly express in the federal constitution that it is the Office of the Ombudsman
a huge share in the national revenue collection? which has the sole authority and responsibility to prosecute graft and corruption.
Whatever the fiscal arrangement may be, it must be self-evident in the new charter and self-executory Additionally, the new charter must also provide the proper resources to this office to ensure its
as well. The details be maybe left to the appropriate lawmaking body but the fundamental operating independence and insulate it from any political intervention. Indeed, to enable its officials to exercise
principles must be clear in the new federal constitution. “POLITICAL WILL” in fighting graft and corruption under a federal system.
Instituting a coherent and robust anti-corruption mechanism in the new federal constitution is integral
PDP-Laban’s Constitution of the HOR sub-committee on constitutional to the success of the federal system itself. Indeed, if the current way of fighting graft and corruption is
carried over to the federal set-up, then the socio-political ills we all want to eliminate can even multiply
Federal Republic of the Philippines amendments report dated Jan. 16, 2018
significantly.
[Salient features]
A federal system is often described as a system of government designed to institutionalize the idea of
unity in diversity. Naturally, one matter that needs to be addressed in the constitutional reform process
VIII. Anti-Graft and Corruption Mechanism is our national language. Article XIV of the 1987 Constitution lays out an interesting arrangement on
A multi-layer government structure will require a more sophisticated and streamlined anti-corruption
this subject that needs to be reconsidered in the drafting process.
institution. Note that every president elected since 1992 have each created their own anti-corruption We have one national language, which is Filipino (See Section 6). But we also have two official
office. So instead of just having one agency to tackle this problem, we have multiple agencies. And languages, which are Filipino and English (See Section 7). And no law has ever been passed to
many anti-corruption experts believe this is precisely the reason why the Philippines has failed in the remove the status of the latter as such. In fact, until now the language of government, of legislation,
battle against this heinous problem. and of the courts in the Philippines continues to be English.
For many years now Singapore has consistently been perceived as the least corrupt country in Then, we also have auxiliary languages or regional dialects such as Cebuano, Hiligaynon, Ilocano,
Southeast Asia. Thus, making its anti-corruption framework the most logical benchmark for the Waray, Tausug, so forth, which are all contemplated to function as a third level means of communication
Philippines to follow. I am citing two articles here to highlight vital lessons from Singapore’s experience within the regions where they are spoken.
in defeating corruption which the Philippines can adopt without any difficulty at all.
But realities on the ground dispute this neat grouping of Philippine languages. Most Filipinos commonly
PDP-Laban’s Constitution of the HOR sub-committee on constitutional PDP-Laban’s Constitution of the HOR sub-committee on constitutional
Federal Republic of the Philippines amendments report dated Jan. 16, 2018 Federal Republic of the Philippines amendments report dated Jan. 16, 2018
[Salient features] [Salient features]
The same arrangement established in the No mention. The same arrangement established in the No mention.
1987 Constitution. 1987 Constitution.
Michael Henry Ll. Yusingco, a practicing lawyer, is the author of the book “Rethinking the Bangsamoro
Perspective.” He conducts research on current issues in state-building, decentralization and constitutionalism.
Views and opinions expressed in IAG publications are those of the authors
and do not necessarily reflect the policy or position of the Institute for
Autonomy and Governance or the Konrad Adenauer Stiftung.
info@iag.org.ph
www. iag.org.ph