Amicus Curiae
By Enrique F. Nitura
That title is one of the lines in the hit Broadway musical, Hamilton. It tells the story of the young, scrappy, and hungry United States of America when it was just gaining its independence from England. It explores the crossroads when 13 colonies eventually coalesced into one nation bound under a federal form of government.
The Philippines is at a similar crossroads now. Federalism has become a hot topic ever since the campaign of the new president. It has been offered as a possible solution to several societal problems of the Philippines. As a system of government, it is a radical departure from our current system of unitary government. Currently, we have one strong central government and several local government units which are subordinate to the central government. In a federal setup, the two levels of government, namely the central government and state governments, are of relatively equal stature and power. The most well-known example of a federal system of government is of course that of the United States. Several other examples exist, including Malaysia, Canada, Germany, Brazil, Australia, Mexico, Russia, and India. In most of these countries, federalism started when several smaller colonies or territories decided to unite and form one country. Philippine federalism would be different in the sense that one unified government will then form several states which are federated together to form one country.
At this point, we cannot be certain as to how Philippine Federalism might look like.
To be sure, there will be several aspects to consider when we shift to a federal form of government. For one thing, the system of taxation and commerce will have to be redefined to delineate which forms of revenue and taxation is reserved for the states and for the federal government. There will also be a need to redefine the legal and judicial system.
In most federal governments, the individual states have their own legal system, Constitution, and courts. The relationship of these state-level legal system and federal-level legal system must be properly defined in order to avoid friction and confusion. Aside from these, the relations of the individual states among themselves must also be properly defined. Definitely, the manner of doing business on both the federal and state level will be affected.
In any case, a shift to a federal system from the present unitary system of government would require a constitutional revision which is entirely different from a mere constitutional amendment.
In the landmark case of Lambino v. Comelec, the Supreme Court differentiated between an amendment and a revision. A change which “alters the substantial entirety of the Constitution, as when the change affects substantial provisions of Constitution” is a revision. On the other hand, an amendment is a change that “adds, reduces, or deletes without altering the basic principle involved.” The difference between an amendment and a revision is not just an academic distinction. Such difference determines which modes can be used in order to initiate the constitutional change. Article XVII, Sections 1 and 2 of the 1987 Philippine Constitution provides that constitutional revisions may only be implemented by Congress as a constituent assembly, or by a constitutional convention elected by the people. As discussed in Lambino v. Comelec, Constitutional revision cannot be implemented through a people’s initiative.
By all indications, a shift to a federal form from the current setup will entail a constitutional revision. Such a shift would definitely entail a rewriting of a majority of the provisions of the Constitution, resulting in far reaching changes in the basic governmental plan. The only way, therefore, for a valid shift to federalism would be through a constitutional convention or through Congress as a constituent assembly.
Despite not allowing for a direct participation by the people in the deliberations for the constitutional revisions, a Constitutional Convention or Congress as a constituent assembly does not entirely preclude the general public from participating in the shaping of the new Constitution. There is still public participation before, during, and especially after revisions are made because any change would still be submitted to the people through a plebiscite. Only after the people approve it in a plebiscite will the new Constitution, and a new federal form of government, will come into existence.
Several proposals for the mode by which amendments are to be made, as well as the substantive amendments themselves have been filed in the present 17th Congress. All of which are being considered by the respective committees on Constitutional Amendments. The Executive Branch has also weighed in on the possible constitutional revisions by issuing Executive Order No. 10, series of 2016 which mandated the formation of a Consultative Committee to review the 1987 Constitution.
The crossroads we are in right now calls all Filipinos to be vigilant and to participate in the continuing project of nation-building. A Constitutional change gives all Filipinos a shot to shape the country’s future and to think past tomorrow. Let’s not throw away our shot.
This article is for general informational and educational purposes only and not offered as and does not constitute legal advice or legal opinion.
Enrique F. Nitura is an Associate of the Litigation and Dispute Resolution (LDRD) of the Angara Abello Concepcion Regala & Cruz Law Offices (ACCRALAW).
