Palace: Duterte immune from suit

Malacañang insisted on Sunday that President Duterte cannot be hailed to court by the Office of the Ombudsman in connection with the plunder complaint filed against him by Sen. Antonio Trillanes IV.

“The President enjoys immunity (from suit) while in office,” Presidential Communications Secretary Martin Andanar said in a statement.

While Ombudsman Conchita Carpio Morales may place Mr. Duterte under investigation, Andanar said she “cannot discipline or remove a sitting President.”

Under existing jurisprudence, an incumbent President is exempted from facing any legal action. The privilege, however, is not explicitly contained in the 1987 Constitution.

Andanar said the Ombudsman’s decision to look into Trillanes’ allegations against the President was just “part of the constitutional mandate of the Ombudsman.”

“However, whether this will become a case against the President is an entirely different matter,” he said.

\In an interview with reporters last Friday, Morales said the Ombudsman had been conducting an investigation against Mr. Duterte based on Trillanes’ allegations that he had hired 11,000 “ghost” employees when he was the mayor of Davao City in 2014.

Trillanes said a report from the Commission on Audit showed that the city government spent P708 million for the salaries of contractual employees despite lack of documents showing they had actually rendered service.

“At the time the case was filed, he was not yet President. See, under the law, even if a person has immunity or even if he’s impeachable, you still continue the investigation for purposes of determining whether there is misconduct,” Morales said.

source:  Inquirer

House, Senate concur: Ethics rap, not arrest warrant, vs De Lima

Instead of issuing an arrest order against Senator Leila de Lima, the House of Representatives will just ask the Senate, through an ethics complaint, to discipline its own members, Senate Majority Leader Vicente “Tito” Sotto III said on Tuesday.

Sotto said the consensus was reached when leaders of the Senate and the House met Monday night.

“The meeting went well. We discussed possible Ledac (Legislative-Executive Development Advisory Council) issues to take up with the President, then, we agreed to avoid a possible confrontation between the two houses,” he said in a text message.

“We will respect any moves of their committees for show-cause order as long as it is not directed towards the Senate itself. It will be up to Senator De Lima if she will answer or not. Then we will take action on any complaints they will file in the Senate ethics committee,” the senator added.

Sotto is also chair of the Senate ethics committee, which has already received at least two complaints against De Lima.

The House earlier issued a show-cause order against De Lima for allegedly advising her former aide, Ronnie Dayan, not to attend its hearings on the alleged proliferation of illegal drugs at the New Bilibid Prison when she was still Justice Secretary.

Speaker Pantaleon Alvarez even threatened to issue an arrest order against De Lima if she refuses to respond to the show-cause order.

But De Lima, who had repeatedly denied involvement in illegal drugs, stood pat against participating in the House probe, which she described as a “kangaroo court,” saying she would not honor the show-cause order.

Asked if the House would still pursue the arrest order against the lady senator, Sotto said, “They will avoid issuing an arrest order although they think they can (do) that, they will take a different process, and that is to ask us to discipline our own.” CDG

source:  Inquirer

Overdue process?

By: Artemio V. Panganiban / @inquirerdotnet

Philippine Daily Inquirer

No person shall be deprived of life, liberty or property without due process of law…” is the most basic right enshrined in the first section of our Constitution’s Bill of Rights. Deprivation is not necessarily unconstitutional. What is prohibited is deprivation without due process.

Illegal arrests and searches. Moreover, the second section of the Bill of Rights guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose.”

To deprive a person of this right—that is, to be able to arrest him/her, or to search his/her “body, houses, papers, and effects”—the arresting officer must first secure an arrest or search warrant from a judge.

In turn, to issue either or both warrants, the judge is required to personally determine “probable cause” by examining under oath the complainants (or the police officers) and the witnesses they may produce. The warrant must specify the place to be searched and the persons or things to be seized. It cannot be used to search any place or to seize any person or thing other than those specified therein.

My Oct. 6 column (“Dismal record in prosecuting drug cases”) explained the exceptions to the need for warrants, like those made in flagrante delicto and in “hot pursuit.”

Note that courts strictly construe these exceptions. Defects in the warrants, like where the judge did not personally examine the witnesses, or where the arresting officer did not have personal knowledge of the facts and depended merely on “surveillance operations,” make the arrest and/or search illegal.

Similarly, our Constitution grants suspects the so-called “Miranda rights” requiring the arresting officer to inform suspects of their rights to remain silent and to have competent and independent counsel; otherwise, the arrest and search would likewise be illegal.

Moreover, confessions extracted with “torture, force, violence, threat, intimidation, or any other means which vitiate the free will” would also be illegal.

In all these instances, the illegally obtained evidence, even if tending to prove guilt, would be inadmissible in evidence, and would thus result in the acquittal of the accused.

Libertarian pendulum. Why is the Constitution so protective of suspects and so strict on police officers? Because when it was crafted in 1987, the horrifying abuses during the martial law regime were still fresh. Our constitution drafters wanted iron-clad protection for the innocent, especially the poor and the marginalized.

However, the libertarian pendulum swung too much to the opposite direction, resulting in the timidity of the police, lest they be held liable administratively and criminally. The net result is the rise in criminality. Grafters, killers, rapists and drug lords misuse the liberality of the Constitution to evade liability for their crimes and misdeeds.

And even when police officers strictly observe constitutional rights, some prosecutors and judges, out of sheer ignorance, apathy, laziness, or corruption, fail the justice system. So, too, witnesses are bribed, lose their memory, or otherwise disappear. Many lawyers thrive in technicalities and delays, rather than in their sworn duty to do justice to everyone.

Extralegal solutions. The consequence is a general revulsion against democratic methods, overlooking that means are as important as ends. Due process is equated with costly suits, tiring delays, inexplicable technicalities, long-winded trials, interminable appeals, unwelcome acquittals and plain injustice.

In frustration, people tend to take matters into their own hands and turn to extralegal and extrajudicial shortcuts.

To solve this revulsion to “overdue process,” the police, the prosecutors, the lawyers and the judges will have to cooperate, think outside the box, moderate the pendulum swing and craft innovative ways to provide quality and speedy justice for all. There must be a way to safeguard our precious constitutional rights without the “over” in due process.

Comments to chiefjusticepanganiban@hotmail.com

The politicization of human rights

By: Neil B. Nucup / @inquirerdotnet

Never was my interest drawn to the US presidential election until September, when it became clear that Rodrigo Duterte’s own election as president was proving to be greatly divisive. Seeking enlightenment on how Western democracies choose their leaders, I closely followed the campaign trail of Republican nominee Donald Trump and Democratic candidate Hillary Clinton. To be sure, the two presidential aspirants are poles apart. Yet, despite their fundamental differences, Trump and Clinton flaunt themselves as though they share the same advocacy—human rights.

This would have been a welcome circumstance had their supposed human rights crusade been ideological. But it was not, and quite far from it. Rather, it was purely political and intended to propel one’s candidacy while pulling down the other. Not surprisingly, Clinton joined the bandwagon in vilifying Trump for his derogatory remarks on undocumented immigrants, Muslims, and women. With the recent release of a 2005 recording of his crass remarks on power and women, the business mogul’s candidacy went on a downward spiral. Undaunted, Trump said his “words” were not comparable to the “deeds” of Bill Clinton, his rival’s husband. Trump also hit his rival for supporting the US war on Iraq, which, despite the absence of weapons of mass destruction, was “preemptively” attacked nonetheless for its purported gross violations of human rights.

In other words, Trump argues that Clinton does not have the moral ascendancy to castigate him on human rights issues because she herself does not have a good track record on human rights to speak of.

The argument sounds familiar, doesn’t it? When the Senate committee on justice started to look into the spate of extrajudicial killings, President Duterte took offense. His political allies immediately came to his aid, leading to Sen. Leila de Lima’s immediate ouster as committee chair and her replacement by Sen. Richard Gordon. Then the House of Representatives and the Department of Justice launched an all-out inquiry into De Lima’s alleged involvement in the illegal drug trade. Gordon has terminated the Senate inquiry but the matter remains unsettled; in Sen. Antonio Trillanes’ view, the closure of the proceedings amounted to a cover-up.

This is the danger of wielding human rights as a political weapon, whether to overthrow a regime or silence the opposition. Their enjoyment becomes arbitrary and lines are drawn between the administration and anyone not supportive of it. As a result, where the majority sees a fraction of the population as a menace to society, the latter can easily be made to relinquish the right to live by state authority. This is the tyranny of the majority at its worst.

Speaking to soldiers of the 10th Infantry Division in a military camp in Mawab, Compostela Valley, on Sept. 20, Mr. Duterte assured them of full protection from liability: “For as long as there is the power to pardon sa Constitution, yan ang weapon ko against crime. Mag-massacre kayo ng isang daan, isang daan din kayo, eh di pardoned lahat kayo—restored to full political and civil rights plus a promotion to boot.”

I remember a friend once telling me, “Since when did life become so cheap?” Her question got stuck in my head, which is why every time I read and hear news about drug-related deaths, I ask myself the same thing. Since when did criminals forfeit the right to live? Since when did we have the moral ascendancy to judge who deserves to die? Since when did we ever become self-absorbed and self-righteous?

On Nov. 8, America’s fate will be decided as to who between a proud racist-misogynist and an impulsive warmonger will emerge victor in the presidential polls. Meanwhile, for the next five years and nine months, the Philippines will remain under the leadership of a man who has brazenly compared his relentless war on drugs to Hitler’s extermination of the Jews.

God bless America. And God bless the Philippines.

Neil B. Nucup is a private lawyer-turned-civil servant.

His usual hype or (shudder) not?

By: Solita Collas-Monsod / @inquirerdotnet

Philippine Daily Inquirer

Now I know how the Cubans must have felt when Fidel Castro, who overthrew the military dictatorship of Fulgencio Batista in 1959 and gained their adulation for it, declared himself a Marxist-Leninist two years later. Of course, they must have seen it coming, since he nationalized US-owned enterprises a year earlier, but still it must have come as a shock and a betrayal. It was like jumping from the frying pan of Batista’s excesses into the fire of Castro’s. By the way, Castro didn’t give up his leadership of Cuba until almost 50 years later, when he transferred the reins to his brother.

But at least Castro gave the Cubans two years before he showed his true colors.

Rodrigo Duterte has done that after less than four months in office as president. Shifting to his planned triumvirate with China and Russia (“the three of [them] against the world”) was never part of his campaign platform, however hazy that was. In fact, during one of the presidential debates held before the election, he said he would take a jet ski to China’s newly constructed air base in the West Philippine Sea and plant the Philippine flag there (to much laughter and applause).

What President Duterte said in Beijing on Thursday doesn’t jibe with his campaign speeches, and it doesn’t jibe with what he told us just before he left for abroad. But coming as it does just as the Social Weather Stations released the results of a survey taken last month, showing that Filipinos much preferred/trusted the United States over China, this Filipino cannot help but feel disoriented, in addition to feeling betrayed. And I think a lot of Filipinos will end up feeling the same way.

Probably he missed the survey, and maybe, just maybe, he could use the information from the survey as enough justification for undoing what he did in Beijing—announcing his “separation” from the United States and, I suppose, following this line of speech, his “marriage” to China, and possibly Russia.

Because the result of that survey, and others taken before it (the surveys started in 1994, and 40 have been taken) apparently show that this trust/distrust toward the United States/China is not a one-time feeling. They also show the magnitude of the trust/distrust, to wit:

Since the surveys started, the net trust (the percentage of people who had “much trust” minus the percentage who had “little trust”) in the United States has always been positive, ranging from a moderate +18 to an excellent +82.  The latest was a very good +66 (76 percent much trust, 11 percent little trust).

In contrast, the net trust in China has been mostly negative; it was positive in only 7 of the 40 surveys.  The highest positive net rating China got was a +17, and the lowest it received was a -46 (September 2015). The latest was a net trust rating of -33 (22 percent of Filipinos have much trust, versus 55 percent with little trust)—characterized as bad.

In summary, last month’s survey showed a positive net trust rating of +66 for the United States, and a negative trust rating of -33 for China. As many as 76 percent of Filipinos have much trust in the United States, and 22 have much trust in China. Or, 11 percent have little trust in the United States, while 55 percent have little trust in China.

Given that general attitude by the large majority of Filipinos, how can the President announce a “separation” from the United States, and a marriage with China, or a possible ménage à trois with China and Russia?  Ridiculous. Whatever slights Mr. Duterte and the Philippines have suffered at the hands of the United States (and there are many) must be compared with the indignities heaped upon us by China, including the latest one which forced us to go to arbitration. And how can that major victory we won against China be so cavalierly given up?

And that is what his close economic advisers must think, too, because they have already made statements to the effect that President Duterte really didn’t mean what he said. The military advisers have yet to chime in, but as soon as they conquer their fear, I’m sure they will do so.

So, was this his usual hype, or (shudder) is Mr. Duterte following Fidel Castro’s footsteps?

Delicate balance

The House committee on constitutional amendments approved last Wednesday the concurrent resolution for Congress to convene in a Constituent Assembly (Con-Ass) to amend the Constitution.With this, the Con-Ass express has officially left the station.

The entire House is expected to uphold the Committee report. When the vote is called, majority will invoke the bargain price of a Con-Ass compared to the Constitutional Convention (Con-Con) mode. Reports place the spread at P2 billion for Con-Ass compared to P6-7 billion for Con-Con.

If cost should factor in the choice of mode, it is imperative that we have data to confirm the premises of the differential. I say this because there are suggestions that the expense of a Con-Con drops dramatically if the election for delegates were to be synchronized with the Barangay elections next year or the local elections in 2019. This adjusted figure is actually closer to the Con-Ass P2 billion price tag.

Of course, the concurrent resolution would have no effect if the Senate withholds its concurrence. As of today, it appears from reports that the Senate may be persuaded to agree to the Con-Ass mode for as long as the three-fourths supermajority required in the Constitution is understood to mean three-fourths of each chamber, voting separately.

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Reform areas. In previous administrations (notably, those of President Joseph E. Estrada and Benigno C. Aquino III), the focus of movements to amend or revise the Constitution was on economic provisions which limited foreign ownership in: exploration, development, and utilization of natural resources; real property; reserved investments; franchises, schools; mass media; the advertising industry.

Under the Duterte administration’s Constitutional Reform package, economic liberalization is likewise on the table. The intent is to increase the ownership ratio up to 70-30 in favor of foreign investments.

Economic reform also inexorably draws us into the realm of political reform. Federalism and its attendant massive overhaul of the existing centralized structure will be the centerpiece issue. The debate will focus on the decentralization of power in a federal system. But more important than the division of governmental power vertically – creating two sovereigns, national and regional – is the potential for change in the division of power horizontally, i.e. the area of separation of powers.

Cory innovation. One of the innovations of the 1987 Constitution that impacts on the delicate equilibrium among the branches was the creation of the Judicial and Bar Council (JBC) and the confiscation of the confirmation power over the Judiciary from the Commission on Appointments (CA).

The raison d’etre of this move was the insulation of the Judicial branch from patronage and partisanship, one of the bulwarks of the Rule of law being an independent and impartial Judiciary. Pre-martial law horror stories of kowtowing to CA members permeated the atmosphere of the 1986 Constitutional Commission (ConCom) deliberations. This, and the gravitas of ConCom President Cecilia Munoz-Palma and member, former Chief Justice Roberto Concepcion carried the day for the supposedly less political JBC creation.

To not a few, however, the diminution of this legislative check over the Judiciary was a black day for checks and balances. The debate in the ConCom itself was heated and the vote extremely close. Accordingly, constitution observers have always cast a critical eye toward this new creature. 

Thus far, the performance of the JBC has received mixed reviews. Typical commentary is this statement from Transparency and Accountability Network: “If you look at the record of both the JBC and the CA, neither of them has a very good track record. The JBC has a terrible track record. …. if we go with the suggestion to take [the vetting] out of the CA, well, we haven’t done well with a non-CA process either.” Apparently, the Congressional Old Boys club of the CA is seen as having simply turned into a Presidential Old Boys club.

Duterte Court. We are presently on the eve of the first Supreme Court appointments of President Rodrigo Roa Duterte. He will have 12. (President Ferdinand Marcos had 31; Gloria M. Arroyo had 21; Corazon Aquino, 18). Two iconic Associate Justices are due for retirement this December: Justice Jose Portugal Perez, the Court’s first homegrown member having spent his entire career in the Supreme Court, and Justice Arturo D. Brion, one of the greatest intellects in the history of the Court. The retirement age, by the way, is still another topic for discussion as, arguably, 70 is the new 60. Quality of life has made the senior set more productive. Seventy-five should be the new retirement age.

During ordinary times, Presidential appointments to the Supreme Court are ranked among the most sensitive considering the awesome power possessed by each one of the 15 Justices. In extra-ordinary times, the importance is magnified. Inevitably, these men and women would have to make decisions on matters such as the death penalty, respect for human rights, and a host of constitutional questions on subjects ranging from international relations to land reform.

Now, more than ever, it becomes imperative that the choice of individuals to sit on the Court meet the highest standards of the four-fold litmus test in the Constitution: competence, integrity, probity and independence. A 24-man panel of nationally elected officials beholden to no one would arguably carry out this function more critically than would a seven-man body, six of whom are Presidential appointees.

JBC vulnerable. But these arguments are moot. The JBC is vulnerable. In contrast to the composition of the ConCom, this Con-Ass is composed entirely of Legislators. The Congressional check over the Judicial department used to be: the confirmation power, the budget power and the impeachment power. The JBC broke up this triumvirate. With Con-Ass, the safest bet is that these three checking mechanisms will be reunited.

Justices cannot escape being vetted. It is simply a question of who should do it. A CA confirmation is better as it is more transparent. Whatever diminution is felt by the Executive who appoints and the Justice who is appointed should be compensated by the benefit we all derive from a strengthened system of checks and balances.

source:  Philippine Star

Duterte announces ‘separation from the US’

PRESIDENT Rodrigo Duterte on Wednesday announced his “separation” from the United States in terms of military and economic cooperation, saying he would turn to China instead.

“I announce my separation from the United States, both in military and economics,” the President said in his speech during the Philippines-China Trade and Investment Forum in Beijing, China.

With this separation, the President told Chinese officials and businessmen that he would now be relying on China.

“So please, you have another problem of economics in my country. I have separated from them (US) so I will be dependent on you for a long time, but don’t worry, we will also help,” he said.

His comments came after he met his Chinese counterpart Xi Jinping at the Great Hall of the People on Tiananmen Square, with the two men pledging to enhance trust and friendship, while playing down a maritime dispute.

Duterte’s visit to Beijing capped a series of recent declarations blasting the US and President Barack Obama.

Addressing the Filipino community in Beijing Wednesday, the firebrand leader said the Philippines had gained little from its long alliance with the US, its former colonial ruler.

“Your stay in my country was for your own benefit. So time to say goodbye, my friend,” he said, as if addressing the US.

source:  Manila Times

WITH DUE RESPECT: Nature of SCS arbitral tribunal

China repeatedly refused to participate in the arbitration case initiated by the Philippines to resolve the maritime dispute in the South China Sea (SCS). It vehemently argued that the arbitral tribunal had no jurisdiction and that arbitration was counterproductive to peaceful negotiations.

Distinct from ICJ. After the arbitral tribunal issued its “award,” dated July 12, 2016, upholding most of the Philippine “submissions” and trashing China’s “nine-dash line,” China became even more hostile, periodically flexing its naval muscle in the SCS. It upped its rhetoric, condemning not only the “ill-grounded” arbitral award but also the “puppet” tribunal itself.

Citing the website of the International Court of Justice (ICJ), China explained that the ICJ is a “totally different institution from the Permanent Court of Arbitration (PCA) under whose secretariat assistance, an arbitral tribunal has issued an award on the South China Sea dispute.”

It further said that the arbitral tribunal is neither related to the ICJ nor “backed up by the United Nations.” Though both the ICJ and the arbitral tribunal are based in The Hague, “the ICJ, which is a totally distinct institution, has had no involvement in the abovementioned case.”

China posited that PCA “arbitration is not part of the international judicial system. Its arbitration may have some judicial validity but it is far from the adjudication of the ICJ in terms of sanctity and solemnity. Therefore, the PCA is not the best mechanism to settle disputes between states.”

I think China is correct in saying that the arbitral tribunal is totally different from the ICJ, which is the principal judicial organ of the United Nations. Moreover, if I may add, the PCA itself did not render the decision; it merely acted as the “Registry.”

Ad hoc tribunal. The very text of the award or decision identified the deciding body as “AN ARBITRAL TRIBUNAL CONSTITUTED UNDER ANNEX VII TO THE 1982 UNITED NATIONS CONVENTION ON THE LAW OF THE SEA” (capitalized fonts in original). It did not claim to be the “International Court of Justice.” Neither did it identify itself as the “Permanent Court of Arbitration,” even if many legal experts and media personalities inaccurately alluded to it as such.

To be crystal-clear, the 1982 United Nations Convention is referred to as UNCLOS, but spelled in the Inquirer as “Unclos” because under the Inquirer Stylebook, an abbreviation that can be pronounced as a word is written in caps and small case; hence, the Commission on Elections is abbreviated as “Comelec,” not “COMELEC.” On the other hand, when the abbreviation cannot be pronounced as one word, then the abbreviation is spelled in all caps; hence, we abbreviate the Department of Justice as “DOJ,” not “Doj.”

Under Art. 287(1) of the Unclos, a signatory state may choose any one or more of the following tribunals to settle the disputes it brings: 1) the International Tribunal for the Law of the Sea, or Itlos, based in Hamburg, Germany, (2) the International Court of Justice, or ICJ, based in The Hague, The Netherlands, 3) ad hoc arbitration (in accordance with Annex VII of Unclos); or, 4) a special tribunal constituted for certain categories of disputes (under Annex VIII of Unclos).

If an Unclos member-state, like the Philippines, has not expressed any preference for any of these four tribunals, the default means of settling disputes is Item 3 (ad hoc arbitration). More accurately, therefore, the adjudicating body of this dispute is “An Ad Hoc Arbitral Tribunal Constituted Under Annex VII of the 1982 Convention on the Law of the Sea.”

It is called “ad hoc” or temporary, because it was constituted only for this particular dispute. Despite its temporary nature, the tribunal’s proceedings and “awards” or decisions, when issued according to the provisions of Unclos, are nonetheless binding on Unclos signatories like the Philippines and China.

Tribunal composition. The ad hoc tribunal, constituted on June 21, 2013, is composed of five members. Judge Rudiger Wolfrum, a German, was chosen by the Philippines. A second member was to be named by China. Since China opted not to participate, the president of Itlos—pursuant to the provisions of Unclos—appointed Judge Stanislaw Pawlak, a Pole.

Thereafter, the president of Itlos named three more—Judge Jean-Pierre Cot, a Frenchman, Prof. Alfred H. A. Soons, a Dutch, and Judge Thomas A. Mensah of Ghana, as the presiding arbitrator.

After it was constituted, the ad hoc tribunal issued Administrative Directive No. 1 appointing the PCA as its “Registry,” the rough equivalent of the Office of the Clerk of Court. On July 15, 2013, the secretary general of the PCA advised the tribunal and the parties that Ms Judith Levine, PCA senior legal counsel, would serve as “registrar,” the rough equivalent of the clerk of court. The PCA has acted as “Registry” in 11 out of 12 arbitration cases filed under Annex VII of Unclos.

The PCA is not a “court.” As “Registry,” it provides administrative services to the parties and the arbitrators. Specifically, it transmits oral and written communications from the parties to the arbitral tribunal and vice versa, and among the parties; maintains an archive of official documents; arranges the arbitrators’ fees; holds the arbitration funds and pays expenses; makes available the hearing rooms in the Peace Palace or elsewhere; and carries out any task entrusted to it by the parties or by the arbitral tribunal.

* * *

Comments to chiefjusticepanganiban@hotmail.com

source:

By: Artemio V. Panganiban

Philippine Daily Inquirer

Promises and perils of federalism

By: Maria Ela L. Atienza / @inquirerdotnet

IN PREVIOUS attempts to change the 1987 Constitution, the public debates were focused on shifting to a parliamentary system though federalism was also proposed.

Now, federalism has become the primary focus because of the priority given to it by the present administration, especially President Duterte who campaigned with this constitutional change agenda.

However, it appears that many Filipinos are not aware of the proposed constitutional change and a large number are not even knowledgeable about the 1987 Constitution.

Pulse Asia’s national survey conducted in July before the State of the Nation Address of the President found that less than half of respondents (41 percent) were aware of the proposal to amend the Constitution. Awareness was more pronounced in Class ABC (57 percent).

Another alarming aspect of the survey results was that most respondents (73 percent) said they had little or no knowledge at all about the Constitution. Higher levels of “sufficient/great knowledge” were registered in Metro Manila (34 percent) as well as in Class ABC (43 percent).

Sharing of sovereignty
Federalism refers to a government system in which there is constitutionally established sharing of sovereignty between central and state governments.

A third of the world’s population is under certain forms of federalism based on its particular historical, geographic, sociocultural and political contexts. However, federalism, like any other institutional arrangement, has its own set of advantages and disadvantages.

Below are some points to ponder when discussing federalism for the Philippines.

Diversity, peace, unity
Former Sen. Aquilino “Nene” Pimentel Jr. argues that federalism could address the problems of ethnic- or minority-based armed rebellion in Mindanao and the lack of development in local areas due to the concentration of resources at the center.

Some countries like Canada, India and Switzerland have indeed opted for a federal structure to bridge ethnic, linguistic and cultural diversity within a society. Even in Western European countries, the textbook distinction between federal and unitary states has become more blurred as some formal unitary states respond to pressures from minority nationalisms and local democracy to grant autonomy to ethnic groups occupying particular areas.

Belgium has shifted to a full federal system while Italy, Spain and the United Kingdom have resorted to quasi-federal forms or regionalization.

No assurance
However, there is no assurance that armed conflicts and secessionist aspirations will stop due to a shift to a federal system. Federalism cannot simply create unity in diversity or a sense of nationalism that transcends people’s primary identities.

In the Basque region in Spain, the Euzkadi ta Askatasuna retains its armed capability and struggle for independence despite the granting of powers to the area through Spain’s “asymmetrical” federal mechanism. Catalunya in Spain and Scotland in the United Kingdom still retain independence aspirations.

In terms of fostering a national identity, Canada’s federalism has largely failed to construct a political union within which both French-speaking and English-speaking populations can live harmoniously.

The same can be argued for Belgium, which has failed to create a “Belgian” national identity amid the Dutch-speaking and French-speaking populations despite a shift to a federal setup.

Devolution, federalism
The Philippines’ current unitary system allows for devolution. While sovereignty is constitutionally reserved for the national government, some powers and responsibilities are decentralized to local government units (LGUs). This is made possible through the 1991 Local Government Code (LGC). Have all the provisions been exhausted and the supposed benefits of the full implementation of the LGC been maximized so that the next stage is to move to a full federal setup?

Twenty-five years after, did the LGC lead to greater local development, grassroots democratization and more efficient delivery of public services? Have local governments, politicians and citizens adjusted to their responsibilities and are now ready for a federal system?

Indeed, there are a number of trailblazing and innovative local governments in the area of service delivery, people’s participation, economic development and disaster management, etc.

There are also cases of successful local and grassroots partnerships in areas where there are active civil society groups, progressive local officials, and supportive academic, civil society and private institutions.

However, the situation is not the same across all LGUs. There are localities that remain poor. Others have no active civil society groups and power remains in the hands of a few elites. Local corruption, violence and patron-client relations continue.

LGC not maximized
Many of the provisions of the LGC have not yet been maximized. The recall and initiative mechanisms have not been used regularly and properly. There are no sectoral representatives in the local councils as mandated by the LGC. Local development councils and special bodies are not working as envisioned.

Can these provisions still be properly implemented and the LGC amended to make it work better before shifting to or together with the shift to a federal setup?

Asymmetrical federalism
Is asymmetrical federalism already out of the question now that the administration plans to put the entire country under a federal setup? Is it still possible to address the autonomy issues in Muslim Mindanao without federalizing the entire Philippines?

Temario Rivera, Ph.D., a professional lecturer at the Department of Political Science, University of the Philippines Diliman, argued for asymmetrical federalism instead of a wholesale shift to federalism in the context of Muslim Mindanao and building on the lessons gained from the Autonomous Region in Muslim Mindanao (ARMM) experience and the proposed Bangsamoro Basic Law (BBL).

There are examples of this setup. Spain is an example of a “differentiated” or asymmetrical federalism in which most parts of the country still seem to operate as a unitary state with some devolution but there are areas that operate as if they are part of a federal state.

Under Spain’s 1978 Constitution, the autonomous communities can enter into negotiations with the central government to produce a law defining the powers to be enjoyed provided that they do not conflict with the Constitution.

Not all communities have chosen or been able to assert their autonomy compared with the historical regions of the Basque region and Catalunya. Some constitutionalists are labeling the United Kingdom as an example of a “quasi-federal” system due to varying levels of autonomy given to Scotland, Wales and Northern Ireland.

Resources, dependence
Autonomy and greater responsibilities at the local level will not work without fiscal decentralization in the form of greater fiscal grants and/or shares of federal states and LGUs. Supporters of federalism argue that greater resources and increased revenue shares will go to federal states and LGUs.

Pimentel proposed allocating 80 percent of resources to the federal states and increasing LGUs’ revenue share from what is currently provided for by the LGC (40 percent) so that vital needs of all sectors of society are provided for. Pimentel is also realistic in acknowledging that not all of the proposed federal states are equal in terms of resources and opportunities.

Equalization fund
Thus, he is proposing an Equalization Fund to be administered by the federal government to assist states badly needing development funds. This is currently the practice in some federations like Canada and Germany.

But what mechanisms can be put in place to avoid possible cases of continued dependence of poorer states on development funds from the central government? What performance-based incentives can be offered so that states and LGUs will focus on increasing local incomes and equitable development?

How can the situation in other countries where wealthier or more developed states or regions resent subsidizing states and regions that continue to remain poor despite development support from the central government be avoided?

After reunification, people from states (Lander) in the former West Germany resented subsidizing through their taxes the Lander in the less economically developed former East Germany. In Italy where powers are devolved to regional governments, the more developed regions in the north resent the development assistance given to the poorer southern regions.

There is even a political party, Lega Nord (Northern League), that is calling for increased autonomy for some of the richest Italian regions, even envisioning a nation called Padania.

Delivery of basic services
One supposed advantage of decentralization and federalism is greater efficiency in the delivery of basic services. However, according to the International Institute for Democracy and Electoral Assistance, federalism might actually lead to widening disparity of outcomes in terms of the provision and quality of public services.

Citizens in some states may be efficiently receiving services that are of high quality but citizens in other states have to deal with poor services. What mechanisms can be put in place to achieve national and state targets regarding delivery of services?

Health workers
One concrete case is the current situation of public health services. Health services were the biggest and most controversial set of services devolved under the LGC. There were efforts to recentralize health services because health workers feared that health services would not be prioritized by local officials due to low appreciation and lack of knowledge of and resources for health services.

Health workers also feared that with devolution, they would be at the mercy of local politicians who would threaten their tenure and benefits. President Fidel Ramos vetoed the bill recentralizing health services in 1995. But until today, health professionals and academics complain about the poor state of health services in various localities, despite some outstanding LGUs with good health programs.

What will happen with health and other public services that will be the responsibility of federal states in a federal setup? What will happen to health and other government workers who will now be assigned at the state level? How can the civil service and bureaucracies at different levels be strengthened to fulfill their mandates without political interference from local or state elites?

Avoiding gridlock
One documented advantage of federalism is that it creates a system of checks and balances. However, it can also result in frustration and paralysis as implementation of bold reforms from the central authority or emergency intervention of the central authority to deal with an urgent situation like disasters or failure of governance in one or several of the states can be very difficult due to noncooperation of the federal states.

In this current situation in which many key government services are becoming more and more interconnected, governments at all levels have to be more interdependent. There is a need for mechanisms under federalism in which there is coordination and sharing instead of just competition.

In terms of emergency intervention of the federal government, the Philippines can look at India and Brazil wherein federal interventions are possible when issues like human rights, good governance and democracy are threatened in some constituent states.

In disasters, the Philippines’ experience with Supertyphoon “Yolanda” and other disasters, as well as the experiences of federal systems like the United States and Mexico in their successes and failures dealing with disasters, can be looked into.

Double-edged sword
In summary, federalism, like devolution, is a double-edged sword. Federalism alone will not be able to solve problems related to armed conflicts, ethnic and cultural diversity, equitable development, efficient delivery of services and local democracy.

If done haphazardly, it can lead to further problems. The process of changing the Constitution and creating a new layer of government will entail huge costs. Thus, deliberations must be thorough and participatory.

Framers will have to look at various models of federalism and what other institutional arrangements can be combined (presidential, semipresidential, parliamentary, etc.) before deciding which federalism model and institutional combination would be more appropriate for the Philippines given its own history, political culture and socioeconomic conditions.

Public discussions
The public should also be involved in information dissemination and public discussions. A well-informed public, after all, will approve the proposed Charter change.

At the same time, it would be good to focus on a number of other actions that could complement a federal setup or may even be prioritized before the decision to move to a federal system can be made.

These can include electoral and party-system reforms to make elections more competitive and political parties stronger, a freedom of information act, amendments to the LGC such as reformulating the revenue-sharing scheme, a progressive tax system, legislation strengthening participatory democracy, more inclusive antipoverty programs, political dynasty laws, strengthening of institutions and the rule of law, etc.

(Maria Ela L. Atienza, Ph.D., is a professor at the Department of Political Science, College of Social Sciences and Philosophy, University of the Philippines Diliman.)

Federalism project puts the cart before the horse

August 3, 2016 11

Second of two parts

First read
By pressing for a system switch to federalism before Congress can choose between a constituent assembly and a constitutional convention as the vehicle for charter change, President Duterte and Speaker Pantaleon Alvarez have put the cart before the horse.

A cart is a vehicle which is ordinarily pulled by a horse, so to put the cart before the horse is an analogy for doing things in the wrong order. The idiom is about confusing cause and effect.

In the case of the federalism project of the administration, the President and the Speaker are using federalism as the horse to drag Congress into amending the Constitution.

By failing to sequence their actions correctly and logically, they have tied themselves up in knots. Especially Speaker Alvarez.

The speaker vaulted over the cart and the horse, when he spoke before a business forum about a grand timetable: – A Constitution draft in one year, a plebiscite by 2019, and an election under a new Constitution by 2022.

This sounds as though we are being rushed or hustled into something.

Speaker Alvarez should explain why The Moro National Liberation Front (MNLF) in its website reports that the Speaker is determined to destroy “imperial Manila” and bring full independence to Mindanao.

Destroy? Declare independence?

Would the turncoat legislators have joined the House super majority had they known of this independence agenda of the Speaker?

Will the Senate extend Alvarez its cooperation in enacting his plans?

A project with no terms of reference
Since it was first floated during the election campaign, it always troubled me that federalism was predetermined by its proponents as a solution to a problem or problems that they could not precisely define.

Sometimes federalism proponents say that it is the solution to conflict in the South.

At other times, they contend that it will assure development and better living standards for those sections of the country that feel deprived and neglected.

Equally troubling is the observation of some friends in business and public management, that federalism looks like a project with no terms of reference.

Terms of reference in project planning and management describe the purpose and structure of a project to accomplish a shared goal. It is often referred to as the project charter.

As someone who has spent a good part of his professional life in policy research and policy development, I submit that a change in political system is no ordinary change. It is a seismic shift in the political order and our political universe.

We can agree that all the country’s 13 regions, with the exception of the national capital region, will benefit from greater decentralization, increased devolution, and fiscal autonomy in relation to the central government.

We can agree that the country also needs more jobs, less poverty; more innovation, less inequality; and more unity, less conflict.

But there is clearly no urgent need for a wholesale shift to federalism to achieve such objectives. There are other more practical strategies and low risk alternatives, which also should be evaluated against objectives.

Federalism, or any major constitutional change, needs to be built upon solid foundations, not on the shifting sands of political opportunism, feeble political parties, electoral immaturity, weak institutions, and the dominance of political dynasties.

Drawbacks of federalism
Research among countries that have adopted or transitioned to federalism highlights some major issues about this governance model:

1. Federalism fails when it is driven by political interests and not social ideologies.

2. Federalism does not decrease inequality. In many instances it exacerbates inequality between states and regions.

3. Federalism does not create jobs, or a better business environment. States lack the skills to attract business, negotiate deals and provide quality services.

4. Federalism weakens the state as a whole.

5. Federalism prevents uniformity of laws and creates confusion.

6. Federalism is expensive to run.

7. Finally and for me most troubling, federalism will increase the number of politicians! And the overall cost of governing.

In a report published in 2006, the World Bank observed: “Presidential federal systems, compared to parliamentary systems, increase the probability of high corruption levels.”

Malaysia as model
During the recent election campaign, DU30 casually mentioned Malaysia as a possible model for Philippine federalism.

Malaysia?

Malaysia, the worm inside the BBL Trojan horse?

Malaysia, which has been fomenting Muslim secession in Mindanao since the Marcos era?

The other day, presidential peace adviser Jesus Dureza announced that the administration will resume peace talks with the Moro Islamic Liberation Front (MILF) in Malaysia.

Why Malaysia again, when it has never been an honest broker for peace talks? Malaysia, which is suffering from a $1.2 Billion fraud perpetrated by its prime minister?

A few days after the May 9 elections, Malaysia was quick out of the blocks promising to help us shift to Federalism. Really?

The very fact that Malaysia is involved in the federalism project should consign it to the dustbin.

The shifty talk from con-con to con-ass to con-com demonstrates deceit and desire to take a quick, easy, and lazy approach to political change.

The Philippines needs to apply an evolutionary approach based upon gradualism, and focus upon the fundamental pillars of democracy which are common to any system, irrespective of structure.

The defects of the federalism project show in the way an old proposal of Nene Pimentel is being dusted off by his son, the new Senate president, and peddled as a solution. No research, no evaluation, just a simplistic approach that raises more questions than it answers.

The lesson of Australia
It is also worth noting that some federated states have been studying lately how to reform their federal systems because of increasing difficulties and shortcomings.

Australia is one example. At the conclusion of its study on the costs of federalism for Austrialia, which was commissioned by the Business Council of Australia, Access Economics observed:

“Reform – and the greater prosperity it could bring – is increasingly falling foul of the overlaps and inefficiencies in our federal system of government.

“In brief, Australia’s federal system suffers from:

(1) too much overlap,

(2) too big a mismatch between what the States get via taxes and their spending,

(3) too heavy a Federal hand in areas of State responsibility,

(4) too much ‘destructive competition’ across jurisdictions, and

(5) too little cooperation across States and between States and the Australian Government.

How much does this cost?

“This will show up as:

(1) Higher than necessary costs of government

(2) Higher than necessary costs of doing business

(3) And lower than necessary living standards for ordinary Australians.

And yet Australia is one of the most successful states and dynamic economies in the world.

How do you think will we Filipinos fare with the federal system, given our legendary incompetence in governance?

yenmakabenta@yahoo.com

source:  Manila Times